Lapeka, Inc.,

National Labor Relations Board - Board Decisions

Jan 7, 1971

187 N.L.R.B. 750 (N.L.R.B. 1971)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lapeka, Inc., and Truck Drivers & Helpers Local
Union No. 696, affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen,
and Helpers of America . Case 17-CA-4262
January 7, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 21, 1970, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the Trial Examiner's
Decision attached hereto. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a brief in support of its exceptions.
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.
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 recommendations of the
Trial Examiner.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board adopts as Its
Order the Recommended Order of the Trial Examiner
and hereby orders that the Respondent, Lapeka, Inc.,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.'
i In footnote 19 of the Trial Examiner's Decision substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VosE, Trial Examiner: This case, heard at
Topeka, Kansas, on June 30 and July 1, 1970, pursuant to a
charge filed the preceding April 9 and a complaint issued
on May 20,1 presents questions whether the Respondent
discharged Allan Johnson on April 3, 1970, in violation of
Section 8(a)(3) and (1) of the Act, and whether the
Respondent by withdrawing certain privileges engaged in
1 All dates herein are in 1970, unless otherwise indicated
2 The General Counsel's unopposed motion to correct the record
interference, restraint , and coercion, in violation of Section
8(a)(1) of the Act.
Upon the entire record2 and my observation of the
witnesses, and upon due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE RESPONDENT 'S BUSINESS
The Respondent, a Kansas corporation having its
principal office and place of business located at Topeka,
Kansas, is engaged in the wholesale distribution of Coors
beer and related products from warehouses maintained and
operated by it in the cities of Topeka and Lawrence,
Kansas. In the course and conduct of its business, goods or
services valued in excess of $50,000 yearly are purchased by
the Respondent from sources outside of Kansas. Upon
these undenied allegations of the complaint, I find that the
Respondent is engaged in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers & Helpers Local Union No. 696, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion in
Violation of Section 8(a)(1) of the Act
1. Background; the organizatiorf of the Union;
the Union's victory in the election
Early in January 1970 Allan Johnson, one of the
Respondent's driver-salesmen at its Topeka warehouse,
consulted James Glenn, assistant business representative
for the Union, for advice about organizing the Respon-
dent's employees. Following Glenn's suggestion, Johnson
arranged to have a group of his fellow employees at Topeka
meet with Glenn at the union hall. At a second meeting in
January, cards authorizing the Union to act as bargaining
representative were circulated among the employees; these
were later signed and turned over to the Union. A third
union meeting was held early in February. This meeting
was attended by some of the Lawrence employees, as well
as the Topeka employees.
On January 30, the Union filed with the Board's Kansas
City Regional Office a petition for certification as the
bargaining representative of the employees of the Respon-
dent's Topeka and Lawrence warehouses (Case
17-RC-6303). The Respondent entered into a stipulation
for certification upon consent election, which was approved
by the Regional Director on February 18. The election was
scheduled for March 10.
In the 10-day period preceding the election the Respon-
contained in his brief is hereby granted
187 NLRB No. 109
LAPEKA, INC.
dent carried on an intensive "vote no" campaign in a series
of bulletins and handbills which were distributed among
the employees. In the February 28 bulletin the Respondent
charged the Union with making worthless promises. In its
March 2 bulletin, the Respondent stressed the loss of jobs
resulting from the closing of plants caused by union-called
strikes. In a bulletin distributed the next day, the
Respondent again emphasized the lack of job security in
organized plants, citing the loss of jobs by 24 employees
who were replaced during a strike at the company which
manufactured the cans for Coors beer. The Respondent's
March 4 bulletin accused the Teamsters Union of walking
out on the employees in two plants after failing to reach
agreement with the employers and warned the employees to
be wary of being left "holding the bag." The March 5
bulletin concluded with the following plea:
To maintain your own individuality-to keep the
Union out of your pocket-to keep yourself out of
Union troubles-we urge you to
VOTE "NO"
Two handbills appealing to the employees to "VOTE NO"
were also distributed during the Respondent's preelection
campaign.
The election was held on March 10 and the tally of
ballots showed that of the 11 ballots cast , 7 were in favor of
the Union , 3 were voted no, and there was 1 challenged
ballot.
2. The Respondent's withdrawal of certain
employee benefits or changes in employee practices
after the election
a. Coffee drinking
It had been the Respondent's practice at both warehouses
to have coffee available for the employees while the driver-
salesmen were getting ready to leave on their routes. The
Respondent paid for the coffee and it was customarily
prepared by Walter Wettengel, the Respondent's ware-
houseman. On the morning after the election Wettengel
arrived at the warehouse about 6 a.m. As he started making
the coffee Don Maurer, the Respondent' s sales manager,
said something to him indicating that he was not to make
coffee.3 Wettengel did not make coffee the following day
either. On the afternoon of the second day after the
election , Eldon Danenhauer, the Respondent's president
and owner, directed Wettengel to make coffee on the
following morning.
The General Counsel contends that the Respondent's
temporary discontinuance of the coffee drinking practice
commencing on the morning after the Union won the
election was in retaliation for the employees having voted
for union representation and that this action constituted
interference, restraint, and coercion in violation of Section
8(a)(1) of the Act. The Respondent offers no plausible
explanation for its changing the longstanding practice at
this time . In view of this fact and in view of the timing of
3 According to Maurer, all he said to Wettengel as he was commencing
to make the coffee was "let's go ahead and get the trucks loaded."
