Meisenbach Distributing Co.

National Labor Relations Board - Board Decisions

Jul 26, 1946

69 N.L.R.B. 956 (N.L.R.B. 1946)

In the Matter of K. K. MEISENBACH, DOING BUSINESS AS MEISENBACH
DISTRIBUTING COMPANY and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA
Case No. 16-C-1291.-Decided July 06, 1946
Mr. Louis Mercado, for the Board.
Mr. Carl B. Callaway, of Dallas, Tex., for the respondent.
Mr. 0. L. Williams, of Dallas, Tex., for the Union.
Mr. Harry W. Clayton, Jr., of counsel to the Board.
DECISION
AND
ORDER
On April 22, 1946, Trial Examiner Wells issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed. There-
after the Union and counsel for the Board filed exceptions to the
Intermediate Report, and the Union filed a brief in support of its
exceptions. On July 18, 1946, the Board at Washington, D. C., heard
oral argument, in which counsel for the respondent and for the Union
participated.
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 Inter-
mediate Report, the exceptions and brief, the oral argument, and the
entire record, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against K. K. Meisen-
bach, doing business as Meisenbach Distributing Company , Dallas,
Texas, be, and it hereby is dismissed.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Order.
69 N. L. R. B., No. 116.
956
MEISENBACH DISTRIBUTING COMPANY
INTERMEDIATE REPORT
Mr. Carl B. Callaway, of Dallas, Tex., for the respondent.
Mr. O. L. Williams, of Dallas, Tex., for the Union.
Mr. Louis R. Mercado, for the Board.
STATEMENT OF THE CASE
957
Upon an amended charge duly filed by International Union of United Brewery,
Flour, Cereal and Soft Drink Workers of America, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Direc-
tor for the Sixteenth Region (Ft. Worth, Texas), issued its complaint dated
February 19, 1946, against K. K. Meisenbach, an individual doing business as
Meisenbach Distributing Company, Dallas, Texas, herein called the respondent,
alleging that the respondent has engaged in, and was engaging in unfair labor
practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of hearing and the amended
charge were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance :
(a) that from on or about November 20, 1945, respondent interrogated his em-
ployees concerning their union affiliation, warned and discouraged his employees
concerning their union activities and membership, and threatened economic re-
prisals if their union activities should continue; (b) that on November 21, 1945,
respondent discharged James E. Hitt, and has since refused to reinstate him,
because of his membership in and activities on behalf of the Union; (c) that on
November 20, 1945, and at all times thereafter, respondent refused to bargain
collectively with the Union as the exclusive representative of his employees in an
appropriate unit, although the Union has been the selected and designated repre-
sentative of such employees since on or before November 20, 1945; and (d) by
these acts and conduct respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held at Dallas, Texas, on March 11, 12,
13, 1.4, and 15, 1946, before the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. All the parties were represented and participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to present evidence bearing upon the issues.
At the opening of the hearing, on March 11, 1946, respondent filed an
answer in which in substance he alleged (a) that he had never refused to bargain
collectively with the Union as exclusive representative of all the employees in
the unit described in the complaint and further that he had never been under
any legal obligation to so bargain with the Union ; (b) that he had discharged
James E. Hitt because Hitt was an inefficient and unsatisfactory employee and
not because of any union activity on the part of Hitt; and (c) that respondent
had never interfered with, restrained, or coerced any of his employees in the
exercise of any rights guaranteed them under the Act. At the same time, counsel
for respondent orally contended, in effect, that respondent is not engaged in
commerce within the meaning of the Act and stated that the filing of respond-
ent's answer and his participation in the hearing did not constitute a waiver
of this contention with respect to the Board's jurisdiction.
At the close of the hearing the undersigned granted, over the objection of
respondent's counsel, a motion by counsel for the Board to amend the complaint
to allege that certain acts of respondent and his agents not covered by the dates
set forth in the complaint constituted unfair labor practices within the meaning
of Section 8 (1) of the Act. Respondent was offered by the undersigned addi-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional time to reopen his defense to meet the matters alleged by the amended
complaint. The respondent declined the offer.'
