Kent Morgan Distributing Co.

National Labor Relations Board - Board Decisions

Aug 12, 1968

172 N.L.R.B. 1503 (N.L.R.B. 1968)

KENT MORGAN DISTRIBUTING COMPANY 1503
Kent Morgan Distributing Company and General
Drivers and Helpers Union Local No. 554, af-
filiated with International Brotherhood of Team-
sttrs, Chauffeurs , Warehousemen and Helpers of
America . Cases 17-CA-3364 and 17-RC-5553
August 12, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On April 17, 1968, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled con-
solidated proceeding, finding that 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 affirm-
ative action, as set forth in the Trial Examiner's
Decision. The Trial Examiner also found that
Respondent had not engaged in certain unfair labor
practices alleged in the complaint and recom-
mended dismissal thereof. In Case 17-RC-5553, the
Trial Examiner recommended that the challenge to
the ballot of LaVerne Wentling be overruled and
the challenge to the ballot of Gail Walter be
sustained.' Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in
answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Kent Morgan Distributing
Company, Lincoln, Nebraska, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS HEREBY FURTHER ORDERED that the com-
plaint be, and it hereby is , dismissed insofar as it al-
leges violations of the Act not found herein.
IT IS HEREBY FURTHER ORDERED, in Case
17-RC-5553, that the challenge to the ballot of
Gail V. Walter, which was cast in the election held
on January 9, 1968 , be, and it hereby is, sustained;
that the challenge to the ballot of LaVern
Wentling , be, and it hereby is, overruled ; and that
the Regional Director for Region 17 open and
count the ballot of LaVern Wentling and cause to
be served upon the parties a revised tally of ballots,
and the appropriate certification.
' No objections were filed to the election conducted in Case
17-RC-5553
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceed-
ing, brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136),
herein called the Act, was heard at Lincoln,
Nebraska, on February 13, 1968, pursuant to due
notice. A complaint, issued by the Regional
Director of Region 17 representing the General
Counsel of the National Labor Relations Board
(herein called the General Counsel and the Board)
on November 29, 1967, alleged that Kent Morgan
Distributing Company, Respondent herein, violated
Section 8(a)(3) of the Act by discharging LaVern
Wentling on October 3, 1967, because of his union
activity and also violated Section 8(a)(1) of the
Act by certain other specified conduct.
In its duly filed answer, Respondent denied the
commission of any unfair labor practices.
On October 11, 1967, the Union filed an RC
petition, Case 17-RC-5553. Pursuant to a stipula-
tion a consent election was held on January 9,
1968, in a unit comprised of all advertising em-
ployees, warehousemen and driver-salesmen em-
ployed at the employer's Lincoln, Nebraska, facility
but excluding all office clerical employees, profes-
sional employees, guards, supervisors as defined in
the Act, and all other employees. Three votes were
cast for the Union, two against, and two ballots
were challenged, those of Wentling, the alleged dis-
criminatee herein, and of Gail V. Walter, hired
after Wentling's discharge. On January 23, 1968,
the Regional Director issued an order directing a
hearing on the challenged ballots and consolidating
the matter with the complaint case.
Upon the entire record and from my observation
of the witnesses, I make the following:
172 NLRB No. 166
1 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material herein Respondent has been
a Nebraska corporation with its principal place of
business at Lincoln, Nebraska, where it is engaged
in the wholesale distribution of beer and related
products. During the year preceding issuance of
the complaint Respondent in the course and con-
duct of its business operations purchased materials
and products valued in excess of $50,000 from sup-
pliers located outside the State of Nebraska. During
the same period of time Respondent made gross
sales in excess of $500,000. At all times material
Respondent has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
If. THE LABOR ORGANIZATION
At all times material General Drivers and Helpers
Union Local No. 554, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, has been a
labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
Respondent's Organization
As of October 3, 1967,' in the operation of its
wholesale beer distribution business, Respondent
had a total of nine employees. These were com-
prised of (I) four driver-salesmen who sold the
beer to retail outlets within assigned areas or
routes; (2) one warehouseman, 90 percent of
whose work was performed in the warehouse but
who, on occasion, made "some deliveries" to
customers; (3) one man "mainly classified as an ad-
vertising man" who drove a company panel truck
and whose duties primarily "had to do with adver-
tising ... and merchandising" but who also acted as
a substitute driver-salesman relieving drivers during
vacations, illnesses , or other absences, (4) one man
classified as general manager or sales manager who
admittedly was a supervisor and who, on occasion,
might also substitute for a driver-salesman in the
case of an emergency; (5) two office girls, one ap-
parently on a part -time basis . Heading the entire or-
ganization was Respondent's president and treas-
urer, Kent Morgan.
