Mid-State Distributing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1985

276 N.L.R.B. 1511 (N.L.R.B. 1985)

MID-STATE DISTRIBUTING CO.
Mid-State Distributing Co., Inc. and Teamsters
Local 651, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Cases 9-
CA-19188, 9-CA-19452, 9-CA-19492-1, and
9-RC-14210
24 October 1985
DECISION AND ORDER
B CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 16 April 1985 Administrative Law Judge
Robert G. Romano issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mid-State
Distributing Co., Inc., Lexington, Kentucky, its of-
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
Chairman Dotson would not adopt the judge's finding that Warehouse
Manager Herb Whitt interrogated employee John Hong in October 1982
Whitt's statement was in response to Hong's comments about the Union,
was rhetorical, and was made long before the initiation of any organizing
activities
In adopting the judge's finding that the Respondent violated Sec.
8(a)(i) of the Act by Whitt's interrogation of Houg, Member Babson
finds it unnecessary to pass on the judge's comment that Hong "arguably
waived" his statutory rights regarding coercive interrogations by raising
the subject of employee union activity during the conversation
Member Babson agrees that on the particular facts of this case the Re-
spondent's opinion survey violated Sec. 8(a)(1) of the Act In so doing,
he particularly relies on General Manager Shutt's statements to employ-
ees, including his speech on 8 February 1983, in which, as the judge
found, Shutt clearly conveyed to the employees that some of the griev-
ances that were revealed in the survey were to be acted on by the Re-
spondent
2 In ordering the Respondent to make whole the helpers who were
discriminatorily terminated, the judge in the remedy section recommend-
ed that backpay for these employees be based on the wage rate received
by James R. Oliver after he was preferentially rehired as a relief driver
on 14 March 1983, i e, $4 25 per hour, plus 5 cents commission In addi-
tion to Robert Tuttle, this rate would apply to Wayne Qualls since, by
virtue of being at the top of the seniority list, he is the employee who
should have been hired as a relief driver instead of Oliver. It would not,
however, apply to the remaining helpers Rather, they are entitled to re-
ceive backpay at the rate they would have received had they not been
discriminatorily terminated.
1511
facers, agents, successors, and assigns, shall take the
action set forth in the Order.
Deborah R. Grayson, Esq., for the General Counsel.
Donald P. Wagner, Esq. (Stoll, Keenon & Park), of Lex-
ington, Kentucky, for the Respondent-Employer.
Rick Silvers, of Lexington, Kentucky, for the Charging
Party-Petitioner.
DECISION
STATEMENT OF THE CASE
ROBERT G. RoMANo, Administrative Law Judge.
These consolidated matters were heard before me on
May 17-20, 1983.1 The charge in Case 9-CA-19188 was
filed on January 14 against Mid-State Distributing Co.,
Inc. (Respondent or Employer) by Teamsters Local 651,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Teamsters Local 651 or the Union). The original
complaint issued on February 24, alleging multiple inci-
dents of violation of Section 8(a)(1), and further that Re-
spondent had discriminatorily laid off certain named em-
ployees in violation of Section 8(a)(3) and (1) of the Act.
The petition in Case 9-RC-14210 was also filed by the
Union on January 14. Pursuant to a Stipulation for Certi-
fication Upon Consent Election approved by the Region-
al Director for Region 9 of the National Labor Relations
Board on January 28, an election by secret ballot was
conducted on March 4, in which 14 votes were cast for
the Petitioner (Union) and 12 against . There were four
challenged ballots which were sufficient in number to
affect the results of the election. Employer filed timely
objections to conduct affecting the results of election
which, on investigation by the Regional Director, were
determined not to raise any substantial or material issues
affecting the results of the election, and it was recom-
mended to the Board that they be overruled in their en-
tirety. However, the Regional Director determined that
the challenged ballots could best be resolved after hear-
ing and, noting particularly that two of the challenged
ballots related to issues in Case 9-CA-19188, the Region-
al Director, on March 29, consolidated the matter of
challenged ballots in Case 9-RC-14210 for hearing with
Case 9-CA-19188, pursuant to Sections 102.69 and
102.33 of the Board's Rules. It was stipulated at hearing
that exceptions to the Regional Director's Report on
Challenged Ballots, Objections to Election recommenda-
tion (only) on nonmeritorius objections was filed on
April 7, which had not been ruled upon at the time of
hearing.
On December 9, 1983, the Board rendered its Decision
and Direction in Case 9-RC-14210, in which the Board
adopted the Regional Director's findings and recommen-
dations in their entirety. The only outstanding represen-
tation case issues in Case 9-RC-14210 presently before
me for resolution concern the four remaining challenged
ballots upon which evidence has already been taken, the
parties having heretofore mutually desired and been per-
i All dates are in 1983 unless otherwise stated.
276 NLRB No. 172
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to fully litigate all issues concerning the determi-
native challenged ballots.2 Prior Order of March 29,
consolidating Case 9-RC-14210 for hearing with Case 9-
CA-19188, also provided a decision be made containing
resolutions of credibility of witnesses, findings of fact,
and recommendations as to the disposition of the chal-
lenged ballots; that it be served upon the parties; that the
case be transferred to the Board, and that the provisions
of Sections 102.46 and 102.47(f) of the Board's Rules
shall govern the filing of exception thereto.
In the interim, charge in Case 9-CA-19452 was filed
against Respondent by Teamsters Local 651 on March
18. Order issued consolidating Case 9-CA-19452 with
Case 9-CA-19188, and a consolidated amended com-
plaint issued on April 26, inter alia, alleging additional
violations of Section 8(a)(3) and (1). On May 3, Re-
spondent filed an answer to consolidate amended com-
plaint, denying commission of any unfair labor practices.
The charge in Case 9-CA-19492-1 was filed against Re-
spondent by Teamsters Local 651 on March 28 (amended
April 26). An order further consolidating Case 9-CA-
19492-1 with Cases 9-CA-19188 and 9-CA-19452, and
second amended complaint issued on May 6, alleging,
inter alia, additional violations of Section 8(a)(3) and (1).
On May 13, Respondent filed timely answer to second
consolidated amended complaint, denying the commis-
sion of any unfair labor practices.
On the entire record, from my observation of the de-
meanor of the witnesses, and after due consideration of
the briefs filed by Respondent-Employer and Charging
Party-Petitioner on July 14, and by General Counsel on
July 15, I make the following
FINDINGS OF FACT
1. JURISDICTION
Jurisdiction is not in issue. The second consolidated
amended complaint (as amended at hearing) alleges, and
Respondent's answer thereto admits, that Respondent
Employer is a Kentucky corporation with office and
place of business in Lexington, Kentucky, where it is en-
gaged in the wholesale distribution of beer; and that
during the past year Employer purchased and received
at its Lexington, Kentucky facility products, goods, and
materials valued in excess of $50,000, directly from
points located outside the Commonwealth of Kentucky.
Accordingly it is found that Respondent Employer is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The complaint also
alleges and Respondent Employer in answer has admit-
ted, and I find, that Teamsters Local 651 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
2 At hearing Employer had requested evidence be taken on the objec-
tions which was denied, pending disposition of its exceptions before the
Board, which the Board has now denied. Chairman Dotson found con-
flict in affidavits given by Oliver regarding Objections 1, 2, and 3, and
accordingly would have sent those objections to hearing. In the absence
of exception the Board adopted pro forma the Regional Director's rec-
ommendation with respect to the challenges to the ballots of Gross,
Qualls, Smith, and Zaranka
II. THE ALLEGED UNFAIR LABOR PRACTICES
Part I
A. Background
1. The changing ownership and management
structures
Employer's beer wholesale business was founded in
the mid-1950s by John P. Meyers and Fred Fugazzi. The
business was operated as a partnership for an undefined
period before being incorporated. Employer, now a Ken-
tucky corporation, has issued both Common A and B
stock, one being voting stock, and the other preferred
stock. John P. Meyers owned 51 percent of the voting
stock of Employer, and 100 percent of the preferred
stock. Apparently at all material times John P. Meyers
has been Employer's president. His son, John D. Meyers,
has served as vice president of operations. In 1980, Fu-
gazzi decided to sell his interest in the business, and to
that end, he began negotiations with Don Poole for the
purchase of his stock. It appears uncontested of record
that Federal and Kentucky state law prohibits an individ-
ual from owning both retail and wholesale liquor licenses.
Poole had quite a few property holdings, which ger-
manely already included several retail liquor and drink
licenses. Thus, Poole could not own stock in Employer
by himself. Resultingly Poole has purchased 33 percent
of the (Fugazzi) common voting stock in the name of his
daughter, Linda Poole, who apparently became Employ-
er's treasurer. The remaining 16 percent of common
stock is owned by Len Aldridge, a CPA, who over the
years has done quite a bit of work for Poole. Negotia-
tions between Poole and Aldridge were in progress at
time of hearing looking to the additional purchase of the
Aldridge 16 percent common voting stock, in Linda
Poole's name.
Initially, with Poole's support, Aldridge had become
vice president of operations (and apparently corporate
secretary); and John D. Meyers then became vice presi-
dent of sales. Aldridge was given management responsi-
bilities, in addition to overseer of the books and the
office, also over certain operations, e.g., the warehouse.
In this period, route supervisors always reported to John
D. Meyers as vice president of sales. However, the route
driver salesmen in some months reported to Aldridge,
and in other months reported to John D. Meyers. In
mid-1981, President Meyers transferred his 51 percent of
common voting stock to his son, but he has retained
ownership of all of the preferred stock issued. The above
was essentially the ownership and executive management
structure through October 1982, at which time, at both
Meyers' insistence, and eventual Poole agreement, Al-
dridge ceased any active management of operations.
John D. Meyers then became (overall) vice president,
with Aldridge eventually going off the payroll complete-
ly by the end of December 1982, under circumstances to
be discussed infra, in connection with Respondent's
raised defenses.
MID-STATE DISTRIBUTING CO.
2. Statutory supervisors and agents
As presently pertinent, in the more encompassing ma-
terial period , and with additional management changes in
the interim set in place, e.g., as of January (and thereaf-
ter), John P. Meyers is president; John D. Meyers is vice
president; Mike Shutt is general manager, having previ-
ously been a route supervisor , and for a brief period, op-
erations manager ; Bill Walczak, having previously been a
route supervisor, is sales manager over several route su-
pervisors, including Route Supervisor Andy Koontz.
Apparently the other route supervisors (not named in
complaint) in material time were Jeff Slone and Bill
Congleton . As named in the complaint, Herb Whitt is
the warehouse manager , and Howard Covington is assist-
ant warehouse manager . The complaint (as amended) al-
leged, and Respondent by answer filed has admitted, and
I find on the record before me that each of the above
individuals named in the complaint is a statutory supervi-
sor and agent of Respondent ; and it is further alleged,
and admitted, and I thus further find that Don Poole is
an agent of Respondent within the meaning of Section
2(13) of the Act.
3. The business, facilities, and operations in general
Employer is engaged in the business of wholesale dis-
tribution of beer and related products . It has operated, in
the main, since the late 1950s, as a distributor for Miller
Brewing Co ., operating under a franchise agreement,
that was renewable every 5 years . In material times Em-
ployer received its product from a given brewery by
railcar shipment whenever possible (for reasons of econ-
omy); but also by long-haul or over-the-road trucking,
having previously regularly operated three leased trucks
with its own drivers employed for that purpose ; and oth-
erwise, by contracting with certain common carriers for
the delivery of such product to its warehouse , apparently
in years past , on an additional-need basis. Essentially the
shipped product is received in form of either cases of
packaged cans or bottles, or in various sized kegs of
draft beer . The cased products when received and un-
loaded by Employer's warehouse personnel are stored on
pallets and stocked in tiers in the warehouse in designat-
ed locations , while the kegs are primarily stored in three
big coolers that compose part of Employer's large ware-
house facility that is located in Lexington, Kentucky.
From this central facility , product is daily loaded on Em-
ployer's delivery trucks and trailers , and distributed by
Employer's route driver-salesmen , relief drivers, and/or
helpers to various type retail establishments located in
central Kentucky . The same warehouse facility houses
all Employer's administrative and management offices.
Employer also operates a detached garage facility that is
located some distance away from the warehouse, at
which it employed a mechanic and helper to perform
certain maintenance and repair services for its distribu-
tion vehicles.
Employer's driver-salesmen regularly drive (5 days a
week) either an assigned package or keg route , though
most of the routes are package routes, which are general-
ly more set or established in route schedule. Some retail-
ers are larger than others. A number of retailers take de-
1513
liveries twice a week ; and resultingly , route driver sales-
men generally make deliveries on Monday and Thurs-
day, and Tuesday and Friday , with Wednesday generally
a slower day for them . Indeed, certain package route
drivers do not regularly work on Wednesday at all.
Some customers take deliveries three times a week.
Thus, some drivers may schedule primarily a large deliv-
ery on Wednesday . Storage is a problem for keg route
customers . Deliveries there are the more frequently on-
need basis.
Warehouse personnel include forklift operators who
daily unload product, principally , as noted , from railroad
cars. They otherwise store the product on pallets in pre-
scribed tiers and in designated areas in the warehouse.
They also move selected (ordered) product for the driv-
ers in their loading process which generally occurs in the
late afternoon when the route drivers return to the ware-
house at staggered times after having completed their de-
livery of ordered and/or effort of sale of product for
that day. Apparently keg drivers load in the morning.
The package route and keg driver salesmen are re-
sponsible for their truck's operation, and for a full ac-
counting of the product that is placed in their care.
There is thus, for example, an onloading count as
checked by warehouse manager, or his assistant, with
package route driver salesman of ordered and/or for sale
cases of product when obtained from the warehouse.
Drivers are thus held responsible for the accuracy of the
load tickets (counts) generated in the loading and return
process; and also for the related accounting to be accom-
plished when ordered or sold product is offloaded and
delivered at retail establishments served, including pro-
viding an accurate accounting for the regular receipt of
payment and/or any deferred (charge) accounting there-
on, which is to be collected in a week . Shortage, includ-
ing that occasioned by deferred payment, is routinely de-
ducted from their paychecks.
Prior to January 12 , the driver salesmen regularly
drove with a helper. As might be expected from classifi-
cation, the helpers helped in the loading of product on
the truck, and with the offloading of product from the
trucks at point of delivery, including regularly wheeling
the product into the retail establishment . Helpers have
also sold beer, kept route books, and set up displays.
Beer is rotated and, if unsold for certain periods, re-
turned to the warehouse. When helpers returned to the
warehouse daily, they were additionally responsible
(prior to January 12) for the loading of all returning
trucks, which occasioned the waiting of some helpers for
even later truck arrivals. Helpers build up and break
down pallets of product to order . The helpers would
also cure up depleted pallets in the warehouse occa-
sioned by ordered separate , or short, lots; and when di-
rected, they also would work on breakage , and other-
wise generally clean up the warehouse . A driver would
not be given any credit for returned breakage cases until
a whole case was reworked.
Robert C. Emmons was initially employed by Employ-
er as an over-the-road driver in the spring of 1980. At
that time there were two other full-time over -the-road
drivers employed, viz. George Granger and Russell Bur-
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gess. Granger left in the spring of 1982. It is uncontest-
ed that Burgess was already employed when Emmons
was hired, and that he had more seniority than Emmons.
In material times, Employer also employed one part-time
over-the-road driver, Russell Ruth.
The over-the-road drivers generally drove to Miller
Brewing Co. plants, occasionally returning dunnage (e.g.,
pallets) or cooperage (primarily empties), but principally
making the trip to pick up ordered product and transport
it back to Employer's warehouse facility. (Common car-
riers were not used to haul dunnage/cooperage because
it was uneconomical.) Emmons regularly drove to a
Miller brewery located in Eden, North Carolina (a 970-
mile round trip), though he has also hauled product or-
dered from other Miller facilities located in Milwaukee,
Wisconsin, and Albany, Georgia; and he has similarly
hauled product from a non-Miller facility located in
Newport, Kentucky. However, it appears to have been
uncontested that, most often, Emmons drove the Miller
Eden pickup and delivery trip. Over-the-road drivers
were paid by the load or trip. In the first of 1981
Emmons' trip base was raised from $135 to $145; and
since January 1982, Emmons regularly received $150
plus $20 for expenses for his regular Eden trip. Other
over-the-road drivers also drove to Eden for loads.
Emmons has acknowledged that several common carri-
ers were also used by Employer, but has testified that the
common carriers were theretofore used when more
product was ordered than Employer's own employed
over-the-road drivers could get (transport), seemingly
heretofore particularly in the summer, when sales cycli-
cally increased.
4. The nature of the alleged unfair labor practice,
broadly viewed
The complaint, as further amended at hearing, essen-
tially alleges (and Respondent denies) that Employer has
engaged in multiple violations of Section 8(a)(1) and (3)
of the Act, in that Employer, by its certain above-named
supervisors an agents , has coercively interrogated its em-
ployees concerning their and other employees' union ac-
tivities as early as mid-October 1982, but otherwise, and
by fair in the main, viz., on various dates in January
1983, has similarly coercively interrogated its employees;
told its employees that they were being watched, thereby
implying the union activities of its employees were under
surveillance; requested an employee to actively work
against the Union; and threatened employees, variously:
with loss of benefits; an imposition of more onerous
working conditions; other unspecified reprisals; and that
Employer would close its facility, and not negotiate with
the Union if the employees selected the Union as their
collective-bargaining representative, nor agree to any of
its demands; and threatened and/or impliedly threatened
employees with discharge for their union activity or sup-
port. The complaint further alleges (and Employer
denies) that Respondent on various dates in January and
February, by certain of its supervisors and agents (named
and unnamed): has solicited employees' grievances and
complaints, and promised to resolve them in order to dis-
courage employees' union activities; increased driver
commissions on January 12 to discourage membership in
the Union; and encouraged employees to deal directly
with Respondent and bypass the Union. (Subordinate
issue is whether two unnamed women who conducted a
certain opinion survey of Employer's employees were
agents of Respondent, which is denied by Respondent.)
The complaint further alleges that on January 12, in
violation of Section 8(a)(3) and (1), Respondent discri-
minatorily terminated nine helpers (including two helpers
who have subsequently cast two of the four challenged
ballots that are determinative of the election conducted
on March 4), and thereafter threatened that helpers
would not be reinstated if the employees selected the
Union as their collective-bargaining representative; that
on March 11, Respondent rehired a less senior helper,
discriminating against other more senior helpers who had
applied for such work; and that on March 25, Respond-
ent laid off over-the-road driver Robert Clifton Emmons
(a leading union adherent). Finally, the complaint simi-
larly alleges that on April 18 Respondent discriminatori-
ly changed the method of pay of helpers and reduced the
commission-paid drivers, thereby reducing the wages of
its drivers and helpers. Employer denies the commission
of any of the above alleged unfair labor practices.
The central unfair labor practice issues thus essentially
are whether Employer has engaged in any of the above
conduct and, if so, whether it has done so in violation of
Section 8(a)(3) and (1); or whether any of the above con-
duct such as Employer is determined to have engaged in
was lawful being accomplished for raised economic and
nondiscriminatory reasons, in response to reorganiza-
tional addressment and correction of both observed
structural management discord and deficiency, and per-
ceived economic inefficiencies in use of its helpers, and
in its use of leased trucks; or otherwise that Employer's
acts and conduct were engaged in under such circum-
stances that they are not to be construed violative of the
Act. Apart from the employment status of two alleged
discriminatorily terminated helpers who have cast chal-
lenged ballots, remaining then are issues of unit place-
ment and eligibility of two employees who have cast the
other two of the four determinative challenged ballots.
B. The Evidence
1. Emmons' pre- 10(b) union activity; Employer's
reactions
Emmons recalled that his first contact with the Union
was actually in the fall of 1981. On that occasion he
spoke alone with Union Representative Rick Silvers. Sil-
vers is vice president of Teamsters Local 651, and was
its business agent and its organizer in material times. Sil-
vers has corroborated only generally that he had first
contact with Emmons in 1980-1981. According to
Emmons, some (indefinite) time thereafter, Emmons met
with Silvers a second time, this time with the two over-
the-road drivers. However, no further organizational
steps were taken at the time. Though Silvers confirmed
the later meeting with Emmons and other over-the-road
drivers, it was again indefinitely related as to time.
Emmons has testified otherwise that it was in the
spring of 1982, when he came to work one Saturday
MID-STATE DISTRIBUTING CO.
morning, that Aldridge, whom Emmons then viewed as
the general manager, said he wanted to talk to Emmons.
They went to Aldridge's office. On this occasion Al-
dridge asked Emmons did he pass out any cards.
Emmons replied no. Emmons testified that Aldridge then
said that if Emmons had he was not going to be fired for
it. Although Emmons on direct examination testified that
Aldridge had then additionally said that if the Union
came in, he would have to live with it, and that the
Company did not like it, but they would have to live
with it. On cross-examination Emmons later acknowl-
edged that Aldridge had said if one came in, they would
have to live with it, but did not mention the Union (as
such). Aldridge did not testify on this, or any other
matter in this proceeding. I credit Emmons' essential
recollections in the above respects as to Aldridge's in-
quiry whether he had passed out cards, and upon
Emmons' reply that he had not, the above assurance and
comment. Moreover, though it appears that Aldridge
may not have used the word "Union" as such, under all
the attendant circumstances, I further conclude and find,
as relevant background, that Emmons was previously en-
gaged in initiating employee contact with the Union; and
that in the spring of 1982 Emmons was taken to the
office by Aldridge and there, in substance and effect, in-
dividually questioned by Employer Vice President of
Operations Aldridge whether Emmons had passed out
union cards; and that when Emmons denied it, he was
then told by Aldridge that Emmons would not be fired if
he had; and essentially that though the Company did not
like it, if the Union came in, Aldridge and the Company
would have to live with it.
2. The employee handbook publication
Credible evidence of record reveals that about the
same time (spring of 1982), Employer distributed to its
employees, including helpers, personalized copies of an
entirely new employee handbook, presenting information
to employees about the Company, including personalized
statement of commitment of President Meyers to the
booklet's summary "of the principles for which we stand,
the benefits to which you are entitled, and the obliga-
tions you assume as employees." The employee hand-
book describes the employee-employer relationship as
follows:
As we have consistently done in the past, we
shall manage our business on the simple basic phi-
losophy of fairness in all our dealings with our em-
ployees, customers, and suppliers. We have, and
will continue to provide, good employee benefits,
working conditions and wages consistent with our
ability and success. Periodically, we will sample
other companies to see if we are competitive in
wages and benefits:
Our employees will never need to pay any union
in order to receive fair and just treatment regarding
wages, hours, or other conditions of employment.
We will oppose, by every legal means, any attempt
by an outside group to organize our employees. It is
our commitment to treat our employees in such a
1515
way they will neither need nor want to be repre-
sented by any union.
It is, and will continue to be, our policy to pro-
vide steady employment, solid opportunities for
training and advancement, competitive benefits and
fair treatment for all employees. These benefits [are]
yours without the cost of union dues, damage to
cherished friendships within the Company, and peri-
odic threats of strikes and strike-related loss of
wages and even jobs. This Company will always re-
spond more readily to reasonable discussion and
suggestions from friends than to threats and pres-
sures from unfriendly persons, either from within or
from outside the Company.
At the outset it is observed that the General Counsel
has stressed the chronology of events, while Respondent
Employer has frequently stressed the surrounding cir-
cumstances of the material events. Endeavor is made to
reflect both considerations in the recitement of facts, and
the initial resolution of issues of fact where in conflict,
particularly on 8(a)(1) matters. However, as Vice Presi-
dent Meyers and Office Manager Gina Wiseman were
Employer's principal witnesses on Respondent's econom-
ic defenses to the allegations of Section 8(a)(3), Employ-
er's economic defenses are marshaled subsequently for
more convenient consideration as a whole.
3. The resurgence of employee discussions about
the Union; Employer's reactions
a. Whitt's alleged interrogation of Houg
John Houg was hired the first of December 1980 as a
helper, but for at least the past 1 to 2 years had been
classified part of the warehouse crew; and he had
worked regularly as a forklift operator in the warehouse.
The complaint alleges, and Respondent denies, that in
mid-October 1982 Warehouse Manager Whitt coercively
interrogated employees concerning their and other em-
ployees' union activities. Houg has testified that he had a
conversation about the Union with Warehouse Manager
Whitt about 10 a.m. one day in mid-October 1982. There
had been a computer failure. Houg had been just given a
paycheck advancement. Haug, who had been keeping
track of his own hours, thought that he should have been
paid more than he was being paid. Houg told Whitt that
he thought he was being screwed, and that everybody
else was; and Haug then said, "If this did not stop, that
there would be a union in here." According to Houg,
Whitt, who at the time was walking away from him,
whipped around and asked Houg who was talking about a
union? Houg told Whitt that no one was, but if things
did not straighten up, that there would be. On cross-ex-
amination Houg related that the Teamsters union activity
at this time was up in the air; that no one was really dis-
cussing it because of fear; that any discussions at work
were just among close friends; and he acknowledged
generally that there were no cards signed or meetings
held until mid-January.
Whit has confirmed there was an occasion in October
1982 when Houg was upset that his check was not cor-
rect. Whitt's version is that he explained to Houg that
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the computer was messed up; and also that it would be
straightened out next week ; but that Houg was hostile.
Whitt essentially otherwise confirms that Hong said
something about "if this place doesn't get straightened
out we'll get a union in here"; and that Whitt had then
said , " Who's talking the Union ," and Houg said nobody. I
credit Houg 's account , substantially corroborated as it is
by Whitt. Whitt has additionally testified , however, that
he had advised no one else of this conversation . It is Re-
spondent's contention that , under the above circum-
stances, Whitt's interrogation of Houg in mid-October
was too trivial and isolated to merit a finding of coercive
interrogation. The General Counsel has contracontended
coerciveness is evidence in this and other incidents in-
volving Whitt, both by Whitt's failure to communicate a
valid purpose for the interrogation made, and Whitt's
failure to give to Houg any assurance against reprisal.
b. Employees ' preliminary discussions
David L. Gillis has been employed as a package route
driver salesman since February 23, 1979. Gillis' regular
assigned route delivery was in Laurenceburg and Nicho-
lasville, Kentucky . Wayne Qualls was Gillis' regular
helper ; and both were immediately supervised (as to the
route) by Route Supervisor Jeff Slone. However, in
regard to warehouse operations, Warehouse Manager
Whitt and his assistant Covington alternated weeks in
coming in early to open up (apparently at 7:30 a.m.), or
later at 10 a .m. (and to work later). Thus, route drivers,
on alternate weeks, would report in the morning to
either Whitt or to Covington ; and in the late afternoon
either Whitt or Covington would check load counts.
Whitt and Covington otherwise directly supervised the
warehouse personnel, including helpers (at least), in
regard to all warehouse work.
Emmons ' recollection was that it was about December
1982 when he next spoke to employees about a union,
viz, to Dave "Foot" Gillis, a driver-salesman , and also to
a warehousemen whose name Emmons did not recall at
time of hearing. It was Gillis' recollection that he had
first discussed the Union with Emmons, about November
1982: and he further testified that he had discussed the
Union with still other employees between Christmas and
New Year's. Package route driver Dan B. Lewis, whose
helper was Tom Mayborg, has testified that he had first
discussed the Union with both Emmons and Gillis about
the end of November 1982. Cliff Gross, a helper and
relief driver on Brad Ebert's package route in Frankfort
and Versailles, Kentucky , recalled there was a discussion
about the Union among six employees , in Employer's
parking lot , in mid-December , viz, route drivers Dan
Lewis, Tim Williamson, and Carroll Drury, and helpers
Mayborg , himself, and Danny Shearer. Shearer was clas-
sified as a relief driver as of February 18, 1982. Although
Shearer had more recently and regularly operated a fork-
lift in the warehouse, according to Employer he was car-
ried as a warehouse helper, as discussed infra. Mayborg
has testified (only) that he first heard of the union orga-
nization on January 11; and Shearer also did not specifi-
cally testify as to the parking lot conversation. Nonethe-
less, Gillis has further testified that it was one day
around Christmas as he and Qualls were loading the
truck, Assistant Warehouse Manager Covington came up
to him to help with (observe) the loading. Gillis asked
Covington, "What's going on?" At that time Convington
told Gillis "I don't know , but I don't like a union; and I
couldn't get involved , because I'm management, but I
understand what you guys are doing." The General
Counsel does not allege this Covington comment as
being a violation of the Act, and indeed , in brief, would
appear to concede therefrom that Convington, who was
a low level and direct supervisor of the employer, ap-
pears to have been somewhat sympathetic to the organi-
zational activities of employees . In any event it is con-
cluded and found that, as early as the end of November,
but much more so in December, employees had begun
talking among themselves about a union ; and that Cov-
ington revealed to Gillis in late December that the em-
ployees' union discussion had come to (at least ) his atten-
tion.