Counsel for the Board and for the respondent argued orally before the under-
signed at the close of the hearing. All parties were afforded an opportunity to
file briefs with the undersigned. No briefs have been received.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
K. K. Meisenbach, an individual doing business under the trade name of
Meisenbach Distributing Company, is engaged in the wholesale distribution and
sale of beer and ale in and around Dallas, Texas. His annual sales of such prod-
ucts have a total value in excess of $100,000 per year, and all of the products so
sold are shipped to him from points outside of the State of Texas. The beer
and ale purchased by Meisenbach is shipped to him in bottles packed in either
wooden or paper cases. Meisenbach sells and distributes the products to his
customers in these bottles packed in cases and, after the products have been
consumed, gathers the empty bottles and cases for return to the breweries from
which he had purchased the products. Each week Meisenbach ships at least
5,000 cases containing empty bottles to breweries located outside the State.
The respondent is engaged in commerce within the meaning of the Act .2
II. THE ORGANIZATION INVOLVED
International Union of United Brewery, Flour, Cereal and Soft Drink Workers
of America is a labor organization admitting to membership employees of the
respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
On November 19, 1945, James E. Hitt, one of the five driver-salesmen employed
by respondent, advised O. L. Williams, a union officer, that he and the other driver-
salesmen desired to join the Union. Williams and Hitt arranged to meet at 6:45
o'clock on the morning of November 20, 1945, at a restaurant a few blocks from
respondent's place of business. The meeting occurred as planned, and Williams
and Hitt walked to respondent's warehouse. Hitt approached each of the four
driver-salesmen, secured the signature of each on a union authorization card and
also affixed his own signature to a card. Williams and the five driver-salesmen,
including Hitt, met a few minutes later at another restaurant near respondent's
warehouse. After some discussion with Williams, Hitt and the other driver-
salesmen returned to respondent's warehouse. Not more than 1 hour elapsed dur-
ing the November 20 meeting between Williams and Hitt, Hitt's solicitation of the
driver-salesmen, the meeting between Williams and all of the driver-salesmen,
and the return of the driver-salesmen to the respondent's warehouse.
At about 8:30 a. m., on the same day, Williams arrived at respondent's office
and asked to see Meisenbach, the respondent. One of the office clerks advised
I The record inadvertently omits the motion of the Board to so amend the complaint,
respondent's objection thereto, and the undersigned's disposition of the motion. The under-
signed hereby orders the record corrected, and such correction Is hereby made to indicate
the events mentioned in the paragraph above and to insert into the record the written
amendment offered by the Board's counsel and which instrument is hereby designated as
Board Exhibit No. 12.
2 See Matter of John S. Doane Company, 63 N. L. R. B. 1403; Matter of Liebmann.
Breweries, Inc., at at., 56 N. L. R. B. 1727.
MEISENBACH DISTRIBUTING COMPANY 959
Williams that Meisenbach was out of town but that Robert E. Lee, respondent's
manager, would be in the office within a short time. Lee arrived at the office
at about 9:30 a. m. Williams, who had waited for Lee to return, introduced
himself to the latter as an officer of the Union, asserted that the Union rep-
resented all of the driver-salesmen of respondent, and requested that respondent
bargain with the Union with respect to the employees' hours, wages and working
conditions. Lee replied that he had not sufficient authority to deal with the matter
and suggested that Williams see Meisenbach, who was then out of the city. Wil-
liams, after requesting that Lee ask Meisenbach to contact him, then left the office.
At about 8: 00 a. in. on November 21, 1945, the day following the conversation
.described above between Williams and Lee, Hitt was discharged by Lee. Hitt
immediately advised Williams of the event by telephone. Upon the advice of
Williams, Hitt returned to Lee's office and requested that Lee reinstate him.
Prior to Hitt's return to Lee's office, Williams telephoned Lee and similarly
requested that Hitt be reinstated. Lee referred both requests to Meisenbach.
The latter, during a conversation with Hitt, denied the request. During the
late afternoon of the same day, Williams telephoned Meisenbach at the latter's
place of business. The ensuing conversation involved both the discharge of Hitt
and the Union's request for recognition, but did not produce a settlement of either
matter.
At about 8: 00 p. in. of November 22, 1945, respondent held a meeting with the
four remaining driver-salesmen. Meisenbach addressed the meeting, stated that
Hitt had been discharged, discussed the driver-salesmen's earnings during 1945
as compared with earlier years, and asked whether the employees were satisfied.
He received an affirmative reply to the question. The union was not discussed,
beyond respondent's comments that he had never asked any of the employees
whether or not they had a union card when he hired them, and that union
activities had nothing to do with Hitt's discharge.