Whatever words were used by Maurer, it is evident that Wettengel
751
the Respondent's action, as well as the Respondent's
detrimental changes in other practices at about the same
time, discussed below, and its discharge of one of its most
experienced driver-salesmen less than a month later
because it suspected that he was the instigator of, or active
in, the union movement, I conclude that the Respondent's
discontinuance of its practice of furnishing coffee to the
men in the morning was intended to, and necessarily did,
impress on the employees its objections to their decision to
have union representation. Such conduct violated Section
8(a)(l) of the Act.
b. Keys to the warehouse
It had been the practice of the Respondent's predecessor
prior to the time the Respondent took over the distributor-
ship in March 1968, which the Respondent continued
during the following 2 years, to issue keys to the warehouses
to all warehousemen and driver-salesmen . Commencing on
the day after the Union won the election the Respondent
started picking up the warehouse keys from the driver-
salesmen. In addition, the Respondent required the return
from Driver-Salesman Hennessee, who had the duty of
making night deposits at the bank, of his night deposit key.
At the time the Respondent took this action against the
employees, it gave. them no explanation therefor. However,
at sales meetings at both warehouses about a week after the
election, the Respondent's representatives stated that the
action was taken to lessen their responsibility in the event
of thefts from the warehouses.
While some of the driver-salesmen were not seriously
inconvenienced by having to give up their warehouse key,
others, particularly the Lawrence driver- salesmen, were.
The Lawrence warehouseman did not remain continuously
at the warehouse and not infrequently the driver -salesmen
returned to the warehouse at times when the warehouseman
was absent and the warehouse was locked. They had to wait
as long as 2 hours for the warehouseman to return and their
work was held up accordingly. This would happen about
twice a week. At the Topeka warehouse the driver- salesmen
were handicapped mainly on the occasional Saturdays on
which they had to work and when they arrived at the
warehouse early and the warehouseman was not there.
Driver-Salesman Hennessee was delayed in making
company deposits at the bank after his night deposit key
was taken away from him because each time he had to
locate the elevator man and have him open the night
deposit box for him.
About a month later, after receiving complaints from the
Lawrence driver-salesmen , the Respondent relented and
returned their warehouse keys to them.
President Danenhauer testified that he had been
contemplating taking this action regarding the keys ever
since he took over the business, that he finally decided the
weekend before the election to make the move, and that on
the day of the election he issued instructions to Sales
Manager Maurer at Topeka and Warehouse Manager
Monson at Lawrence to retrieve the keys. In view of the
length of time Danenhauer had been considering this
interpreted them as instructions to discontinue making coffee and that
Maurer acquiesced in this interpretion.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
move-2 years since he acquired the business and 9 months
since the completion of the Lawrence warehouse-and the
timing of the action-the next day after the Union won the
election-I have considerable difficulty in believing that it
was just a coincidence that the action was taken
commencing on the day after the Union won the election.
That the Respondent's decision was not altogether sound
from a business standpoint is indicated by its action in
returning the keys to the Lawrence driver-salesmen after
about a month. Under all the circumstances I do not credit
Danenhauer's testimony in effect that the decision to pick
up the keys was reached before the results of the election
were known. Rather I conclude that the Respondent's
action was precipitated by the Union's victory in the
election and was intended, and necessarily had the effect of,
demonstrating to the employees its strong disapproval of
their decision to have union representation. The Respon-
dent's action in this regard, like its discontinuance of the
coffee drinking privilege, interfered with, restrained, and
coerced its employees in the exercise of their statutory
rights, in violation of Section 8(a)(1) of the Act.
c. Beer drinking
Ever since the Respondent took over the distributorship
it had had areas in the warehouses where it allowed the
employees to drink beer in moderate quantities after work
at company expense, either from kegs of draft beer or from
unsaleable dented cans which were kept there. At the first
sales meetings after the Union won the election, held on
March 17 at Topeka and March 18 at Lawrence, the
Respondent announced that the employees would no
longer be permitted to drink beer in the warehouses.
Danenhauer explained that he had received "a lot of
complaints" from the wives of the driver-salesmen about
the men getting home late and "in bad shape" and that the
new rule would permit the drivers to get home earlier and
spend more time with their families.4 About a month later,
at sales meetings, the Respcndent's representatives an-
nounced that the restriction on beer drinking in the
warehouses was being lifted, that beer would be available
for the men in moderation, after they had checked in, had
their pallets restacked so as to be ready for loading in the
morning, and were out of uniform.