In addition to being Gillis ' helper, Qualls is also a
brother-in-law of Walczak. Qualls has testified that for a
couple of weeks, viz , since mid-December 1982, he had
heard rumors about the helpers; and on cross-examina-
tion he has acknowledged that he had heard some
rumors about changes being made without company-used
helpers. However, Qualls denied that he had heard any
rumor about a layoff of the helpers. Thus, Qualls testified
that in Qualls ' house, just after Christmas and before
New Year's, Qualls had a conversation with Walczak
about helpers. At this time Qualls was being paid $4 an
hour; and he regularly worked 50-60 hours as a helper.
Qualls brought up the subject of helpers, and the rumors
that there was supposed to be a salary change in the way
helpers were paid. According to Qualls, Walczak told
Qualls (essentially), that they were thinking about, or
trying to work something out on it, a base pay of so
much per week/day, plus so much a case , but he was not
sure about it. On cross -examination Qualls also recalled
that Walczak told Qualls that whatever change was
made would probably take credit sometime in early 1983.
As Respondent ' s witness , Walczak has confirmed that
Qualls one day between Christmas and New Year's had
said to him that there were some rumors going around
that they were going to change the pay scale of the help-
ers on the trucks; and that Qualls had asked him if there
were any changes that were going to be made, or if
there was going to be any change in the pay scale for
helpers. Walczak's version is that he said, "We're not
really sure at this point, we're thinking of a couple of
different options; and there's one option that we're think-
ing of doing" what all the other beer companies in Lex-
ington do, viz, pay helpers on the trucks a base salary,
plus commission per case. Walczak on cross-examination
testified that that was the only option stated; that he did
not say when it would be, just that they were looking
into it. At first Walczak testified that he did not think
Qualls would have liked hearing about a firing option;
but then immediately, on his own, added that he did not
know that a firing option was then being considered.
MID-STATE DISTRIBUTING CO. 1517
C. Covington's alleged threat made to Emmons
The complaint alleges that in early January Assistant
Warehouse Manager Howard Covington threatened an
employee with unspecified reprisal because he engaged
in activities on behalf of the Union. It is uncontested of
record that Emmons and Assistant Warehouse Manager
Covington have known each other for 25 years, and
have been good friends ever since high school. The
record reveals that it was fairly common that they vis-
ited socially at each other 's house. Covington reports to
Whitt or to Shutt . It is Emmons ' testimony that in early
January at his own house Covington told Emmons that
he better watch out ; that he was going to get in trouble
over the Union; and that the old man (President Meyers)
heard that Emmons was trying to start a union again. Al-
though Emmons acknowledged the conversation could
have been at Covington 's house, he also has testified that
he did not think so. It is Covington 's testimony (only)
that it was after the union picket signs were put up (thus
after the termination of helpers on January 12 discussed
infra), and he believed at his house , that he told Emmons
that he talked too much; and that Emmons had replied,
"I don 't talk enough sometimes ." Covington could only
remember otherwise that the Union had come up, but he
would not say it was before or after.
Emmons ' testimony , apart from time of incident, was
the more specific and convincing in its detail; and Cov-
ington's testimony as a joiner in denial thereof was
simply inadequate and unpersuasive . I credit Emmons as
to the details of the above statement being made to him
by Covington in early January . It is Respondent 's basic
contention otherwise that, under the circumstances of
their friendship and location of the conversation, it is not
reasonable to believe that Covington's statements were
meant as a threat on behalf of management to Emmons;
and that rather what occurred was only a discussion
among friends . It is the General Counsel's basic conten-
tion that Covington's remarks to Emmons , although per-
haps well intended , have nonetheless restrained and co-
erced Emmons within the meaning of Section 8 (a)(1).
d. Covington't remark to Gillis implying Employer's
surveillance of employees ' union activities
The complaint alleges that, on January 7, Assistant
Warehouse Manager Covington told employees that they
were being watched, implying Respondent was keeping
the union activities of its employees under surveillance.
Gillis testified that, on a Friday afternoon, Covington
and Gillis were at his truck counting, comparing load-
sheets. Qualls was also there, but on the other side of the
truck loading, and could not hear their conversation.
Neither could forklift operator Hong because of the
noise, though occasionally he was but 6 or 7 feet away.
Gillis has testified that he again asked Covington what
was going on. Covington replied he did not know, but
Mike Shutt and Meyers had come down to him that
afternoon and asked Covington if he had heard anything
about a union. According to Gillis, Covington said that
he had told them no; but then told Gillis, "we [employees]
better be careful, because they were watching us."
As Respondent 's witness, Covington has testified
(only) as to an incident (before the discharge of helpers
on January 12) when Gillis had obtained a beer from the
warehouse and opened the beer by a pallet about 4 p.m.,
before doing , or completing his loading , thus during his
working hours . Covington 's testimony is that he thought
it was before Gillis began to drink the beer that Coving-
ton had told Gillis that he wished Gillis would not do
that; that "he [Gillis] was going to put us all on the
spot." Covington has testified that he had told others the
same thing, before Gillis . Covington 's recollection was
that Vice President Meyers was then standing in the
window upstairs , and could see them. Covington has
otherwise testified generally (on cross-examination) that
he was not aware of any union talk around December
(1982) and January ; and also that he did not talk to
President Meyers about the Union . It is Respondent's
contention that Covington 's account is the more proba-
ble one.
Gillis, however , had already testified (in earlier cross-
examination) that he recalled an occasion when he had a
beer that Covington had told him, "Dave, I ' d appreciate
it if you wouldn 't do that in here right now with every-
thing going on"; and said , "I wish you'd do it outside";
and Gillis acknowledged that he had taken the beer out-
side. Gillis even then had testified that this was not the
same occasion when Covington had mentioned the Union
to him. Gillis' version differed in recollection of the beer
incident also in that his recollection was that Covington
was concerned about Warehouse Manager Whitt getting
on Covington about it. Gillis has otherwise testified that
they regularly put beer in the coolers for employees to
drink while unloading the trucks in the evening ; that no
one had ever (previously) told him not to drink the beer
at this time ; and that they had drunk the beer in there
regularly before, and it had never been a problem before.
Gillis testified specifically that , prior to the union activi-
ty, it was common practice for employees and supervi-
sors to drink the beer supplied by the Company on com-
pany premises , although acknowledging that , lately, they
did not allow it. Covington has confirmed that it had
previously happened that drivers had drunk beer while
unloading . According to Covington , Gillis got his beer
from a pallet in the warehouse (though it is unclear of
record whether that was being claimed by Covington to
be improper); but he more pointedly asserts that the em-
ployees were not supposed to drink beer during their
working hours. While acknowledging that they (and he)
previously had, Covington also asserts he tried to dis-
courage it . However, Covington has acknowledged that,
to his knowledge , no one had ever been previously
warned about it.
Covington 's general testimony essentially of unaware-
ness of union talk until after the termination of helpers
and picketing in January is not to be accepted literally,
or otherwise , e.g., in combination with his description of
the earlier beer incident, as a convincing denial of Gillis'
specific testimony that Covington told him on Friday,
January 7, essentially that Vice President Meyers and
Shutt had made recent inquiry about employees' union
activity ; and that the employees better be careful, be-
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause they were watching employees. Covington specifi-
cally denied neither the statement nor the related ap-
proach of Shutt and Vice President Meyers to him. Nor
did Shutt or Meyers offer supportive testimony thereon.
Neither is Covington's denial of general awareness of
union talk in December 1982 and (early) January to be
credited, in light of more persuasive and convincing tes-
timony of both Gillis and Emmons as to the above earli-
er events. The testimony of Gillis, in contrast, was con-
sistent, and in these matters convincing. It is concluded
and found that on Friday, January 7, Covington told
Gillis in substance and effect that Vice President Meyers
and General Manager Shutt had made recent inquiry of
Covington that afternoon as to his knowledge of employ-
ees' union activities which he had then disclaimed
knowledge of, but that the employees better be careful,
because they (Meyers and Shutt) were watching employ-
ees, clearly indicating the union activities of employees
were then under surveillance.
4. The concurrent announcement of employee
evaluations and commencement of formal
organizational activity
Although Robert Tuttle, whom I find to be a general-
ly reliable witness, recalled announcement of evaluations
somewhat earlier, he did so uncertainly. Thus, on weight
of more credible evidence of record it is concluded and
found that it was in a regular Monday morning sales
meeting , held on January 10, that both drivers and help-
ers were initially informed that they were to be evaluat-
ed (for the first time) that week; and that they should all
sign up for such an evaluation at their convenience.
Lewis (alone) adds that they asked employees to make a
list of some of the problems or suggestions that they
could make to the Company to improve the Company. It
was on the same day, Monday, January 10, that Emmons
went to the Union's hall, again contacting Silvers. After
first signing a union authorization card for himself,
Emmons obtained a supply of union authorization cards
from Silvers for distribution to the other employees. It
was arranged between Emmons and Silvers that Silvers
would initially meet with interested employees the fol-
lowing evening at 6:30 to 7:30 p.m., Tuesday, January
11, at the Gold Star Chili Restaurant, a local restaurant
in Lexington. On the afternoon of January 10, Emmons
made contact with warehouse forklift operator Jeff Doss
and route driver Gillis in the back of Gillis' trailer.
Emmons handed a supply of the union authorization
cards to Doss, who then split the cards with Gillis. Gillis
promptly put his supply of cards in the trunk of his car.
(Although Doss did not testify in this proceeding, the
foregoing is based on mutually consistent and credited
testimony of Emmons and Gillis.) Gillis has testified
there were approximately 13 route drivers at this time.
On January 11, Gillis began distributing the cards to the
other route drivers, but not directly to the helpers.
5. The evaluations conducted on January 11
a. Tom Mayborg. Mayborg was evaluated on January
11 at 2:30 p.m. in Shutt's office. At that time Mayborg
was making $4.25 an hour. Shutt told Mayborg that he
had done a good job; had performed well on the route;
and there were no complaints. Shutt also told Mayborg
he would probably be wondering when he would get a
raise. Shutt then said there would be an increase in March,
and he would probably get one then; and Shutt also men-
tioned that they were talking about changing their rate of
pay. Mayborg testified that this was the first time he was
evaluated; and that there was no mention to him of a dis-
charge or a layoff.
b. David L. Gillis. Shutt and Walczak were both
present for Gillis' evaluation held between 4 to 5 p.m. on
January 11. According to Gillis, Shutt told him that he
did not have much to say to him; that Gillis was an out-
standing driver, and was doing a good job. The discus-
sion covered sales. quotas, the areas that were up or
down, and performance. Walczak has subsequently relat-
ed that when Gillis was evaluated he told Gillis that the
only problem he saw with Gillis' work was a lot of times
he would talk about that Company's business with indi-
vidual customers, and Walczak said he did not think that
was a good practice to get into. Walczak said, "That was
our business"; and Gillis' job was to sell beer, not to talk
about the Company, sometimes derogatorily. (Shutt did
not corroborate Walczak on such criticism.) According
to Gillis, Shutt showed Gillis a piece of paper, and said
that he was going to write down problems or suggestions
that the employees had, that he wanted them to sign; and
that it would be turned in to Vice President Meyers.
Shutt then proceeded to ask Gillis questions, inter alia,
did Gillis get along with his helper (Wayne Qualls).
Gillis responded that he did. Gillis relates (ambiguously)
that they had a little problem with helpers, and that
Shutt said, that he was tired of coming down to the
warehouse and seeing the helpers standing around when
there was work to be done; that they were thinking about
putting the helpers on a base, plus commission on cases
(sold) and having the helper load the truck in front, or
behind them and going home. Shutt then asked Gillis if he
had any suggestions or problems. Gillis told Shutt that
he thought they needed the drivers to be able to get
more advertisement at their convenience. Gillis told
Shutt also that one problem they had was that forklift
driver John Hong had no incentive; and that they ought
to try to give employees incentive to move up in the
Company. Seemingly Gillis has Shutt stating it was
beyond their control, and up to "John D" (Vice Presi-
dent Meyers) and them to do anything about the prob-
lems. According to Gillis, he had never been evaluated
by Employer before; and the last time he had been asked
for such complaints was back in 1980.
Pre-10(b) instance of Employer solicitation of
grievances from employees in context of their
suspected union activity
Over Respondent's objection and offered as further
background to shed light on Employer's present conduct
in the 10(b) period, the General Counsel has introduced
evidence of a conversation that Vice President Meyers
had with certain employees in 1980. On that occasion a
group of employees had gone out to lunch for a pizza.
(No evidence was ever offered that they had actually en-
MID-STATE DISTRIBUTING CO.
gaged in any union activity.) When employees leave the
premises for lunch they are required to punch out, and
to punch in upon their return. Gillis' version is that upon
their return President Meyers had their timecards, and
was very upset with them. Gillis recalled the incident oc-
curred approximately in October 1980; and that after
asking President Meyers if he could talk to the employ-
ees, Vice President Meyers had requested the employees
to go to his office. Gillis recalled that present besides
himself in the office were Vice President Meyers, em-
ployees Donald Shearer, James Price, Clarence Harris,
and Tom Mayborg. (At this time it appears that Shearer
and Mayborg were helpers but it is unclear what position
Price and Harris held.) After they went into the office,
Meyers asked the employees what he heard about a
union. Gillis immediately spoke up, "Well you let us
know; and we'll all know." Somewhat led to discussion
of helpers, according to Gillis, Meyers then discussed
that if the Union were ever brought in helpers would not
be employed; and that Meyers had also said that there
would be regulations, like wearing hardhats and safety
stuff. Gillis recalled, generally, that they discussed prob-
lems; and specifically that Meyers then asked the em-
ployees when they went home, to write up their com-
plaints, problems, and turn them in to him; and that they
would try to do their best to take care of the complaints
and problems in the Company. Gillis alone has testified
that he did so; and that he turned it in to Vice President
Meyers.
Shearer's recollection was that it was earlier about the
spring of 1980 that he and some other friends went out
to lunch. Shearer's version is that when they got back
(as he recalled about 1 minute late) their timecards were
gone; and that Warehouse Manager Whitt told them to
go up to Meyers' office. In the office, Shearer essentially
corroboratively recalled Vice President Meyers had said,
"We heard that you all went out to see a union man";
and they replied, "No we didn't." All Shearer initially
could additionally recall of that meeting was that Vice
President Meyers had said that there would not be any
helpers on the truck, adding after being led with inquiry
on, if something had happened, to testify if the Union
came in; though on cross-examination Shearer later testi-
fied directly that he was positive that Meyers had said
that if a union came in there would not be helpers. May-
borg has also testified as to this incident, recalling it as
about the ' summer of 1980; and placing Aldridge also
there in President Meyers' office. Mayborg confirmed
that they were told to report upstairs, after returning a
few minutes late. He also testified that when late in past
months they had just punched in. Mayborg further cor-
roborated that when in the office Vice President Meyers
had asked them, "What's this about a union"; and they
said they did not know. Mayborg has further confirmed
that Vice President Meyers had then asked them to write
some things down, "What we thought could help the
Company," ideas, and to hand them in to him the next
day. Mayborg's recollection was that they had made
some suggestions at the time of the meeting , but that
they, or he, did not hand anything in the next day. May-
borg did not testify to Meyers ' addressment of the sub-
ject of helper use, or nonuse, if the Union came in at all.
1519
The General Counsel at hearing had urged both the ref-
erence of nonuse of helpers if the Union came in, and the
above interrogation on union activity and Employer's
immediate solicitation of complaints of employees as
background evidence of Employer's response to a per-
ceived prior threat of union activity, for comparison
with the similar solicitation of employee grievances in
the current union organizing campaign, and as back-
ground to Employer's termination of helpers amid an or-
ganizing campaign.
Although the three employees' recollection of the
timing each varied, Vice President Meyers has confirmed
a meeting with employees in 1980, though he recalled
that the employees were one-half hour late, probably
more; and that they were called to his office for a repri-
mand. Meyers was unsure if Len Aldridge was there.
However, Meyers has otherwise candidly revealed that
there was some general discussion at the time about on-
going union organizing attempts in the trade, not their
own business. Meyers' version is that his discussion with
the employees was that if anything of that nature was
going on he would prefer that the employees talk to
them about it first; and that if there were problems with
the Company, to please let them know about them
before they got out of hand. On cross-examination, how-
ever, Meyers then acknowledged that he had told the
employees if there were problems in the operation, he
would prefer they come to us with him, if they were
thinking about a union; and adding he thought he could
handle the situation, ' not meaning the Union, but the
problems that were causing them to talk about it. How-
ever, Meyers denied that he had discussed whether a
union coming in would affect helpers, testifying categori-
cally that there was no discussion of helpers at that time.
On cross-examination he further confirmed that he had
also told them to write down their problems and to give
them to him, or his father; but he asserted again that
there was absolutely no discussion of the problems in the
meeting. Meyers has related that if Gillis subsequently
turned any in, he was the only one who did. Meyers has
otherwise offered as explanation that it was more a situa-
tion of Meyers trying to get across to the employees that
if they felt there were problems they needed to let man-
agement know, because communications had always
been a problem.
On basis of the weight of the more consistent and
credible evidence above, I am persuaded , and I find, that
upon a late return from lunch on one occasion in 1980,
Vice President Meyers both interrogated a group of em-
ployees about union activities that he and his father then
perceived , or suspected , the employees might be engag-
ing in because of the Meyers' awareness that there was
organizational activity concurrently ongoing in the trade.
Upon the employees denying engagement in any such
union activity , he simultaneously solicited the employees
to write down any complaints and/or problems they had,
and submit them to him or his father ; and that, in sub-
stance and effect, Employer promised the employees that
it would try its best to take care of the employees' griev-
ances within the Company. The General Counsel's evi-
dence submission on Meyer's statement of prospective
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helper nonuse if a union came in, however, was simply
neither convincingly consistent, nor sufficiently corrobo-
rated, in my view to be persuasive, particularly in the
fact of Meyers' categorical denial thereof; and, accord-
ingly, I shall decline to place any background reliance
thereon.
c. Wayne Qualls. Qualls was not interviewed at his
scheduled time (between 4-5 p.m.), Tuesday, January 11.
Qualls explains that he was in the warehouse waiting to
be interviewed (probably following driver Gillis) when
he was asked if Tim Hilterbran (or one of the other driv-
ers) could go before him, because the driver was ready
to go home. When Qualls agreed, he was told they
would get to Qualls after Hilterbran. However, other
employees were then taken after Hilterbran. Neither
Gillis nor his helper Qualls was scheduled to work on
Wednesday, January 12. When Walczak came down at 6
p.m., Walczak told Qualls that if they asked, to get his
evaluation the following Thursday, January 13.
d. Robert L. Tuttle. Robert L. Tuttle was evaluated on
January 11, at 5:30 p.m. Since December 6, 1982, Tuttle
had ridden with driver David Borders on Lexington
Route 1. Tuttle was making $4.60 at the time. He was
evaluated by Shutts in Vice President Meyers' office.
According to Tuttle, Shutt told him there was not any-
thing wrong with his work, it was good; and that the
Company was thinking about changing the helpers over to
base pay, plus 4-cent case commission, to take place the first
of March after an anticipated price increase from Miller
Brewing. Tuttle confirmed that Shutt explained the Com-
pany thought it was paying overtime when there was
idle time.
6. The union activity on January 11; company
awareness
a. The card signings and union meeting
Gillis relates that on Tuesday evening, January 11,
there was a union meeting attended by six or seven em-
ployees with Teamsters Representative Rick Silvers at
the Gold Star Chili Restaurant on New Circle Road; and
that Silvers discussed the Union, the purpose of the
cards, and the organizing steps. Silvers confirmed his dis-
cussion this time with employees was about organizing
the entire Company; and that, with corroboration by
Gillis, the employees then signed some cards . Gillis has
testified additionally that other employees signed cards at
their homes, and turned the cards in to either Silvers or
to Gillis at his home after signing them . Gillis had no
personal knowledge, however, of any card being signed
at the company premises.
Lexington route driver Daniel B. Lewis confirmed
that he signed a union card on January 11; that notice of
the union meeting held on January 11 had been passed
by word of mouth through the warehouse; and that he
attended the union meeting held at 6:30 to 7 p.m. that
night. Lewis' helper, Tom Mayborg, has confirmed he
signed a card the night of the meeting. Gillis' helper,
Qualls, has testified that he first heard about the union
campaign on January 11, and that he signed a union card
that day. Clifford Gross, who was a helper assigned to
Brad T. Ebert, and on occasion a relief driver on Ebert's
Frankfort route, testified that he was handed a card on
January 11, and was told there would be be a union
meeting that night at the restaurant. Paul Joseph, a
helper on driver Tom Young's Morehead route, testified
that he also signed a union card on Tuesday, January 11.
It appears that Employer concedes in brief that helpers
signed cards at the union meeting. In any event it is
clear, and I find, that the Union's employerwide organi-
zational effort had begun in earnest on January 10; that
the distribution of cards among all employees was well
underway on January 11, with notice of the first meeting
with the Union being passed among employees through
the warehouse, and with helpers already well involved;
and that a significant number of the helpers had attended
the first meeting and/or had signed union authorization
cards as of January 11.
b. Whitt's alleged interrogation of employees on
January 11
The complaint alleges that on January 11 Warehouse
Manager Herb Whitt coercively interrogated employees
concerning their and other employees' union activities.
Mechanic Omar F. Center testified that the day before
the helpers were fired (thus January 11), about 7 p.m., he
and drivers Artie King and David Borders were in the
garage, sitting around talking, having a beer, as they did
occasionally. Whitt stopped by later and had a beer or
two with them. It is Center's testimony that Warehouse
Manager Whitt on this occasion asked them if they had
heard anything about a union , about any meetings, and he
asserts that no one said anything in reply. On cross-ex-
amination Center denied hearing Borders volunteer any
information about the Union before Whitt had asked the
question. Artie King, a route driver for a year and 5
months, essentially corroborated Center, that it was
before the helpers were fired that Whitt asked them in
the garage (but only) did we know anything about the
Union and that they had said no. King's recollection was
that another driver, Grider, was there.
As Respondent's witness, Whitt has testified that one
time he thought he asked King if he heard anything about
a union; and Whitt later confirmed as well, specifically,
that it was the night before the helpers were let go.
Whitt explains that he had gone by the garage to see
what was being done on a particular truck. It is Whitt's
testimony that the employees had a six-pack and he had
a few beers with them. (Borders, King, and Whitt boat
and fish together; and Center had acknowledged that he
also did sometimes .) It was Whitt's initial testimony as
Respondent's witness that during their conversation he
had said to the employees, "anybody heard anything
about a union", and that the employees had replied no.
On cross-examination, after Whitt had previously denied
having heard anything about the Union, when later
asked if he had just asked the question out of the clear
blue, Whitt then asserted that only moments before he
asked the employees about the Union, Borders had said
to Whitt, "Some of the guys were talking union over
there," "Did you [Whitt] know that?" Whitt 's version is
that he answered no he did not; that Center and King
had gone to the car, or to get a six-pack; and that it was
MID-STATE DISTRIBUTING CO.
when they came back that he asked them, "Have you
heard anything about the Union." (However, Center spe-
cifically denied anyone had left, e.g., momentarily, to get
more to drink.) Whitt confirmed they said no; and Whitt
has denied that they told him there was a union meeting
that night. Although King believed all left the garage to-
gether, Whitt has confirmed Center's recollection that
Center and King left early. According to Whitt, Whitt
and Borders had made a night of it. Borders, who was
later elected as a union steward a week before the elec-
tion, had been terminated by Employer prior to hearing
and he did not testify in this proceeding. Whitt's initial
testimony on this matter, at best, was not initially candid.
Whether or not former driver Borders (or Grider) initial-
ly brought up the subject of employee union activity to
Whitt, it is clear, indeed admitted, that Whitt thereafter
asked the other two employees, Centers and King (at
least), if they had heard or knew anything about the
Union.
7. The events of January 12
a. Shutt's message to Gillis
Gillis' nickname is "Bigfoot" or "Foot." Gillis was off,
and did not go to work on Wednesday, January 12, 1983.
About 10 a.m. that day, Gillis received a call at home
from Shutt. According to Gillis, Shutt said, "Foot this is
Mike." Gillis replied, "How are you doing?" Shutt re-
plied all right; and then said, "Foot, I got something to
tell you, you're fired"; adding, "I'm joking." (Shutt did
not deny this statement attributed to him.) Gillis replied
he could use some time off. Shutt then said, "Foot,
there's been some changes in the Company. Starting to-
morrow, you will be going without help; and, you will
be making 18^ a case." After starting as a relief driver,
Gillis had become a regular route driver being initially
paid a base rate of $80 for 5 days and a 10-cent commis-
sion per case. Immediately prior to Shutt's call Gillis
(and other package route drivers) was being paid an 11-
cent-case commission. Gillis received a $100 base rate for
5 days which was not changed. Shutt also told Gillis,
"We are going to have a meeting in the morning [Janu-
ary 13] about 7 a.m.; and we want you to be there."
b. The termination of nine helpers
The complaint (as amended) initially alleged that Re-
spondent discriminatorily laid off nine named helpers on
January 12; and that Employer simultaneously increased
the commission paid its drivers from 11 cents to 18 cents
per case of product, doing both in order to discourage
membership in the Union. However, the parties stipulat-
ed at outset of hearing that individuals (helpers) named
in the complaint were terminated. The complaint (as
amended and effected by party stipulation) thus essential-
ly alleges and there is no dispute that Respondent termi-
nated the nine named helpers on January 12. The issue is
whether Employer did so discriminatorily, as alleged. Of
the nine helpers terminated, the first six in material order
of their credited seniority are shown below under
Column A. Each of these six individuals has testified in
this proceeding. The three helpers appearing under
Column B did not testify in this proceeding; and it ap-
1521
pears uncontested (and I find) that the three helpers in
Column B had less seniority than all the employees in
Column A. Additionally, helper Gross testified without
contradiction, and I find that although his date of hire
may appear on company record the same as Joseph, he
had actually begun work a day before Joseph.
COL UMN A
Date of
Initial COL UMN B
Thomas Mayborg
Hire
(Seniority)
12-5-79 Tommy King
Robert Tuttle 7-25-80 Steve Spicard
Wayne Qualls 12- -81 Gary Hoskins
Cliff Gross 3-19-82
Paul Joseph 3-19-82
James R Oliver 7-29-82
There were apparently three other individuals who
had previously worked as helpers who were not termi-
nated, viz, Charles "Buck" Ingram, Donny Shearer, and
Terry Soule, discussed infra.
c. The evidence of nonparticipation of Shutt, Walczak,
Whitt, and Koontz in the decision to terminate helpers
As Respondent's witness, Whitt has testified that he
was supposed to be at work that next day (January 12) at
7:30 a.m., but he did not arrive until 12 noon. Whitt has
testified that he had a hangover; and that he learned (for
the first time) from Vice President Meyers and General
Manager Shutt about 10:30 a.m. that day that the helpers
were going to be terminated. According to Whitt,
Meyers and Shutt came to his home to get him because
he had no phone and he, was the helpers' direct supervi-
sor; and when he came in at 12 noon, he was to termi-
nate the helpers. As Respondent's witness, Whitt has tes-
tified, somewhat structuredly, that for the time he was
drinking at the shop he had spoken to no one and had no
conversation with Vice President Meyers and General
Manager Shutt before they came to get him. Whitt as-
serted that it was only later that he told Shutt and
Meyers what he had learned about the Union that night.
Covington did not testify on the subject.
Driver Gillis relatedly testified that in a later conversa-
tion with Sales Manager Walczak on Monday, January
17, Walczak had told Gillis at that time that Vice Presi-
dent Meyers had come in one morning to Shutt and
Walczak, and told Walczak to get rid of the helpers.