On November 23, 1945, the Union filed with the Board's Regional Office at
Ft.- Worth, Texas, a Petition for Investigation and Certification of Representa-
tives wherein it alleged that a "question" concerning representation of respond-
ent's driver-salesmen existed. On November 26, 1945, the Union also filed with
the Board a charge alleging that the discharge of Hitt had been motivated by his
union activities and constituted an unfair labor practice within the meaning of
the Act.
In a letter dated November 23, 1945, the Board advised respondent that the
petition had been filed. Respondent's reply, dated November 27, 1945, stated
merely that Williams had telephoned advising respondent that Williams wished
to see him as representative of the Union, and that Meisenbach would "be glad
to see Mr. Williams personally, when' you [the Regional Director] think it is
best for me to do so." In a subsequent letter, dated December 3, 1945, relating
to the Union's charges with respect to the discharge of Hitt, respondent offered
to confer with Williams and the Board's agent.
On or about December 15, 1945, Williams and Sulton J. Boyd,' a Field Exam-
iner attached to the Board's Sixteenth Regional Office, conferred with Meisen-
bach at the latter's office concerning the methods by which the "question" con-
cerning representation of the driver-salesmen might be determined by the Board.'
The conference, which was restricted to the representation question, was in-
conclusive in result except that Meisenbach promised to contact the Field Exam-
iner by letter within a short time.
3Incorrectly referred to in the record as Sullivan J. Boyd.
° Prior to this conference, the Union had filed with the Board a statement waiving any
of the matters alleged in its above-mentioned charge against respondent as grounds for
setting aside any representative election which the Board might conduct among respondent's
driver-salesmen.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime between December 15, 1945, and January 3, 1946, respondent's attor-
ney, Carl B. Callaway, advised the Board that respondent would consent to an
election among his driver-salesmen to determine the representation issue. On or
about January 3, 1946, the Board delivered to respondent ' s attorney a standard
Board from captioned "Agreement for Consent Election," setting forth an agree-
ment between the parties for the election proposed by Callaway, and requested
that respondent execute the document and return it to the Board. Respondent,
through his attorney, signed the document and delivered it to the Board on
January 16, 1946, but altered it by deleting a certain provision therein. The de-
letion made the agreement unacceptable to the Board and the Union.
On January 30,1946, the Union, having withdrawn its wa iver,' filed an amended
charge upon which the Board based its original complaint herein.
There is no real disagreement among the parties with respect to the facts
stated above. The Board contends that these facts, together with certain addi-
tional comments which it imputes to the respondent, substantiate and prove the
allegations set forth in the complaint as amended. Respondent, on the other
hand, contends that evidence which he introduced elaborating upon the facts out-
lined above, together with the incredibility of certain testimony introduced by
the Board, effectively rebut the allegations recited in the complaint.
The Board contends that respondent was hostile to the Union and unions in
general; that he learned of the organization of his driver-salesmen by Hitt and
immediately discharged him because of his dominant role in those organizational
activities; and that, upon being requested by the Union to recognize it as the
exclusive representative of the driver-salesmen, respondent first violently re-
jected the request in terms which demonstrated the futility of further requests
by the Union and, after the Board had intervened, engaged in dilatory tactics
and interposed specious objections designed to defeat the Union and to dis-
courage his employees concerning their union activities. Respondent argues
that he discharged Hitt for the latter's failure to perform his job in accordance
with instructions, and his lack of loyalty in selling respondent's product ; and
that respondent did not refuse to bargain with the Union, and, in fact, had no
legal obligation to do so.
Hitt on direct examination testified that about two months prior to his
discharge Meisenbach, the respondent, had asked him if he had "heard anything
about the Union," that he replied, "Yes, I had -several men to ask me to join,"
that Meisenbach had made no further comment.' He further testified to the
effect that, prior to his discharge on November 21, 1945, he had been an efficient
employee ; that he had never refused to pick up empty beer cases and bottles in
accordance with respondent's instructions ; and that neither his customers nor
respondent's supervisory staff had complained to him about his alleged refusal
to pick up empty cases.
Meisenbach denied that he had ever questioned any employee with respect
to union activity ; and testified to the effect that he had been consulted by
Manager Lee on frequent occasions prior to Hitt's discharge about the latter's
inadequacy as an employee, and that he had advised Lee to handle the matter
as Lee's judgment dictated. Lee testified to the effect that he had felt inclined
to discharge Hitt at an earlier date for his deficiencies, particularly his refusal
to pick up empty cases, but, taking into consideration the fact that Hitt had been
suffering from hemorrhoids for which he intended to undergo an operation,
decided to retain Hitt in order to determine whether an improvement in his
s See footnote 4, supra.
e The original complaint alleged that respondent "from on or about November 20, 1945,"
had interrogated his employees regarding their union activities . The complaint was
amended at the close of the hearing to include such interrogation "on or about September
20, 1945," see footnote 1, supra.