President Danenhauer's attempted justification for
discontinuing the beer drinking privilege in the warehouses
on the grounds of the many complaints he had received
from the wives of drivers is not too persuasive in the view of
the fact that, when pressed to be more specific, Danenhauer
could recall only one complaint (from Mrs. Wettengel, the
warehouseman's wife) and "passing comments" from
driver-salesmen's wives, of which he mentioned only one,
4 The Respondent announced at the same time that the driver-salesmen
would no longer be permitted to drink beer on the premises of their
customers as they were making their deliveries It appears that the
customers occasionally offered beer to the driver-salesmen while they were
making stops at the various establishments which they served. President
Danenhauer testified that while it was always contrary to company policy
for driver-salesmen to drink while on their routes, he was aware that the
policy had not previously been enforced and that he intended that the
policy be fully adhered to in the future I do not intend to consider this
aspect of the case further Even were I to find the Respondent's action in
this regard to be an unfair labor practice, it would not be appropriate, in
and in view of the further fact that after about a month he
permitted the beer drinking to be resumed. Under all the
circumstances I do not credit Danenhauer's testimony that
the change in the beer drinking rules at the warehouses had
nothing to do either with the election or the union activities
of the men. Rather I conclude that the Respondent's
suspension of the employees' beer drinking privilege was a
further open manifestation of its opposition to the
employees' choice of the Union in the election. Such action
also violated Section 8(a)(I) of the Act.
B. The Discharge of Allan Johnson in Violation of
Section 8(a)(3) and (1) of the Act
1. Johnson's work record
Johnson, an experienced driver-salesman for brewery
products, was hired by the Respondent on September 6,
1968. At the time of Johnson's discharge, three, at most, of
the Respondent's nine driver-salesmen at Topeka and
Lawrence had been in the Respondent's employ longer
than Johnson.5 All but one of the driver-salesmen hired
after Johnson had worked for the Respondent less than a
year and some of them only a few months. Despite his
longer period of employment Johnson had never had an
accident during his entire period of employment until the
minor accident which occurred on April 1 and which
allegedly was a contributing factor in his discharge on April
3. In this accident, as the Respondent' s sales manager,
Maurer, testified, the total damage amounted to $10 to $12.
Most of the Respondent's other drivers had considerably
worse accident records than did Johnson. Stephen Foland
had had two accidents in the year that he had been in the
Respondent's employ. In one of these he did $100 worth of
damage to the other truck. William Kennedy had had three
accidents in the 9 months that he had been in the
Respondent's employ; Nottingham had had two accidents
in about 2 years; Hennessee had had one accident in 6
months; and Yager had had five accidents in about a year.
Yager's accidents caused several hundred dollars worth of
damage.
President Danenhauer admitted that Johnson was
punctual in reporting for work and that in his consistency
of attendance he was better than the other drivers. The
Respondent gave Johnson a $12 a week pay increase in
February 1970 because of his increased sales in 1969.
Danenhauer's testimony indicates that Johnson had the
fourth highest sales of the Respondent's nine drivers at
Topeka and Lawrence.6 However, volume of sales does not
necessarily accurately reflect a driver-salesman 's ability to
produce, as Danenhauer testified. It depends on the route
and Johnson's route was less desirable, at least in the eyes
my opinion, for me to order the Respondent to allow the drivers to resume
their old beer drinking practices while on their routes The prohibition of
such practices by truckdrivers seems so eminently reasonable and so
necessary for the protection of an employer in the beer-distributing
business, that there seems little room for disagreement on this point.
5 The record disclosed the names of nine driver-salesmen and the
approximate dates of hire of eight of them. Only two of the eight driver-
salesmen as to whom dates of hire are given were hired before Johnson.
6 When asked which drivers were making more money than Johnson,
Danenhauer named Bob Grzesk , Melvin Martin, and Gene Smith
LAPEKA, INC. 753
of Driver-Salesman Martin, one of the three high
producers, than Martin's. Martin turned down Johnson's
route when it was offered to him by the Respondent after
Johnson's discharge. Danenhauer testified that he had
never received any complaints from customers concerning
the manner in which Johnson performed his work prior to
the incident on April 1. Danenhauer further testified that he
had never previously had any serious problems with
Johnson's work performance and no problems concerning
which he found it necessary to speak to Johnson
individually. From all of the foregoing I conclude that
Johnson was on the whole an above-average driver-
salesman.
2. Johnson's union activities; the Respondent's
knowledge thereof
As found above, Johnson made the original contact with
the union business representative concerning the organiza-
tion of the Respondent's employees. Johnson arranged for
the first organizational meeting and invited his fellow
drivers at Topeka to attend. Johnson attended all three
union meetings and invited warehouseman Wettengel to
attend the second meeting. At the third union meeting in
February, which was attended by some of the Lawrence
employees, Johnson participated in the discussion in favor
of the Union. William Kennedy, a Lawrence driver-
salesman who did not join the Union and acted as the
Respondent's observer at the election, testified that in the
course of a conversation with Danenhauer at a sales
meeting after the third union meeting he "probably did"
mention the fact that the Topeka employees attended the
meeting and that, in response to a question from Kennedy,
"Al [Johnson) might have explained this one point to me." 7
Both Danenhauer and Maurer denied knowledge of
Johnson's union activities before his discharge. The record
as a whole, in my opinion, indicates to the contrary.