(Shutt, on cross-examination, affirmed that he was not
part of the decision to discharge the helpers, nor did he
have recollection of discussing any driver's desire to go
without helpers with higher management.) According to
Gillis, Walczak told Meyers that he did not think that
was a very good idea; but, Meyers said, he had been
wanting to put it into effect for a few years, and he
thought he would try it out. Walczak subsequently con-
firmed specifically that the first time he learned that he
helpers were going to be terminated was on that
Wednesday, January 12, and that he had not been a par-
ticipant in any prior discusssions about the possibility of
the helpers being terminated. (There is some support in
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitt's testimony that Employer's decision was to get rid
of the helpers.)
Called as Respondent's witness, Route Supervisor
Koontz also subsequently related that he had first
learned of the helpers being terminated in a supervisors'
meeting held either Wednesday (January 12) or Thurs-
day (January 13) before lunch. Present were President
and Vice President Meyers. Koontz could not recall who
first told him; and he has otherwise acknowledged that
he may not have been in the first meeting when they de-
cided it. Koontz recalled that he was told something to
the effect that the helpers classification was going to be
done away with. Koontz did not know if all the helpers
had been notified at the time. Koontz' testimony on that
supervisory meeting struck me as being evasive, and not
wholly candid.
d. The termination notices as delivered to helpers
Helper Clifford W. Gross testified that he was sched-
uled to be evaluated at 2 p.m., January 12, but was ter-
minated before the evaluation. Gross relates that he was
working that day on some pallets when Whitt came by
and pulled him to the side. According to Gross' uncon-
tested testimony Whitt then said , "Cliff, I have some
good news, and some bad news for you." Gross said
okay. Whitt said, "First, I want you to read this." Gross
read his termination letter, and then asked, "What's the
good news?" According to Gross, Whitt then said,
"You'll have plenty of free time to do what you want in
the afternoons." Helper Joseph has testified only that
Whitt handed him an envelope and told him that he was
being let go.
Tuttle worked January 12. When he returned to work
some time after 1 p.m., and as he got a truck loaded,
Whitt called him to one side into the kitchen (or dirvers'
room). According to Tuttle, Whitt said, "I hate to do
this, but you are being terminated." Tuttle immediately
went up to talk directly to Vice President Meyers. Tuttle
had been initially hired on July 25, 1980; after working
10 days on trucks, he had thereafter worked regularly in
the office as an inventory control clerk until he had left
the office in December 1982. Tuttle asked Meyers if
there was a possibility of getting his job back, as helper,
or in the office. According to Tuttle, Meyers said, there
was some people that got hurt, but he did not have any
choice with the matter. Tuttle has otherwise testified that
in the past 2 years he had worked in the office and he
also made up the timecards; that January and February
are a slow time of the year for beer, but this year was
normal in that regard; and that there had been no layoff
in those past years, which he would have known as he
made up the timecards.
Qualls was not working on January 12, as his driver
Gillis was off. Whitt called him at home. Whitt told
Qualls that all the helpers had been let go, or terminated;
that he had the termination papers waiting on Qualls;
and Whitt asked when Qualls could pick them up. Qualls
replied in 5 or 10 minutes . When Qualls arrived, Whitt
was not there. Covington was. Qualls asked Covington
about the reason they were let go. Covington replied he
was not sure , but they had been thinking about doing it
for about a year , or more than a year, just letting the
drivers out on their own; but Covington was not sure
why they did it, because Covington agreed they did
need help on the trucks. On cross-examination Qualls ac-
knowledged that Whitt had also told him in there phone
conversation that it was something that the Company
had been thinking about for a year. Qualls relates he was
given a brown envelope containing a termination letter,
paychecks, including 2 weeks' severance pay.
Thus Qualls testified that on January 12 he received,
and it was thereafter stipulated, that all the terminated
helpers had similarly received the following "Notice of
Termination" that was signed by President Meyers:
As part of our current reorganization, we feel the
position of helper is no longer required as of Jan.
12, 1983.
Enclosed is two weeks severance pay, notice of
insurance conversion (if now under coverage), and
all pay due through Jan. 12, 1983.
We acknowledge an appreciation to you for a job
well done.
Forklift operator Houg was evaluated by Shutt, in his
office, about 11:30 a. m., Wednesday, January 12. At this
time Houg was given a 75- cent-per-hour raise to $5 per
hour. Houg had been initially employed in December
1980 at $3.65 per hour. In January 1982, he had received
a 35-cent raise to $4 per hour; and a further 25-cent raise
in midsummer 1982 to $4.45. According to Houg, Shutt
told Houg, in his evaluation on January 12, that Houg
was doing a good job; was an excellent work; and that if
any routes became available, if Houg were interested in
them to let him know. Houg also testified that he had a
conversation with President Meyers the next day, Thurs-
day, January 13, in the latter's office about 10 a.m. Presi-
dent Meyers told Houg that he was doing a good job;
that Meyers liked him; that the Company was growing;
that Houg would grow with it; and that Houg, as forklift
operator, was in a position to mingle among the men all
day and could let Meyers know what the problems were.
His door was always open, and Houg was to come up
anytime and let him know. Houg testified that Meyers
had never asked this of him before; that he did not tell
Meyers of any problems at this time. Houg, on cross-ex-
amination, acknowledged that Meyers did not specifical-
ly mention the Union to him.
Route driver Lewis testified that his evaluation was
scheduled for 5 p.m., January 12, but they took him at
1:30 p.m. At this point, according to Lewis, Shutt told
Lewis that the helpers had been terminated; that the
drivers and helpers both wanted a raise ; that the Compa-
ny did not feel they could financially afford to give them
both a raise, so they were giving drivers a raise, and ter-
minating the helpers. Shutt told Lewis that he was doing
a very good job; that his route was up 13-1/3 percent,
largest for the Company; and to continue the good work.
Lewis testified that in the prior Monday sales meeting
they had been told to make a list of their problems, sug-
gestions for the evaluation. Lewis testified that (as re-
quested) he had made up a list of about 10 items for dis-
cussion ; but three-fourths dealt with relationship of
driver to helpers, who were terminated; and another
MID-STATE DISTRIBUTING CO. 1523
dealt with pay increase, and they were to get more com-
mission. As a result, Lewis did not discuss those matters.
Lewis brought up they did not have a properly sched-
uled maintenance on the vehicles; and Lewis suggested
there be a maintenance schedule, or periodic safety
check. Shutt replied the problem was being taken case
of, that they were going to start up a scheduled mainte-
nance of the vehicles. Lewis also brought up the subject
of drivers being given an itemized list of debits and cred-
its of the uncollected tickets, or ticket errors, taken out
of their check, either weekly, bimonthly, or monthly;
some accounting of where that money goes. Shutt said
he would talk to Office Manager Wiseman who handles
it. Lewis acknowledged the subject of such an itemiza-
tion list had been raised by the drivers in prior Monday
morning meetings, though he asserted not in the last one.
Lewis has testified relatedly that, on the subsequent pay
period of February 1, the drivers received their first ac-
counting, which went all the way back to July 22, 1982.
They were also given an itemization of the deductions
from their current paycheck. Drivers have received the
latter every week thereafter, though it was not immedi-
ately known they would receive it every week.
Mayborg also did not work on January 12, as it was a
slow day; and because Mayborg had some personal busi-
ness to accomplish, he had asked and received permis-
sion from Covington to take the day off. When Mayborg
reported back on January 13, he was handed the termi-
nation papers with severance pay, and he was told their
position (helpers) was no longer needed.
8. The events of January 13
a. Management's meeting with drivers
A meeting of essentially all drivers with management
was held on January 13, Thursday about 6:45 or 7 a.m.
Gillis relates that he wore a union button "Vote Team-
sters" to work that day. According to Gillis, present at
the meeting were Meyers, Shutt, Walczak, and Koontz,
and all the drivers. (Lewis essentially corroborates those
present, though he did not reference Koontz.) Gillis re-
called that Vice President Meyers told the employees
that the economy was off, and that he was tired of
seeing the helpers make more money than drivers.
Meyers told the drivers that they were going to try the
drivers going out by themselves. The drivers were to re-
ceive 18-cent commission per case of product sold. (Base
rate paid drivers did not change.) At this time the Em-
ployer was getting involved with a new Miller (Meister-
brau) program; and Vice President Meyers said they
thought the drivers going out by themselves would make
them more efficient on the route; and with a commission
of 18 cents (per case), normally, with a stop where a
driver could put in three cases but did not, it would give
the drivers incentive to put the three cases in.
Driver Dan Lewis has testified that in this meeting
they said that this was something that had not come up
suddenly, they had been thinking about it for a year; that
the helpers would not be back; and that that position was
no longer with the Company. Lewis further relates,
however, that he inquired if they needed help, e.g., at
the end of sale or during summer, would the help be
provided; and, if so, would the pay be cut. According to
Lewis, the drivers were told (in this meeting) the pay
would not be cut, and if they needed help, help would
be provided. Gillis corroborated (only) that Meyers said
that in the summer, or on the routes that needed helpers,
they would appoint helpers to those routes. On cross-ex-
amination, Lewis related as his understanding (unclear as
to origin) that the reason they had terminated the help-
ers, instead of laying them off, was because they did not
know which ones they wanted back. Gillis also testified
that he stated in certain stops he drove a tractor-trailer,
and he said he needed a helper to watch him in backup.
President Meyers answered, in -material essence, that he
had seen Gillis back out of the warehouse, and there
should be no problem.
Brad T. Ebert confirmed (essentially) that they were
told the helpers were no longer needed, and drivers
would receive 18-cent-a-case commission. However,
Ebert also recalled that the drivers were told that if they
needed helpers when it got busy, they would get helpers
and there would be no cut in pay. (Ebert thought Vice
President Meyers said the latter but was not sure.)
b. The Union 's direct contact of Employer on January
13
The petition in Case 9-RC-14210 was filed on January
14. It indicates a request for recognition was made on
January 17, and (incorrectly) that no picketing was being
conducted at Employer's establishment. Silvers had testi-
fied credibly in explanation that he had prepared the pe-
tition on Wednesday, January 12, then intending to file
the petition after sending a certified letter (request for
recognition) on Monday, January 17. However, when
Silvers received the word of the helpers' discharge on
January 12, Silvers hand-delivered to Employer on
Thursday, January 13, the following letter of same date,
addressed to President Meyers:
Be advised that a petition for representation has
been filed with the National Labor Relations Board
by this Union. This Union is aware of your anti-
Union activities and you can be sure of the fact that
all legal means will be used to assure a proper
remedy for your illegal actions.
As noted, the initial unfair labor practice charge herein
was thereafter filed on January 14.
c. The establishment of a picket line
On the afternoon of January 13, the Union established
a picket line, manned essentially by the terminated help-
ers. Gross testified that he was on the picket line every
morning until the election, and that he cast a challenged
ballot in the election. Gross related that when they first
started the picketing helpers Mayborg, Tuttle, Qualls,
Joseph, and' Speckard were also picketing. Gross recalled
that helpers Oliver and (Tommy) King had also picket-
ed, though for only 1 day. According to Gross, as time
passed, he rarely saw anyone else out there; explaining,
however, that he was always there first thing in the
morning, and then went home; and, if anyone was there
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later, he would not know. Qualls had testified that he
picketed with the other helpers, including, inter alia,
Tuttle; and Qualls further testified that he was picketing
on March 4, at which tin- he cast a challenged ballot.
Tuttle had confirmed generally that he had picketed on
several occasions. James R. Oliver testified tht he had
signed a union card a day or so after his discharge.
Oliver also testified that he picketed one day, after they
had been out there picketing three or four times, but that
it was cold; and Oliver related he met Silvers, left in the
car, and did not thereafter go back to the picket line.
d. The retention of Ingram, Soule, and Shearer
It is uncontested that Charles "Buck" Ingram had been
employed for about 17 to 18 years. There is some ambi-
guity as to Ingram's assigned helper duties. According to
Houg, prior to January 12 Ingram was a helper on Mike
Holman's truck. It appears uncontested that Ingram
could neither read, nor write, that he had never driven a
regular route by himself, and that he had previously
worked regularly as a helper. Houg has testified that
after the helpers were terminated Ingram generally per-
formed warehouse duties. According to Houg, after Jan-
uary 12 only Keith Drury regularly had a helper on his
route to Ashland, Kentucky. Ingram, or whoever else
was available, including later Tuttle (for 3 weeks), went
with Drury when he needed help. The only difference in
Drury's route was the addition of 10 half barrels (previ-
ously taken up in a van), which could be handled by one
person. Indeed, a keg route (in Lexington), handling half
and larger barrels, had no helper. Although Houg knew
nothing of Drury having a back injury at this time, on
cross-examination Houg readily affirmed that he had
been told that Ashland (several hours' drive away) had a
law that beer delivery trucks had to be off the streets at
4 p.m., as compared with Lexington's 7 p.m. law.
According to Houg, prior to January 12 Terry Soule
was a relief driver; but he had performed other driver
and helper duties; after January 12, Soule worked in the
warehouse. Shearer testified that Soule was a draft man
who at one time had an accident and was taken off the
truck; that previously they did not want him to drive;
and that Soule had been thereafter regularly kept in the
warehouse.
Don Shearer began his own employment in 1978, and
he had testified that he previously was classified as a
relief driver and now is classified as a forklift operator.
Company records establish that in February 1982 Shear-
er was classified as a relief driver. Shearer would take
over a route if a driver was off or fill in for a helper if
no one else was there. Shearer estimated that he spent 25
percent of his time going out on a route, 75 percent of
his time in the warehouse. On cross-examination Shearer
confirmed that long before the Union came up he asked
to be taken off a relief route; that he told them that he
did not want to be a relief driver; and that Whitt had
told Shearer that he could be a forklift driver from then
on. Vice President Meyers asserted that Shearer was car-
ried as a helper, albeit warehouse helper.
Shearer was evaluated during the morning of January
13 by Shutt. Vice President Meyers was also there. Shutt
told Shearer that there were some changes being made
around here; that Shearer would be a part-time relief
driver; that he would work part time at the warehouse as
a forklift driver; and that Shearer would get a raise from
$4 to $4.50 immediately. Shutt told Shearer that Terry
(Soule) and Buck (Charles Ingram) would be relief driv-
ers too. Then Vice President Meyers said, "You know,
Buck won't be able to do no route, he won't be able to
figure tickets, or anything; and that he'd be mostly work-
ing the warehouse, or something."
On the following Monday, Shearer was assigned to ac-
company Tim Hilterbran. Shearer accompanied Hilter-
bran to his first stop at Kroegers where they delivered
100 cases. After that, Hilterbran had an appointment and
Shearer drove the rest of the route alone. Shearer did
not think he drove any other route thereafter, and no evi-
dence was offered that he did.
e. Other effects of helper terminations
Gillis testified that thereafter, in general , he did not
have a helper. However, on days when Gillis had a lot
of beer to go off the truck he received help from Walc-
zak (three or four times) or, as he recalled, from Shearer
(a couple of times). Gillis has otherwise testified that
working without a helper made the work a whole lot
harder, and a little bit unsafe in unloading , and in carry-
ing money; that it had also increased his work hours
from roughly 40 hours to 50 to 53 hours; and that it had
remained that way until the helpers were reemployed.
Lewis drove a Lexington route. He has testified that
prior to the helpers' return he received occasion help
from Koontz. Lewis affirmed that it took him longer, 3
to 3-1/2 hours a day, to do the work; otherwise, that it
affected the job he did; and that he could not give the
service as he did before.
Shearer has testified that prior to the termination of
helpers helpers would regularly break down (build up)
their own pallets (as regulated by need or order) and
Shearer would then move them, although previously
Shearer also had occasionally built them, if a driver
asked him. Shearer testified that after the helpers were
let go the amount of his building up of pallets increased.
Shearer testified that his work increased 3 or 4 hours a
day. However, on cross-examination he described his
hours of work as before being 6:30 a.m. to 6:30 p.m. and
after being 6:30 a.m. to sometimes 8 or 8:30 p.m., and he
has also acknowledged that it varied. Houg confirmed he
had to perform helper duties, e.g., in loading the trucks;
and he also recalled that his hours increased approxi-
mately 10 hours a week after the helpers were terminat-
ed.
In contrast , Meyers has testified that his analysis of
Shearer's hours (over a period stretching from October
5, 1982, to May 10, 1983) reveals that rather than the 3-
or 4-hour increase per day that Shearer reported he had
experienced when the helpers were discharged, Shearer
actually worked an average or a little more than 2 hours
more per week and, on the helpers' return, less than 1
hour more per week. In further contrast Houg, who had
averaged 56 hours, after discharge of the helpers worked
2 plus hours less (53 .60), and on the helpers' return
slightly more (54.1). Employer has urged in its brief that
MID-STATE DISTRIBUTING CO.
Shearer's testimony should be discredited because he was
thereby shown prone to exaggerate . Propriety of the
longer period of averaging aside, I have analyzed the un-
derlying weekly total hours presented by Employer for
Shearer and Houg for the months of December , January,
and February . It is concluded and found that the Gener-
al Counsel 's evidence considered in that light does not
prevail in establishing that Shearer and Houg worked
significantly more hours directly attributable to the ter-
mination of helpers , although there remains no question
that they had added duties in buildup of loads for driv-
ers. As to Respondents' additional argument that the
above testimony of Shearer was exaggerated to point of
warrant to discredit all Shearer's testimony, I am not so
persuaded . However, I have discerned a bitterness in
Shearer over Employer's payment of forklift operators
Houg and Doss more per hour than Shearer , who con-
sidered himself a forklift operator , and with more seniori-
ty. On that account I have evaluated Shearer 's other tes-
timony more carefully.
9. The additional alleged interrogations and threats
in January
a. Koontz' alleged interrogation of and threats made to
driver Lewis on January 14
The complaint alleges that Route Supervisor Andy
Koontz on Friday, January 14, coercively interrogated
an employee concerning his union activities ; and threat-
ened an employee (Lewis) with a loss of benefits, that
Respondent would close its facility , and that the helpers
would not be reinstated if the emmlovees selected the
Union as their collective -bargaining representative.
Lewis relates that on Friday, January 14 , he saw (met)
Andy Koontz, his route supervisor , while Lewis was out
on his route, but at lunch , about 1 p .m. According to
Lewis, at the time Koontz told Lewis that he was going
to ride with Lewis the rest of the day , but did not say
why. Lewis acknowledged that Koontz had followed
him on his route before to help, but testified it was the
first time Koontz had ridden with him in the truck. For
the rest of that day Koontz helped Lewis wheel in the
beer to retail customers the same as his helper Mayborg
had. It was Lewis ' recollection that he was wearing a
"Vote Teamsters" button at the time , and Koontz
wanted to know if he supported the Union , and why.
Lewis told Koontz that his main reason was job security.
Koontz then said the Union would not do him any good;
that if the Company wanted to get rid of him, they could
write Lewis up three times, and Lewis could be termi-
nated ; and that when Lewis said he would not do any-
thing to be fired , Koontz replied , "It doesn 't matter, they
could write you up for anything ." On cross-examination,
Lewis acknowledged that Koontz had brought up the
fact that Koontz had been in a union before ; adding,
however , that Koontz had spent the whole day talking
about the Union.
Although Koontz was not sure if Lewis was wearing a
union button at the time, Koontz has testified that he
probably did discuss the Union with driver Lewis on
Friday, January 14 . Koontz explained that Friday was a
little bit bigger day; and as he recalled, he went with
1525
Lewis in the truck as a helper that morning , which he
asserted he had on occasion done before , though he has
also met a driver out on a route , when Koontz arrived at
the warehouse after a driver had left. Koontz asserted he
tried not to talk too much about the Union, and tried to
respond, but also guessed that he did bring the Union up,
off and on. Koontz' version is that at lunch they got to
talking about the Union and the Company , and the prob-
lems they were having . Koontz asserts that he was
trying to tell Lewis his own feelings ; and Koontz told
Lewis a little about when Koontz was working at a non-
union plastic pipe factory at Henderson, Kentucky, when
they brought a machinists union in . Koontz related that
he told Lewis generally how it was before and after. On
cross-examination Koontz recalled telling Lewis specifi-
cally that the Company was not necessarily stricter, it
was just the attitude of the Company changed a little bit
he thought, giving as an example that "for Christmas and
Thanksgiving we got turkeys and things , and after, we
didn't."
Koontz also told Lewis that he was not sure, but he
just assumed that when the Union came in and more or
less bargained for a contract, any benefits, or anything in
the past, would not necessarily set the stage . It would be
like a whole new ball game , and everything would have
to be kind of renegotiated ; and maybe some of the things
they had now would not necessarily be guaranteed; and
they would have to be totally renegotiated in a contract.
In discussing his own prior experience with a union,
Koontz also told Lewis that they (employees of that fac-
tory) felt the people who got to be in charge of the
Union kind of sold out to the Company at the end when
they got the contract . Although Koontz has denied that
he asked Lewis what his reasons were for wanting a
union (specifically), Koontz has in substance and effect
acknowledged as much in testifying that maybe Koontz
had asked Lewis, if the Union was to come in, what spe-
cific things Lewis would like to see that would advan-
tage him; and on cross-examination (again) that he had
asked Lewis, if a union were to come in what benefits
would he want to see him get out of the Union; and
Koontz confirmed that Lewis had mentioned different
benefits, and that he was sure job security was probably
mentioned in there (by Lewis). Koontz could not recall
(but did not deny) a discussion about a policy of docu-
menting something an employee did wrong, or how
many times to get fired . Koontz further recalled that on
occasion while he was working , helping Lewis, he jok-
ingly had said he would not be able to help Lewis do
that; and that Lewis made some joking remark back,
which he did not recall.
On the basis of the above it is preliminarily concluded
and found that Route Supervisor Koontz , in essentially
questioning Lewis what benefits he hoped to derive from
the Union if it came in, did effectively interrogate driver
Lewis as: to the reasons for his interest , sympathy, and
support of the Union . With regard to loss of benefits
Koontz has referenced only his own experience of loss of
Christmas and Thanksgiving turkeys and things at his
prior employer when the latter was organized ; and oth-
erwise his own view of some employee opinion there on
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in charge of the Union 's affairs (kind of sell-
ing out to get a contract); and further , within the limits
of Section 8(c) permissibly stated that negotiations by the
Union for a new contract with current Employer essen-
tially did not guarantee that existing benefits would be
retained . Notably the foregoing credited testimony on
benefits is based on Koontz ' (largely uncontested) testi-
mony . Lewis is credited in his definitive and more credi-
ble testimony , which has not been as clearly denied by
Koontz, that Koontz had essentially also stated to Lewis
that the Union would not do him any good on job secu-
rity as Employer had ability to write up and terminate
Lewis on some grounds even if Lewis did not do anything
to be fired. While it is my view that such a statement by
a supervisor declaring Employer 's ability to terminate an
employee on unfounded or pretextual grounds in a con-
versation with an employee about the Union , to which
Employer stands in open opposition, is at least coercive,
if not constituting a thinly veiled threat of discharge of
the employee for a continued union activity that Em-
ployer opposed , it is however to be also observed that
no such threat or coercive remark by Koontz was specif-
ically alleged in the complaint.
According to Lewis , later in the day, with Lewis testi-
fying, in form, and to use his words , Koontz said, "The
old man jPresident Meyers] would rather see the doors
shut, than to see the Union come in ." On direct examina-
tion Lewis testified that Koontz also told him that even
if the Union came in that the helpers would not be back;
although on cross-examination Lewis has also testified in
response to the question of helper's return and not neces-
sarily linked to the Union getting in , "Oh, of course not,
No." Koontz has denied that there was any talk about
the Company shutting the place down ; then adding how-
ever, "not in those exact words." Koontz then testified it
seemed he remembered somebody else say that another dis-
tributor said he would do that . However, Koontz then tes-
tified that he did not recall talking about that , or think
he had, explaining that he was just trying to say what
that might have come up. On cross-examination Koontz
did testify that he remembered telling Lewis that "It
wasn 't just a Company to make a living , it was his per-
sonal life"; and, "I mean he spent his whole life building
this up; and it was kind of a personal thing to him."
Koontz acknowledged that Lewis also said something
about getting the helpers back . Koontz testified that he
said he did not think that the Union would automatically
bring the helpers back, and that he thought that was
going to be a separate issue, or something . In that
regard , on cross-examination , Koontz repeatedly testified
that he really did not know exactly what would happen,
but would just assume (essentially) that the Union being
voted in would not be the deciding factor , or automati-
cally bring the helpers back.
Koontz' denial (recall of somebody else saying another
distributor made the remark on shutting the doors, and
vacillation on it as part of the Koontz-Lewis (or possibly
some other) conversation, while simultaneously admitting
to statements to Lewis as to President Meyers essentially
spending personally his whole life building the Compa-
ny) is simply unconvincing and unpersuasive. Rather I
find the latter supportive, and I in any event credit
Lewis in his more convincing testimony of accurately re-
citing as Koontz' words, "The old man [President
Meyers] would rather see the doors shut, than to see the
Union come in." However , on the matter of helper
return, I find Koontz ' testimony consistent and the more
convincing that Koontz essentially only told Lewis that
he really did not know what would happen , but thought
helper return a separate issue , or just assumed that the
Union being voted in would not be the deciding factor,
or automatically bring the helpers back ; particularly with
Lewis' ambiguous acknowledgment that the return of the
helpers was not necessarily linked by Koontz to the
Union getting in.
However, Lewis has offered other credible testimony
bearing on the discrimination issue . Lewis was aware
that his helper (Mayborg) had his evaluation on Tuesday,
January 11 , and that Mayborg had been led to believe he
was going to get a pay raise. Lewis thought the dis-
charge of Mayborg was rather sudden and asked Koontz
why. According to Lewis, Koontz said, "You know,
after Len [Aldridge] left , morale kind of went down; and
people didn 't seem to enjoy the job as much. So the su-
pervisors went upstairs and talked with the rest of man-
agement to see if by getting more power they could turn
it around, so people would be enjoying their job and
producing more. And that's when they made Shutt gen-
eral manager." Koontz also said, "Things were turning
around ; people were enjoying their job more ; production
was up ; and everybody seemed to be happy ." According
to Lewis, Koontz then said, "But then, the old man gets
drunk, comes downstairs, and blows up, and this is what
we've got." Koontz did not testify as to this discourse, or
explain it ; nor did President Meyers testify in this pro-
ceeding.
Respondent did establish on cross-examination of
Lewis that on a Friday near the end of December, but
prior to Christmas , Lewis had a discussion with Shutt
about his helper in which he said a lot of times they did
not get along; and that if he could not get a better
helper, he would rather go by himself . However, Lewis
further explicated on cross -examination that their discus-
sion at that time was about some other beer distributors
that were union , that were making 24 cents a case com-
mission; and that he felt for 25 cents a case , "I could
probably go by myself, sure ." Lewis has also testified
that Vice President Meyers in that period mentioned, as
an alternative , that additional routes might be started up;
and that they did not know exactly what they were
going to do . Lewis also admitted that he told Koontz (on
some occasion) that he thought that Mayborg might be
responsible for some of the shortages he had , in connec-
tion with wanting another helper. Lewis' own difficulties
in that regard, which led to his termination on May 6,
have been duly considered in the evaluation of Lewis'
testimony. However , it is presently observed that other-
wise there was not a hint of any wrongdoing on the part
of Mayborg; and indeed Mayborg was continued in Em-
ployer's employ, and even after Mayborg's termination
in January, Mayborg was subsequently employed by Em-
ployer again in April , wholly compatible with Mayborg's
MID-STATE DISTRIBUTING CO.
work performance on the sales route that had shown
seemingly the highest percentage increase in sales.
b. Employer's awareness of the union meeting held on
January 15 or 22
Driver Artie King testified that a union meeting was
held on a Saturday, recalling that he had stopped by the
Teamsters hall to tell them that he could not make the
meeting because he had to work. King also recalled it as
after his first conversation with Whitt about the Union
(January 11) and about a week before he gave his affida-
vit (January 26). Interim Saturdays were January 15 and
22. Whether on January 15 or 22, in any event, on
King's return from Richmond, about 4 p.m., King ob-
served that General Manager Shutt, Sales Manager
Walczak, Warehouse Manager Whitt, Route Supervisor
Jeff Slone, and (according to King) new Keg Route
Manager/Supervisor Ernest Evans were all in the secre-
tary's office. King testified that Walczak said that "what
they do at a union meeting is go out there an pray."