MEISENBACH DISTRIBUTING COMPANY 961
physical condition might not also improve the character of his work. Lee further
testified in substance that he discharged Hitt on November 21, 1945, after Hitt
had been hospitalized for and had recuperated from the surgical treatment
mentioned above and also an ensuing attack of influenza,' because Hitt con-
tinued to disregard instructions and otherwise expressed his contempt for
respondent's organization. With respect to the immediate reason for his dis-
charge of Hitt on November 21, 1945, Lee testified that on or about November
16, 1945, Brady Pendleton, respondent's cashier had reported to him that Hitt
had complained about being paid only $10 or $11 for his services while riding
his route with Duncan during the week following his return to work after his
operation, and that in making the complaint had contemptuously referred to the
respondent's organization by the use of a vulgar term; and that during the
afternoon of November 19, 1945, Mrs. R. C. Coke, Jr., respondent's "office man-
ager,"' reported to him that she had given Hitt an order that morning for
400 cases of beer to be delivered to a United States Naval station on Hitt's
route, that Hitt delivered only 200 cases and then advised her that he would
deliver the remaining 200 cases a week later or the next day. He pointed out
that this was the "last complaint" he had received from Mrs. Coke; that he was
unable to direct Hitt to deliver the remaining 200 cases that day because Hitt had
left the office ; and that he remembered the instance "very plainly, due to the
fact it was the main reason for the final decision to discharge Hitt." Lee further
testified that on November 20 he requested Hitt to take the remaining 200 cases
of beer to the Naval station and, that afternoon, instructed Mrs. Coke to prepare
a check covering Hit's salary from November 16 to November 22, 1945, inclusive,
and his commissions on sales from November 16 to November 20, 1945, inclusive s
With respect to the delivery of full cases of beer and the pick-up of empty cases
by respondent's driver-salesmen, respondent's records reveal the following for the
11-month period preceding Hitt's discharge :
Felker Henderson Hitt Lynch Tripp
1945 Full
Beer Mtys
Full
Beer Mtys'
Full
Beer Mtys'
Full
Beer Mtys
Full
Beer Mtys
Out Ret 'd out Ret d out Ret d
7an________________ 2,102 2,321 2, 946 3 , 566 3,432 3,494 3 , 536 4,908 3 , 587 4,050
Feb________________ 3 , 013 2,654 4, 777 4,058 4, 840 4 , 305 5,064 4 , 449 5,478 5,208
Mar________________ 2, 981 2, 541 3, 983 4 , 465 4 , 216 4,271 3 , 946 4,513 4, 851 5,076
Apr________________ 3,715 4,170 5,649 5,588 6,425 6,579 6,357 6,180 6,862 6,773
May_______________ 4, 107, 4 , 180 6,457 6,420 7,023 6,785 6,047 6,279 7, 142 7,401
Jun________________ 3 , 918 4 , 099 6,812 7, 223 6,622 6,318 6,655 7,009 7,724 8,096
Jul_________________ 3,358 3,436 4,523 5,013 5,151 4,856 5,941 5 , 989 5,359 6,268
Aug________________ 4,586 4,254 4,446 4,925 5 . 804 4 , 993 6,703 6 , 052 7, 541 6,894
Sep________________ 3, 801 4 , 034 6 , 146 5,758 5, 990 5,638 6,549 5,920 7 , 541 6,805
04
5S
86
5765 6 CAS, 6,612 ,596 7114
Nov_ ______________ 4 , 349 3, 982 5, 882 5, 7 4 , 7 4 , 922 1,411 6,317 6,1 704 5, 719
Total _ _ _ _ -------- 40,311 39, 729 57, 581 58, 224 60,178 57, 929 63, 941 64,228 67.631 69,404
68.3 Less emp. 643 More emp- 2,249 Less emp- 287 More emp - 1,773 More emp-
ties picked ties picked ties picked ties picked ties picked up
up than fulls up than fulls up than fulls up than fulls than fulls out.
out. out . out. out.