A statement given by Ann Stewart, the Respondent's
"secretary, receptionist, bookkeeper accountant" and office
girl8 to counsel for the General Counsel casts light on
Danenhauer's knowledge of Johnson's role as the instigator
of the union movement. There is a very serious conflict in
the testimony as to when this knowledge was acquired,
however. Danenhauer admitted that Stewart had told him
in effect "I think Al [Johnson} was the instigator or leader
of the Union." Danenhauer was certain, however, that this
statement had been made during the week after Johnson's
discharge. Stewart's testimony on the matter of the timing
of the statement was confused and inconsistent When first
r Although Kennedy was very cautious in his testimony and professed
not to be sure that he had mentioned Johnson to Danenhauer, I am
convinced that had Kennedy not had some recollection of Johnson's
speaking on this occasion he would not have brought up Johnson's name at
all, for Kennedy appeared to be fully alert to the kind of testimony which
would hurt or help the Respondent's case and to be reluctant to give any
testimony which would hurt the Respondent's case
9 This is Danenhauer's testimony
9 While Stewart was not asked to and did not sign this statement, she
testified that before giving the statement she swore to tell the truth and that
she had initialled corrections and deletions in the document Stewart's
initials appear five times next to changes in the crucial paragraph I find
that Stewart thereby adopted this paragraph as her own
is In one of these conversations, with Driver-Salesman Stephen Yager,
after Johnson's discharge, Stewart, after expressing the opinion "that the
examined about this subject matter Stewart testified that
she made one statement to Danenhauer about Johnson
after he was fired to the effect that she "thought that Al was
the instigator, the ring leader of the union activities."
Stewart was then shown a statement which she had given
counsel for the General Counsel 6 days earlier in which she
had sworn that this conversation occurred "sometime
before the election."9 Then Stewart was asked "Do you
recall whether at the time you made this statement it was
true?" Stewart answered, "Under oath, yes, sir, at that time
" At this point counsel for the General Counsel
interrupted to offer the statement in evidence. Upon further
questioning about the time of this conversation Stewart
pleaded inability to recall saying "I don't know if it was
before, after, dunng, I don't know." I believe that Stewart
was genuinely confused at this point.
In resolving the confused and conflicting testimony
concerning this incident I have taken the following facts
into consideration. Stewart admitted that since January she
had overheard driver-salesmen make comments to the
effect that Johnson was the instigator of the union
movement. Stewart has the office next door to Darien-
hatter's and there is a connecting door between. Stewart is
in and out of Danenhauer's office 10 to 20 times a day when
he is in his office. As stated above, the election was held on
March 10 with the Union winning seven to three. At the
time of Johnson's discharge on April 3, the Union was no
longer the controversial issue it had been before the
election. The Respondent's objections were pending before
the Regional Director and the determination of bargaining
agent was up to the Regional Director and the Board. It
seems less likely that Stewart would have made such a
comment about Johnson at this time, after things had
quieted down, than earlier, when the subject of the Union
was being actively discussed.
Furthermore, undenied testimony concerning statements
made by Stewart after the election in the presence of driver-
salesmen indicates that Stewart was sympathetic to
Johnson and did not approve of the Respondent's
treatment of him.iO In view of this fact I think it unlikely
that she would have made such a statement at any time
when she was aware of any possibility of such a comment
getting Johnson into trouble. This suggests that the
statement was made early in the union campaign, before
Stewart became aware of Danenhauer's hostility to the
Union.
As to the possibility of Stewart's having made the
comment to Danenhauer about Johnson after Johnson's
discharge and after Business Representative Glenn had
firing of Al Johnson was a test and somebody had to go who ever made a
mistake first," stated that she "didn't think it was right that Al (Johnson ]
should be fired" The second statement was made in the course of a
conversation with Driver-Salesman Melvin Martin after the election and
before Johnson's discharge This conversation occurred after Johnson had
failed to note his number on a check as a result of which Stewart did not
know to which driver-salesman to credit the check When Stewart asked
Danenhauer to whom to credit the check, he said Johnson , and added,
"Well, just let it go , because that will be another reason to let him go in the
end" In the conversation with Martin, Stewart related Danenhauer's
statement quoted above to Martin, explaining that Danenhauer had said
this "Just a little while before," and she added that "she didn't think it was
right" Stewart was not called as a witness after Martin testified
Danenhauer failed to recall any such incident . I find that Stewart had the
conversation with Martin, as testified to by him.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought Johnson's reinstatement, this would have put her in
the position of criticizing Danenhauer's action with respect
to Johnson, for by that time it must have been evident to
any alert person-and Stewart impressed me as being very
alert-that Johnson's discharge was going to lead to a
problem with the Union.ii While Stewart was sympathetic
to Johnson, her overwhelming loyalty was to Danenhauer
and I am convinced she would not have permitted her
sympathy for Johnson to cause her to put her in the
position of appearing to criticize Danenhauer. For all of the
foregoing reasons I find, in accordance with Stewart's
statement to counsel for the General Counsel, which she
stated was true at one point in her testimony, that Stewart
made the comment to Danenhauer about Johnson being
instigator of the union movement early in the union drive.
In any event, regardless of whether Danenhauer was
informed and believed that Johnson was the original
instigator of the union movement, in view of Johnson's
support of the Union from the very beginning, the rapidity
with which news of such activities ordinarily spreads in a
small plant, as is evidenced here by Stewart's overhearing
conversations about Johnson's union activities, the infor-
mation reported to Danenhauer by Driver-Salesman
Kennedy about Johnson's favoring the Union a; the third
union meeting, and the outcome of the election, seven to
three in favor of the Union, I conclude that Danenhauer at
least suspected at the time of Johnson's discharge that he
was a union supporter.