However, on later inquiry as to who first mentioned the
Union (acknowledging it was not in his earlier affidavit)
King then testified that it was Whitt who had first said
that "we all ought to have to go out to the union hall
and join the meeting" and that Walczak had said, "What
is the Union, some place to go and pray." On cross-ex-
amination King acknowledged that he had said to Evans
at the time, "It's dust like a Polish convention," and that
there was general laughter. Although there was an omis-
sion on part of the above from prior affidavit, neither
Shutt, Walczak, or Whitt, all of whom have testified
herein, have denied King's testimony. It is concluded
and found that management was aware of the first union
meeting of its employees being held at the Union's hall
on January 15 or 22, and that driver King joined in their
jocular comment thereon.
c. Walczak's alleged interrogations and threats to
Gillis on January 17 and 19
The complaint alleges that, on January 17, Walczak
coercively interrogated an employee (Gillis) about his
union sympathies; solicited employees' grievances and
complaints, and promised to resolve them in order to dis-
courage employees' union activities; encouraged employ-
ees to deal directly with Respondent, and to bypass the
Union; and threatened to discharge employees who sup-
ported the Union. The complaint further alleges that
Walczak on January 19 coercively threatened employees
that Respondent would not agree to any of the Union's
demands; threatened to impose more onerous working
conditions on the employees if the Union was selected as
collective-bargaining representative; and impliedly
threatened to discharge employees because of employees'
activities on behalf of the Union. On close analysis of the
accounts of Gillis and Walczak I conclude and find the
following to be the more probable confluence of the
facts. (Where there is material conflict the same is
shown, and resolved.)
On Monday, January 17, Gillis was on his route in Ni-
cholasville, Kentucky, making a delivery at the Big
Daddy Liquor store, when Walczak, who had driven
1527
down in his personal car, joined him, shortly before
lunch. Walczak has explained his presence there on the
business grounds that he still had route responsibility;
that he knew Gillis had a big day; and that Walczak
wanted to see how Gillis would handle the work by him-
self, and also to help Gillis out a little bit. As Walczak
was helping Gillis unload, the customer's manager, Alan
Railey, asked Walczak if Gillis could handle all the
work, and if that was why Walczak was there. Walczak
explained his presence essentially as above. Railey then
asked Walczak what he thought about the Union, and
Walczak told Railey that he would rather not discuss it.
Walczak thereafter asked if Gillis wanted to go to lunch;
Gillis agreed; and Walczak and Gillis then went to lunch
at the Western Sizzler.
Gillis related that Walczak said he wanted to talk to
Gillis about the Union; and Walczak asked Gillis why he
favored a union. Gillis answered "job security." Walczak
told Gillis, "If you just do your job, you would have job
security." Gillis replied that Meyers had been known to
let men go "for not very big importance." Walczak's
version of his conversation with Gillis is that he could
tell some things were bothering Gillis, and Walczak
wanted to see if Gillis wanted to talk about them. Walc-
zak asked Gillis what was bothering him; and Gillis then
started talking about some of the problems at work. Ac-
cording to Walczak, Gillis' main concern was his own
job security "since we took the helpers of the trucks, and
Gillis felt he could be let go at any time"; and that Gillis
was also mad because they let the helpers go, that he got
along well with Qualls, they worked well as a team, and
Gillis thought it was going to be tough to run his route
alone. In further support of his version, Walczak has tes-
tified that an attorney, Doug Wilson, had come in to talk
to them on Friday when the picket signs were up and
that Wilson told him what not to say to employees, viz,
that he could not threaten, spy, or promise, and a fourth
restriction he could not recall. However, on cross-exami-
nation Gillis categorically and convincingly denied that
this was a casual conversation, testifying that Walczak
had asked him to lunch; repeating that Walczak had told
him that he wanted to discuss the Union; and that Gillis
had not brought up the problem with the Union. More-
over, on cross-examination, Walczak has testified that
Gillis had said the reason he wanted a union was that he
thought a union would give him job security. On direct
examination, Walczak related that he assured Gillis there
was no need to be concerned, that he was doing a good
job as a route salesman, and there was no need to worry
about his job security; and on cross-examination affirmed
that he had told Gillis, "If you do a good job, that's
enough." Walczak has otherwise recalled that Gillis told
him the only way he would feel secure "is if Mr. Meyers
signed a contract or document" with him stating his job
was secure; and adding, if Meyers did, Meyers would
probably find a lawyer to void the contract, and Gillis
would be terminated.
Walczak's recollection was that Gillis had also men-
tioned Vice President Meyers' racing car in the ware-
house; that he thought it was bad for morale as the guys
thought they were out working hard, and the money was
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being spent on racing cars. Walczak told Gillis that was
not true; that it was what a lot of guys thought, but it
was not actually true; and that "we happen to sponsor
Meyers' racing car out of our promotional budget." (No-
tably, Walczak has acknowledged that the racing car and
Vice President Meyers' Ferrari were subsequently re-
moved from the warehouse after these employee com-
plaints. ) On cross-examination Walczak further testified
that he thought Gillis had also mentioned the way the
office handled driver shortages (which was also subse-
quently changed).
According to Gillis, Walczak said he did not think a
union was the answer; that they ought to take the prob-
lems they have and confront them with "either Mr.
Meyers or Mr. Poole in the Company "; (on cross-exami-
nation), that Walczak had "asked if we could sit down
with the Company, Mr. Meyers and Mr. Poole, and
bring our problems up that we're having with the Com-
pany; and that Gillis just said it had to be in writing
before he would believe it." Walczak then asked if they
would come up with some kind of agreements to our
problems" or, if the Company would give them some
kind of an agreement , like the solutions, would we con-
sider dropping the Union, and take the agreement."
Gillis answered that he could not voice on that; that it
would take the majority. Walczak has confirmed that at
the end of the first meeting at the Western Sizzler he had
asked Gillis if Gillis would be willing to sit down with
President Meyers and just discuss some of the things that
were bothering him and the other drivers, and Walczak
related that at first Gillis seemed interested. Walczak of-
fered to set up a time, and to sit in, if it would make
Gillis more comfortable . On cross-examination Walczak
has denied that Meyers had asked him to do so , Walczak
asserting his intention was to subsequently ask Meyers if
he would be willing to sit down and talk with Gillis or
others. According to Walczak, he later received a mes-
sage from Gillis, that he did not want to meet , so Walc-
zak did not ask Meyers . However, according to Gillis
that discussion of the problems was one of the reasons he
was supposed to subsequently talk to Meyers . According
to Walczak, that was all he remembered , because at this
time President Meyers had said nothing.
Gillis, however, has testified that Walczak had addi-
tionally told him that on the previous Friday, January
14, Meyers had called Walczak into the office and told
Walczak to go out on Gillis' route and find a problem so
he could fire Gillis. On cross-examination Gillis acknowl-
edged that Walczak at the same time told Gillis that he
was doing a good job, and Walczak had no intention of
doing something like that ; that he was not going to look
for a problem, and not going to fire Gillis; that he told
Gillis that he (Walczak) had told Meyers that Gillis was
too good a driver to do him that way; that it was dirty;
that it was not the thing to do; and that he was not
going to do it. Gillis recalled that Walczak also told
Gillis that Walczak thought Gillis ought not to wear the
union button out on the retail market because it could
make the retailers angry . On cross-examination , however,
Gillis acknowledged that he work it off and on ; and that
he had told Walczak that sometimes he took it off on
certain stops, just whatever he thought and seemingly
acknowledged (Walczak agreement) that it was up to
Gillis if he wanted to wear the union button on custom-
ers' premises.
Walczak recalled a later management meeting after the
helpers were let go, and when there were picket signs.
According to Walczak, President Meyers was not very
happy about what was going on, and he felt he had done
a lot for employees in 25 years there . Walczak related
most of the guys outside had not been there a year, and
had not gained respect for Meyers, and some who had
been there a long time knew Meyers had done a lot for
them ; and that it hurt Meyers' feelings . Walczak then tes-
tified, "I think at that time President Meyers mentioned to
me that he was very upset with David Gillis [and on cross-
examination ] because he thought Gillis was part of the
union campaign and had stabbed him in the back , and for
me to go into his territory which is in Nicholasville and
Lawrenceburg and find a reason to let him go ." Walczak
testified that he looked at President Meyers and said,
"Chief, I don't think that's the way to handle it and I
won't do that ." Walczak testified that he then told
Meyers, "My job is sales manager , and I'm responsible
for the route salesmen selling our beer, and if they've got
a problem with us, I think we need to talk to them about
it; and, you know there 's obvious problems that I know
about, and that the driver -salesmen tell me about, that I
think we need to sit down and talk about it." (I am
wholly persuaded that this conversation between Presi-
dent Meyers and Walczak occurred before Walczak's
first conversation with Gillis on January 17, when Walc-
zak first explored Gillis' interest in discussing the prob-
lems with Meyers. ) Walczak has further acknowledged
that "told Gillis" that he told "Chief' (President Meyers)
he was not going to find a reason to let Gillis go. How-
ever, Walczak's recollection was that his relation to
Gillis was in a later meeting, maybe on Wednesday, Jan-
uary 19, at the Pizza Hut in Lawrenceburg when Gillis
(again) was talking about job security . At that time
Walczak told Gillis, "I'll tell you something right now
that I really shouldn't tell you, but Mr. Meyers asked me
to do that, asked me to find a reason to terminate you,
and I told him I would not do that because I felt you
were doing a good job, and that wasn't the way to
handle the problem." Walczak has denied he personally
threatened to fire Gillis . On cross-examination Walczak
testified that President Meyers leaves the business deci-
sions to Vice President Meyers , Shutt , and himself, but
readily acknowledged that if President Meyers wanted to
fire an employee he could.
According to Gillis, on Wednesday, January 19 , Gillis
was delivering beer on his route in Lawrenceburg, Ken-
tucky, and Walczak was again helping Gillis. They went
to lunch at the Pizza Hut between 12 and I p.m. Walc-
zak told Gillis that he and Shutt had gone to a ballgame
with Don Poole , and that they had discussed the prob-
lems of the Company with Poole. Walczak told Gillis
that Poole said that he had two women coming in who
were going to do evaluations for problems with the
Company, and "for us to tell him [sic seemingly them]
anything we had to tell him." Walczak then told Gillis
that if we brought the Union in there, that it would
MID-STATE DISTRIBUTING CO
make it hard on us, they'd be looking for reason to fire
us, such as now, they allow us to have a beer on the
route and out-of-date stock; and that anything we
brought in from the Union, they wouldn't accept it."
Walczak told Gillis that President Meyers wanted to talk
to him; and Gillis agreed to talk to Meyers.
Walczak did not recall mentioning to Gillis in this
meeting of Walczak's going to a ballgame with Poole
and Shutt. (Though Walczak admitted he had, he was
not sure he did so in January.) However, Walczak con-
firmed that he did tell Gillis that Poole had two women
coming down for a survey. Walczak testified that he told
Gillis that there would be two girls coming into town
soon to sit down and interview the employees on their
feelings toward management. Walczak explained that ini-
tially Attorney Wilson was coming into town to more or
less conduct a survey among employees on their feelings
toward management. According to Walczak, Poole had
Attorney Wilson and the women work for him for 17
years in various businesses that Poole owned Walczak
also told Gillis, "It seems like a good idea for us to work
within the company to try to work out our problems
that had come up since we let the helpers go; and that
seemed like a better alternative than to going outside the
Company, to people that really don't know a whole lot
about our business." Walczak also testified that he told
Gillis that it was his opinion that if a union contract was
drawn up there would be certain guidelines that manage-
ment would have to go by, and that it would be a lot
different from how it was at present "with the amount of
leniency we have on the employees." According to
Walczak, "before any of this was happening, guys were
given second, third chances to improve or change their
work habits", and it was his belief that with a union
there would be certain guidelines set that it was either
right or wrong, drawn up in the contract. On cross-ex-
amination Walczak otherwise affirmed saying that "if
there was a contract, the Company would not be able to
be as lenient", and not necessarily concerning drinking
on the job, but he would not be able to help as much as
in the past. (Walczak related he normally went out with
drivers once a week; though acknowledging he had done
so twice this week with Gillis.) Finally Walczak has tes-
tified that generally when they talked about the Union,
Walczak told Gillis that it was his opinion about unions
that initially they try to promise you a lot of things, and
the Company can not give into every demand because
that would be unfair; that they would probably agree to
something if it was unfair; but if an agreement could not
be reached between the Company and the Union on a
contract it was his idea or understanding that a court
would rule how a contract would be settled.
Walczak's recollection was that it was on this trip
(January 19) before leaving the warehouse that Gillis
asked if Walczak wanted a union button, and he replied,
"No thank you, I don't need one." According to Walc-
zak, Gillis laughed and took off the union button and
said he did not wear it when he went outside the ware-
house. Walczak then said, "Well, that's a good idea,
maybe some of our customers wouldn't like you wearing
a union button in their store." Walczak has specifically
denied that he told Gillis to take the union button off.
1529
Although Walczak did not think Gillis spoke to Presi-
dent Meyers it was Gillis' otherwise uncontested testimo-
ny that on January 20 (Thursday) Gillis spoke to Presi-
dent Meyers about 6 p.m. in the stairway going up to
Meyer's office. Gillis said, "Mr. Meyers, I heard you
wanted to talk to me." According to Gillis, Meyers re-
plied, "No, I heard you wanted to talk to me." Gillis
then said, "What I want to ask you, what's this that Bill
Walczak told me that the other Friday he was trying to
find a reason on my route to fire me." According to
Gillis, Meyers denied it; but Meyers then said, "Foot,
you've been here a long time, the way the economy is
you ought to go home and look at the bottom line and
think about what you're doing, because if you bring the
Union in here, you'll have to turn over your profit shar-
ing and you've already got some profit sharing accumu-
lating in this company." Then Meyers brought up the
button and hat Gillis was wearing. Gillis was wearing a
hat that said "Teamsters 651," and the button that said
"Vote Teamsters." Meyers told Gillis that he did not
care how many buttons or hats Gillis wore, it did not
bother him at all.
It is concluded and found, on the weight of the above
evidence deemed the more credible, that on January 17,
Sales Manager Walczak effectively interrogated Gillis as
to the reasons Gillis favored the Union; that Walczak
also effectively solicited grievances and complaints from
Gillis; and further that Walczak, in substance and effect,
held out a promise of their resolution by Employer,
while encouraging Gillis (and other employees) to deal
directly with the Respondent Employer, and to bypass,
or forgo, the Union. Moreover, whether occurring on
January 17 (as Gillis recalled), or on January 19 (as
Walczak would place it), Walczak's statements to Gillis,
who was openly active for the Union, to the effect that
President Meyers had made a prior request of Walczak
to go out on Gillis' route and find a problem, or a reason
for termination of Gillis, so he could fire or let Gillis go,
was a statement that was both coercive and a threat of
discharge of employees who supported or were active on
behalf of the Union; and it was a statement which, in my
view, was not dissipated in clear and continuing coercive
intensity by Walczak's concurrent disclaimer of any per-
sonal intention to do so. The warrant for such finding is
but impelled by Walczak's revelation that it was Presi-
dent Meyers who had the unquestioned authority to dis-
charge any employee at any time, and who had initially
commissioned Walczak to do so, because President
Meyers felt Gillis was part of the union campaign and
had stabbed him in the back, Finally, under all the at-
tendant circumstances of Walczak's discussions with
Gillis on January 17 and 19, it is additionally concluded
and found that Walczak in substance and effect threat-
ened Gillis that there would be an imposition of more
onerous working conditions on employees if the Union
were selected as collective-bargaining representative, in
Walczak's statements that Employer would make it hard
on employees; that Employer would not be as lenient in
such matters as drinking out-of-date beer stock; or in
helping employees as in the past; and, as likely, not be as
tolerant about employees' work performances and/or
1530 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
habits, as in the past. However, I am otherwise persuad-
ed by the evidence that Walczak in substance and effect
said they would not necessarily accept anything brought
in from the Union . I need not address any conflict on
Employer's improper direction on Gillis' union button
usage at customers, observing that this was not alleged as
an unfair labor practice in the complaint and, particularly
so, with President Meyer's uncontested disclaimer on
January 20. Seemingly for the same reason (absence of
complaint allegation) neither need I address President
Meyers' statement to Gillis on January 20, regarding the
suggestion Gillis evaluate what he was doing, in that, if
he brought the Union in he would have to turn over his
profit sharing that was accumulating in the Company. I
shall consider such as background evidence , ambiguous
though it may be.
d. Whitt's alleged threat of loss of benefits to King;
and related urging that King actively work against the
Union
The complaint alleges that, on January 24, Warehouse
Manager Whitt threatened employee King with a loss of
benefits if employees selected the Union as their collec-
tive-bargaining representative , and requested an employ-
ee to actively work against the Union. King testified that
Whitt discussed wages with King, who was a keg route
driver. Whitt told King to figure it up and see how
much he made . King figured it out on a 30-keg base,
which was what he was putting off on average, and de-
termined that he was making $7.50 an hour. According
to King, Whitt said if the Union came in, "I'd [King] be
making a whole, or a hell of a lot less"; and Whitt then
told King, he ought to go and talk to the boys and try to
persuade them not to vote union. King also recalled that
a couple of days later Whitt said to him, "You know,
everybody's forgetting one little thing ; its a minor inci-
dent [sic]; it don't mean a damn thing ; and then said,
"The Chief [President Meyers] still owns this place."
Whitt has testified that he did not recall asking King to
figure out what he was making an hour, and what he
would make with a union . I fully credit King's account,
and I further conclude and find these complaint allega-
tions are factually, substantially supported.
3. Whitt's alleged threats to Shearer
The complaint alleges that , on January 26, Warehouse
Manager Herb Whitt also threatened employee (Shearer)
with a loss of benefits ; threatened to impose more oner-
ous working conditions on employees if the employees
selected the Union as their collective-bargaining repre-
sentative ; and coercively threatened that President John
P. Meyers would not negotiate with the Union . Shearer
testified that about 3 p . m. he had a conversation with
Whitt about his wages . Shearer called Whitt out of his
office and said , "I know there's a lot of stuff going on."
Shearer then asked Whitt, "If you are giving raises based
on how long you 've been there and seniority and how
well you work, I asked him why was John Doss making
more than I was." Whitt asked , "Well, what do you
think you should get?"; and Shearer said , "Well, the
same as they get-the same as they make $5.00 an hour."
Shearer related that then the subject came up about "I
don't know why these fellows want union here." Whitt
said that "they would be strict on you , and there won't
be no helpers on the truck , you'll work 40 hours a week;
and times that we have off in the morning , that will be
cut out." According to Shearer , Whitt also said, "If the
Union did come in, Mr. Meyers wouldn't bargain with
them; and there wouldn 't be any profit sharing," adding
on cross-examination , "if the Union got in," as Whitt's
exact words . Shearer recalled that Whitt got a phone
call, and left; and Shearer went back to loading. About
17 minutes later Whitt called Shearer back into his
office, , saying, "I took care of it , for you." Shearer testi-
fied , however, that he only thereafter got the $4.50 he
was supposed to get.
Whitt recalled the occasion that Shearer said he was
getting $4 . 50 an hour and some other forklift drivers $5;
and Whitt said he would look into it , and did. Whitt's
version is that when Shearer asked him about it, Whitt
said, "Well Donny I don't know what you are making
but I 'll look into it ." Whitt also told Shearer , "There's
other things to look at besides $4.50 an hour ," and "con-
sider your profit sharing." Whitt then asked Shearer,
"How much profit sharing did you get last year , for in-
stance ." When Shearer gave the figure to Whitt, Whitt
with a calculator figured it out to be (worth) 40 or 40
some cents (per hour). (Shearer did recall the calculator
in their discussion .) Whitt also testified that he spoke to
President Meyers about Shearer's raise, and Meyers said
he would look into it . Whitt testified that was all he
could do because he did not have anything to do with
raises. Shearer did not subsequently deny Whitt's discus-
sion of profit sharing in connection with wages . Other-
wise the account of Whitt on the wage inquiry and dis-
cussion is substantially compatible , and I credit it. As to
Shearer's assertion that Whitt said , "I took care of it, for
you," the complaint does not allege an unlawful promise
of wage increase , and the above credited facts do not
support such.
Whitt has also denied that he told Shearer that if the
Union got in there would be no more helpers. Although
Whitt at first testified that he could not recall any discus-
sion about whether the Union would affect helpers, or
recall discussion on other companies having unions, or
having helpers , Whitt has subsequently testified that he
may have said he knew a lot of companies that "are
union that doesn't [sic ] have helpers," and that he possi-
bly told Shearer that the union companies that he knew
did not have helpers. I find Shearer's recollection more
convincing on this matter . Whitt flatly denied that he
told Shearer if there was a union there would be no
profit sharing . However, Whitt acknowledged that he
pointed out to Shearer that under some union "contracts
you can go to 40-hour weeks." In that regard , on cross-
examination , Whitt further testified that he had heard
from the "Mickey Links" Miller distributorship , a union
company 70-80 miles away in Northern Kentucky, just
outside Cincinnati , Ohio, that there was less overtime.
Whitt did not know if they made less money , had profit
sharing, nor was he sure if they were a little strict, and
he did not think he talked to Shearer about that . Howev-
MID-STATE DISTRIBUTING CO.
er, Whitt has not specifically denied that he told Shearer
that the times they have off in the morning would be cut
out. Whitt also testified that he may have said it would
be up to Meyers and the Company to agree to a con-
tract, but did not say Meyers would not bargain.
It is concluded and found on the basis of the above-
credited testimony of Shearer, including the nature of
Whitt's affirmations, that it is more probable than not
that in substance and effect Whitt told Shearer that
Whitt "didn't know why these fellows [employees] want
a union here; that they [Employer] would be strict on
you; there won't be no helpers on the truck; you'll work
40 hours a week; and the times that we have off in the
morning, that will be cut out." However, I am not per-
suaded by Shearer's additional recollections that Whitt
explicitly also said that if the Union came in there would
be no profit sharing and that Meyers would not bargain
with the Union if the Union got in; but I am rather per-
suaded on the evidence presented that the latter was as
likely Shearer's own impressions from Whitt's above
statements about benefit losses, and that it would be if
Meyers and the Company to agree to a contract. Similar-
ly, on basis of Whitt's clear denial that he told Shearer
there would be no profit sharing, his compatible unawar-
eness of that subject's treatment at Mickey Links, and his
explanation of that subject's discussion arising in regard
to wages, which was subsequently uncontested by Shear-
er, the variance of Shearer's own testimony thereon, and
the inquiry Shearer reports was made of Shutt thereon
later, discussed infra, and Shutt's reply it was a matter of
negotiation, all resultingly have caused me in the end
(despite arguable support to the contrary from ambigu-
ous statement of President Meyers to Gillis on January
20) to be unpersuaded by the General Counsel's evidence
offering on that matter as to Shearer that Whitt said
there would be no profit sharing.
Accordingly, it is concluded and found that, on Janu-
ary 26, Warehouse Manager Herb Whitt coerced, if he
did not directly threaten, employees with statement ef-
fectively forewarning of loss of benefits and more oner-
ous working conditions if the employees selected the
Union as their collective-bargaining representative, in
telling Shearer that Whitt did not know why the em-
ployees want a union here; and that, with fair implication
that if it were so, that Employer would be strict on em-
ployees, there would not be helpers on the truck, em-
ployees would work 40 hours a week, and that the times
employees had off in the morning would be cut out. It is
concluded and found, however, that the complaint alle-
gation that Whitt coercively threatened employees that
President Meyers would not negotiate with the Union is
not factually borne out by persuasive evidence. Accord-
ingly it will be recommended that the latter allegation of
the complaint be dismissed.
f. The Emmons-Poole conversation; Poole's awareness
that Emmons had initiated the formal campaign
Emmons testified that he bad a 30-35 minute conversa-
tion with Poole in late January after an opinion survey
was conducted (discussed next). The conversation started
in the warehouse and ended in Poole's car. According to
Emmons, Poole told Emmorts that he did not see where
1531
they needed any union ; and that "Poole said give him a
year to get things straightened out and he would show
us that we didn't need no union; that we [sic Poole] had
12-1300 employees that didn 't have to have a union; and
that he didn 't have a dissatisfied one in the bunch that he
knowed of." Emmons said that Poole "couldn't guaran-
tee nothing [sic], and if he would guarantee us anything,
we couldn't hold him to nothing, or we had no way of
making him stand behind it." Poole told Emmons that he
had his word , and his word was his bond . Emmons then
told Poole that he was the one who got the union cards;
and Poole said , that he already knew that . The complaint
does not allege any of the foregoing was violative of the
Act. They also discussed the leased trucks, which discus-
sion is considered infra, in connection with Emmons'
subsequent alleged discriminatory layoff.
According to Emmons , he openly and regularly wore
a "vote for teamsters" union pin, or button, starting after
the first union meeting at the hall, which he could only
recall generally as a month or better before the election
of March 3 , but which was noted from credited King
testimony was either January 15 or 22. About 3 or 4
weeks before the election Emmons began wearing a
union hat which said , "Teamsters Union." Emmons was
subsequently elected the steward for the over-the-road
drivers a week before the election held on March 4. (In
passing it is observed that Borders was elected route
steward, and Houg elected warehouse steward at the
same time .) Emmons was laid off on March 25, under
circumstances to be described infra.
10. The surveys
The complaint alleges that on January 26 and 27
(Wednesday and Thursday) two unnamed agents of Re-
spondent, at Respondent's facility, solicited employees'
grievances and complaints, and promised to resolve them
in order to discourage employees' union activities. The
record reveals that a survey was conducted on those
days essentially among all unit employees, who were as-
sembled in groups of employees pursuant to a prepared
schedule on company paper that was posted on company
doors. A general composite of the testimony of employ-
ees Emmons, Gillis, Houg, King, and Lewis as to the
meetings they attended follows. In addition to general
notice to employees, and instruction for attendance at
these scheduled meetings given by Shutt in prior driver
sales meeting on Monday, January 24, certain employees
were individually directed by Shutt and Whitt to attend
the meetings, which were all held in President Meyers'
office. It is clear, and I preliminarily find the two women
conducting the survey of company employees, on com-
pany premises, with company assistance and approval,
were agents of Respondent Employer for such purposes.
Present during the conduct of the survey were the two
women and the scheduled employee group. (Manage-
ment and supervisors were not in attendance.) A group
consisted of two to eight employees, and a meeting
lasted 1-1/2 to 2 hours. One of the women presided; the
other took notes.
According to the employees, the women initially iden-
tified themselves variously, as working for a law firm
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that goes around and evaluates a company's problems
and, on further inquiry, that they were paralegals; that
they were working for Don Poole, coming in to take or
run a survey on Midstate, and find out what its problems
were, and for the employees to feel free to tell them any
problems in the Company, or any suggestions; that the
women would be taking them down, and giving employ-
ees a little test. The employees were told that Poole had
used them in the past for his corporations, and the sur-
veys "were most popular for [sic in] all the places"
Poole owned. The employees were told they were just
trying to find out the problems in the Company between
the workers and the owners and supervisors; to evaluate
what the people thought of management and employees
there, and for the employees to feel free to tell them any
problems in the Company, or any suggestions; and that
they would be taking them down and giving the employ-
ees a little test. The employees were told the tests and
notes would be turned in to the firm in Roanoke, Virgin-
ia, to be summarized, and the summary would be sent to
the Company (Mid-State) for the Company do to what
they wanted with the summary.
The women first gave out blank questionnaires. The
employees were told they were not obligated to take the
test, but that it would help them in their evaluations with
the problems of the Company if the employees would
take it. The employees were told everything was confi-
dential; and no names were asked, but the employees
were asked to put their position at the bottom or top of
the questionnaire.
a. General form of the questionnaire
The test administered (a blank form of which is in evi-
dence) consists of 32 questions. There were 29 multiple
choice, or yes or no questions inviting employees to ex-
press a view of and/or comparison of Employer and
other companies in regard to varied subjects of their
workplace; general satisfaction with schedule of work
hours and shifts; fair and reasonable policies, benefits,
and take-home pay; the employees' perceived view of
the relationships of employee to supervisor and manage-
ment, in regard to information and communication, job
favoritism, commitment to supply steady work positive
criticism and performance acknowledgment, discipline,
and group or departmental relationship; and an inquiry
made on whether there was prompt employee complaint
settlement. The last three questions (30-32) invited a nar-
rative response (question 30 requested a yes-or-no re-
sponse) and were as follows:
30. Do you know of any situation which should be
investigated by management?