I Hitt entered the hospital on or about October 2 , 1945 , and remained there a week. For
about 2 weeks . thereafter , he was unable to work. Following this period , at the request of
Lee, he returned to work, although not fully recovered , merely to ride the truck around his
route while Route Supervisor Thomas H . Duncan and a helper performed all work on the
route. During the second week following his return, Hitt operated the route , but was
accompanied each day by Duncan. Hitt became ill from influenza about 10 days prior to
his discharge and was absent from work until November 16, 1945.
" Respondent 's clerical force apparently consists of Mrs. Coke and Pendleton.
9 Lee delivered the check to Hitt and discharged him when Hitt reported for work the
following morning.
701592-47-vol. 69-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The obvious interpretation of these records is that Hitt, among all of respond-
ent's driver-salesmen, was the least efficient with respect to the return of empty
cases. Further, Hitt admitted that the return of empty cases and bottles was
an element which determined respondent's ability to obtain beer from the brew-
eries for sale to his customers . Mrs. Coke corroborated Lee's testimony to the
effect that customers had complained with respect to Hitt's failure to pick up
empty cases, and her testimony was in turn partially corroborated by Roscoe
White, 10 Ben Friedman, Tom Lemos, and Mrs. R. E. Walker, customers of respond-
ent, who testified that Iiitt's laxity had on occasion made it necessary for them
to hire trucks at their own expense to return empty cases to respondent. Mrs.
Coke further corroborated Lee's testimony with respect to Hitt's refusal to deliver
the entire order of beer to the Naval station on November 19, 1945.
With respect to the disclosure made by respondent's records, Hitt explained
that either he had not had room on his truck to haul back empties, or that
.customers had not had the empties available for him to pick up. Hitt's explana-
tion with respect to his failure to deliver the full order of 400 cases to the Naval
station on November 19, 1945, was that the person in charge of receiving beer
at the Naval station had stated that he had not enough room for the second 200
cases of beer because his warehouse was "full of empties." Hitt admitted that
he did not explain this circumstance to either Mrs. Coke or Lee on November 19.
1945, but stated thathe explained to Lee the following morning when questioned
by Lee concerning the incident.
Another dispute exists between the parties with respect to a telephone conversa-
tion on November 21, 1945, between respondent Meisenbach and Williams, the
representative of the Union. Williams and Meisenbach agree that during their
telephone conversation, Williams requested Meisenbach to reinstate Hitt and
that Meisenbach declined to do so ; that Williams claimed that all the driver-
salesmen had designated the Union as their bargaining agent; and that the
conversation ended by Meisenbaclti inviting Williams to visit the former's farm
for a turkey dinner. Williams, however, testified in substance that, upon being
advised that the Union represented the driver-salesmen, Meisenbach stated that
"he had run his business a long time without a union and he was going to
continue to do so," and that "before he would do business with a damned union
he would go out of business." Meisenbach, on the other hand, testified that,
in reply to Williams' representation claim, he said : "That is news to me ; why
don't you come down and talk to me about it; this is all news and it is a rather
serious matter." 11
One further matter is claimed by the Board's counsel to be decisive as to
one of the issues in the case. As stated'above, the efforts of the Regional Office
to arrange a consent election to determine the representation question failed
because respondent insisted upon deleting from the standard form a certain
provision therein. The provision deleted reads as follows :
; provided that the determination of the Regional Director shall be
final and binding upon any question, including questions as to the eligibility
of voters, raised by any party hereto relating in any manner to the election.
"White testified that , although Hitt was lax in the pick up of empty cases , he had not
complained to the respondent.
11 Lee testified that he was in Meisenbach ' s office during the conversation , and corrobo-
rated Meisenbach's version of the latter's part of the conversation. Mr. 0. L. Williams, wife
of Williams , testified that she was sitting 2 or 3 feet from Williams during the conversa-
tion and that Meisenbach "was talking awfully loud and was using bad language, . . .
I did hear him say lie would close the doors before he would let the Union organize ; that
he had plenty of money, and then I heard them talking about the farm. . . . He invited
my husband up to his farm."
MEISENBACH DISTRIBUTING COMPANY 963
Prior to returning the form , Callaway advised Field Examiner Boyd by tele-
phone that he objected to the provision and was deleting it from the agreement.