Union Activity
In late September an effort was being made by
the Union to organize the employees of various
beer distributors in the Lincoln area. Pursuant to
this effort the Union conducted a meeting at its
headquarters on the evening of October 2. Three of
Respondent's driver-salesmen (Richard York, Ed-
ward McGarvie, and Charles Brown) and its adver-
tising man (LaVern Wentling) attended this meet-
ing and signed union cards.
Interference , Restraint, and Coercion
The following day, according to the undenied
and credited testimony, Morgan approached York
as he was loading his truck and said, "I heard you
went to a union meeting ." York said, "Yes." Mor-
gan said , "Would you mind telling me who all at-
tended?" York told him that besides himself, Mc-
Garvie, Brown, and Wentling had attended. Mor-
gan then asked why he had attended and York
replied that he had gone "to see what the Union
had to offer." When Morgan asked what there was
that York would want to find out about, York
"made the remark that they (the Union) had a good
plan with a retirement and so forth."
After talking to York, Morgan called Wentling
into the office, closed the door, and asked Wentling
if he had attended the union meeting the previous
night . Wentling replied that he had attended the
meeting . Morgan said, "How do you stand?" Wen-
tling said , "I stand with the majority." Morgan said,
"Then we can't use you any more." Thereupon en-
sued a discussion between the two reviewing
Wentling's past work record with Morgan ex-
pressing dissatisfaction with Wentling on various
counts . In his defense Wentling told Morgan that
during the preceding 9 months he had spent practi-
cally all of his time "on the route truck day in and
day out" which had made it very difficult to per-
form his own duties "as an advertising man." At the
end of the conversation Wentling left the premises.
That evening he called Morgan to see if his dismis-
sal "still stood" and was assured that it did.
In addition to York and Wentling, Morgan also
called warehouseman George Niederhaus into the
office that day and asked him if he "knew what was
going on" regarding the Union. Niederhaus replied
that he did. Morgan then asked Niederhaus to tell
him who had attended the union meeting.
Niederhaus refused to do so telling Morgan that he
wanted "nothing to do with it." Morgan said,
"That's o.k. then."
Later that day Morgan convened a formal meet-
ing with the employees in the warehouse office. At
this meeting he stated' that he had heard that the
employees had been to a union meeting and that
considering the small size of Respondent's or-
ganization he did not feel that they needed a union.
He indicated that he was against the Union but that
if need be he could live with it. He wanted to know
All events are in 1967 unless otherwise noted
What Morgan said at the meeting is a composite of the testimony of the
four witnesses called by the ( eneral Counsel , all of which stands undemed
in the record Some of the witnesses were uncertain as to whether particu-
lar matters were mentioned in this meeting or a similar meeting held by
Morgan with the employees the following day
KENT MORGAN DISTRIBUTING COMPANY 1 505
what the employees' complaints were and why they
had gone to the Union rather than coming to him
about them . He mentioned certain benefits he was
willing to give the employees such as a retirement
plan, profit sharing, better work schedules, holidays
off, and less Saturday work. He also mentioned that
they might lose present benefits if the Union came
in, such as the $18,000 life insurance policy he car-
ried on them at no cost to them. Sometime during
the course of the meeting Morgan interrupted the
discussion to inform the employees that he had
discharged Wentling.'
At a similar meeting with the employees the fol-
lowing day Morgan announced to them that hen-
ceforth they would have six holidays off; that there
would be no case delivery on Saturdays, only kegs
(an improvement ); that they would be called upon
to make no more than two deliveries a week to a
customer ( in contrast to three or four a week on
occasion previously );' that they would be called
upon to work only every third Saturday in contrast
to every Saturday morning as they had been work-
ing; that if they had to work an extra Saturday they
would get an afternoon off during the week in com-
pensation ; that they would now be paid both for sa-
lary and commission on a weekly basis as compared
to a monthly basis for salary and a yearly basis for
commission ; that they would now get double com-
mission for holiday work ; that Morgan "was going
to try to work out a better commission ... if he
could get more money on the case for himself"; and
that "he had looked at two or three different"
profit-sharing plans but had not yet found one he
wanted. All of the foregoing announced changes
thereafter became effective except that there was
no general increase in the commission rate and no
profit-sharing plan was adopted.