If your answer is yes please state the matter
which should be investigated.
31. If you were the boss, what would you do to
make this a better place to work?
32. What do you like best about your company?
After the written test was completed, the employees
were told to feel free to speak their opinions, and the
employees were then asked questions as to what they
thought of Meyers and individual supervisors (with the
presiding woman naming names), as well as inviting the
employees' discussion of problems in the Company and
the suggestions employees had. Handwritten notes (usu-
ally by shorthand) of what was said were taken down
contemporaneously. The employees were told the
women would take them (the questionnaires and notes of
the discussions from all groups) back to their company,
where they would be put all together; and they would
come up with some answers for Poole and them; and
that Attorney Doug Wilson of the above law firm (and
who was active in the attendant representation case for
Employer) would compile the information into a book of
sorts, and send it back to the owners and management;
and according to Hong the problems would be there for
them to correct.
b. Specific remarks and notes
Gillis testified that he personally brought up the prob-
lems drivers had with tickets and related pay deductions;
that in earlier meetings they had mentioned they (driv-
ers) would like to be shown a copy of cases sold and
shortages taken out; and that they were told they (the
Company) could not do it because they had to repro-
gram the computer. Gillis recalled he also brought up
about it being unsafe on the routes, because driver Ed
Stacey had been robbed. Gillis otherwise recalled there
was a discussion on insurance. (Gillis explained that
when Aldridge got out of the Company, the Company
changed its Aetna policy to another company, and they
told employees that they would have the same coverage,
and that the employees would get insurance booklets the
first of the year, but had not. Employees received the
booklets, according to Gillis, at the end of April, thus
after the election.)
Present in Gillis' meeting as recalled by Gillis were
drivers Gillis, Tim Williamson, Ed Stacey, Keith Drury,
and (over-the-road) driver Emmons. At the outset of
their meeting, Emmons and Gillis asked that the notes be
taken down in longhand, and (later) for a copy of the
notes taken down. Gillis relates that the girl said there
was no problem, and a copy was given them. From that
copy in evidence of group no. 6 meeting conducted at 3
p.m. on January 26, Gillis has identified the following
notes made as relating to his above comments:
(a) Mr. Meyers told supervisor to go on route
with employee to find reason to fire him, because
he thought driver was instigator.
(b) Gina just takes shortages out of checks and if
you want to find out about it they don't have time
to talk to you.
(c) In sales meetings I brought up I wanted a
stub with my check of what was commission
broken down on different beers and shortages and
they said they couldn't do that. There is no commu-
nication between employees.
In response to related question if they took out money
recently:
MID-STATE DISTRIBUTING CO.
(d) Last week they took $13.85 out of my
[check], shortages they say. When J. W. Powell
was here a man helped up count our money.
(e) They gave Buck [helper Charles Ingram]
plaque [sic] because of 17 yrs. of service for first
time.
(f) In the summer time there is no way [work]
w/o a helper. They should watch us. I value my
life more than a case of beer. One was robbed on
regular route . If you get robbed they'll take it out
of your check.
Emmons confirmed his presence at this meeting and
that he and Gillis asked for a copy. Although Emmons
did not take the test, asserting he felt the questions did
not apply to an over-the-road driver, he did recall saying
it would never have happened if Len Aldridge was
there; and they treated him (seemingly Aldridge) "like a
damn dog," which appears in the notes . It will be re-
called that Poole had a conversation with Emmons after
this survey.
The recorded discussion notes in evidence began with
otherwise unidentified employees ' observation that em-
ployees had tried to make contact 3 or 4 months earlier
and all they got were promises; now "they think we've
got the upper hand and they want to talk"; and "it looks
like they could have asked these questions themselves."
Otherwise there were a number of unfavorable com-
ments registered about both Meyers, and favorable com-
ments registered about Shutt, and other supervisors (ex-
cepting the office manager), but in particular about Al-
dridge while he was there, and with the main friction as-
serted to be over employee job security; with employees
registering their perceived general complaints about
higher management 's lack of interest , lack of communi-
cation, and consistency with employees ; and employees
being in need of their jobs and fearful of being fired for
what they said or might say. There was a specific com-
plaint about the office manager 's purported failure to
timely and properly handle an employee 's insurance bill,
submitted several times over a 3-month period, and the
handling of accounts and shortages by the office manag-
er with an employee complaint that even when the office
manager was proven incorrect the employee was never
paid in but and only told it would be credited, and the
credit was never seen by the employee . Otherwise the
employees registered specific complaints , inter alia, of: a
lack of company seniority; a man with 15 years' service
being fired for being a few minutes late ; scare tactics
being used in urging employees to sell more , or it was
their problem; having one man do a two-man job, and "a
man work hard, but come in with a shortage, and the
day's work is for nothing"; lack of raises; and employees
being demanded to do things rather than being asked.
There was also a complaint registered that Poole should
have checked the situation out himself with an employee
expressing a desire to tell Poole directly.
Gillis has testified that there never had been such a
survey of employees taken before. Gillis has testified that
the Company had met with individuals about problems
(and in a small group as earlier noted), that he had
turned in a list to Vice President Meyers; and that he
1533
(and others) also confirmed that problems had been dis-
cussed at the end of sales meetings, when questions were
invited , though as Respondent 's witness , Wolczak has
testified that was very rare. On cross -examination Gillis
also acknowledged that Employer had used an employee
suggestion box (about the spring of 1982 ), but added that
it was used intermittently, and that employees were told
it was being taken away because the only thing the Em-
ployer was receiving in it were jokes.
Warehouse forklift operator Doug has testified similar-
ly as to the smaller group meeting that he attended (on
January 27) with forklift operator Doss. Doug testified
that they were asked questions about each supervisor,
owner, and different aspects of the Company, the prob-
lems they thought existed, and about conditions in the
warehouse . According to Hong , he and Doss discussed
the air bags (a bag from dock to railcar to keep weather
out) that were purchased , but had not been installed. At
time of hearing one had been installed . They also dis-
cussed that they should be paid more than what they
were getting because they performed duties other than as
forklift operator, e.g., as relief driver , helper, whatever.
Finally Gillis testified that the Company changed its
policy on tickets and shortages a week or two later. The
facts are that drivers started receiving on Friday Febru-
ary 1, a copy of the form Employer used to deduct
shortages out of paychecks ; and prior to that, the drivers
had to go and ask to be shown shortages , which carried
with it the assorted difficulties herein reflected.
11. Shutt 's postsurvey speeches to employees
a. The speech
The complaint alleges that , on February 8, General
Manager Mike Shutt solicited employees ' grievances and
complaints , and promised to resolve them in order to dis-
courage employees ' union activities . Group meetings of
employees were scheduled and held on February 8 and 9
in which General Manager Shutt spoke to employees.
The first meeting on February 8 was scheduled at 7:15
a.m. for seven drivers, including drivers King and Lewis;
the second at 8 a.m. for eight employees , mostly ware-
house and garage employees , but notably in passing, in-
cluding Ben Zaranka (who cast one of the challenged
ballots in the subsequent election conducted in the repre-
sentation proceeding); and at 4:30 p .m. for six employees,
viz, five drivers (including Gillis and Ebert ), and Robert
Tuttle (who had just been reemployed on February 7,
under circumstances to be addressed , infra). Although
Emmons (and other over-the-road drivers) is not shown
to have been scheduled for attendance at any meetings,
Emmons attended the meeting with Gillis on the after-
noon of February 8. On Wednesday, February 9, there
was a similar meeting scheduled for four employees in-
cluding Shearer at 7:15 a .m. (Statements in the speeches
deemed relevant to other allegations of the complaint,
and defenses , are conveniently, presently raised for such
later considerations.)
Lewis attended the first group meeting on February 8
at 7:45 a.m., held in President Meyers' office. He recalled
the other scheduled drivers as being in attendance,
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except that driver David Borders, who was scheduled to
attend this meeting, did not; and that driver Brad Ebert,
who was not scheduled to attend that meeting, did
attend it . Lewis testified that he taped the meeting at
which Shutt spoke to employees and, insofar as he knew,
he did so without Shutt 's awareness . In light of Lewis'
testimony , and stipulations of the parties, I shall rely the
more heavily on the printed transcript of this taped
meeting (where audible) as being the more accurate of
what transpired at this meeting.3
Broadly viewed , Shutt's (taped) speech in form was es-
sentially a preelection campaign speech . At the outset
Shutt told the employees that there were some things he
needed to say; that there were some things he could, and
could not say ; that he could not say, or do much; and
Shutt specifically told the group at the outset that he
"Can't promise anything . All we can do is try to state the
facts . Okay. The best we can." Shutt said there were two
campaigns , one for and one against the Union ; that his
desire was to present all the facts to the employees, not
just what the Union told them; and he urged all the em-
ployees to vote in the upcoming election to be held on
March 4.
Shutt went back a couple of months to when he
thought possibly the trouble had started , referring to Al-
dridge's departure , and the fact that everybody liked Al-
dridge. Shutt later spoke on the subject of employees
who thought Aldridge was coming back , or had some
hope "we can talk him into coming back." Shutt told the
employees that he did not really believe that was true,
and that these employees had to realize that before we
go any further." Shutt relatedly told the employees that
he was not trying to replace Aldridge, and that he did
not think there was any way he could. Shutt then invited
employees to come to him at any time, on anything they
needed to know, on any questions they had. Shutt told
employees of his being made general manager and Walc-
zak sales manager, and their prior effort to improve
things; asserting that they did some things over the past
3 months that helped the Company; and that there still
was a lot to be done. Shutt then said , "I think there's a
few things that we need to do that we can do by work-
ing together . Okay."
Shutt spoke of Poole's increased presence at Employ-
er, and assured employees of Poole's continued interest
in Employer ; and Shutt confirmed to employees that
Poole had used the survey in his other businesses for
about 15 years . In regard to the survey recently conduct-
ed, Shutt told the employees , "[W]e are going to have
some other meetings before the vote to discuss some of
those surveys to see exactly what people , what input not
the people, [inaudible] but the input people gave to those
people to see what we can do to make this a better place to
work Okay. If there are things in there that we can work
3 Lewis has testified as to the authenticity of the tape, and to the accu-
racy of a transcript made thereof The parties have similarly stipulated as
to a printed transcript in evidence of the contents of the tape , except
where it is agreed the tape is inaudible, and as well, have stipulated to the
identity of speakers and the remarks attributed to them as made by them,
respectively , viz, by Shutt and drivers Tim Hilterbran, Carroll, Drury,
Terry Soule, Brad Ebert , and Dan Lewis , in a question and answer ses-
sion that followed Shutt's speech.
with we will be more than happy to do them. But I'm not
going to promise anything." (Emphasis added.) Apparently
there were no further meetings before the election, at
least with employees.
Returning to the union subject , Shutt stated that, after
the management changes, employees were upset for
many reasons , the main reason , a lot of people saying
"there was some job security"; but that Shutt "didn't
think the majority want to support any union activity";
and Shutt then said to this group, "I think there was an
employee who said look we've got some problems, you
don't seem to feel like you care enough to help us with
these problems , we're going to go outside the Company.
We're going to the Union to help solve those problems."
Shutt then expressed a hope the employees would "come
to us" (management); saying that the problem was "no
one did" ; and "evidently we [management] were a little
blind about the thing ," and therefore, "we have a union
come in and try to solve our problems." Shutt then ex-
pressed the thought "that's not where we need to start."
Shutt then told the employees that since becoming
general manager he had tried to improve the level of
communications between all employees ; and he reviewed
Employer's steamlining its organization, stating essential-
ly that they never should have had the situation of three
executives making all the decisions , and (essentially) a ri-
diculous situation of people overriding other people
making decisions. Shutt then told the employees that
now with a general manager, a sales manger, and super-
visors decisions could be made and not questioned; and
that he did not think they would find "at any time that
anybody above me is going to question any decision I
am making ." (Lewis' independent testimony was essen-
tially compatible, viz, with Shutt 's assertion of three
people making decisions after Aldridge left, overriding
each other , so Shutt was made general manager at that
time , and his decisions would not be questioned or over-
ruled. Lewis ' recollection , that there was some additional
expression of dissention as such, is not to be found as
such in Shutt 's remarks to this group.)
Shutt then spoke of his own agreement , in talking with
employees, with their expressions that they did not just
want a job, or to work there , and that he thought pay
was not the biggest part of why people wanted to work
there. They also had to enjoy coming to work and the
atmosphere . Shutt stated the pay was good and essential-
ly that he did not think there was a problem that those
who did the most work , should be rewarded , should get
the money. Shutt spoke of his having started something a
little new, but not new, that should not have been new;
viz, the posting and bidding for any open job available
by interested qualifying employees, but not awarded on
an employee's time here (seniority only), but that and
also on what kind of job he has done "since he's been
here." (This also was essentially confirmed by Lewis' in-
dependent recollection that the stated basis of selection
was not to be strictly on seniority , but also on job per-
formance . Lewis testified that he first became aware of
such a job bidding procedure earlier, about a week after
the helpers were fired.)
MID-STATE DISTRIBUTING CO.
On the subject of solving problems Shutt stated and
repeated (essentially) his disbelief that any union "could
solve our problems; and while on one occasion he also
said he might be wrong, he then said , "They may be able
to solve a couple of problems but they won 't be able to
solve as many problems as you may think we have and I
think by just everyone having been surveyed having
evaluations, if you know everybody , that is the only way
we are going to solve any problems." After reading to
employees four questions (of nature frequently posed in
representation campaign) that they should consider, and
making certain comment thereon , Shutt again said, "I
don't think we need a union to come in and solve our
problems. I think they will only heighten our problems.
We need to work together as a team to try and solve any
problems which we may have here."
On another occasion after telling the employees that
the Teamsters Union "can guarantee nothing" and that
"right now they have no power to deliver ," Shutt then said,
"If I tell you something, I can get it done and I 've got the
power to deliver it. They don 't." (Emphasis added .) Shutt
later told employees relatedly that he could guarantee
that Chief (President Meyers) and John (Vice President
Meyers) or somebody is not going (essentially) to pre-
vent him making decisions , make decision for him, or
overrule him. On another occasion , in discussing union
promises , Shutt said he did not know what the Union's
promises were, and did not care what they are saying,
"Because right now, like I said, legally our hands are
tied", and "Like I said , I don 't think any union is going
to solve our problems." Shutt then told employees, if
they had problems about their jobs, about anything they
wanted to talk about , to come to him, Walczak, or their
supervisors ; and "it'll finally get back to" him ; and "and
we'll try to get something done about it." (Emphasis
added .) Shutt also told employees that if they wanted to
pay somebody monthly to try to solve their problems it
was totally up to them . (Lewis' independent recollection
was that Shutt had said that "if we wanted to pay some-
body to talk for us that 's fine; or we could come to him
and get something done." Although as noted, both state-
ments as initially made involved the qualifying word
"try" and considered alone, were not categorical , Lewis'
recollection on Shutt getting something done finds sup-
port in the later question and answer session , discussed
infra. Lewis ' other recollections of Shutt saying, if em-
ployees had a problem, to come to him , Walczak, or
other supervisors ; that it would get back to him; that he
could get something done; and that he had the power to
deliver, each considered separately, are in substance
found supported definitively in the speech .) He again
urged them to vote on March 4 , however they felt. A
question and answer session followed.
b. The question-and-answer session
The first question posed was by driver Tim Hilterbran,
and was with regard to the feasibility of drivers going by
themselves in the summer , and essentially was "Do you
really think we will be able to do it ourselves ." Shutt an-
swered, "I think that might be a problem , I really do.
And we 're looking into that right now." However, when
Hilterbran then asked what could be done about it, hire
1535
the helpers back, Shutt replied, "We don't want to hire
back helpers." There was then a discussion of two in-
stances of a driver having already individually hired
casual labor on their own; with driver Carroll Drury
speaking to that, and asserting it was what drivers did
previously before they had helpers. Shutt, however, said
there was a related legal problem that was being looked
into; and that employees could not do it regularly at
present.
On driver inquiry, and after referencing that the 18-
cent commission was getting close to including what
helpers were making with the drivers, Shutt discussed
the competitive feasibility in their market of the Compa-
ny affording to pay drivers 18 cents a case, plus pay a
helper $4.25 an hour working 65 hours a week. Shutt
then said, "We're not talking about being competitive
with downtown Chicago. When you really think that
when we sit down at the bargaining table that the de-
mands I think that are going be thrown at us by the
Union, we start from ground zero. We don't have to
agree to a damn thing. And we'll agree to what is finan-
cially able for us to do." (As it is, clear that Shutt's re-
marks were conditioned to his thought of union demands
to be made, I do not credit King's recollection that Shutt
said, "If we want to fool with the Union, if it came in,
we could start that ground zero," etc.)
Driver Soule questioned Employer's sudden interest in
a few different things like pointing out shortages, and
people getting involved in drugs, and other little differ-
ent things. In response, Shutt went back to Aldridge's
leaving, and said, "There seemed to be higher morale
here. There seemed to be people enjoying their job a lot
more and that includes all levels of employees not just
you all, and tell you the truth I didn't have any one idea
that any union organizing was going on. Like I said
nobody came to us with any problems so how did we find
out about the problems. The Union came in, we did surveys,
then we found out we had some problems and now we are
trying to straighten them out. You know." (Emphasis
added.) Driver Brad Ebert has testified that he then said,
"You knew it all along you had problems. Somebody
had to know."
There followed a discussion of the problems of short-
ages and packaging (partly inaudible) and when Shutt
questioned Brad Ebert the following essentially clear dis-
cussion occurred:
Q. BRAD EBERT: Yeah, straightening out and
being real nice to everybody all of a sudden.
A. SHUTT: I don't really think we've ever been
hard or not caring to any of the employees.
Q. BRAD EBERT: Well, Well, a . .. excuse me
but you should have been doing it all along. Like
trying to pay shortages and stuff like that-and now
you have to do it.
A. SHUTT: We don't have to do anything.
Q. BRAD EBERT: It took this to get you to start
doing stuff.
A. SHUTT: What I'm saying is I didn't recognize
the problems before the Union came here. Nobody
came to me and said this is the problem, let's
straighten it out. Now, if I'm wrong tell me.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. DAN LEWIS: Now what about all of those
sales meetings? You know when we brought up the
fact that we would like to have a weekly itemized
list of our shortages and credits.
A. SHUTT: You still don't have a weekly list in
your paychecks do you?
Q. DAN LEwis: Yep.
There followed a discussion indicating at first the fre-
quency of the itemized list was unsettled at the time
(confirmed by Lewis testimony), and in clarification of
the tally drivers recently received, with Lewis express-
ing appreciation of it. There was related discussion of
other problems with the drivers' inability to check in the
afternoon with the computer and available approaches to
correction of problems of mistakes in accounting, with
Shutt, after stating the Company could not do all the
work, saying:
You know, I'm just saying you know, if this system
will help you, you know, by doing that weekly, I
hope it will, okay? Now, I'm going to be crazy and
sit here and admit that the Union has not helped us
to bring out the problems and help us try and solve
some problems but' that's not to say that after
March 4 and the Company were to win, that every-
thing's going to stop. Now this thing isn't just for
short term, its for long term and if we can recog-
nize the problems and you let us know what the
problems are and if we can try to get them solved
we will. You know we can't solve every problem.
(The aforementioned itemized list, initially distributed
February 1, was distributed thereafter weekly.)
Driver Carroll Drury made related observations that
even when Aldridge was there and tried to get employ-
ees to talk about problems nobody would. Shutt agreed
that "if people didn't come to him and say this is a prob-
lem, then they wouldn't get anything solved"; but Shutt
also said that not every problem could be solved; and
that he, and they, had to live with some problems, "It's a
business thing." Shutt then said, "If there's a problem with
the system we're doing, some kind of you know, something
like these shortages that we can straighten out, you know,
some things might take this threat of the Union to get some
things done sometimes. It might now, but at least, at least
now we know where we stand, we know what we got to get
done. You know. I'm not saying every problem is going
to be solved, and I don't think we can believe for one
minute that the Union is going to solve your problems
for you. If you do, that's fine. Hope we got more people
that don't."
After Drury's additional comment of his own position
in talking directly to Employer if he had a problem,
Shutt agreed, after saying "if you want to pay somebody
to speak for you fine," then said, "If you don't, then come
to me and talk to me we'll get something done. Where it's
possible. Can't do everything. Don't intend to. If it's
something we can work out with somebody, something
that needs changed, we will." Shutt then spoke of relief
driver Soule's speaking to him about relief driver pay,
that he had not thought about, in their changing regular
driver pay, but did not increase pay of relief drivers who
were also doing all the work by themselves. Shutt said,
"That's not right," and it was something he could get
done in a day or week, but "it's got to get done soon."
Gillis and Emmons have testified limitedly as to the
similar meeting with Shutt they attended that day (at
4:30 p.m.) with other drivers. According to Gillis (in this
meeting) Shutt said he did not think everybody wanted a
union, "it was just a few of us." Emmons testified that
when Shutt said the employees did not want a union,
Emmons then said, "Well, there had to have been over
50 percent of them want it, or he could not have got his
foot in the door." Gillis essentially has corroborated
Emmons in testifying that Emmons said that, "it was a
little ridiculous to make a comment like that when he
had 50% of the union cards signed," acknowledging the
Union; and that it showed there must have been prob-
lems in the Company. Shearer did testify generally as to
a meeting of a group of employees with Shutt in which a
question on profit sharing was brought up. Shearer testi-
fied that Shutt responded that there were a lot of
"people who did not know too much about the Union;
and Shutt told the employees, "We have to negotiate
that [profit sharing]."
12. Other preelection developments
a. The Lewis-Poole conversation
About 2 weeks before the election, at Poole's request,
Lewis met with Poole at the Outside Inn, after work,
about 6:30 p.m. Also present was Len Aldridge. They
had a couple of beers. According to Lewis, Poole said
he would like to have the opportunity to be given a year
to work things out. Poole said he knew there were prob-
lems after the survey; that there would be other surveys;
and it was not just something that was going to stop at
the end of the election. He honestly wanted to make im-
provements with the employee relationship, and things of
that nature. According to Lewis, Aldridge said that he
would consider it a personal favor if Lewis would vote
no, and give Poole a year to straighten things out. Poole
said that if at the end of that year, "We [employees]
didn't feel like he had done what he had said he would
do, that he would help us get the Union in." Lewis re-
lates that he stuttered a lot "as he didn't want to commit
himself, or he to him"; but then again, he was not going
to tell Poole that he was going to vote no, either. The
above is not independently alleged as violative of Section
8(a)(1), but bears materially on the purpose of the earlier
survey conducted, which is violations.
b. Other employees' meeting with Poole,• Employer's
awareness of Oliver's expression of antiunion sentiment
Called as a witness by the General Counsel, Oliver has
testified that he also met with Poole before the election
at a Howard Johnson Restaurant. Also present were Su-
pervisors Walczak and Convington, mechanic Centers,
driver Artie King, and himself. (Oliver also thought an-
other individual was present, but was not sure.) Oliver's
recollection was that they drank some beer, with Walc-
zak buying the first pitcher, Oliver the second pitcher,
and Poole the third, after which Oliver left. Oliver has
MID-STATE DISTRIBUTING CO.
testified, at first, that he did tell Poole on this occasion that
he (Oliver) did not need a union; and he did not need to
work all day, and `pay my money to a union." On cross-
examination Oliver denied the latter, but further testified
that he told them that he did not know what was going
on, and "who is going to be Union, and who not"; and
that that was "the only thing we were talking about." Fi-
nally, Oliver testified that Poole said to him, "I'd like to
see all the guys get back together ," because "to me, it
was one big family." It is preliminarily concluded and
found that Oliver's initial admission of nonunion declara-
tion to Poole is the more credible. Oliver has testified
uncontestedly (and with some record support) that the
only other persons that he told about his antiunion senti-
ment were driver Keith Drury and terminated helper
Cliff Gross, the latter confirming Oliver had done so on
February 21.
c. Oliver's election day support of Employer's
objections
The record reveals that on March 4, election day,
Oliver went to the warehouse to vote, and there met and
talked with Poole. Oliver did not vote for reasons and
under circumstances which were made subject of an affi-
davit given to President Meyers on election day, March
4, for use in support of Employer's objections subse-
quently filed to the conduct and/or results of the elec-
tion. Employer's objection, on investigation, was recom-
mended to be overruled by the Board's Regional Direc-
tor for Region 9, and the same has now, as earlier noted,
been adopted and approved by the Board. It also appears
in the record on first occasion that Oliver testified that
he had discussed his union sympathies with Poole in the
parking lot on election day. Oliver later testified more
definitively (and I find in this case credibly) that he did
not say anything to Poole about the Union on that occa-
sion, but he came there and wanted to vote. On examina-
tion by Employer, Oliver further testified categorically
that neither Poole, nor any company supervisor or man-
ager, told him that, in order for him to come back to
work, he would have to give up the Union.
13. Postelection developments
a The alleged preferential rehire of James Oliver; and
discriminatory pay changes
The complaint (as amended) alleges that about March
11 Respondent rehired a less senior laid-off employee
(Oliver), giving him preference for available work, and
thereby discriminated against more senior (terminated)
employees Wayne Qualls , Cliff Gross, and Paul Joseph.
The complaint also alleges that Respondent discrimina-
torily reduced the commission paid drivers on April 18
from 18 to 13 cents, and discriminatorily changed the
pay of helpers reemployed on April 18 from prior hourly
rate to a base salary and commission . The fact of the
changes in driver and helper pay in that manner at that
time (excepting Oliver and Tuttle) is uncontested. Thus,
there is no conflict in the evidence that when helpers
were reemployed the drivers ' commission was reduced
from 18 to 13 cents a case . Gillis confirmed that he had a
prior discussion with Shutt and Walczak about 13 cents
1537
and 15 cents; and when Gillis later inquired about it, at
the time the helpers came back, Shutt told Gillis it was
to be 13 cents, and to pass the word. It is the General
Counsel's related contention that certain helpers have re-
ceived less pay under a new base salary and commission
pay arrangement.
At the outset it is observed that the General Counsel
does not allege that Employer's earlier rehire of Robert
Tuttle on February 7 was discriminatory. Mayborg, the
most senior helper terminated on January 12, did not
apply for the job filled by Tuttle, who was next most
senior in employment and who did apply for that job.
Nonetheless, the General Counsel does introduce evi-
dence on the reemployment of Tuttle on the basis of
overall seniority on an announced position of
driver/warehouse person for its bearing on Employer's
reemployment of terminated helper Oliver. Unlike
Tuttle, Oliver was less senior than terminated helpers
Qualls, Gross, and Joseph; and Oliver was preferentially
hired for an unannounced position, purportedly as a
driver. It is the General Counsel's related contention that
Oliver had less experience in driving for Employer than
Qualls, Gross, and Joseph.
b. An overview of the relevant hires subsequent to
January 12 helper termination
Date of
hire
Name/Helper (unless
otherwise stated) Rate on return
2-7-83 Robert Tuttle $4. 25 per hour
3-14-83 James Oliver (driver) $4.25 per hour , plus com-
mission
4-13-83 David Bond (driver- $175 base, plus commission
draft)
4-15-83 Jerry Harrison $100 base , plus commission
Johnny Holman $100 base, plus commission
Rick Turner $ 100 base , plus commission
4-18-83 Tom Mayborg $ 110 base, plus commission
Wayne Qualls $ 105 base , plus commission
Cliff Gross $ 105 base , plus commission
Greg McDonald $100 base, plus commission
4-19-83 Steve Spicard $ 100 base, plus commission
4-25-83 Donald Dyer $ 100 base , plus commission
Douglas Sexton $100 base, pies commission
4-26-83 Paul Joseph $105 base, plus commission
5-2-83 James Scott $100 base, plus commission
Although it thus appears as uncontested that Harrison,
Holman, and Turner were newly hired as helpers before
Mayborg, Qualls, Gross, and Joseph, Joseph has testified
that he received a letter on rehire that was dated April
15. Joseph's late return was due to notice given to an in-
terim employer. It is to be noted that the General Coun-
sel has not advanced as a theory of violation any hire of
new employees as helpers before Mayborg, Qualls, and
Gross, but solely contends there was a preferential hire
of the less senior James Oliver, who had prior thereto
openly declared his antiunion sentiment to Poole, and
alone had supported Employer's objections filed to the
election.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The circumstances of Tuttle's employment of
February 7
Cliff Gross has testified that driver Tim Williamson,
who drove a city route in Lexington, had to be terminat-
ed on Friday, January 28, which left a position open. (It
is more probable than not that this development was the
occasion for first application of Shutt's recent posting of
the new job bidding procedure.) In any event another
position opening resulted . Gross called Vice President
Meyers on January 31 about the opening. Meyers told
Gross to come in Tuesday to fill out an application, as
they were going to have everyone fill out an application
for the job. Gross filled out his application on Tuesday,
February 1. At that time Meyers told Gross to call back
on the following Monday, February 7, and he would let
Gross know whether he got the job. It was stipulated
that Employer placed an ad which ran in the Lexington
Herald-Ledger on February 2, announcing that applica-
tions would be taken for a driver-warehouse person.