Callaway testified that Boyd offered to amend the agreement "so that the National
Labor Relations Board would be substituted for the Regional Director with ref-
erence to the power to which I objected," and that he advised Boyd that his "ob-
jection was based upon the granting of any such power without any appeal to
anybody or any agency ." Boyd testified that in response he told Callaway that
"if he were objecting to the authority as set out in that particular agreement
being exercised by the Regional Director that I thought I [would] send him a
stipulation for certification by the Board,' and Mr. Callaway told me he had no
more objection to Dr. Elliott 13 exercising that authority than he did for the Board
to exercise it ; that he was simply opposed to waiving that-simply, primarily
opposed to including that authority in any contract which he prepared or was a
party to." Subsequently, on January 16, 1946, the Regional Director , in a tele-
gram advised Callaway that the Board could not approve the consent election
agreement as amended by Callaway's deletion; but offered to proceed with the
consent election if Callaway would withdraw his objection to the deleted provi-
sion. On January 21 , 1945, Callaway replied by a letter in which he renewed
his objections as stated above ; stated his client 's willingness to determine the
representation question by a consent election rather than by formal Board pro-
ceedings; and supplied certain information relating to respondent's business.
The Regional Director replied on January 22, 1946, by advising Callaway that
the Union had withdrawn its waiver " and that therefore the Board would be
unable to proceed with the representation matter until it had completed an in-
vestigation of the Union 's charge that Hitt had been discharged because.of his
union activities . Again on January 30 , 1946, Callaway wrote the Regional Di-
rector suggesting and urging that an election be conducted and offering to coop-
erate with the Board in order to accomplish a prompt decision with respect to the
Union's charge. On January 31, 1946, the Regional Director advised Callaway
that the Union had amended its original charge by alleging that respondent had
refused "to bargain collectively." On February 2, 1946, and again on February
20, 1946, Callaway wrote the Regional Director urging that the dispute between
respondent and the Union be resolved promptly by the Board and offering the
Board the "fullest cooperation."
B. Conclrusions
1. The alleged discriminatory discharge of James E. Hitt
Concerning the respondent 's motive for discharging Hitt, there is no direct or
credible evidence that the discharge was occasioned by Hitt's membership in the
Union, and any finding to that effect would necessarily, in this case, be based en-
tirely upon an inference drawn from evidence that respondent was aware of
Hitt 's membership in the Union ; " that the discharge occurred shortly after re-
spondent became aware of Hitt 's union activities ; and that respondent failed to
produce a reason for the discharge other than Hitt's union activities.
"A standard Board form captioned "Stipulation for Certification upon Consent Election."
is Edwin A . Elliott , Regional Director for the Sixteenth Region.
34 See footnote 4, supra.
" With respect to this matter , the record is not entirely clear . However , respondent on
November 20 , 1945 , was advised by Williams that all driver -salesmen, including Hitt, had
joined the Union, and admittedly believed Hitt to be a disgruntled employee dissatisfied
with his wages and working conditions . These facts and the fact that respondent 's busi-
ness was small and closely supervised by a large supervisory staff indicate , and the under-
signed so finds , that respondent believed or suspicioned that Hitt had joined the Union.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the opinion of the undersigned, the reasons advanced by respondent for his
termination of Hitt's employment offer a reasonable and plausible explanation
for the event. Respondent's efforts to secure the return of empty beer cases from
its customers through its driver-salesmen had failed substantially only in the
case of Hitt. Hitt's explanation of his failure to cooperate in this matter is
obviously without merit, and not credited by the undersigned. Particularly note-
worthy are the facts that during October and November 1945, while his route
was serviced either by Duncan or by Hitt under the direct supervision of Duncan,
no difficulty was encountered in returning the empty cases ; and that customers
had been compelled to hire transportation to return empty cases to the respondent
because of Hitt's failure to do so, as evidenced by the credible testimony of White,
Friedman, Lemos and Mrs. Walker.
Any contention that respondent merely seized upon Hitt's deficiency in connec-
tion with the return of empty cases as a pretext for his discharge, rather than
give Hitt the further opportunity respondent had intended to give him upon his
return to work following his illness, is not supported by the evidence. On the
contrary, Hitt demonstrated that he had not returned with any determination
to function as a competent and efficient employee by his failure to follow instruc-
tions with respect to the delivery on November 19, 1945, of 400 cases of beer to the
Naval Station. While Hitt's explanation for not delivering the complete order
according to his instructions is not decisive, in view of his admitted failure to
advance this explanation until Manager Lee instructed him on the following
morning to complete the order, the explanation is particularly unconvincing.
First, no reason is given for his failure to relate such facts to Mrs. Coke immedi-
ately upon his return to the warehouse on November 19. Second, Hitt on direct
examination testified that on November 10, 1945, he had made an appointment
to meet Williams, the union representative, at 3: 30 p. in. on November 19, 1945.