3. Johnson's discharge on April 3 and the events
preceding it
About 10:30 a.m. on April 1 Johnson made his weekly
visit to Hartzell's Grocery, a relatively small family-run
grocery store. Johnson went into the warehouse which is a
separate building behind the store and checked the supply
of Coors beer. There were 4 cases of 15-ounce cans and 6
cases of 12-ounce cans in stock. Deeming this a sufficient
supply, Johnson left the warehouse after a brief discussion
with the warehouseman. It was raining and snowing at the
time . Johnson did not check the beer cooler or the warm
shelf in the store. According to Johnson, the warehouseman
ordinarily kept the cooler filled and would inform Johnson
when the cooler needed filling.12 However, Johnson
acknowledged that he was responsible for not only keeping
the warehouse supplied, but the store as well, and that he
was also responsible for checking the rotation of the stock
to make sure that the oldest beer was placed in front or on
top so that it was sold first.
When Johnson reached his truck he found that his
normal exit forward was blocked by another truck and so
11 Danenhauer received a copy of the Union's charge on Friday of the
week in which he testified that Stewart made the statement to him
12 Hartzell 's warehouseman , Woodrow Baker, testified that although he
did not take care of beer inside the store, he did "try to see that the boys
put some in when they run out " It would appear that with Johnson
making only one stop a week at Hartzell 's, there would be times in between
stops when the beer stock in the store would have to be replenished from
the warehouse I conclude that Johnson had an informal understanding
with store personnel concerning keeping the store stocked
i3 This findings is based on Johnson's credited testimony Mike Kelly,
although still in Hartzell 's employ at the time of the hearing , was not called
as a witness Warehouseman Baker testified that he was 40 to 50 feet from
the truck and that Kelly was 15 to 20 feet from the truck when the accident
he attempted to back up. As he did so, his front bumper
hooked the right-hand door from the grocery's garbage
storage bin and knocked it completely off. One hinge was
torn loose in the process. Mike Kelly, a young warehouse-
man's helper employed by Hartzell's, told Johnson, "Don't
worry about it and motioned Johnson on.13 Johnson
backed on out and left the premises without speaking to
anyone in the grocery store about the accident. Johnson did
not report the accident to the Respondent's warehouse
either.
When Johnson called the warehouse two stops later
Wettengel, the Respondent's warehouseman, answered the
telephone. He asked Johnson what had happened at
Hartzell's. This was about 45 minutes after the accident
occurred. After Johnson related to Wettengel what had
happened, Wettengel asked what was required to repair the
bin, and Johnson replied, "a few nails." Wettengel said that
he would either go out and fix it or would send somebody
else out to do so.
In the meantime Mrs. Hartzell had called President
Danenhauer and reported that his driver had knocked the
door off the garbage bin and had not come in and spoken to
her about it. Danenhauer told her that he would come right
out. Danenhauer immediately went to Hartzell's Grocery.
According to Danenhauer, Mrs. Hartzell was "still quite
excited about it" and "couldn't understand why nobody
had come in and contacted her." Danenhauer said, "We're
going to take care of it for you, Mrs. Hartzell, if we see it's
our fault." Danenhauer went out and inspected the
damaged garbage bin. As he did so, Warehouseman Baker
stated that it was his driver who was responsible for the
damage. Danenhauer assured Baker, "I'll make sure we get
somebody out here to put the door back on today."
Danenhauer then went back in the store and checked both
the cooler and the warm shelf. He found only two six-packs
of 15-ounce cans in the cooler and no 12-ounce cans there.
Upon checking the warm shelf in the store, Danenhauer
found one or two six-packs of 12-ounce cans and five or six
six-packs of 15-ounce cans. One six-pack of the latter, dated
about the middle of January, which was old beer by the
Respondent's standards and should have been removed
after it was 60 days old, was found in the middle of a stack
of six-packs. This indicated faulty rotation of the cans on
the warm shelf.
When Johnson returned to Respondent's warehouse that
afternoon after completing his route, Warehouseman
Wettengel 14 indicated to Johnson that filing a report was
unnecessary, saying that "Mr. Danenhauer knows."
Johnson did not file an accident report that afternoon
although he was aware that the prompt filing of accident
occurred According to Baker, Kelly neither spoke to Johnson nor
motioned him on . I found Baker to be a garrulous witness who was very
prone to exaggerate For example , Baker testified that Johnson knocked off
both doors of the garbage bin, upset the cans, and spilled the garbage But
as all the other witnesses agree , only one door was torn off , and there was
no complaint about the cans being upset Johnson credibly testified that no
garbage was strewn about For some reason I cannot fathom, Baker
appeared to have a grudge against Johnson and sought to make Johnson's
conduct on this occasion appear as reprehensible as possible I do not
credit Baker's testimony that Kelly neither spoke to Johnson nor motioned
him on
14 Wettengel is not a supervisor within the meaning of Section 2(11) of
the Act
LAPEKA, INC. 755
reports was one of the responsibilities of his job.
Danenhauer arrived back at the warehouse at 4 p.m. that
day, but he did not speak to Johnson about the accident,
nor did Danenhauer leave any message for Johnson in his
message box.