Gross has thus testified credibly that he had applied for
the open job even before the ad was run in the paper.
Qualls confirms that about the beginning of February
Employer put an ad in the paper for a warehouse worker
or package driver, and that he learned of it from Cliff
Gross who had already applied for the job. Qualls went
out to Employer and also filled out an application. While
Qualls was out there, Shutt inquired if Qualls had filled
out an application, and Qualls told Shutt he had. About a
day or two later Qualls returned to the warehouse, and
about 3:15 p.m. he called Shutt, inquiring if he had filled
the position. Qualls has testified that Shutt said, "Yes,
they hired Robert Tuttle back because of his seniority."
Qualls also testified that Shutt told him, if they did hire
back helpers, they would hire them back in seniority, and
to hang in there. On cross-examination Qualls has specifi-
cally denied that what Shutt had told him was that se-
niority would be a factor . Shutt's version recalls a couple
of calls from Qualls inquiring if they were hiring any-
body; that he told Qualls they were not at present, but
"we may be in the near future and to keep in touch"; but
Shutt denied he told Qualls the helpers would be hired
back by seniority. As noted it was only subsequently on
February 8 that Shutt clearly related factors of seniority
and performance to filling posted job openings.
Gross has testified with specificity that as directed he
called Vice President Meyers on February 7 at 9 a.m.
Meyers told Gross that he had hired Robert Tuttle.
Meyers told Gross that even though Gross had more expe-
rience in the warehouse and in driving a truck, Tuttle had
more overall seniority as he had been there almost 3 years.
Meyers did not deny this conversation. Joseph testified
on February 8 that he filled out an application for route
helper/warehouser because of an ad in the paper. He
spoke to Covington, and Covington told him to pick up
an application and fill it out, which he did.
Thomas Mayborg was initially hired as a helper on De-
cember 5, 1979; and he was thus the most senior of the
terminated helpers. At the time of Mayborg's termination
on January 12, Mayborg's pay was $4.25 an hour; and he
was last assigned as a helper on Dan Lewis' route. May-
borg was reemployed on April 18. He was told at that
time that he would receive a $110 salary base plus a 5-
cent commission; and that he was to receive more than
Qualls and Gross ($105 base) because he was there
longer. Mayborg was reassigned as helper on Dan
Lewis' route as before. It does not appear that Mayborg
had any prior driver experience with Employer; and the
General Counsel did not contest Vice President Meyers'
testimony that Mayborg was uninsurable because of a
medical problem, and not considered for a driver posi-
tion . It appears more than likely that Mayborg's recogni-
tion of this was a factor in his failure to apply for the
driver-warehouse person position advertised earlier by
Employer, and which position Tuttle filled. I credit
Qualls and Gross, and I conclude and find that each was
told in substance and effect that Tuttle was rehired be-
cause of his overall seniority; and also that Shutt told
Qualls (who was next in seniority) if they hired helpers
back, they would be hired back on seniority, and to hang
in there.
d. Tuttle's employment history
Robert Tuttle was initially employed on July 25, 1980,
and after about 10 days on the trucks he was reassigned
into the office where he worked as an inventory control
clerk until December 1982. Tuttle left the office on De-
cember 6, 1982, and thereafter rode as a helper on David
Borders' Lexington Route 1, until his termination on Jan-
uary 12. At time of termination, Tuttle was being paid
$4.60 an hour. Tuttle testified that he had heard by
word-of-mouth that a regular route driver had been ter-
minated and the old helpers were to put in an application
for an open position. Although stipulated evidence of
company record indicates that Tuttle was hired on Feb-
ruary 7 as a helper at $4.25 an hour, Tuttle has testified
further he was told that he was being hired as a relief
driver; and that in the period February 7 through April
18, he had driven 21 times, driving an extra truck 8 times
(for which he was paid an additional $20), and driving
Borders' route 9-10 days when Borders was terminated.
As relief driver on Borders' route (and on other occa-
sions) he was apparently paid $35 a day, in addition to an
hourly rate. Otherwise Tuttle worked as a helper with
Keith Drury on the Ashland route, more so than anyone
else (3 weeks). Although somewhat led, Tuttle addition-
ally related that it was on the day of his return, or a day
after (thus February 7 or 8) that he came back to talk to
Vice President Meyers again, and in talking to Ware-
house Manager Whitt in the drivers room, Whitt, in gen-
eral conversation, said that "Tuttle ought to kiss May-
borg for not turning in an application" because, if he had
put one in, Mayborg would have been hired back instead
of Tuttle. The same would appear inconsistent with an
intended rehire of Tuttle as a relief driver. On the other
hand Whitt did not give assignment to Tuttle, Shutt did,
and his assignment was confirmed as a relief driver by
Vice President Meyers.
James R. Oliver was hired initially on July 1982 as a
helper. At time of termination on January 12, Oliver was
a helper on Carroll Drury's route, and was paid at the
rate of $3.85 an hour. Oliver has testified that he did not
see an ad in the paper, and that he applied for a trucker-
driver position about 5 to 6 weeks after he was fired, thus
MID-STATE DISTRIBUTING CO.
late February, early March. Oliver eventually explained
that he got notice of a recall to work (and returned on
March 14) by his keeping on going back out there about
every 4 to 5 days, but also revealing "they" (Employer)
told him, "they was going to hire some people back
later"; and he kept going back because he had not been
there long enough to draw unemployment, and he had
been to 8 or 10 places but was still looking for work.
Oliver was hired on March 14 as a driver at $4.25 per
hour; and (at least) in recent pay period received a 5-cent
commission. Oliver has testified that since his return he
worked with Keith Drury on Drury's Ashland route one
time, but had more recently gone out (as a helper) with
driver James Gray for about the last 4 or 5 weeks. Gross
testified that prior to the discharge of the helpers the
only time he saw Oliver drive was in backing out of the
warehouse, and that on that occasion Oliver had jumped
over a rail and run into a Lowenbrau supervisor's car.
As far as Gross knew Oliver had never previously
driven a route, which is (seemingly) further corroborated
by Qualls and, in any event, has not been denied by
Oliver.
Wayne Qualls had been hired initially as a helper some
8 months earlier than Oliver, viz, the beginning of De-
cember 1981. At the time of his termination on January
12, Qualls was being paid $4 an hour, and he had been
working regularly 50 to 60 hours a week. In that prior
work period with Employer, Qualls' experience had in-
cluded a 2-month assignment as a package driver in the
summer of 1982, and a 3-month assignment as a draft
driver (delivering kegs of beer) from the end of the
summer to the beginning of the winter, after which time
he had regularly worked as a helper on Gillis' package
route. Qualls was reemployed on April 18 as a helper
and reassigned to Gillis' route as before. As noted, Qualls
was then paid $105 base, and a 5-cent commission per
case of product sold. On cross-examination Qualls ac-
knowledged he was assigned back on one of the best
sales routes. Qualls has testified that the job was the
same as he had before except he was to help sell beer,
and at night he was to help load only the truck in front
and behind, and go home, rather than to stay and load
all trucks as before. (Qualls is essentially corroborated in
the same by Gross, Joseph, and Mayborg.)
Cliff Gross was initially hired on March 19, 1982 (3 or
4 months before Oliver), as a helper at $3.85 per hour.
Gross had received an increase to $4 in September 1982.
Gross was previously assigned as a helper on Brad
Ebert's route (Frankfort and Versailles), except for 3
weeks in July 1982 when he had been assigned to an-
other driver's route. Gross also had prior experience as a
relief driver on Brad Ebert's Frankfort route, having
averaged 1 to 2 days a month on such. While a relief
driver Gross was paid his $4 hourly rate, plus an extra
$20 for running the route. Gross was also reemployed as
a helper on April 18, assigned as before to Ebert's route
but, as noted, paid at a base rate of $105 plus a 5-cent
commission; and in the latter regard Gross has testified
that he is now making less money.
Paul Joseph was hired approximately the same time on
March 19, 1982, also initially at $.85 an hour. Joseph's
recollection is that he received a raise to $4 an hour,
1539
though recalling it indefinitely as about December 1982
or January 1983. Prior to his discharge on January 12,
Joseph rode with Tom Young on a Moorehead route,
though he also had prior driving experience in May 1982
on a Shelbyville route. Joseph otherwise had significant
driver training and experience prior to his employment
by Employer, viz, advanced individual truckdriver train-
ing in Louisiana for the Army, with 2 years' truckdriving
service in Germany; and that service was followed by
employment as a route salesman in Texas for Eastern
Coca-Cola. According to Joseph, he received a letter
dated April 15 but did not return until April 25 (appar-
ently starting April 26) due to notice given to his (inter-
im) employer. Joseph was also paid $105 and a 5-cent
commission. On his return he was assigned as helper on
Cal Morgan's Shelbyville route. It is Joseph's testimony
otherwise that he is working about the same hours, but
not doing as much work.
14. The alleged discriminatory layoff of Robert C.
Emmons on March 25
a. The truck leases,- driver assignments
Employer had three tractors and trailers under lease
(for long haul use) as of 1982. Employer has introduced
the material lease, which reveals the tractors (along with
three trailers) were leased from Penn Truck Leasing,
Inc. under a truck lease and service agreement negotiat-
ed by the latter's president Sam Penn and President
Meyers dated April 2, 1980. The agreement provided
Employer had an option to cancel on the first, or any
subsequent, anniversary of the effective (delivery of spe-
cific truck) date, but with stated obligation on the lessee
(Employer) to then purchase the vehicle (or vehicles if
the entire lease was canceled, at a computed rate) set
forth in the agreement. The agreement, however, by its
terms provides for a minimum 15 percent purchase price at
any time, thus by its terms, even on a cancellation after 4
full years of leasing and depreciation of specific vehicle.
(The tractors have an individually stated original value,
and a weekly rate over a 4-year depreciating base is pro-
vided, but with provision that purchase price (thereafter)
will in no event be less than 15 percent of original cost.)
Date of delivery of the oldest (white) tractor under lease
(no. 378 was July 1, 1978; date of delivery of a newer
(White) tractor (no. 516) was February 1, 1979; and date
of delivery of the newest tractor (brown) (no. 517) was
May 3, 1980, in regard to which seemingly the base lease
agreement had been last executed on April 2, 1980,
though with entry date of delivery day either projected
or subsequently entered on tractor no. 517. After over-
the-road driver Granger left in the spring of 1982, Bur-
gess, then the most senior driver, had driven the newest
brown tractor 516. Emmons, next senior, thereafter
drove the newer white tractor 516, and part-time over-
the-road driver Russell Ruth, lease senior, drove the
oldest white tractor 378.
Tractor 378 passed its 4-year lease term on July 1,
1982. At that time its minimum purchase was seemingly
$7200. In that regard, Emmons testified that Aldridge
had told him initially at that time that tractor 378 had
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been purchased by Employer, but then later in August
1982 Aldridge told Emmons that they had decided not
to get into the trucking business at that time; and that
they had let the truck go back. (As discussed more fully,
infra, in August Employer ran a comparison of rail costs
on its truck transport, and it was determined rail was
considerably cheaper.) However, truck 378 continued in
Employer's part-time use by part-time driver Ruth, until
Ruth wrecked it on March 3, notably the day before the
election. Ruth was hospitalized from the accident and re-
mained at the time of hearing under a doctor's care.
Tractor 378 was not thereafter replaced.
The newer white tractor 516 driven by Emmons com-
pleted its fourth year of lease a month earlier on Febru-
ary 1, 1983. Its minimum purchase price was thereafter
15 percent of original value of $54,000, or $8100. The
newest (brown) tractor 517, driven by Burgess, at time
of Emmons' layoff on March 25, was still in its third
year of lease.
As earlier noted, during the Emmons-Poole conversa-
tion in mid-January they discussed the lease tractors.
Emmons testified, uncontestedly since Pool has not testi-
fied, that they specifically discussed tractor 516. Thus
Emmons said to Poole that his truck was going off lease;
and that Aldridge had said they were going to keep it,
same as the brown truck, According to Emmons, Poole
said, "If that's the word Aldridge said, that's what they
would live by"; and that Aldridge was running the Com-
pany at the time he made the agreement; and that's what
(they were going to stand by. Emmons has testified addi-
tionally to a conversation he had with Vice President
Meyers about the brown truck. Emmons placed this con-
versation only generally after the cards were signed and
before the election. As Meyers was going through the
warehouse to his office, Emmons asked Vice President
Meyers what he was going to do about truck 516.
Meyers told Emmons that they had made an agreement
with Penn for letting them out of the deal of buying the
truck, but they were going to keep it until after the
brown truck 517. On cross-examination Emmons ac-
knowledged the last conversation with Meyers was not
in his affidavit; and Emmons has explained, successively,
that the reason he did not mention it was probably be-
cause he did not think of it; only to add, maybe he men-
tioned it, but did not remember.
b. Emmons' layoff
Emmons relates that he had come in on Thursday,
March 24, to pick up his check, as he frequently did,
though other employees were paid on Friday. Emmons
found the check was not in the mailbox. When Emmons
returned on Friday, March 25, he inquired about his
check and was told that Shutt had it upstairs and wanted
to see him. Emmons testified that when he arrived at
Shutt's office Shutt said he had to do the dirty work.
Emmons asked what Shutt was talking about. Shutt told
Emmons he was laid off. Emmons asked why. Shutt said
he did not make all the decisions, he just worked there,
like everybody else. The Company decided to turn the
truck in, it did not have a lease on it. Emmons asked
Shutt about the word they gave Penn that they would
"keep the brown truck, they had no lease on that."
Emmons asked was it because of his work. Shutt replied
no, they had no complaint at all on his work. Emmons
left. Some time later that morning, Emmons called back,
stating he needed to have the reason for his layoff in
writing. Emmons was subsequently given the following
written "Notice of Layoff' signed by President Meyers,
but given to Emmons by General Manager Shutt.
There now being only one over the road vehicle,
we do not have the equipment to keep two over the
road drivers employed full time. As you are the
youngest over the road driver, seniority speaking,
you are now on indefinite layoff, effective March
25, 1983.
Emmons further testified that the brown truck remains in
use. Shutt did not testify as to the layoff discussion of
Emmons, and Emmons' account thereof is credited in the
main, to the extent shown above. Vice President Meyer's
presentment in defense of the layoff of Emmons is con-
sidered infra.
Part II.
A. Respondent's Defense
1. The management difficulties and changes from
Vice President Meyers' viewpoint
Meyers is presently vice president in charge of the
entire operation, reporting only to his father. According
to Meyers, when he was earlier vice president of sales
and Aldridge vice president of operations, it got very
confusing with orders given and overruled; no one
knowing who was in charge, and it was, in general, not a
good situation. It is Meyers' further testimony that there
were quite a few problems; that from the start both
Meyers had realized that they could not trust Aldridge,
who (they believed) wanted to control the Company;
and that they had earlier found some (undefined) agree-
ments were altered to Aldridge's favor. According to
Meyers, Aldridge also did everything he could to under-
mine both Meyers; and Meyers had offered assessment
(in hindsight), that he and his father may have done
some things that helped Aldridge get the employees on
his side, and put both the Meyers in a bad light. Uncon-
tested on this record are Meyers' additional assertions
that Aldridge had a severe alcohol problem, being rea-
sonable when sober, but no telling otherwise; and it was
not readily apparent to Poole or employees that Al-
dridge wanted to control the Company. According to
Meyers, Aldridge also in this period had some problems
with both retailers and the brewery; and it was the latter
which really concerned the Meyers, because up until this
year they had basically operated as a franchise renewable
every 5 years. According to Meyers, if the brewery were
to "decide you were an unfit distributor, they don't have
much trouble in finding a reason to get rid of you."
Meyers has testified that some of Aldridge's contacts
with the brewery really were not good. Consequently
they had been asking Poole to remove Aldridge, but that
did not happen until October 1982. The foregoing
Meyers' testimony about Aldridge having difficulties
MID-STATE DISTRIBUTING CO.
with the brewery, being essentially uncontested, is cred-
ited.
Meyers testified that when Aldridge did leave there
were a lot of organizational things that the Meyers felt
needed to be changed, and both were well aware a lot of
the employees had liked Aldridge. It was decided it was
best to start with the needed organizational changes. At
that time, Vice President Meyers was personally dis-
posed to go outside to get an experienced general man-
ager. However, being aware of the serious credibility
problems "they" had with (lower) management , as well
as with the rest of the crew, they felt that going outside
would be the worst thing for them to do. It was decided
to use the the inexperienced younger management and,
essentially, bring them along. Initially Shutt was made an
operational manager; Gina Wiseman, the office manager;
and Walczak, the sales manager. As operations manager,
Shutt's authority initially was to extend over the ware-
house and office people, and indirectly over the drivers
insofar as their warehouse duties, but also over the driv-
ers if Vice President Meyers were not there. The route
supervisors reported to Walczak, who then reported to
Meyers. It was soon decided to make Shutt a general
manager and have Sales Manager Walczak, Office Man-
ager Wiseman, and Warehouse Manager Whitt all report
directly to Shutt, which Meyers finally determined was
more workable for him to deal with. I am persuaded that
Shutt's definitive statement on being general manager as
of January 1 is to be credited.
On November 9 and 10, 1982, Vice President Meyers,
accompanied by Shutt (then operations manager), visited
with a top, award-winning Miller distributor in Atlanta,
Georgia. There Meyers reviewed that operation's use of
a management by objective (herein MBO) plan where-
under each management person was to be made account-
able for certain things and given a quarterly bonus based
on performance. The basic theory was that if an immedi-
ate supervisor met assigned goals, higher management
(successively) would meet its established goals. By the
first or second week in January, Meyers had worked on
and established desired corporate goals, and relatedly the
detailed relevant criteria: for General Manager Shutt (in
profit and sales, but primarily in desired distributions, by
brand, retailer, and location); for Sales Manager Walc-
zak, and similarly his route supervisors (with goals in
some 8-10 areas, e.g., covering case sales, distribution in
regard to accounts and products, displays, new accounts
from specials, and customer headquarters calls, etc.).
Meyers' intention was to establish a similar MBO plan
for the office manager but he acknowledged having ex-
perienced some difficulty in establishing relevant criteria
for that position at the time.
2. Meyer's explanations ,For the conduct of the
evaluations and the survey in January
a. The employee evaluations
Meyers has testified that Employer had regularly tried
in its Monday morning sales meetings to get the employ-
ees to give comment and discuss any problems without
success; and that it was fairly frustrating. Meyers also
confirmed his periodic attempted use of a suggestion box
1541
for that same purpose, but has confirmed that, basically,
all they got from the employees were smart answers. As
a result, from his perspective, over the past 2-1/2 years
there had been comparatively little communication be-
tween the employees and management. Meyers' own
view was that employees were aware there were man-
agement problems; and it is Meyers' view that employees
were reluctant to discuss their own problems in that en-
vironment.
Meyers, however, would explain the admittedly new
January evaluations of employees as being of a wholly
different origin. Essentially in the past year Employer
had become eligible to participate in a Miller Masters
program for distributor competition. Prior to the spring
of 1982, Employer had been ineligible because of Ken-
tucky law, which was changed at that time. Otherwise
the program is a voluntary one; but it is one carrying the
force of the Miller Brewery's high recommendation. The
program is all encompassing. One thing wanted adminis-
tratively was a program of annual employee evaluations.
According to Meyers that is why the employee evalua-
tions were set up. Shutt was to handle it, but the pro-
gram was delayed until Meyers and Shutt had first
worked on the MBO through January 10. (Shutt did not
offer any corroboration of earlier discussions of such
program, e.g., in November-December 1982.) It is ob-
served that Employer began its implementation under
the Miller Master program with its publication of a new
employee handbook (replacing apparently an older one),
in the spring of 1982.
b. The employee opinion survey
With regard to the survey, Meyers relates that Poole
became active in the business in November 1982. They
realized that they had a morale problem due to Aldridge
(who had quite a few friends) no longer being there. Ac-
cording to Meyers, Poole mentioned that at every one of
his operations they ran an employee opinion survey, and
he had been doing it for 17 years; and they discussed
generally that it would be a good thing to do for Mid-
State as well. However, according to Meyers, it was not
discussed in detail until December; at that time Poole ini-
tially gave Meyers the name of George Gardner in the
Roanoke firm. Meyers recalls this discussion was be-
tween Poole and him and his father, possibly in Novem-
ber, but definitely in December.
Meyers has related that he had then called Gardner in
December, but the latter did not return his call. Meyers
also asserts that Poole called Gardner in early January,
and Gardner contacted them and referred them to Attor-
ney Doug Wilson. It was Meyers' recollection that
Wilson contacted Meyers about January 5 or 6 (Wednes-
day or Thursday). Meyers told Wilson that he would
like to schedule Wilson in to see about setting up an em-
ployee survey. (Meyers has acknowledged that all these
contacts were by phone, and that Wilson (and his secre-
tary) first came out on Thursday, January 13. According
to Meyers picket signs were already up, and it was de-
cided it would be very unwise to start and employee
opinion survey the next week. Meyers affirms that only
he, his father, and Poole knew of these prior arrange-
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments for a conduct of a survey. Although neither Presi-
dent Meyers nor Poole testified in this proceeding, Wil-
son's secretary Jenifer Lipscomb did. However, Lips-
comb has confirmed only that she accompanied Wilson
and was at the Company in January; and that Wilson
talked to management around January 13. Lipscomb re-
called that there was a picket line, but she did not know
if helpers had been fired. Lipscomb did not confirm that
subsequently she and Brenda Wickes conducted an opin-
ion survey among employees on January 25, 26, and 27.
In final analysis there is no corroboration of Meyers that
conduct of an employee opinion survey was under con-
sideration in December, let alone November 1982. There
is evidence to indicate it was not, viz, Shutt's and Walc-
zak's inquiry of certain drivers during evaluations cover-
ing the same ground, viz, as to their problems, ideas, and
suggestions.
c. Respondent's evidence on the conduct of the survey
Wickes was initially employed in August 1982. She is
neither a lawyer nor a law student, but is employed as a
paralegal in the fields of labor law and real estate for the
law firm which has offices in Roanoke and Richmond,
Virginia, and Washington, D.C. In labor law Wickes
does surveys; she also takes notes in negotiations on con-
tracts. Wilson is her boss. Wickes has testified that
Wilson told her only that management and Poole had re-
quested that an opinion survey be conducted, with no
further reasoning given. The opinion survey, which she
had previously conducted elsewhere, consists of both the
written questionnaire (earlier summarized) that employ-
ees are asked to fill out, and a discussion period. Al-
though Wickes had conducted this survey previously,
she was not aware if Wilson had done other work for
Poole, and she did not discuss this survey with Poole.
Wickes confirmed her and Lipscomb's arrival at Em-
ployer's facility, and the conduct of the survey among
Employer's employees on January 25, 26, and 27; and
Wickes confirmed that the survey was conducted in dif-
ferent groups, of different numbers and sizes, one of
which could have been a group of two, and at different
times, when the employees were available.
Wickes and Lipscomb met with the groups of employ-
ees in President Meyers' office. Wickes confirmed that
she regularly introduces herself by name to a group; and
that if an employee asks further about her credentials
(position), the employee is told. According to Wickes,
the employees are told at the top that the opinion survey
is to find out what the employees think. According to
Wickes, Employer's employees were told that the opin-
ion surveyors were there at the requst of Poole; and that
the survey results would go back, or be brought back to
Wilson, to management, including Poole. (Although
Lipscomb did not recall Wickes saying they were there
at the request of Poole, she also testified Wickes could
have said that; and certain employees have testified con-
vincingly Wickes did.) Lipscomb did recall Wickes tell-
ing employees that they worked for a consulting firm
that had done this type of thing for years.
Employees were first asked to fill out the question-
naire; and to put their department on the questionnaire.
In later examination on this point, Wickes testified that
employees, as a general rule, do follow the request; and
they would put perhaps maintenance, warehouse, driver,
on the survey questionnaire. The employees were also
told that each of the surveys would be compiled accord-
ing to departments; and that a summary of their answers
to the survey and of their discussions would be brought
back to Mid-State. The employees were thus told that
the results of the written surveys would be all compiled
in a master one, according to departments; that no names
are used; and no groups are identified.
After the questionnaire is filled out, Wickes confirmed
that there is then a discussion. Prior to the discussion,
employees are told that notes will be taken down as part
of the survey. Questions were asked by Wickes; and the
notes were taken down by Lipscomb, usually in short-
hand, though Wickes recalled (and was corroborated by
Lipscomb) that one group asked that the notes be taken
down in longhand, and a copy provided employees,
which was done.
Wickes has essentially confirmed the above types of
questions as recalled by employees were asked, except
Wickes has denied the word problems, to make things
easier for employees, were ever used in the terminology
of the questions she actually asked. Wickes has recalled
there were driver complaints specifically expressed about
shortages in checks; about not having help on trucks, and
being robbed; and she was sure there were complaints on
pay, though there were other certain (recorded) re-
sponses she did not recall if made. Wickes has testified
(variously) that employees were asked for any ideas or
suggestions they might have that they wanted taken back
to management; or asked for suggestions or, ideas of the
way they would do things differently from the way they
were being done now; or suggestions or ideas that they
might have concerning anything, or that they would
have done to make things run more efficiently. Wickes
testified, however, that most of the discussion along that
line, viz, about wages, insurance, equipment (a new fork-
lift), and things making working conditions easier were
received in reference to her question as to any employee
suggestions, ideas, that "you [employees] would like
taken back" to management. (Lipscomb essentially cor-
roborated the substance of employees' suggestions were
about things they would like changed, but also to make
it a better place to work.) Wickes has denied that she
told the employees that something would be done about
the various complaints that they might have expressed,
testifying that she made no promises. (Lipscomb cor-
roborated that Wickes told employees that she was in no
position to promise anything, and said that "we take
their suggestions and ideas back" to management.)
Wickes did confirm asking questions about the owners
and supervisors individually, and if the employees
thought the supervisors were doing the job.
After the questionnaires were obtained back from all
the groups, and the ideas of employees as expressed in
the discussions at each group meeting having been duly
noted, they were all taken back to Roanoke. Wickes then
worked a summary up from the questionnaires; and Lips-
comb similarly did with her discussion notes. For the
first 29 questions, which are yes/no or multiple choice,
MID-STATE DISTRIBUTING CO.
Wickes compiled a summary of the answers. However,
she reflects the questions' summary answers as a percent-
age in deviation above or below a median average, for
that question. The median is one given to her, but the
source of the median was unknown to Wickes. With
regard to remaining narrative questions, the question is
typed on a sheet, and the answer of each employee sur-
veyed in the entire Company is then typed under that
question.
Lipscomb has testified that to the best of her knowl-
edge the notes taken down by her in the discussion part
of the survey are accurate records of what is said by an
employee. Lipscomb confirmed that she prepares a sum-
mary of the responses to the questions asked, in list form
of all the ideas taken down. Wickes has confirmed that
the problems employees expressed (in discussion period)
are put in summary under the question she has asked, as
the responses received from the employees as a whole,
not by the group (or seemingly department).
Wickes has testified that, when she is finished compil-
ing the results, the opinion surveys are shreded; and
Lipscomb confirmed that after the master sheet is com-
piled the original forms filled out by the employees are
destroyed. According to Wickes a report is then given to
management, for whatever it wants to do with it. Wickes
testified that she did not see this particular report; and
she did not know if the law firm makes suggestions as to
what to do about the employee responses. In other re-
ports that she had seen, just the data was compiled. Fi-
nally, Wickes has testified generally that her people
would be called in if management wanted opinions of
employees; that working conditions might be brought up
under employees' suggestions or ideas; that they try to
get ideas or suggestions in general, not of the specific in-
dividual; but acknowledged that the compilation would
contain all the individual employees' comments, inputs,
or suggestions of how they would do something differ-
ent, if they were the boss, as a group.