Admittedly some of the employees' problems had
been mentioned to Morgan and Dewey prior to this
time especially the holiday work and the call-in
problem, but nothing had ever been done about
them before these meetings, the employees simply
having been told in substance that the Company
would try to do something about them.'
According to Brown's undenied and credited
testimony, about November 20, Morgan came to
him while he was unloading his truck and called
him towards his car saying he wanted to talk to
Brown. In the car he told Brown that he "couldn't
talk in the warehouse about the Union, but it was
legal for him to talk ... off the premises ...... He
"brought up something about profit sharing. He
was looking at some, but ... his hands were tied.
He couldn't go into a profit-sharing deal as long as
(he) had the Union over his head." He then in-
formed Brown that Brown could draw his card out
of the Union if he wanted to-that all he had to do
was "write up and get it" without giving any reason
for his request. Thereupon he told Brown that he
would like to have him get together with York and
McGarvie and discuss with them the matter of
withdrawing their union cards. Brown indicated
that he would do so.
Two or three days later as Brown was leaving the
warehouse Morgan drove in and motioned for him
to stop. Morgan asked Brown if he had had an op-
portunity to talk to the other employees about the
cards. Brown said that he had spoken to them in-
dividually but they had not gotten together to
discuss it as a group. Morgan said, "If you get an
opportunity, get together with them and let me
know." He also told Brown at this time that "he
would prefer to go without the Union. Give him a
try the way (they) were working. If (they) didn't
like the way things were going, (they) could always
vote the Union in. That would be no problem. He
would like to change the things ... like profit shar-
ing." McGarvie also testified about having a sub-
stantially similar conversation with Morgan about
this same time.
The General Counsel contends that the foregoing
evidence establishes that Respondent interfered
with, restrained, and coerced its employees in viola-
tion of Section 8(a)(1) of the Act by (1) illegally
interrogating them about their union activity, (2)
creating the impression in them that their union ac-
tivities were under Respondent's surveillance, (3)
promising and granting them benefits to refrain
from union activity or support, (4) threatening
reprisals because of their union activity, and (5)
promising benefits if they would withdraw from the
Union. The General Counsel further contends that
the foregoing evidence also establishes that
Respondent discriminated against its employees in
violation of Section 8(a)(3) of the Act by discharg-
ing Lavern Wentling on October 3.
Except for the contention regarding the impres-
sion of surveillance, I agree with and find for the
' According to the testimony of Brown , who impressed me as being an in-
telligent and forthright witness , Morgan interrupted the discussion by inter-
jecting the comment , " Incidently, I let Vern go " According to York's
testimony Morgan had said "Oh, by the way , I hale let Mr Wentling go -
' One of the employees' biggest "gripes" was where customers failed to
stock sufficiently during regular dchseries and then called in for a special
delivery later This was particularly aggresating when the calls came on
holidays
s For instance, according to Brown 's undemed and credited testimony,
about 2 months before this the driscrs had discussed holiday work with
Dewey At that time Brown had asked Dewey why he and % entling could
not "run one route while (the driscrs) ran the other and cscnhods would
get the holidays off Dcwes replied that ''it sounded like a good idea It
was something )they ) would hale to work out Later Brown mentioned
the matter to Dewey again and Dewos replied that 'he was still working on
it '' According to ti ork s testunons Morgan had told the eniplosccs some.
time presioush that he was attempting to "work out' Lertam plans with the
Beer Wholesalers Association regarding holiday and Saturd is delis cries
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel on all counts .6 If I understand
Respondent 's contention , apparently Respondent's
position is (1) that any interrogation or comments
by Morgan here were " innoncent " and "casual" re-
marks occurring in friendly conversations
customarily engaged in between Morgan and his
employee and ( 2) that any promises made and
benefits granted at this time were merely the result
of previous commitments made to the employee by
Morgan.
Neither of these contentions presents a valid
defense . In my opinion , Respondent 's first conten-
tion is patently invalid . As for its second conten-
tion , the most that the record established is that the
complaints about " call-in " deliveries and holiday
and Saturday work were the only matters that had
been previously discussed with Respondent and
that the only commitment made by Respondent re-
garding them was that an effort would be made to
do something about them . Thus even if it might be
said that the promises and action by Respondent re-
garding these three matters had no contention with
the employees ' union activity , the promises of a
retirement plan, a profit -sharing plan, double com-
missions for holiday work and the accelerated pay-
ment of salary and commissions were matters never
before mentioned by Respondent and obviously
could not provide Respondent with an alleged
previous commitment as a defense here. In any
event , on this record I find that Respondent's con-
duct here is not excused by anything that went on
before. Thus , Respondent 's precipitous action on
some of the employees ' longstanding complaints
only after it was confronted with the imminent
unionization of its employees clearly establishes
Respondent 's illegal motive.