It is significant that Hitt also testified in response to interrogation by the under-
signed, that he had completed his delivery of the first 200 cases to the Naval
Station at about 2:00 p. in. and that he had spent about 4 or 5 hours in making this
delivery. Obviously, if Hitt had delivered an additional 200 cases of beer in ac-
cordance with his instructions, he would have been unable to keep his appoint-
ment with Williams. Inasmuch as there is no evidence that he failed to meet
Williams as planned, the undersigned concludes that Hitt elected to fulfill his
appointment with Williams rather than his obligation as an employee of
respondent.
That Hitt gave respondent further cause to perceive the futility of any expecta-
tion that Hitt intended to become a more efficient employee is further evidenced
by the facts that he continued to advertise his intention to accept employment
with one of respondent's competitors as soon as possible ; that a few days prior
to his discharge he referred to respondent's organization by the use of a vulgar
and contemptuous adjective ; and that he resented respondent's close supervision
of his route."
In view of the foregoing and the entire record in the case, the undersigned finds
that there is not sufficient evidence to establish that the reason for respondent's
termination of Hitt's employment was the latter's activity on behalf of the Union.
Accordingly, the undersigned finds that the allegations of the complaint as to
Hitt's discharge have not been sustained.
2. The alleged refusal to bargain
There is no dispute that all of respondent's driver-salesmen constitute a unit
appropriate for the purposes of collective bargaining within the meaning of the
16 These findings are based upon the credible and, in part , uncontradicted testimony of
Lee, Pendleton and Duncan.
MEISENBACH DISTRIBUTING COMPANY 965
Act, and the undersigned so finds . Further , the undersigned finds that on Novem-
her 19 , 1945, and at all times thereafter , the Union was and is duly designated
as the representative for the purposes of collective bargaining by a majority
of the employees in said bargaining unit."
In view of the above findings, respondent's contention that he is not obligated
legally to bargain with the Union until such time as the Union's majority status
has been established by an election by secret ballot is obviously without merit.
Respondent 's contention disregards the fact that Section 9 ( c) of the Act em-
powers the Board to ascertain the majority representative not only by means
of a secret ballot of employees but through a proceeding under Section 10 of
the Act or by "any other suitable method."
The sole issue , therefore , is whether respondent refused to bargain with the
Union as the exclusive bargaining agent of the employees in the unit found
above to be appropriate.
The Union requested recognition by the respondent on November 21, 1.945,
during the above -mentioned telephone conversation between Williams , the union
representative , and Meisenbach . According to the testimony of Williams, Meis-
enbach not only refused to recognize and deal with the Union on this occasion,
but made it clear that persistence on the part of the Union would result in dis-
continuance of respondent 's business with ensuing economic loss to his employees.
Williams' testimony , however , presents a patent incongruity , and Williams
himself was an evasive and reluctant witness on cross-examination by respond-
ent's counsel . The incongruity presented by Williams ' testimony lies in the fact
that , while it evidences an adamant intent by respondent to ignore his employees'
rights under the Act by refusing to deal with the Union , it also discloses an
invitation by Meisenbach to Williams to visit the former 's home . Inasmuch as
Meisenbach had never met or seen Williams at the time of the conversation and
no explanation is shown to account for the presence in the same conversation of
two expressions of Meisenbach 's attitude so diametrically opposite , the under-
signed does not credit Williams ' testimony that Meisenbach threatened to close
his business rather than deal with the Union and credits Meisenbach 's denial
thereof. Accordingly , the undersigned finds that on November 21, 1945 , in reply
to the Union 's telephonic request for recognition , respondent did not refuse to
bargain with the Union but suggested a personal meeting between himself and
Williams, the Union 's representative , at the latter 's convenience."
The Board , however, contends that further evidence that respondent was deter-
mined not to deal with the Union is shown by respondent 's conduct during the
Board 's attempt to resolve the representation question raised by the Union's
petition. With respect to this issue the Board urges that respondent 's objection
to the waiver contained in the consent election agreement proposed by the Board
was specious and raised merely to avoid an expeditious election to determine the
issue. The undersigned finds no merit in this contention . The record does not
show bad faith on the part of the respondent in insisting on the deletion. In
fact, the form after deletion is substantially the same as an alternate form per-
missible in consent elections.