3, The termination of helpers
a. Background
Essentially, Vice President Meyers presents Employ-
er's defense of the termination of helpers. Meyers has tes-
tified that he always felt that the helper was the least pro-
ductive employee the Company had. Meyers had previous-
ly visited a major Miller distributor in Detroit, three in
Houston, and quite a few others. Meyers summarized:
Some distributors employ helpers, some do not; some
share his view, and some do not. According to Meyers,
very few of the soft drink people (distributors) that he
knows have helpers; and many have inquired of him why
Employer does. Meyers relatedly testified that one large
Coke bottler (pre-1982) survey that he became aware of
from an involved friend indicated that in the New Orle-
ans market helpers were determined to be 30 percent of
payroll cost, but had contributed only 8 percent to pro-
ductivity. Meyers also was concerned about the amount
of overtime worked by Employer's helpers; and, as well,
about the related problem of their making time to get
their hours in. Meyers has further testified without con-
tradiction that in the past 5 years there was only 1 year
1543
in which Employer made a profit in both January and
February months, with a loss suffered on one (undis-
closed) earlier occasion being as high as $75,000 for both
months. No evidence was offered as to amount of loss in
other months of a given year.
Meyers relates that he had previously tried to run
without helpers during winter months, viz, in February
1982. At that time, management was a little low on per-
sonnel and was faced with the choice of filling the routes
up, that is, putting a helper on every route, or putting
helpers in the warehouse. It was decided in February
1982 that five or six Lexington routes would be run by
drivers alone. Meyers at that time wanted to do it per-
manently, but there was a lot of opposition from both
Aldridge and his father. A driver working without a
helper was paid 14.5 cents per case rather than 11 cents.
The new system was tried off and on for a month and a
half. Meyers wanted it to be given a fair shot (trial), but
asserts Aldridge did not. Meyers relates that if there
were extra people in the warehouse (acknowledging on
cross-examination that it was obvious that there was not
enough work in the warehouse for the reassigned help-
ers), that Aldridge would periodically tell a helper to get
on a truck, or tell warehouse people to put them on a
truck (though on cross-examination Meyers has also ac-
knowledged that the drivers themselves were allowed to
ask for a helper on their volume days); and the whole
system broke down. Meyers also heard feedback that the
drivers did not think that the additional 3-1/2 cents per
case given them was enough incentive for them to go
out on their own.
Employer has introduced President Meyers' policy
memos of that period in support of Vice President
Meyers' account. The memos confirm that Lexington
routes 1 to 5 ran without helpers; that those Lexington
drivers were paid a 14-cent commission; but it also con-
firms that the driver himself could request a helper,
without loss of increased rate, so long as the driver was
not abusive of the privilege. Use of helpers depended on
availability; but this use was to be made by the decision
of the warehouse manager. It was moreover explicitly
stated in the policy memo that, if service on given route
was not determined to remain at highest level, there was
to be rate reversal to 11-cent commission for the driver,
and a reassignment of a helper to such route. It is note-
worthy that all out-of-town routes (and Lexington route
6) had essentially continued to be operated with a full-
time helper. It is thus apparent from President Meyers'
operational policy memos of February 18, 1982, that the
operational changes, that at that time were put in effect
on use of helpers and driver pay change, were both lim-
ited and variable; and that they carried concurrent provi-
sion for an immediate and ongoing review and analysis,
and for modification of application to even those routes
to which the changes were limited to be applied.
b. The other changes considered
Meyers has otherwise, and more convincingly, testified
that as early as December 1982 he had considered chang-
ing the pay of helpers from an hourly pay rate to a base
rate, plus commission per case unit sold, and also chang-
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the truck loading responsibility. Thus Meyers has tes-
tified that his more recent inquiry of an award-winning
Atlanta distributorship in November 1982 had revealed
that the distributor called its helpers, assistant route driv-
ers; and that Atlanta paid them on a base salary plus com-
mission. Meyers was told that that approach had worked
fine as long as the operation grew (with new routes).
However, in the last 2 years, growth had become stag-
nant. As a result, the assistant route drivers no longer
had a route to look forward to move into. It was report-
ed to Meyers that the assistant route drivers of that dis-
tributor had become very unhappy. I am persuaded by
the above, and by much other credible, consistent, and
convincing related evidence of record, that Meyers had
certain changes under active consideration, as early as
December 1982, both in the method of pay of helpers
from an existing hourly rate to a base rate, with a com-
mission on case unit sold, and in helper truck loading re-
sponsibilities at the end of the day, to cut down on over-
time and to increase productivity; but he was undecided
about the creation of new routes for them; and further,
that he had openly discussed such matters with General
Manager Shutt and Sales Manager Walczak. Supportive
and revealing of the same are Qualls' and Walczak's tes-
timony as to their December discussions of propsective
changes then under consideration on method of pay of
helpers in that manner and (generally) as to possible
change in the use of helpers (but not their termination);
Lewis' testimony of a conversation with Meyers con-
firming an option under consideration of creating new
routes, but with indecision; and perhaps most sigmficant-
ly, the revealment by Shutt and Walczak in employee
evaluations as late as January 11 to Gillis at 4 p.m., that
they were thinking of putting the helpers also on a base
salary, plus commission, and have the helper load the
truck in front or behind, and go home; and to Tuttle at
5:30 p.m. that same day, that the Company was thinking
of paying helpers a base pay, and then a 4-cent commis-
sion, to take place the first of March after an anticipated
price increase from the brewery. As to the weight and
persuasiveness of evidence that is supportive of a prior
consideration of termination of helpers, that is quite an-
other matter.
c. The decision to terminate helpers
According to Vice President Meyers, in December
1982 he again had under consideration drivers going out
without helpers. Meyers relates he had heard indirectly
that several drivers would prefer to go without helpers,
in some cases to make more money, in other cases be-
cause the driver did not get along with his helper.
Meyers explains that a driver was held responsible for
customer problems, breakage and shortages, and some
drivers felt that a helper was a detriment in those areas.
Shutt has relatedly testified to a December meeting he
recalled he had with drivers Dan Lewis and Brad Ebert
about their 11-cent commission. According to Shutt,
Lewis and Ebert said they thought they were worth
more; asserted that other distributors paid more; ac-
knowledged that they were not giving 100-percent effort,
because they did not think they were making enough
money; that they really did not like going with a helper;
and if they could get a raise, talking in the range of 18 to
20 cents, they would do that, it would be worth it. Shutt
initially recalled a Lewis complaint about Mayborg, but
not one that Lewis thought Mayborg was responsible for
shortages, or that Mayborg sometimes tried to stay out
to make his hours; with Shutt indeed (eventually) failing
to recall any specific complaint that was made about
Mayborg. Shutt did recall and testify that Ebert had
complained only that Gross worked "kind of slow."
Ebert did not specifically deny the latter, but he also did
not recall a meeting with Shutt and Lewis in December
1982 in which they had discussed whether they could
drive without helpers, or how much increase it would
take before they would want to do that. At that time as a
regular driver, Ebert's base was $105 (thus $5 higher
than Gillis' base), plus the 11-cent commission. As noted
Lewis has recalled a late December discussion with
Shutt in which he told Shutt that he did not get along
with his helper (Mayborg) and would rather go by him-
self, but in conversational context of union beer distribu-
tors (drivers) making 24-cent-per-case commission, and
that for 25 cents a case he could probably go by himself.
That their discussion was in context of what union beer
distributors made was not subsequently denied by Shutt.
The same is consistent with the developing employee dis-
cussions about a union, of which Lewis was part.
Meyers relates that he also spoke with Mike Holman,
the driver on Employer's Richmond route, a very big
route, and whom Meyers knew could be trusted not to
discuss it, as Meyers felt a rumor on it would have been
disastrous with the management changes. Meyers also
spoke with Keith Drury, the driver on the Ashland
route, another big route (and presumably for the same
reasons). Meyers asked Holman and Drury what prob-
lems they saw if they ran without helpers during the
winter. According to Meyers, he got positive feedback
from Holman (whose helper apparently was Ingram); but
Drury expressed concern whether he would have
enough time, if driving alone, with Ashland's 4 p.m. clos-
ing law, and with the 2-hour drive he had from Lexing-
ton to Ashland, Kentucky (and the same in return). Ac-
cording to Meyers, these drivers otherwise discussed a
commission rate of 18 to 20 cents as being adequate to
go along. (Neither Holman nor Drury has testified in this
proceeding. In that regard moreover, I have difficulty in
accepting that Meyers would have explored the subject
in terms of termination of helpers with these drivers, but
not with General Manger Shutt or Sales Manager Walc-
zak, particularly where there is no corroboration offered
of his doing so at all.)
According to Meyers, he made his own mind up some-
time in late December, that he really should do it.
Meyers relates he discussed the decision only with his
father, who was hot and cold on the idea According to
Meyers, they elected to wait for the end of the year dis-
tribution, sales, and profit figures, and for the MBO pro-
gram to be established which was being set up entirely
by Vice President Meyers. However, Meyers also assert-
ed he wanted to do it earlier than it had been done in the
prior year.
MID-STATE DISTRIBUTING CO.
It was Vice President Meyers' testimony that he and
his father reached their final decision on helper termina-
tion on Monday, January 10, which was to be announced
Wednesday, January 12. Meyers asserts that date was
chosen as the regular pay period ending Tuesday, Janu-
ary 11, and it was also felt an announcement on January
12 would be less disruptive of delivery service if accom-
plished on that slower day. Meyers was optimistic about
getting it done Wednesday morning, but he asserts that
there was difficulty in getting people together, viz, Herb
Whitt was not there and his father, President Meyers,
also did not come in. According to Vice President
Meyers, he consequently had to postpone it; and by then
several of the helpers were already working on January
12, and it was on that account they ended up getting an
extra day of work and pay. However, the helpers were
notified later that day that the position of helper was being
terminated. On cross-examination Meyers asserted the de-
cision was one of a permanent elimination of the position
offull-time helpers.
Meyers nonetheless asserts that he kept three helpers
on because of a need for relief drivers. Meyers confirmed
that helper Charles Ingram was kept though he could
not read or write. Meyers explained that Ingram was
kept because of his 17 years of loyal service, and because
he was a very good worker. Ingram was to be used to
run extra trucks (with another driver) where he did not
have to figure the tickets; or on other runs from the
warehouse, where the warehouse did calculations; and
he was, otherwise, to work in the warehouse. Meyers ac-
knowledged that Ingram thereafter drove only 3 or 4
times in a month, mostly in sale periods. Meyers asserts
that Shearer was a warehouse helper. According to
Meyers, Shearer was retained because he had route expe-
rience, had been a package driver for several months,
and was a keg driver as well. Meyers was unaware that
Shearer had driven only once thereafter. The earlier
February 18, 1982 memo named Shearer as a relief
driver. Meyers has however confirmed that Shearer had
notified Employer that he did not want to be a relief
driver, and that he subsequently became a forklift opera-
tor. However, according to Meyers, Shearer was classi-
fied as a helper, though he may have been used as a
warehouse helper. I am persuaded by the evidence that,
after the discharge of helpers, Shearer drove, at best,
only once as a relief driver, and worked as a driver's
helper, occasionally, as did Houg. Shearer continued to
work primarily as a forklift operator. Finally, Meyers re-
lates that helper Terry Soule was kept because he had
draft route experience. Meyers acknowledged that Soule
had some problems in driving; he confirmed that he had
hit a building his first time driving, and that Soule was
placed on probation for it. However, Meyers asserts that
thereafter Soule had performed well, when reassigned to
driving.
d. The related increase in driver commission
Essentially Meyers explains the increase given drivers
as being solely an incentive for them to go without help-
ers. The driver commission increase of February 1982 (3-
1/2 cents) was doubled to 7 cents. It is Meyers' related
testimony that helpers' cost had risen from 11 cents in
1545
summer months to 12 cents in the winter months. Effec-
tively, the 7 cents that was given to the drivers raised
their commission from I1 cents to 18 cents which was
deemed adequate; and the remaining 5 cents of the help-
ers' costs then went to the Company. According to
Meyers, the Company obtained a profit this January and
February, despite paying the helpers a 2-week severance
pay, and also the substantial legal fees that were incurred
by Employer in January. (In passing it is observed that
by the end of February there was a cumulative increase
in sales in January and February of 38,249 units over the
prior year.) Meyers has denied that the elimination of the
helpers at this time was done to discourage union activi-
ty; and he asserts that he did not have knowledge of the
union activity of the helpers at the time they were termi-
nated.
e. The evidence as to discussion with lower
management
Meyers has acknowledged that he did not previously
discuss the decision on termination of helpers with Sales
Manager Walczak, Warehouse Manager Whitt (who su-
pervised the helpers), or Lexington Route Supervisor
Koontz. Meyers has testified that he had a prior discus-
sion with Walczak about there being too much overtime
and not enough productivity; and he asserted that he had
discussed with Shutt an option of terminating helpers in
prior year, and ongoing, although he could not state
dates. As noted President Meyers did not testify, and
thus he did not offer any corroboration of Vice President
Meyers' earlier discussion of termination of helpers, and
particularly on the crucial element of the timing of a final
decision to terminate helpers on January 10; nor on the
reasons eventually persuading President Meyers at this
time (even under Vice President Meyers' version that he
was previously hot and cold on the idea), that helpers
should be terminated. Moreover, Shutt not only did not
corroborate Meyers as to Meyers' prior discussion of an
option to terminate helpers with him, Shutt has essential-
ly denied involvement.
Thus Shutt has testified definitively that he was not
part of the decision to discharge helpers, and he had no
recollection of discussing any driver's desire to work
without a helper to get a raise earlier with higher man-
agement. Neither did Whitt know the helpers were going
to be discharged even as of the night before, though the
helpers were under his direct supervision, and he was to
be required to inform them. Whitt only first learned of
that about 10:30 a.m., January 12. In so testifying, Whitt
related to the court:
Q. When was the first time that you learned that
the helpers were going to be let go, terminated?
A. It was on the 12th, I believe.
Q. At what time?
A. I'd say it was about 10:30.
Q. And how were you made aware of that?
A. Mr. John D. Meyers and Mr. Mike Shutt
came to my home?
Q. And what were you told?
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That they decided to do-get rid of the-let
the drivers go by themselves and give the drivers
more money.
Q. Had you heard any discussion about that-
A. No, I had not.
Q. -before?
A. No-are you talking about-I beg your
pardon, sir, about letting the helpers go?
Q. Yes.
A. Yes, that had been discussed and we even
tried it a year before that.
Q. Would you tell me what you can recall about
[sic] you tried a year ago?
A. We let-took all-remember, we took all the
helpers off the in-town routes and tried that for
awhile, and gradually-without letting anyone go I
might add. And gradually, they just went going
back and you know.
Whitt, however, went on to clarify that only five help-
ers were taken off Lexington truck deliveries and put in
the warehouses for 6 to 8 weeks; that there were then so
many in the warehouse that the drivers when they
needed help got to complaining, and gradually the help-
ers went back on the trucks. Whitt acknowledged that,
in this period, at times he had to make work in the ware-
house for the helpers, but confirmed he did not lay
anyone off or fire anyone. Indeed, Whitt then testified
significantly that he could not recall any prior layoff by
Employer in the 9 years he had worked there. Whitt has
otherwise related only generally that he thought taking
the helpers back off was discussed a time or two; and
that he also thought some of the drivers wanted it, as
well as he could remember, but offered no details. I did
not find that testimony persuasive when given. Neither
do I find it presently convincing, or even to be viewed
substantially corroborative of Meyers, in light of all the
evidence presented and found credible herein.
f. Sales comparisons
Office Manager Wiseman has testified credibly as to
Employer's monthly sales report which insofar as is
deemed presently pertinent reveals the following sales of
24/12 equivalent units.4
It is readily apparent that, at the very time of helper ter-
mination, sales were then cumulatively increasing signifi-
cantly over the past year (in both months more than 10
percent), and that at time of rehire of helpers, though
sales were cumulatively then decreasing, the substantial
seasonal increase was underway. Vice President Meyers
has explained the above February 1983 sales increase was
occasioned by retailers being aware of price increases
upcoming in March, and some buying extra towards end
of February. But surely both Meyers would have been
aware of that business condition. (It is equally notewor-
thy that Meyers testified there was no such price in-
crease the prior year and thus no price-related sales in-
crease was then anticipated.) Meyers relates, otherwise,
that beer sales generally are cyclical, being higher in
summer months and lower in winter. On the basis of the
1982 sales year (undistorted by any price increase)
Meyers placed Employer's percentages at 57 percent of
annual sales in the summer months and 43 percent in the
winter months. However, in regard to anticipated year-
round business, at time of hearing, Meyers confirmed
Employer was down 2 percent on an annual basis; that
he did not see business increasing over 1982; and that if
flat (seemingly even) at end of year, Employer would be
doing better than most distributors. The fact is apparent
that, in the prior year, without price increase in the
offing that would anticipatedly generate an increase in
sales, all helpers were retained; and only five Lexington
helpers were assigned to the warehouse, and even then,
they were readily reassigned as driver helper, on need
basis. In contrast, in the instant material period, approxi-
mately double the number of helpers (as were reassigned
the prior year) were permanently terminated despite
sales cumulatively and substantially increasing over the
prior year, and more sales surely anticipated in February
by Employer at time of helper termination. Finally, the
true import of Employer hiring some 13 helpers back in
April (discussed infra), even at time of decreasing cumu-
lative sales, but at beginning of busy season, cannot be
overlooked in revealing Employer's prior work force's
actual needs. The long hours drivers worked resultingly
is but confirmatory.
g. Meyers' version of the January 13 explanation to
drivers
Year-
to-
Year
month-
ly
change
Cum-
, mulative
differ-
ence
Dec. 81 144,473 Dec . 82 150,488 + 6,015 6,015
Jan. 82 97 ,270 Jan . 83 115,827 + 18,557 24,572
38,249
Feb. 82 124 ,728 Feb. 83 144,420 + 19 , 692 44,264
Mar. 82 138 ,722 Mar . 83 114,540 - 24, 182 20,082
Apr. 82 159 , 359 Apr. 83 144,128 - 15,231 4,851
4 Sales here are on basis of various sold products as shown converted
to case unit of 24/12 oz. cans equivalents Thus each day a closing is run
on the computer to show the 24/12 equivalents in various products sold
that day, and cumulative per month.
Meyers recalled the meeting of the drivers of Thurs-
day, January 13, at which the new system was explained
to the drivers. Meyers confirms a question arose immedi-
ately as to what they were going to do in the summer,
and the drivers were told Employer did not know. Ac-
cording to Meyers, there was then under consideration
use of part-time summer help, driver use of pickup casual
labor, or breaking down routes to lower volume (and
thereby facilitate creation of more routes). On direct ex-
amination Meyers testified that the only way there was
discussion of drivers having the same pay (18 cents) op-
erating with helpers was with regard to when there was a
(present) sale or need for extra help, and statement was
made that Employer would do everything possible to get
them the help. In that regard, on cross-examination,
Meyers testified relatedly that it may be that driver
MID-STATE DISTRIBUTING CO.
Lewis had asked about sale and other (present) need for
help; and that Meyers had told them that "we will give
you [drivers] help, and that there won't be a change in
the driver rate." Meyers has also confirmed that both the
drivers and Employer were aware the drivers would
need help from April on. However, Meyers testified in
no way did Employer commit to paying 18 cents' com-
mission to drivers indefinitely. As noted, Meyers is some-
what corroborated by Shutt's statements in his speech to
drivers on February 8, in regard to Employer's statement
in question and answer session on market unfeasibility of
Employer continuing to pay 18-cent commission, and
also pay helpers $4.25, for 50 to 60 hours of work. Noted
as well is the fact that drivers even then (February 8)
were already complaining about their extended sales
hours; and their own extended loading requirements on
their return, which was not answered by Employer's evi-
dence.
Meyers has offered further explanation that, although
they knew that helpers would be needed in some form or
fashion in the summer, he did not have the supervisors
tell the helpers they might be rehired, because they were
still looking into the alternatives. (Meyers did not ad-
vance as a reason that they did not know which helpers
they did not want to rehire. Indeed, all helpers in their
termination notice were informed they had performed
well.) According to Meyers, it was recognized on the
matter of driver use of casual labor, there was a very
good chance Employer would run afoul of workmen's
compensation and wage and hour laws, with Meyers as-
serting Employer eventually found out that approach
was not feasible. Breaking clown routes was also eventu-
ally determined as not presently feasible because Em-
ployer felt (in mid-April) it was too far into the year to
break down routes, and because new products were
coming out, and Employer did not know the effect the
new products would have on the routes.
According to Meyers a decision was made eventually
to rehire the helpers, and hiring started April 15, includ-
ing a hire of a number of new people in helper positions.
Whereas 9 helpers were terminated on January 12, 13
helpers (excluding Tuttle and Oliver) were hired be-
tween'April 15 and May 4. The combined effect of inter-
im use of supervisors and other employees as helpers, the
independent driver use of pickup or casual help, the
complaints of drivers as to their long hours and required
loading are all progressively indicative of actual interim
helper need. Meyers even offered he had wanted to hire
helpers earlier, viz, the first of April, but asserts other
business commitments prevented it.
Analysis of the Alleged Discriminatory Termination
of Helpers
Meyers offers no specific explanation and certainly no
convincing explanation for the announcement of evalua-
tions, inter alia, of helpers on January 10, and conduct of
evaluation of helpers on January 11, with it purportedly
already decided on January 10 that the same helpers
were to be permanently terminated on January 12. That
and a preplanned termination known on January 11, but
with ignorance of the direct supervisor who is expected
to terminate employees first thing the following day, are
1547
simply too strained for me. I am in the end persuaded by
weight of the above, and other mutually consistent and
more credible evidence, that the decision to terminate
helpers was itself more probably made at some time after
the evaluations that were conducted on January 11, and
before 10:30 a.m., January 12, by or with President
Meyers' specific direction and/or approval. Moreover, I
am wholly persuaded it constituted an abrupt change in
what had been planned and announced to employees in
the most recent evaluations. Furthermore, and in that
specific regard, I cannot accept that Whitt, whom the
record reveals had earlier wheeled about to confront
:Hug when mere mention was made of prospective
union activity (particularly with the background of Em-
ployer's declared and published antiunion view of un-
friendly employee pressures emanating therefrom)
would, even under his version of being only told by one
employee of union activity by others, which was then
denied by others on inquiry, make no report thereon, but
simply get drunk. There is other uncontested and more
credible evidence of record that President Meyers was
observed frequently at the warehouse late, drinking.
Lewis' testimony of Koontz' undenied statement of
direct involvement of President Meyers in the decision,
viz, blowing up, after drinking, and "this is what we
got," is at once discernibly inconsistent with Vice Presi-
dent Meyers' uncorroborated version of a prolonged de-
liberated consideration, and a January 10 final decision
on terminations of helpers joined in by President Meyers,
and only the more compatible with President Meyers'
actual awareness of the initiation of the formal union ac-
tivity, on the evening of January 11, through Whitt or
others. On this record the knowledge of Whitt is imputa-
ble to Employer, for the attendant circumstances are that
Whitt's claim that he did not think he ever spoke to
President Meyers about the Union, and spoke to Vice
President Meyers and Shutt only later, is too strained,
and insufficiently supported to be afforded such full cre-
dence (particularly in this case where the underlying
facts, from varied sources, reflect a course of conduct
other than termination of helpers was being actively and
openly followed by Employer up until that very point in
time, and President Meyers has failed to testify in sup-
port of Whitt's assertion).
Rather, I am in the end convinced by the weight of
evidence above discussed that the General Counsel has
made out a strong prima facie case of discriminatory ter-
mination of helpers on January 12, on the basis of Em-
ployer's clear hostility to the Union; the timing of the
terminations to the recently initiated formal union activi-
ty; the significant part helpers had already played in card
signings and attendance at a recent union meeting; the
timing of other independent evidence of developing com-
pany knowledge of earlier employee union activity and
interest; the specific knowledge of Whitt thereof on the
very evening of January 11; and finally from both the
lack of corroboration of Vice President Meyers as to an
earlier consideration of termination of helpers, and deci-
sion on termination of helpers; and a fair adverse infer-
ence to be drawn from President Meyers' unexplained
failure to testify on either of the above circumstances,
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Whitt's assertions , Air Products & Chemicals, 264
NLRB 341 fn. 1 (1982), enfd. 717 F.2d 141 (4th Cir.
1983); compare Dr. Phillip Megdal, D.D.S., Inc., 267
NLRB 82 (1983). Additionally, not only has Employer's
offered evidence failed ultimately to convince me that it
would have terminated its helpers in any event at this
time irrespective of union activity of helpers, or others of
its employees, the weight of more credible and corrobo-
rative evidence marshaled above, as well as the number
of inconsistencies deemed significantly detracting from
Employer's position, points tellingly to the exact oppo-
site, is indicative of pretext, which itself is only the more
significantly reinforced by the Employer's substantial his-
tory of no prior layoff in 9 prior years, with even loss in
slack period being accepted in prior years; and finally
with approximately double the helper terminations, this
time being accomplished in the very period of sales cu-
mulatively and substantially increasing over prior year,
where no helpers were even laid off.
It is accordingly in the end concluded and found that
the General Counsel's evidence has established that on
January 12 Employer discriminatorily terminated nine of
its helpers in violation of Section 8(a)(3) and (1); and that
Respondent has failed in its burden, applicable in all
8(a)(3) and (1) motivational cases, of going forward with
persuasive evidence that it would have terminated the
nine helpers at this time irrespective of the union activity
of helpers, or any of its employees, cf. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), but passed on approv-
ingly by the Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983); and see Lime-
stone Apparel, 255 NLRB 722 (1981); and Jefferson Elec-
tric Co., 271 NLRB 1089 (1984). See also Blackman-
Uhler Chemical Division, 220 NLRB 52, 57-58 (1975); Hi-
Lo Foods, 247 NLRB 1079, 1081 (1980); Shattucl Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966);
and Pyro Mining Co., 230 NLRB 782, 788 fn. 2 (1977).
Moreover, since the discharge of the nine helpers on
January 12 has been in the end concluded to have been
with discriminatory purpose, viz, to discourage union ac-
tivity by the helpers and other employees, the simultane-
ous increase in commission rate granted drivers, who
composed approximately one-half of the unit, was itself
directly inferable as accomplished with similar purpose
by virtue of being a substantial benefit granted to them at
the outset of the union campaign . It was also, in my
view, inseparable from the discriminatory helper dis-
charges, in being granted as an incentive for the drivers
to go without the helpers. Thus, the driver increase in
benefit was necessarily tainted with such discrimination,
as well as independently an interference with employees'
Section 7 rights, under, the circumstances even otherwise
shown present herein, cf. NLRB v. Exchange Parts Co.,
375 U.S. 405 (1964). It is accordingly concluded and
found that, by discriminatorily discharging the nine help-
ers on January 12 and by simultaneously increasing the
commission rate paid drivers from 11 cents to 18 cents,
Employer has violated Section 8(a)(3) and (1) of the Act
as alleged.
4. Employer's explanations for its February 7 hire
of Tuttle; and defense of its March 14 hire of Oliver
Meyers has testified that Robert Tuttle, who was hired
back on February 7, was the most senior of the helpers
terminated, though he hedged with regard to Mayborg.
(Shutt had earlier so testified.) However, Mayborg, with
seniority of December 5, 1970, clearly had greater over-
all seniority than Tuttle with seniority of July 25, 1980.
It appears that after being hired back on February 7,
Tuttle may have been classified by Employer on its
records as a helper, though the same is then seemingly
inconsistent with Shutt's declaration to drivers in ques-
tion and answer discussion the very next day on Febru-
ary 8 that "we don't want to hire back helpers." I have
in any event credited Tuttle, who impressed me as a gen-
erally credible witness, that he was told by Shutt he was
being hired back to work as a relief driver, which was
affirmed by Meyers. Thus Meyers has in the end testified
more convincingly in regard to Tuttle's return as a relief
driver (albeit testimony given in regard to Oliver return)
that Mayborg had a medical problem of such specified
nature that Employer's insurance carrier would not
allow him to drive; and consequently, Mayborg was
never considered for a driver position.