Discrimination
Respondent 's defenses regarding the discharge of
Wentling are ( I) that he was a supervisor within
the meaning of the Act and as such not protected
" I would not find the implication of surveillance here since it must have
been apparent to the employees that whatever knowledge Morgan had
about the employees ' union activity was obtained by his illegal interroga-
tion of them That interrogation and the promising and granting of benefits
to refrain from union activity are so obvious from the foregoing evidence as
to require no specific analysis or comment The threat of the loss of life in-
surance if the Union came in is clearly a threat of reprisal within the mean-
ing of the Act As for the allegation of a promise of benefit to the em-
ployees for withdrawing from the Union , while Morgan may not have
bluntly put the profit -sharing matter to Brown and McGarvie as a quid pro
quo for withdrawing from the Union , considering his comments in their full
context there could have been no mistake on their part that Morgan's re-
marks about profit sharing and their withdrawing from the Union
amounted to and were meant to amount to lust that
' Later Morgan answered in the affirmative when asked by his counsel if
part of Wentling 's responsibility was to be "in charge of the advertising de-
partment for Kent Morgan " The advertising "department " was made up of
one employee-Wentling
" Elsewhere Morgan testified that Wentling supervised the four driver-
salesmen and the warehouseman "as far as his advertising (was) con-
cerned" except that his supervision of the warehouseman extended only
to the unloading of advertising matenal received in shipment
by it and ( 2) that in any event his discharge was for
cause and not motivated by his union activity and
thus was not discriminatory within the meaning of
the Act. Let us examine first
The Alleged Supervisory Status of Wentling
In support of his contention that Wentling was a
supervisor Morgan testified as follows : That Wen-
tling worked for him about 5 or 6 years being
"mainly classified as an advertising man": 7 that he
had the "authority and responsibility to direct that
part of the work which had to do with advertising. . .
and merchandising",8 that he "was given the op-
portunity to select employees " for interview by
Morgan who had the sole power to hire them;9 that
he had authority to transfer employees from one
route to another " if he could show ( Morgan ) that it
was a help"; he also had authority to adjust
customer complaints but with respect to employee
grievances " he would only have been the liaison
man between the employee and [Morgan ]." " He
had no authority to suspend an employee and could
"only recommend " in that respect."
According to Morgan 's further testimony, he was
Wentling 's immediate supervisor12 and considered
Wentling "as a member of [Respondent 's] super-
visory and management group ." In response to a
question by his counsel if it "was part of his
[Wentling 's] responsibility to attend management
and supervisory meetings "Morgan testified as fol-
lows:
Yes, certainly . Most of those I held early in
the morning like 8 o 'clock . A good many times
Mr. Dewey and I visited together and he wasn't
even at work at this time or else he had chosen
to go to some other place . It was not a require-
ment he be there. 13
It was Wentling's job to "interpret company pol-
icy" regarding advertising to the men. As explained
to Morgan , " it wasn 't that LaVern was supposed to
put up every piece of point of sale (i.e., advertising
" He also testified that he had never hired an employee on the basis of
Wentling 's recommendation In his affidavit he had made a contrary state-
ment
"' Elsewhere Morgan testified that the employees had been instructed to
bring their grievances directly to him
" Later his counsel asked if Wentling had "authority to recommend or
promote an employee or assign him to a particular job or route and his
answer was , " to assign, yes "
"The testimony of sales manager Dewey contradicts Morgan here
Dewey testified that in his view Wentling was a supervisor If so the record
shows that Wending was subordinate to Dewey as illustrated by an incident
that occurred between them in 1966 According to Dewey, on that occa-
sion Dewey had asked Wentling to run a certain route and Wentling
refused Dewey asked Wentling the reason for his refusal and Wending
replied, "Because I don't have to " According to Dewey he then told Wen-
tling that if he was not going to run the route he might as well take the truck
back to the warehouse at which point Wentling capitulated and "ran the
route "
" Wentling testified that occasionally he was asked to attend such
meetings and only did so upon invitation
KENT MORGAN DISTRIBUTING COMPANY 1507
material) that we had to put up. He was hired to
motivate the drivers to put up point of sale. "14 Wen-
tling had no special reports to make other than a
daily report to Morgan as to where he had been
directing his efforts and a quarterly report to the
brewery showing Respondent's point-of-sale inven-
tory. Wentling was instructed to put the good
pieces of advertising in the "Class A accounts and
move the other pieces down, refurbish them." Ex-
pendable type advertising such as easy-to-place
paper "he should have authorized to driver-
salesmen but it was his responsibility to put up large
signs himself." If he needed assistance, according to
Morgan "we sent somebody with him."" Wentling
made the decisions where the large signs were to
go. Other employees would relay advertising
requests from customers to Wentling.