Sales Manager Maurer was in Lawrence most of the day
on April 1. When he called in to the warehouse between 4
and 5 p.m., Danenhauer informed him that Johnson had
had an accident at Hartzell's Grocery that day and asked
Maurer to conduct an investigation as soon as he could.
Maurer went out to Hartzell's Grocery the next morning
and spoke to Warehouseman Baker and his helper, Kelly,
who had witnessed the accident. Maurer then made a
"routine investigation" of the stock, in the course of which
he checked the cooler and the warm shelf in the store and
the stock in the warehouse.
That afternoon Maurer went back to the store and talked
to Mrs. Hartzell. According to Maurer, Mrs. Hartzell,
whom he characterized as an "excitable" person, was still
upset and could not understand why Johnson had not come
in and spoken to her about the accident. In addition she
was not satisfied with the repair job that had been done on
the garbage box.
In a report prepared early Thursday afternoon, April 2,
Maurer related Mrs. Hartzell's reaction to the accident and
also the results of his inquiries of the two witnesses to the
accident Regarding the latter, Maurer stated that Ware-
houseman's Helper Kelly had said that Johnson "just
backed up into the box and then drove away." Warehouse-
man Baker's comment was to the same effect. With respect
to the quantity of beer on hand and its rotation Maurer
stated in his report as follows:
WAREHOUSE [Dated]
4 cs T.C. 3--11
[15 oz.)
6 cs 12 oz. 3--9 (5)
STORE COOLER
1 cs T.C. 2--4 1--6 pk in back
[15oz.] 3--11 3--pk in front*
STORE---WARM
STORAGE
5-6-pks T.C. 2--4 4--6 pk on top &
[15 oz.] bottom 1--14 11--6 pk
middle*
Maurer noted in the report that the rotation was "bad" in
all those areas and that there were no 12-ounce cans
available in the store . 15 Maurer concluded his report as
follows
I feel the incident was handled very poorly on A]
Johnson's part , and not in keeping with Lapeka Inc.
policy or business philosophy. I recommend strong
action be taken on the Co. part based on the following:
1. Poor judgement prior to, during, and after the
accident.
2. Failure to immediately report the accident to
Lapeka, Inc.
3. An inexcuseable situation involving our customer
and our product.
4. Failure to fulfill basic job requirements in this
instance.
5. Apparent display of poor attitude towards Co.,
customer, and over-all job requirements.
On Friday morning, April 3, Danenhauer asked Johnson
to fill out an accident report covering the Hartzell grocery
incident and gave him a form on which to fill it out. It was
the form apparently furnished by the Respondent's
insurance carrier to give notice of loss to the carrier.
Johnson filled out the form. Danenhauer, after looking it
over, accepted the form. Nothing was said to Johnson by
Danenhauer on this occasion indicating that Danenhauer
took a very serious view of Johnson's conduct on the
occasion of his accident. This same morning, Friday, April
3, at 8 a.m., Maurer turned over to Danenhauer his report
on Johnson's accident at Hartzell's Grocery.
Johnson went out on his route as usual Friday morning,
April 3. This was the first day of a new workweek under the
Respondent's pay system. After returning at the end of his
day's work, checking in his money, and changing to his
street clothes, Maurer summoned Johnson to the office.
There Danenhauer opened the discussion by saying that he
had been out to Hartzell's Grocery and that Mrs. Hartzell,
in Johnson's words, "was awfully upset." The discussion
continued as follows, as the following excerpt of Danen-
hauer's testimony discloses:
I said, "there was no report given to Mrs. Hartzell
that an accident had been caused by our driver, which
was you, and I would like to know why." ... He said,
"I don't have a reason. I'll go out and apologize to Mrs.
Hartzell if it will help." ... Then I said, "How come
you did not notify the office before Mrs. Hartzell called
in?" I said, "We did not receive a report actually until
this morning," which was, of course, April 3rd when I
asked him for the report. Mr. Johnson said he didn't
think it was that big of a thing.
I said, "As far as the accident goes, no, there is not
enough value and damage done, but the way it was
handled was certainly improper," and Mr. Johnson
said, "I understand." ... Then I asked Mr. Johnson
about stocking the two coolers, it was not handled in the
Lapeka, Inc., manner, and Mr. Johnson didn't say
anything to that. . . . I said I found rotation bad and
one pack of tall cans on the warm shelf of old beer, and
I said, "What reasons for you have for that?" He didn't
say anything. . . . Then I believe Mr. Maurer asked
him, he said, "Al, if Lapeka is going to grow we have to
do these things and do them right, and we have to have
consistency." I believe Al spoke up that he had done a
good job in other markets. . . . I said, "Al, in view of
these facts we have given you, in not reporting the
15 This apparently was a change from the day before because
Danenhauer testified that he found one or two six-packs of 12-ounce cans
on the warm shelf when he visited the store immediately after the accident.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accident on the account to the office immediately, and
out of stock in the cooler and old beer found in the
account, I will have to fire you." ... He didn't say
anything for quite a while. He did get rather red then he
left the office , I believe . He did say "Well , gentlemen,
we work hard for a man and try to do a good job and
have one incident and get the ax."