In accordance with the foregoing and the entire record in the case, the under-
signed finds that there is not sufficient evidence to support that part of the com-
14 This finding is based upon cards signed on November 19, 1945 , by each of respondent's
5 driver-salesmen then employed , including 4 employed at the time of the hearing herein,
approving and designating Local No. 157 of the Union as his collective bargaining agency.
'$ While it was possible for Mrs . Williams to have heard Meisenbach 's loud and excited
references to the Union on the telephone , it is unreasonable to believe that Meisenbach
would have issued his dinner invitation to Williams in such tones as to have been overheard
by Mrs . Williams . Accordingly , the undersigned does not credit her testimony.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint alleging that respondent has refused to bargain with the Union in violation
of Section 8 (5) of the Act.
3. The alleged interrogation, interference, restraint, and coercion
In support of the allegation in the complaint that respondent had interrogated
his employees concerning their union activities, the Board apparently relies
solely upon the testimony of Hitt. Although the Board called as witnesses all
of respondent's driver-salesmen except one employed after Hitt's discharge, none
but Hitt could recall any instance on which respondent or any of respondent's
supervisory staff had so questioned any of them. As indicated above, the under-
signed does not find Hitt to be a credible witness and accordingly credits
Meisenbach's denial that he had ever interrogated Hitt concerning union
activities.
With respect to the meeting of driver-salesmen conducted by respondent on
the evening of November 22, 1945, there is no dispute that respondent called
the meeting because of the discharge of Hitt and apparent unrest among the
driver-salesmen. However, Meisenbach at the meeting made it clear that he
did not "care" whether or not the driver-salesmen joined the Union and that
Hitt's membership in the Union had not been the cause of his discharge. Ac-
cordingly, although Meisenbach's admonition to the driver-salesmen to come
to him or Lee if they were not satisfied is subject to the possible interpretation
that it was an order not to seek the assistance of the Union, the undersigned finds
no merit in the Board's contention that the meeting was intended to or, in fact,
did interfere, restrain or coerce respondent's employees in the exercise of any
rights guaranteed them under the Act.
One further matter remains to be considered. The Board contends that certain
statements by respondent and his counsel, Callaway, made during the hearing
to the undersigned are, per se, violative of Section 8 (1) of the Act. The sub-
stance of the statements were that since November 1945 respondent has held
proposed changes in his business in abeyance in order to protect himself from
possible charges that such changes had been made to influence employees with
reference to their decision about the Union; that the respondent has urged the
Board on several occasions to determine the question concerning representation-;
that respondent finds it impossible to delay longer ; and that, therefore, "if the
Regional Board does not give-some character of assurance" within the near
future of what it intends to do about the representation issue, respondent will
proceed to make such changes as he find necessary in the interests of the
efficient operation of his business. Precisely to what changes respondent and
his counsel refer is not entirely clear although there is some indication that
they include salary raises for the driver-salesmen and the employment of
additional employees.'0
The undersigned finds no merit in the Board's contention that the above state-
ments are violative of Section 8 (1) of the Act. Certainly such statements can-
not be held to have interfered with, restrained, or coerced respondent's em-
ployees. At most the statements were made merely to emphasize respondent's
often repeated contention that the Board and the Union had refused to avail
themselves of respondent's willingness to cooperate in determining the repre-
sentation question raised by the Union.
The undersigned concludes, in view of the entire record in the case and the
foregoing, that the evidence is not sufficient to support the allegations of the
18 Most of the statements summarized above were made by respondent 's counsel either as
a witness for respondent - or during oral argument before the undersigned . Respondent,
however, apparently ratifies them.
MEISENBACH DISTRIBUTING COMPANY 967
complaint that respondent has interfered with, restrained, or coerced its em-
ployees in the exercise of the rights guaranteed them in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent, K. K. Meisenbach, doing business as
Meisenbach Distributing Company, Dallas, Texas, occur in commerce, within the
meaning of Section 2 (6) and (7) of the Act.
2. International Union of United Brewery, Flour, Cereal and Soft Drink
Workers of America is a labor organization within the meaning of Section 2 (5)
of the Act.
3. The respondent has not engaged in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act by discharging and refusing to reinstate James E.
Hitt.
4. The respondent has not refused to bargain collectively with the Union in
violation of Section 8 (5) of the Act.
5. The respondent has not interfered with, restrained, or coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act, and has not
thereby engaged in an unfair labor practice within the meaning of Section
8 (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exception and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
JOSEPH C. WELLS,
Trial Examiner.
Dated April 22, 1946.