It was the duty "of someone in supervisory per-
sonnel" to instruct new employees, "to go out with
them on their truck, get them on the proper
delivery order, to make proper tickets, and to meet
the retailer." This duty devolved upon Wentling or
Dewey.'s Asked if Wentling "was ... assigned to
make any appraisal of the progress of these new
men and report back ..." Morgan answered, "This
is a natural thing to do. It is required. You always
ask how is the new man, it was up to him
(Wentling) to appraise him, correct."
Notwithstanding Respondent's insistence that
Wentling was a supervisor, when asked if Wentling
took action in the supervisory areas he was
authorized to act in Morgan replied, "In a good
many cases, no. Early in his employment he did a
better job than he did the final year or two. He
digressed from the work that was set out by me for
him to do." Moreover, it appears from Morgan's
further testimony that Wentling was not hired as a
supervisor nor, indeed, formally promoted to one
but simply "grew into" it. Although Morgan could
not state definitely that the older employees were
informed that Wentling was a supervisor, testifying
that he thought that "in the inception ... when he
(Wentling) came there ... my other employees
were informed this,"" he testified that employees
hired within the last year of Wentling's employment
were not so informed because "by this time Mr.
Wentling had digressed so much in management
that we didn't know where he was" and as a result
the supervisory status of Wentling became
questionable in Morgan's mind.
According to Morgan's further testimony, 2
weeks after Wentling's discharge Gale Walters was
hired because of "a deficit" in Respondent's person-
nel complement. Walters "was to be trained in the
advertising part and driver route salesman and to
fill in (in) any capacity that (he) might be needed"
for the purpose of seeing if "he had the ability to go
in one direction or another." As indicated, both
Dewey and driver-salesman Brown took a hand in
breaking him in. After "a short stab" by Walters at
the same type of work Wentling had been doing
(i.e., point-of-sale placement) he was called upon
to replace a disabled driver-salesman on one of the
route trucks where, according to Morgan, his
"basic training . . . would be just fine . . . as it
would be (in) any other place." Walters had no su-
pervisory authority and, according to Morgan, had
not at the time of his testimony replaced Wentling
to Morgan's "satisfaction, yet."
Received in evidence were four exhibits offered
by Respondent through the identification of Mor-
gan involving the enrollment of Respondent's per-
sonnel in brewery sponsored sales contests for the
years 1966 and 1967. There were two forms for
each year-one applying to sales managers and
route supervisors and the other to salesmen. In both
years Wentling and Dewey were the only ones
whose names were entered on the sales manager
and route supervisor forms while warehouseman
George Niederhaus was among those listed as a
salesman on the two salesmen forms. According to
Respondent the "status and designation" of the em-
ployees listed on the contest forms received in
evidence were taken from information contained in
the company payroll records and accurately
reflected those records.
Although Morgan did not mention in his
testimony that Respondent had secured a member-
ship for Wentling in the junior chamber of com-
merce and had paid his dues therein," such was the
fact that appears from Wentling's testimony who
also stated that in this membership he had made a
lot of friends and developed business for Respon-
dent.
Even in the absence of any countervailing
evidence on this matter from the General Counsel,
the foregoing testimony of Morgan raises con-
siderable skepticism regarding Wentling's alleged
supervisory status particularly in view of the
manner in which most of it was adduced. Although
repeatedly warned about it, Respondent's counsel
persisted in bringing out Morgan's testimony by
means of leading questions. And even then it was
devoid of any objective or factual foundation to
support Morgan's subjective assertions regarding
Wentling's alleged authority. When viewed in the
" Elsewhere Morgan testified that Wentling "was responsible for the
point of sale placements If he doesn't do it, he is falling down on his job "
151 accent "we " because with all the authority Wentling was supposed to
have I would have expected the answer to be that Wentling would direct
someone to accompany and assist him
1fl Apparently it also could devolve on the driver-salesmen since the
record shows that one of the driver-salemen , Brown , took part in the train-
ing of Walters in this manner
17 This is hardly consistent with Morgan 's testimony that Wentling was
not a supervisor at first
1M Apparently Wentling 's predecessor in the job had had a similar mem-
bership and Wentling was merely taking his predecessor 's place in that or-
ganization
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
light of the testimony given by the General Coun-
sel's witnesses , the flimsy nature of Morgan's asser-
tions is shown in its true light.