Johnson called Business Representative Glenn that same
evening and informed him of his discharge. Glenn
accompanied Johnson to the warehouse the following
Monday morning . Glenn asked Danenhauer his reasons for
discharging Johnson . Danenhauer said that Johnson had
had an accident on Wednesday , that when he had gone out
to call on the customer about the accident he had found
stale beer and other instances of Johnson 's failure to service
the customer properly, and that the accumulation of
incidents warranted the discharge . Glenn urged that the
damage was very small, said that such accidents among
drivers were quite common , and suggested that a reprimand
or a week's suspension would be more appropriate
punishment . When Glenn asked Danenhauer to reinstate
Johnson Danenhauer said that he was going to stand by his
decision.
4. The Respondent 's contentions ; conclusions
The Respondent contends that Johnson was discharged
because of his multiple rule violations on April 1 ; namely,
his failure to report the damage to the garbage bin promptly
to both the customer and the Respondent 's warehouse, his
failure to stock the customer's cooler and warm shelf, the
failure to rotate the stock , and his failure to exchange fresh
beer for a six-pack of old beer "found on the warm shelf."
However , Danenhauer testified that he was "sure it would
be true of every driver-salesman that worked as long as Mr.
Johnson worked" that old beer could at times be found on
the premises of their customers . Maurer testified that he
had found old beer at other stores also besides Hartzell's
Grocery. The presence of old beer on the customer's
premises , of course , means that the dnver-salesman has not
been rotating the stock properly. As to Johnson's failure to
check the stock in the store , which Johnson in effect
acknowledged was one of his responsibilities, Johnson
admittedly "goofed ." But Danenhauer admitted that this
was the first time that he was aware of that Johnson had
failed properly to service a customer.
Regarding Johnson 's failure promptly to report the
accident to the customer and to the Respondent's
warehouse , it is understandable , even though the accident
only caused minor damage to the customer 's garbage bin,
$10 to $12 worth , that the Respondent would have been
seriously disturbed by Johnson 's failure to go into the store
and apologize to Mrs. Hartzell for the accident and to offer
to have the damage repaired. Such failures of communica-
tion could possibly result in the loss of a customer. But
notwithstanding such conduct on Johnson's part is it likely
that the Respondent would have meted out the drastic
punishment of discharge to an above-average driver-
salesman on the occasion of his first offense if he had not
been suspected of being the instigator of, or at least actively
supporting , the union movement . Or rather was this a
pretext seized on by the Respondent to justify getting rid of
Johnson?
In resolving this question it should be borne in mind that
satisfactory driver-salesmen are not easy to obtain.
Danenhauer discharged one driver -salesman in 1968 for
drinking on the job and hitting a parked car . He discharged
another driver -salesman in March 1969 for missing some
customers entirely and not servicing others properly, and
another in September 1969 for cheating and stealing from
customers . To keep his business staffed Danenhauer hired
in 1969 and the first few months of 1970 at least six men
whom he either started out as, or developed into, driver-
salesmen . The Respondent 's total complement of driver-
salesmen at the time of Johnson 's discharge was only nine.
Johnson , as found above , was an above-average driver-
salesman in regard to his work habits and his production,
and his accident record was much better than most of the
Respondent's driver -salesmen.
The manner in which the Respondent handled Johnson's
discharge suggests that the Respondent was trying to build
a case against Johnson. It would have been more
understandable had Danenhauer acted promptly upon
learning what the Respondent now claims was inexcusable
treatment of a customer and gross violations of its rules
concerning the servicing of customers . Although Danen-
hauer learned within an hour or two after Johnson's
accident the essential facts on which it now relies as
justifying Johnson's discharge, he said nothing to Johnson
indicating the seriousness with which he viewed Johnson's
conduct until the discharge interview 2-1/2 days later.
Instead Danenhauer permitted Johnson to work Thursday,
April 2, the last day of the workweek, and permitted him to
complete the first day of the following workweek, Friday,
April 3. In the meantime, Danenhauer had Maurer
investigate the matter . Maurer did so and prepared a report
discussing Johnson 's deficiencies and derelictions in detail
and containing numerous arguments why "strong action"
should be taken against Johnson. On the face of this report,
which was an unusual one in the Respondent's experience,
it appears to have been prepared with a view for
presentation later if ever the Respondent should have to
justify Johnson's discharge Danenhauer's action in
pressing Johnson for an accident report on Friday morning,
when Danenhauer had learned all the essential facts which
an accident report would contain almost 2 days earlier,
suggests that Danenhauer was attempting to build a record
against Johnson in this manner also. An employer who has
legitimate reasons for discharging an employee normally
does not take such pains to make a record justifying his
action. When an employer does so, one inference which can
be drawn is that the employer is trying to cover up his real
or underlying reason for discharging the employee.
The record clearly establishes the Respondent's strong
opposition to the organization of its employees by the
Union. This is evident not only from express statements
made by the Respondent in the "vote no" campaign
conducted by it before the election but also in the
withdrawal of the coffee drinking and beer drinking
privileges in retaliation for the employees having voted for
the Union in the election.