Thus, apart from what Wentling himself physi-
cally did (either on his own initiative or upon infor-
mation received from the drivers about the adver-
tising needs or requests of their customers) regard-
ing the placement , erection, cleaning , and refurb-
ishing of advertising material and his contacts with
the brewery about it,'9 his alleged authority to
direct that part of his work that had to do with ad-
vertising and merchandising would seem to boil
down to his asking the warehouseman to help him
move the heavier pieces of advertising material20 or
on occasion to enlist the help of the route drivers in
distributing certain material (such as involved cur-
rent sports events) in which time was of the essence
in getting it placed.21
That Wentling "was given the opportunity to
select employees" for interview by Morgan was not
unique with him but was an opportunity conferred
upon all the employees as appears from York's
testimony that it was Morgan's policy "to go
through his help to find a good man rather than put
an ad in the paper" and his further testimony that
Morgan had asked him to recommend someone re-
liable and further told York to "keep (his) eye out
for one."
In the same vein was Wentling's alleged authority
to transfer employees from one route to another "if
he could show (Morgan) that it was a help." This
qualification in itself tends to belie any authority on
the part of Wentling in this respect. But it would
appear that any worthwhile suggestions along this
line would be equally welcome from any of the
other employees as is shown from Morgan's
testimony that "all recommendations that coine
from either the field or the other management are
weighed and if they have merit, somethings ...
done about it. "22
As for Wentling's authority to adjust customer
complaints or have the drivers adjust them, these
amounted to such minor items as deficient deliv-
eries, improper stacking of beer cases, and the like
which complaints he simply "relayed" to the
drivers in accordance with company policy that the
employees "relay information to one another."2:' It
was the driver's responsibility to act on information
so received and to their benefit to do so.
Regarding Wentling's authority to "interpret
company policy" to the men regarding advertising,
the only "policy" reflected in the record in this
connection was that the best advertising material
was to be placed with the "Class A accounts."
As shown, the training of new men and the ap-
praisal of their performance were engaged in by
any of the employees as occasion demanded and
were not restricted to or required to be done by su-
pervisors only.
It is well established that it is actually what the
employee does as distinguished from what the em-
ployer or his job description2a might say he does
that determines whether he is a supervisor or not.
Nevertheless, such evidence as job descriptions and
the like may have some weight in resolving this type
of question. In this connection I refer to the
brewery sales contest forms offered in evidence by
Respondent and heretofore described and reject
them as not being particularly significant or diaposi-
tive in this matter. In the first place that they accu-
rately reflected the Respondent's payroll or other
records as contended by Respondent is disproved by
the fact that Niederhaus was listed on the
salesman 's form while admittedly he was carried on
Respondent's records as the warehouseman.
Without some evidence about the contests, and
their conduct which the forms purportedly per-
tained to, the mere fact that a man's name was car-
ried on either one in and of itself is of little value in
determining if he was indeed in the category named
on the form as is shown by Niederhaus' inclusion
on the salesman form. Furthermore, since Respon-
dent maintains that its payroll records would verify
and support the employees ' status reflected by the
contest forms, its failure to produce its payroll
records as a primary source of this information
would seem to require an inference adverse to
Respondent here. In any event, even if Wentling
was carried on the company records as a supervisor
it would not, in my opinion, be sufficient in the
context of all the facts herein to establish him as a
supervisor within the meaning of the Act.
As an employee whose duties were centered on
advertising and merchandising, moreover, I can see
no particular supervisory implication in Wentling's
company sponsored membership in the junior
chamber of commerce. Presumably it would be a
sound investment to place an advertising and
merchandising employee in an organization like the
junior chamber of commerce particularly in the
beer business. And the very nature of Wentling's
duties could also explain his meeting on occasion
with Morgan and Dewey to discuss, as he testified,
"what was happening out in the territory" pertain-
ing to the changing of accounts being handled by
drivers, special sales deals, or the like. Because his
advertising duties took him into every driver's terri-
tory he might very well have useful information for
" These contacts for the most part involved obtaining the football,
baseball, and basketball schedules of the University of Nebraska and their
transmittal (by "scratch paper" memos) to a brewery representative and
the filing with him of quarterly inventories of advertising material-both of
which obviously could have been performed by the office girls
SO As testified by Nicderhaus
" As was testified by wending
2S Prior ro this testimony Morgan had testified that he would look into
suggestions made "in the normal course of business" or delegate their in-
vcsugation to Mr Dewey or even to a driver
21 Wentling so testified Closely related to this policy was Respondent's
further modus operand, as shown by York's testimony that it was "every-
body's responsibility" to develop business "on all routes, all accounts."
_' Respondent claimed that Wenthng 'sfob was reflected in a written job
description which had been lost prior to the hearing
KENT MORGAN DISTRIBUTING COMPANY 1509
Morgan on such matters, totally unconnected with
any supervisory capacity on his part.
The most that can be said for Respondent's posi-
tion on this record is that at some point in his em-
ployment Morgan may have entertained the possi-
bility of Wentling's becoming a supervisor or
possibly even so viewed him. But it would appear
from Morgan's own testimony that if indeed Wen-
tling "grew into" a supervisor, he also had grown
out of it long before he was discharged. Ac-
cordingly I find that at the time of Wentling's
discharge he was not a supervisor and of course was
entitled to the protection of the Act.25
The Motive for Wentling's Discharge
Respondent's alternative defense is that even if it
be determined that Wentling was not a supervisor,
his discharge was for cause and had no connection
with union activity. To this end Respondent ad-
duced considerable evidence regarding Wentling's
derelictions and deficiencies as an employee.
Whether or not Morgan was aware of all of these
things before the discharge or the decision to
discharge was made is questionable.26 It is also
questionable to what extent and depth Morgan's
dissatisfaction with Wentling went before the
discharge or to what extent Wentling's short-
comings in his advertising work (the only area of
his work to which complaints were directed)27 were
caused (and perhaps justified) by being called upon
to drive route trucks about 75 percent of the time .21
There is also some question as to what extent
Dewey may have self-righteously influenced Mor-
gan against Wentling.29
Regardless of what the answers to any of these
questions might be they would not eliminate the
fact that at the time of his discharge Morgan had
voiced some reservations to Wentling about the
caliber of his work which were probably sincere.
But in the context of the entire case and Morgan's
comment when he learned that Wentling would
side with the majority, i.e., not with Morgan, the
conclusion is inescapable that Wentling would not
have been discharged but for his position regarding
the Union and that this attitude played an impor-
tant part in the discharge. I so find. Thus, even
though there might have been valid cause to
discharge Wentling and even though he might even-
tually have been discharged for such cause quite
apart from any union considerations , since the
union attitude did play a part in his discharge it
must be considered discriminatory within the mean-
ing of the Act and a violation of Section 8(a)(3)
thereof. Whitfield Pickle Company, 374 F.2d 576,
582 (C.A. 5).
THE OBJECTIONS
Having found that LaVern Wentling was dis-
criminatorily discharged in violation of Section
8(a)(3) of the Act, it follows that the objection to
this ballot should be overruled and his ballot
counted. And having found that Gail V. Walters
was hired as a replacement for Wentling and would
not have been in Respondent's employment at the
time of the election but for the discharge of Went-
ling, the objection to Walters' ballot should be sus-
tained and it should not be counted. I so recommend.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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 Respondent has engaged in
certain unfair labor practices, I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discharged
LaVern Wentling for engaging in activity protected
by the Act, I will recommend that Respondent be
ordered to offer Wentling immediate and full rein-
statement to his former or substantially equivalent
position, without prejudice to his seniority and
other rights and privileges, and make him whole for
any loss of earnings he may have suffered by pay-
ment to him of a sum of money equal to the
amount he normally would have earned as wages
from the date of his discharge to the date of an
25 One other factor I believe has a hearing on this matter That is that
Walters, whom I find was hired as a replacement for Wentling, although he
was doing the same work as Wentling both in advertising and as a relief
driver admittedly was not a supervisor
16 Morgan admitted that some of Wentling's deficiencies were "dis-
covered after Vern was released " It would also appear from Morgan's
testimony that he "started making inquiries, recapping route sheets, visit-
ing with advisors" in connection with Wentling's performance on the
day he discharged Wentling and after he had made the decision to
discharge him
" Wentling's testimony stands undemed in the record that in his termina-
tion discussion with Morgan the latter had told him that he "was a tremen-
dous route driver or route salesman "
=" Wentling's testimony that during the preceding year he had driven
route trucks about 9 months stands undemed in the record
2' The difficulty between Wentling and Dewey regarding Dewey's having
ordered Wentling to drive a certain sales route has been noted According
to Dewey's testimony, he had been criticizing Wentling's work to Morgan
for a long period of time and had recommended Wentling's dismissal al-
most a year before it had occurred Considering that Dewey and Wentling
were both attractive appearing young men about the same age a certain
amount of competition could naturally he expected Dewey also testified
that Morgan had told him in the summer of 1966 that he was going to
discharge Wentling
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer of reinstatement , less net earnings during said
period , with backpay computed on a quarterly basis
in the manner established by the Board in F. W.