Taking all of the facts of the case into consideration-the
LAPEKA, INC.
fact that Johnson was an above-average driver-salesman,
the difficulty which the Respondent had in maintaining a
force of satisfactory driver-salesmen, the fact that the
incident at Hartzell's Grocery was Johnson's first offense,
the Respondent's painstaking efforts to build a case against
Johnson, the fact that the Respondent suspected that
Johnson was the instigator of the union movement, and the
Respondent's manifest opposition to the organization of its
employees by the Union-I conclude that the incident at
Hartzell's Grocery was adopted by the Respondent as an
excuse to cover up its real reason for discharging Johnson;
namely its suspicion that Johnson was the instigator or at
least an active supporter of the union movement.16 The
Respondent in discharging Johnson violated Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS OF LAW
I The Respondent's temporary suspension of the
employees' coffee and beer drinking privileges in the
warehouses and its retrieval of the warehouse and night
deposit keys, in retaliation for the employees having voted
for union representation, interfered with, restrained, and
coerced the Respondent's employees in the exercise of the
rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1) of the Act.
2. The Respondent's discharge of Allan Johnson
because of his union activities constituted discrimination in
regard to tenure of employment and terms and conditions
of employment which discouraged membership in the
Union, in violation of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, my Recommended Order will direct that
the Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act. In
view of the fact that the record shows that the Respondent
has lifted its suspension of the coffee and beer drinking
privileges in the warehouses, I find that no affirmative
order is necessary regarding these unfair labor practices.
I have found that the Respondent unlawfully discriminat-
ed against Allan Johnson. To remedy this unlawful conduct
my Recommended Order will provide that the Respondent
offer to Johnson immediate and full reinstatement to his
job as a driver-salesman on the route which he formerly
served or, if this job no longer exists, to a substantially
equivalent job, without prejudice to his seniority and other
rights and privileges. My Recommended Order will further
direct that the Respondent make Johnson whole for his
losses resulting from the Respondent's discrimination
16 In reaching this conclusion I am not unmindful of the fact that other
driver-salesmen, particularly Stephen Yager and Robert Grzesk, may have
been as active or more active in the Union in the later stages of the
preelection campaign than was Johnson Their conduct apparently did not
present Danenhauer with the opportunity which Danenhauer thought
Johnson's did In any event, it is well settled that the fact that an employer
does not discharge all union supporters does not detract from the validity
of the Board's conclusion concerning the discharge of one of the union
supporters N L R B v W C Nabors Co, 196 F 2d 272, 276, (C A 5), cert
757
against him by payment to him of the sum of money he
would have earned from the date of the discrimination
against him until the date on which the Respondent offers
him reinstatement, less his net interim earnings. Backpay
shall be computed on a quarterly basis and shall include
interest at 6 percent per annum, as provided F. W.
Woolworth Company,90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and
pursuant to Section 10(c) of the Act, there is hereby issued
the following:
RECOMMENDED ORDER 17
The Respondent, Lapeka, Inc., Topeka, Kansas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Retaliating against employees because of their
decisions or actions regarding unions by suspending their
coffee and beer drinking privileges in the warehouses,
depriving them of keys formerly furnished them in
connection with their jobs, changing other practices to the
detriment of the employees, or in any other manner
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
(b) Discouraging membership in Truck Drivers &
Helpers Local Union No. 696, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or any other labor organization,
by discharging or in any other manner discriminating
against employees in regard to their hire or tenure of
employment or any terms or condition of employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request of any driver-salesman restore to him
any keys formerly furnished him in connection with his job.
(b) Offer to Allan Johnson immediate and full reinstate-
ment to his job as a driver-salesman on the route which he
formerly served or, if this job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of his discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Notify the above-named employee, if 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 of 1948, as amended, after
discharge from the Armed Forces.
(d) 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, as well as all other records
denied 344 US 865
11 In the event no exceptions are filed to this Recommended Order as
provided by Section 102 46 of the Rules and Regulations of the National
Labor Relations Board, the findings, conclusions, recommendations, and
Recommended Order herein shall, as provided in Section 10(c) of the Act
and in Section 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to analyze and compute the amount of backpay
due under the terms of this Recommended Order.
(e) Post at its warehouses at Topeka and Lawrence,
Kansas , copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 17, after being duly
signed by the Respondent's representative, shall be posted
by the 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.19
18 In the event that the Board 's Order is enforced by ajudgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law and we have been ordered to post this
notice. We intend to carry out the order of the Board
and abide by the following:
WE WILL NOT discharge or otherwise discriminate
against any employee because of his activities favoring
Truck Drivers & Helpers Local Union No. 696,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America,
or any other union.
WE WILL NOT retaliate against employees for
favoring the aforesaid or any other union by suspending
coffee and beer drinking privileges in the warehouses,
by taking away from employees their warehouse and
night deposit keys, or by changing any other employ-
ment practices to the detriment of the employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to form and join unions, to engage in concerted
activities for their mutual aid or protection, and to
engage in collective bargaining through their represent-
ative chosen in accordance with the provisions of the
National Labor Relations Act.
WE WILL offer immediate reinstatement to Allan
Johnson to his former job as route salesman on the
route formerly served by him and will pay him backpay.
WE WILL, upon request by any driver-salesman,
return to him any warehouse or night deposit keys
previously furnished him in connection with his job.
LAPEKA, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street , Kansas City,
Missouri 64106, Telephone 816-374-5181.