Woolworth Company , 90 NLRB 289, 291-294, in-
cluding interest as held in Isis Plumbing & Heating
Co., 138 NLRB 716.
I shall also recommend that Respondent preserve
and make available to the Board , upon request,
payroll and all other records necessary to facilitate
determination of the amount due under this
Recommend Order.
In view of the nature of the unfair labor practices
committed , I am of the opinion that the commission
of similar unfair labor practices may be reasonably
anticipated . I shall therefore recommend that
Respondent be ordered to cease and desist from in-
fringing in any other manner upon the rights
guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Kent Morgan Distributing Company is en-
gaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
2. General Drivers and Helpers Union Local No.
554, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent engaged in unfair
labor practices proscribed by Section 8(a)( I) of
the Act.
4. By discharging LaVern Wentling on October
3, 1967 , because of his union activities thereby
discouraging membership in the aforesaid labor
organization , Respondent has engaged in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6)
and (7) of the Act
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclu-
sions of law and the entire record in this case, and
pursuant to Section 10(c) of the National Labor
Relations Act, as amended , it is hereby ordered
that Respondent , Kent Morgan Distributing Com-
pany , its officers , agents, successors, and assigns,
shall:
1 Cease and desist from:
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall he 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
(a) Discouraging membership in, or activities on
behalf of, General Drivers and Helpers Union Local
No. 554 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , or by any other labor organiza-
tion , by discharging or in any other manner dis-
criminating against them in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Threatening its employees with reprisals if
they should acquire membership in or engage in ac-
tivities on behalf of or in support of the above-
named Union.
(c) Illegally interrogating its employees concern-
ing their union membership or activities.
(d) Promising or granting benefits to its em-
ployees in an effort to cause them to reject the
Union as their bargaining representative.
(e) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights to self-organization , to form labor or-
ganizations , to join or assist General Drivers and
Helpers Union Local No. 554 , affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection , or to refrain from engaging in such ac-
tivities.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer LaVern Wentling immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority or other rights and privileges , and make
him whole for any loss of pay he may have suffered
as a result of the discrimination against him in the
manner provided in the section of this decision en-
titled "The Remedy."
(b) Preserve and , upon request, make available
to the Board or its agents, for examination and
copying , all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Notify LaVern Wentling if presently serving
in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(d) Post at its warehouse in Lincoln, Nebraska,
copies of the attached notice marked " Appen-
dix."30 Copies of said notice, on forms provided by
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
KENT MORGAN DISTRIBUTING COMPANY
the Regional Director for Region 17, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.31
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in or
activities on behalf of General Drivers and Help-
ers Union Local No. 554, affiliated with Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization, by discharging
employees or in any other manner discriminat-
ing against them in regard to their hire or
tenure of employment or any term or condition
of employment.
WE WILL NOT threaten our employees with
reprisals because of their membership in, sup-
port of, or activities on behalf of the above-
named Union.
WE WILL NOT illegally interrogate our em-
ployees concerning their union membership or
activities.
WE WILL NOT promise or grant benefits to
our employees in an effort to cause them to re-
ject the Union as their bargaining representa-
tive.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights to self-organization, to
form labor organizations, to join or assist the
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
1511
above-named Union, or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, and to refrain from any
or all such activities.
WE WILL offer LaVern Wentling immediate
and full reinstatement to his former or substan-
tially equivalent position, without prejudice to
his seniority or any other rights and privileges
previously enjoyed, and make him whole for
any loss of pay he suffered as a result of the
discrimination against him.
WE WILL notify LaVern Wentling if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
All of our employees are free to become or
remain, or refrain form becoming or remaining,
members of General Drivers and Helpers Union
Local No. 554, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
Dated By
KENT MORGAN
DISTRIBUTING COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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 provisions, they may
communicate directly with the Board's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR
4-5181.
writing, within 10 days from the date of this Order. what steps Respondent
has taken to comply herewith "