Meyers has testified that he hired James Oliver back as
a relief driver on March 14. According to Meyers, he
did so because Oliver had always shown a lot of hustle,
and a desire to get out and sell; and Oliver did not mind
working, and had always asked for extra work. Meyers
testified that the decision to employ Oliver was not his
decision, but of management and the supervisors general-
ly, viz, Shutts, Walczak, and all the supervisors. Accord-
ing to Meyers there was a consensus of the supervisors
that Oliver had the personality to be good at selling.
(There was, however, no convincing corroboration of-
fered by Shutt, Walczak, or others of their past in the se-
lection of Oliver for return, let alone over other terminat-
ed helpers with more seniority.) Meyers has otherwise
testified that when Oliver was put on a Mount Sterling
route he had sold three new draft accounts which he
does not even regularly sell, and which does not benefit
him; and, in general , that Oliver had gotten quite a few
new placements. On cross-examination, Meyers acknowl-
edged that Oliver was previously only a helper; that he
had had no other prior sales experience; and that certain
other helpers were more senior, and had driving experi-
ence with Employer. Finally, Meyers acknowledged
Oliver had a prior accident, but would explain it as one
in which Oliver had backed out a truck with no brakes;
and Meyers asserted that whoever would have taken the
truck down the ramp, in those circumstances, would
have had that particular accident. It is clear that for ap-
proximately the past 5 weeks Oliver had regularly
worked as a helper. Meyers has acknowledged that he
was aware at time of rehire that Oliver was the only em-
ployee that gave an affidavit to Employer in support of
its objections. Employer did not offer evidence in denial
that Oliver in his later contacts before hire was told that
Employer would be hiring in the future, nor deny that
Oliver, in contrast with Tuttle, was rehired for an unan-
nounced position.
MID-STATE DISTRIBUTING CO
Tom Mayborg, Wayne Qualls, Cliff Gross, and Paul
Joseph, each and all had more seniority as helpers than
Oliver. It is Meyers' testimony that Oliver was hired for
a driver position, not a helper position. That excluded
consideration of Mayborg. Meyers has testified that
Wayne Qualls was considered, but Qualls had previously
been given routes, and did not show a whole lot of ag-
gressiveness or hustle on them; and on one route on
which he was tried Employer had to terminate the route
because sales just were not going well. According to
Meyers when Qualls sold keg beer, and on one occasion,
out of 8 to 10 hours, only had made a couple of ac-
counts, Meyers was highly suspicious how much effort
Qualls was putting into that route. On cross-examination,
however, Meyers acknowledged in general that a pack-
age driver does not have as much flexibility in his stops;
and generally keg customers do not have storage for the
kegs, and the driver must go on route to sell where the
product is needed. Meyers does not dispute Qualls' supe-
rior earnings performance when returned to Gillis' route
on a base plus commission rate, as reflected infra. Ac-
cording to Meyers, Gross had an appearance problem,
did not dress well, had a lax attitude, and was not a hus-
tler; he did not come across well with retailers. Conse-
quently, the Employer did not think Gross would be a
good representative for Employer. The short answer to
this, however, is that Meyers has also acknowledged that
Gross had previously regularly driven in relief for Em-
ployer. Employer summarized concerning Joseph that
Joseph was a very good worker when being directed, as
in the warehouse, but only uncorroboratively and thus
self-servingly asserts they did not see him showing
strong initiative or a real ability to sell. The uncorrobor-
ated assertions of Meyers in explanation for the passover
of Qualls, Gross, and Joseph and hire of Oliver, and par-
ticularly passover of Qualls, are simply unpersuasive.
Both Qualls and Gross made it clear to Employer that
they were desirous of reemployment. Both had prior
driving experience, Quails significantly so. The promi-
nence of the union activities of all these employees, inter
alia, on the picket line, but particularly Qualls and Gross
thereon, and on election day, cannot be gainsaid, any
more than can be Oliver's prior open declaration to
Poole and Employer Sales Manager Walczak of his non-
union support, and his later support of Employer that
was directly evidenced to President Meyers. There is
evidence of continued preference in Oliver's favored pay
position, to be discussed infra. It is concluded and found
that Employer extended preferential treatment to Oliver
in his rehire on March 14, thereby discriminating against
more senior helpers, and more particularly (I find) the
next most-senior helper with driving experience, Qualls,
in violation of Section 8(a)(3) and (1) of the Act.
5. Employer's economic defense for the layoff of
Emmons on March 25
Vice President Meyers has testified that Employer had
been tracking freight costs for at least a year and a half;
and that regularly since August 1982, it had prepared
monthly charts comparing rail costs with common carri-
er costs, but not common carrier truck costs (as such)
with its own trucks. It was observed there was a substan-
1549
tial difference in rail costs ; and accordingly rail was used
as much as possible. According to Meyers, he had of late
also noticed a reduction in common carrier rates due to
deregulation. (It is judicially noticed the Motor Carrier
Act of 1980 became effective July 1, 1980.) Vice Presi-
dent Meyers testified that "we felt it was going to be
much more sound" for Employer to get its beer by
means other than its own trucks. Meyers has asserted
that the lease on Emmons ' truck expired on Feburary 1;
and that thereafter they had just followed the lease
paying 39 cents a mile for tractor 516 use, as they had
done for tractor 378 which expired July 1, 1982. Penn
had never objected to the latter. However, Meyers on
cross-examination has acknowledged that, if they decided
not to renew or terminate the lease prior to a renewal
date, they would have had to purchase the truck.
According to Meyers they decided not to renew the
lease of tractor 516, basically because it was determined
they could save $137 a load by use of a common carrier
truck; and as a result Emmons was laid off on March 25.
It is Meyers' related testimony in regard to the time dif-
ferential between February 1 (tractor 516 lease anniver-
sary) and the March 25 layoff of Emmons that because
of the campaign and other things Meyers was not able to
meet with Penn (on the earlier annual basis as provided
in lease); but that when they did meet, Penn did not at
that time object to the termination of the lease on tractor
516. According to Meyers they have retained tractor 517
because that lease was not up until May 1984; and Em-
ployer is keeping it with the main reason for its use in
handling dunnage and cooperage (empties). Meyers ex-
plained that it is not economically feasible to pay a
common carrier to go with empties , and with regard to
their only other way, viz, by rail, a plant-assigned railcar
may not be as convenient.
Called as Respondent's witness , Office Manager Gina
Wiseman (employed for over 3 years) testified and on
this matter corroborated Meyers relatedly that Employer
had been computing the difference between rail and their
truck carrier cost ever since she has been there. Wiseman
also testified that recently she had observed a downturn
in Employer's fuel costs. Wiseman further testified as to
an additional recent comparison she made in the cost of
using a common (truck) carrier versus (Emmons) lease
truck operation on the trip to the Miller Brewery, plant
in Eden, North Carolina (for this hearing). It was deter-
mined that common (truck) carrier cost had varied in the
period covered (February and March) from a low of
$511 to a high of $629.32 for the trip, which is to be
compared with Employer's constructed cost in use of
driver (Emmons) and leased truck 516 of $732.08 per
trip. The difference in the months of February and
March for 15 such trips (7 in February, 8 in March) was
$2064.50, thus indicating a $137.63 average saving was
realizable per trip by future use of common (truck) carri-
er in place of use of tractor 516 and driver Emmons on
such a trip. Wiseman however testified specifically that
cost comparisons of their trucks and rail costs were
made in August, and again in November and December
1982. On cross-examination Wiseman further revealed it
was always noticed that for all common carrier costs there
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a substantial decrease from what Employer could haul
with its leased trucks.
Analysis of the layoff of Emmons
There is no question of Emmons ' prominence in mate-
rial period in early Employer discussions about the
Union, nor of the fact that it was he who had initiated
actual contact with the Union and the most recent
formal union organizational card campaign among Em-
ployer's employees on January 10. There is no question
that Employer was early and well aware of the extent of
Emmons' more recent union activities , just as it had
become aware of them earlier. This is clearly revealed
from the credited Emmons' account of Convington's
statement made to Emmons
,
in early January that Presi-
dent Meyers had heard that Emmons was involved in
union activities again, and that Emmons better be care-
ful. It is buttressed by Poole's (uncontested) confirmation
to Emmons in late January essentially that Poole was al-
ready aware thet Emmons was the one who had ob-
tained the union cards, during which conversation Poole
made a specific request of Emmons that Poole be given a
year to get things straightened out. Only the more signif-
icant in that context is Emmons ' essential rebuff of that
Poole request , otherwise undeniable on this record, is
Emmons' open and continued union support and union
advocacy . The same was readily apparent to Employer,
as is evidenced by Emmons continued wearing of a
union button "Vote Teamsters ," subsequent wearing of a
Local union hat, and his confronting prounion majority
declarations to General Manager Shutt on February 8,
even after the completion on February 1, of the fourth
lease year on his assigned tractor 516 . I have no hesita-
tion in concluding that it was Emmons whom Shutt had
made reference to in his statement captured on tape by
Lewis earlier on February 8, essentially of "an employ-
ee" going outside the Company to the Union to help
solve problems.
There is no question either of the quantum or direction
of Employer's and specifically President Meyers' antiun-
ion animus, given the earlier findings of unfair labor
practice commission, and credited revealing evidence
othewise . Salient is the rare, but specific , evidence of
President Meyers' deeply felt and revealed animosity to-
wards Gillis due to President Meyers' belief of Gillis'
prominence in the union activity , as evidenced in Presi-
dent Meyers initially commissioning Walczak to go out
on Gillis route, and find a reason to discharge Gillis, be-
cause Meyers felt Gillis, a longtime employee, had
stabbed him in the back. Otherwise, given the above
now determined abrupt and discriminatory termination
of nine helpers contemporaneously with , and determined
because of, the onset of formal union activity by these
and other employees , as well as the significant increases
simultaneously granted drivers in the embryonic union
campaign ; and given the more recent clear preferential
treatment afforded Oliver over other helpers who were
union supporters, and determined granted to Oliver, not
due to seniority and/or ability , but due to his nonunion
declaration , and interim support of Employer's position
on objections to the (indeterminate) election; and finally,
to say nothing of the other independent indicia of Em-
ployer's intervening, ongoing hostility to the union orga-
nizational effort among its employees , as revealed by nu-
merous other violations of Section 8(a)(1) of the Act as
hereinafter found, the quantum or degree of Employer's
hostility to those of its employees prominently advocat-
ing and/or supporting the Union is not open to serious
question . The specific susceptibility of an application of
such hostility in the belated layoff of Emmons could
hardly be made to appear stronger , or clearer , short of
even a rarer occasion of the Employer's additional out-
right admission that Emmons' layoff was (discriminatori-
ly) related to his prominence in union activities . Such an
admission is not required.
There is however credible and other prima facie evi-
dence to further support and warrant the conclusion that
the actual decision to lay off Emmons at this time was
with unlawful motivation and was made by President
Meyers. As noted, President Meyers had earlier commis-
sioned Walczak to find a reason to discharge Gillis for
expressly stated similar reason, though Walczak balked at
it because, as he said, it "was dirty." Any argument of
there being ambiguity in Shutt's (undenied) reluctant
statement made to Emmons in the layoff interview, viz,
that Shutt had to do the dirty work, succumbs to a more
ready inference of an unlawful nature of that dirty work
in those circumstances. Moreover , standing in obvious
contrast with Shutt's February 8 assurances earlier given
publicly to employees in regard to his own decisional
and managerial authority granted to run the operation,
and his specific declaration that the Meyers were not
going to make decisions for him , but no less persuasive
of one of higher management (the Meyers) being origina-
tor of the decision , are Shutt's responses to Emmons
when Emmons questioned his layoff, that Shutt did not
make all the decisions; and that he just worked there like
everyone else. Finally, that it was authorized specifically
by President Meyers only appears the more confirmed in
light of President Meyers subsequently signing the writ-
ten letter relating the reason given Emmons for his
layoff, was essentially the medium of the tractor's return,
and his junior seniority . In the latter regard there is also
no question that Emmons was retained in employ as a
long-haul driver assigned to truck 516 well after the
fourth anniversary of the lease of his truck, as had been
the less senior part-time driver Ruth on tractor 378 until
Ruth 's intervening wreck on March 3. Shutt's statement
to Emmons that there was no lease on tractor 516, on its
face, is also contrary to the express terms of the truck
lease agreement. Thus in my view the General Counsel
on above various showings of Emmons' union activity,
employer knowledge, employer animus, and circum-
stances of timing of layoff has made out a very strong
prima facie showing, one more than sufficient to support
the inference that Emmons' protected union activity was
a "motivating factor" in Employer's decision at this time
to indefinitely layoff Emmons on March 25. Cf. Wright
Line, supra, 251 NLRB at 1089. Once this was estab-
lished the burden is on Employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct, id. at 1089.
MID-STATE DISTRIBUTING CO.
Essentially , Employer 's offered defense of its layoff of
Emmons on March 25 rests on three bases : first, Employ-
er's notice of a recent (generalized) decline in common
carrier costs due to deregulation ; second, there was a
recent cost analysis made on 15 Eden trips handled by
common carriers in February and March which indicat-
ed that , on average , a savings of $137 per Eden trip
could be realized by use of a common carrier over con-
tinued use of Emmons and tractor 516; and third, because
of press of other business , Employer had not been able to
meet with lessor Penn for the anniversary negotiations as
scheduled by the terms of the lease agreement , but that
when it later did, Penn was agreeable to an (outright)
cancellation of the lease agreement on tractor 516. It is
noted that Vice President Meyers has received corrobo-
rative support from Office Manager Wiseman (at best)
on only the first two factors.
Even then as to those factors there is no convincing
evidence offered as to the degree or significance of
recent common-carrier cost decline. For example, it is
apparent from the evidence that was submitted by Em-
ployer (e.g., Wiseman) that this business condition was
not a significant change from a prior more cost-effective
use of Employer 's own tractors to the present more cost-
effective use of a common carrier . There is no evidence
indicative of the extent of actual recent change in use of
common carrier being more cost effective than it was
known to be prior. If anything Wiseman's testimony of
Employer's fuel costs going down would indicate im-
provement . At best Meyers ' explanation relates to an as-
serted present $ 137 difference . But it is in the third
factor , bearing thereon , that there is even greater lack of
clarity and persuasion.
Under the terms of the lease , Employer could , with 60
days' notice prior to anniversay date (February 1), pur-
chase tractor 516 for 15 percent of its declared value, or
$8100. There was otherwise general provision for negoti-
ation of rate in January . Credited evidence of record re-
veals that , when tractor 378 had completed its fourth
year, Employer at first arranged for purchase of the trac-
tor, but then let it go back to Penn's ownership . The ar-
rangement on that tractor's use as revealed by the record
herein is that Employer continued with lease use of the
tractor, but paying only the mileage rate for actual use.
Ownership of the tractor remained in Penn. However,
there is no evidence to warrant the conclusion that other
provisions of the lease did not apply ; e.g., that Employer
as lessee did not continue total collision protection for
the lessor Penn (under secs . 2E and schedule A of the
lease) that was operative at time of the wreck of 378.
The lease notably in that regard provided that lessor
Penn did not have to replace the tractor . It is similarly
clear that from February I through March 24 Employer
continued tractor 516 in regular full-time use, on the
same arrangement basis as it had tractor 378, namely,
paying the scheduled mileage rate for use. An otherwise
contractually required purchase cost of $8100 bears di-
rectly thereon . It is thus apparent to me that at least in
terms of the provisions of the written lease a required
purchase , at cost of $, 8100, would have direct bearing on
Employer's decision to continue use of the tractor 516
under similar arrangement as it had on tractor 378; and
1551
that it is what it did do through March 24. It is observed
that even at the continued $137 loss in monthly use
through 4-year completion on tractor 517, that would
amount to less than $2000 as compared with $8100 ex-
penditure.
Vice President Meyers' testimony is that in belated ne-
gotiation Penn simply took the tractor back. That testi-
mony is uncorroborated by either President Meyers or
Penn. The Employer had made cost comparisons in No-
vember and December 1982. The Employer continued
with use of the tractor. In contrast , it is surely inferable,
if not apparent , that since February 1 Employer's regular
use of tractor 516, paying mileage rate for use, was
agreeable to both Employer and Penn. Even setting aside
the additional consideration that the lease agreement pro-
vided that in case of a cancellation otherwise, e.g., other
than in the manner above, the Employer would be re-
quired to purchase all vehicles (then two), the version of
Vice President Meyers would have it accepted blindly
that Penn as a businessman not only forewent continu-
ance of the lease use arrangement , Penn further aban-
doned his contractual sale right of approximately $8100.
I have difficulty accepting that, particularly without any
corroboration or explanation offered. In contrast
Emmons has testified that at some time between Febru-
ary 1 and election day March 3, he had a conversation
with Vice President Meyers, in which when Emmons
asked what they were going to do about truck 516, Vice
President Meyers told Emmons that they had made an
agreement with Penn for letting them out of the deal of
buying the truck, but they were going to keep it until
after the brown truck 517. As noted tractor 517's third
anniversary was May 3, and more pertinently its fourth
was May 3, 1984. At best, Vice President Meyers has not
directly addressed this evidence in denial . I have careful-
ly weighed the circumstances that his conversation with
Meyers is not reflected in the prior affidavit of Emmons
given during investigation , and also his tentative explana-
tion thereof. While such an omission from affidavit may
raise cause to question credibility on issue of fact testi-
monially joined, any suspicion otherwise is not ground
for automatic rejection , particularly where the facts re-
cited are both wholly consonant with other related facts
established of record , and not specifically denied by the
others involved . Finally, it must be reflected that Em-
ployer's burden of showing that it would have laid off
Emmons anyway is a formidable one wherein this sea-
sonal business employer had not had a prior layoff of an
employee in 9 years.
It may be observed initially that this is not a case in-
volving any element of the situation where it is the
known and active union adherent who has independently
provided a sufficient reason to a hostile employer for the
employee's release in any event . Cf. Klate Holt Co., 161
NLRB 1606, 1610 ( 1966). Indeed Emmons' work and
conduct were without any evidenced blemish shown of
record. It is also undisputed that under Section 8(a)(3)
and (1) of the Act if an employer fires ( or lays off) an
employee for having engaged in union activities and has
no other basis for the discharge, or, if the reasons that
the employer proffers are shown pretextual , the employ-
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er commits an unfair labor practice, NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). Indeed, the
courts had earlier recognized both that a business reason
cannot be simply advanced and used by an employer as a
pretext for a discriminatory firing, cf. NLRB v. Ayer Lar
Sanitarium, 436 F.2d 45, 49-50 (9th Cir. 1970); but, as
well, saw problems in dual-motive cases , where a lawful
reason is presented in the face of equally present and de-
termined employer hostility to the union, of whether
there was adequate consideration of the business reason
advanced in the resolution made of the basic question of
what was Employer's actual motive, cf. Pachito's v.
NLRB, 581 F.2d 204, 207 (9th Cir. 1978). The courts on
that account did not always find the Board's prior "in
part" test helpful. However, the underlying principle was
itself one essentially reaffirmed by the Board in its expli-
cation of the Wright Line approach to be followed in re-
solving both pretextual and dual motive cases . Thus, in
its abandonment of its prior "in part" language in Wright
Line, supra, 251 NLRB at 1089 (1980), the Board none-
theless reaffirmed that "our task in resolving cases alleg-
ing violations which turn on motivation is to determine
whether a causal relationship existed between employees
engaging in union or other protected activities and ac-
tions on the part of their employer which detrimentally
affect such employees' employment." The Board's prior
"in part" test was described by the Board as only a term
it used in pursuit of its goal, "which is to analyze thor-
oughly and completely the justification presented by the
employer." Id. at 1089.
In the Transportation Management case, supra, the Su-
preme Court addressed the Board's Wright Line, supra,
affirmative defense to be placed on an employer after the
General Counsel has made prima facie showing sufficient
to support inference that protected conduct was a "moti-
vating factor" in the employer's decision, viz, the burden
placed on employer of showing the same action would
have taken place even in the absence of protected con-
duct. There the Supreme Court addressed the mixed or
dual-motive issue in terms (462 U.S. at 401):
As we understand the Board's decisions, they
have consistently held that the unfair labor practice
consists of a discharge or other adverse action that
is based in whole or in part on antiunion animus-
or as the Board now puts it, that the employee's
protected conduct was a substantial or motivating
factor in the adverse action. The General Counsel
has the burden of proving these elements under §
10(c). But the Board's construction of the statute
permits an employer to avoid being adjudicated a
violator by showing what his actions would have
been regardless of his forbidden motivation.
The Supreme Court therein concluded it was not pre-
pared to hold that the burden placed upon the employer
was an "impermissible construction of the Act," but "at
least permissible under it"; and in noting that the Board's
allocation of the burden of proof is clearly reasonable,
did so, on explicated basis that where the employer is a
wrongdoer, acting out of illegitimate motive, "It is fair
that he bear the risk that the influence of legal and illegal
motives cannot be separated, because he knowingly cre-
ated the risk and because the risk was created not by in-
nocent activity but by his own wrongdoing." Id. at 402-
403. It is my concluding view that Employer's evidence,
as offered, has not withstood scrutiny. There is sufficient
evidence of record to support finding of pretext. Howev-
er, I need not conclude that Employer's advanced reason
is shown by the evidence to be outright pretext. For it is
in any event sufficiently clear to me, and I find, that Em-
ployer has not met its burden, but rather its evidence of-
fered has failed to persuade that it would have laid off
Emmons in any event, at this time, regardless of forbid-
den motivation. Accordingly it is concluded and found
that by laying off Robert C. Emmons on March 25, Em-
ployer has violated Section 8(a)(3) and (1).
Employer's Defense of the Changes Made in
Drivers' and Helpers' Pay
Vice President Meyers has testified that at time of re-
employment of helpers a decision was made to change
the helper method of pay from that of hourly rate to a
base pay, plus commission, to cut down on overtime and
also as an incentive to the helpers to help the driver sell
beer. That both of these policies were under active con-
sideration, I find well supported of record. Meyers has
additionally testified of record (and I credit him) that
such pay system or method was the one used in Atlanta
Miller distributorship and also by Budweiser (locally) in
Lexington. With return of the helpers full time the driv-
ers' commission was also cut back from 18 cents, but to
13 cents rather than the former 11 cents . Meyers ex-
plained (again credibly) that in the interim they had re-
ceived a price increase from the brewery, which had
given Employer more margin . Thus Employer's grant to
the drivers 2 cents more in commission per case was re-
lated to intervening external events, and arguably com-
patible with prior practice, if not exclusively so. The
commission itself paid helpers of 5 cents relates compat-
ibly with the 4-cent commission credited as initially pro-
jected to Tuttle in mid-January, and the 1-cent increase
(to 5 cents) itself relates compatibly to 2-cent increase for
drivers granted due to margin increase . Nonetheless it is
the General Counsel's additional contention that the base
rate plus 5 -cent commission now paid helpers has result-
ed in less earnings for some helpers. The General Coun-
sel points particularly to Oliver's continuance on an
hourly rate, plus the 5-cent commission. Gross in particu-
lar testified as to his loss of earnings , and with offer to
review with Employer his pay records which he had
available. The same was not taken up by Employer.
Called as Respondent's witness, Office Manager Gina
Wiseman testified that she is responsible for general man-
agement of the office and for all daily records, sales re-
ports, and payroll records. Wiseman testified to having
made a compilation of helpers' actual wages both as
earned under their presently established base and com-
mission rate , and that under their prior hourly rate paid
(at time of termination), covering the period April 20
through May 10, 1983. That selected comparison has
shown the following differences in total earnings.
MILS-STATE DISTRIBUTING CO. 1553
Tom Mayborg +25.31
Wayne Qualls +128.4
Cliff Gross -26.16
Paul Joseph -40 97
Stephen Spickard -26.78
Wiseman did acknowledge that the compared actual
wages of Gross had included a payment of $20 for driv-
ing an extra truck in week ending April 27, and an
hourly rate of $4.25, with 1.5 hours of overtime coupled
with a $35 payment for relief driving on May 9, though
Spickard received a $20 base and a $35 payment for his
driving day. Even more significantly, Wiseman has also
testified that new temporary part-time helper John Lock-
ard (the last helper), hired on May 4, was paid at the
rate of $4.25 as Wiseman's understanding was that $4.25
was the minimum hourly rate now paid all helpers.
The prior rate paid Mayborg was $4.25 an hour; that
paid Qualls, Gross, and Joseph was $4; and that paid
Spickard was $3.85. These are the prior rates that were
used by Wiseman in working up the above-compared
hourly earnings. Thus, were Gross paid at the indicated
new minimum $4.25 rate rather than his prior $4 rate (for
seemingly a more accurate comparison) for the 113 regu-
lar and 25.75 overtime hours (at time and one-half) in
this period following return, Gross would have earned
approximately $37.78 more increasing the difference be-
tween his base/commission versus hourly rate from that
shown to $63.94 over the same essentially 3-week period,
or indicating a $21.31 per week loss under the new
system. Similarly, Joseph, over a 2-week period on his
hours worked would have earned $24.50 more on mini-
mum hourly rate, increasing his difference to $65.52, or
$32.81-per-week loss. However, Qualls, on similar com-
putation, while similarly decreasing the surplusage of his
earnings made on base/commission, still made more, viz,
$92.20 or $30.73 per week irmore.
Mayborg, the most senior helper, was already being
paid $4.25. On the one hand there is evidence with pro-
bative force beyond mere speculation that Mayborg
would have also received an increase in hourly rate
beyond the $4.25 minimum paid new part-time employee
Lockard, given that Mayborg was previously being paid
more than other helpers, particularly with Shutt' s state-
ment to Mayborg at the time of his evaluation that he
would probably receive a raise at time of distributorship
increase in March; and Mayborg's being presently paid
more base rate under the new payment structure, be-
cause of his additional length of service. Thus, all of the
seemingly seven newly hired full-time helpers were sub-
sequently paid at $100 base plus 5-cent commission.
However, because of seniority, Mayborg was paid more
at $100 base plus the 5-cent commission; and Qualls,
Gross, and Joseph similarly more at $105 base, plus the
5-cent commission. To be sure, Steve Spickard, also an
alleged terminated 8(a)(3), but who did not testify, re-
turned at $100 base plus a 5-cent commission. However,
the record does not indicate when Spickard was initially
hired. What is in the end the more clearly apparent in
contrast to me is that Oliver, who had previously been
paid at the rate of only $3.85 as a helper, returned on
March 14, and is presently paid at $4,25 hourly rate, plus
the 5-cent commission. Though he is carried as a driver,
he previously had not had driving experience nor driven
successfully; and since his return he has more recently
substantially done only helper work, at the same time
being kept at $4.25 hourly rate and additionally given 5-
percent commission. In further comparison Oliver fared
better than even Robert Tuttle, previously paid at $4.60
per hour rate, but who returned on February 7, with re-
duction to (minimum) $4.25-per-hour rate and who
though told (I find) that he was to be a relief driver, and
clearly worked more as a relief and extra driver, is pres-
ently carried as a helper, at the minimum rate of $4.25 an
hour and, on this record, in contrast with Oliver, with no
commission. What is thus the more apparent to me in the
end is that it is more clearly being demonstrably shown
that Oliver has been, and continues to be, preferentially
treated, namely, with favor over all the other more
senior helpers in regard to his assigned pay base rate; just
as, I have found, he was favored over all the more senior
helpers in matter of his return, excepting Tuttle. In
regard to even the latter, it is to be noted that Oliver's
differentiating declaration of antiunion sentiment to
Poole, Walczak, and others, and his subsequent Employ-
er support, all occurred only after Tuttle's rehire.
Otherwise viewed the General Counsel has established
that to date there has been a 3-week loss of earnings suf-
fered by certain helpers, clearly Gross and Joseph, argu-
ably Mayborg and Spickard, but not Qualls. However,
Meyers had additionally testified that he does not think
the 3 weeks' pay experience (to date) of the helpers was
indicative of their earnings with the case volume to be
sold in summer months; and relatedly he did not antici-
pate there being a pay reduction for the helpers from
what they had earlier received. Meyers has relatedly tes-
tified that in the last week of April and the first week in
May they ran a price-off promotion; that they were also
now to be a test market for new product (Meister Brau);
and that in the first 2 weeks they had sold 8000 cases
which was the equivalent of 50 percent of Employer's
Lowenbrau sales in all of prior year. Thus, while the
record reveals there was a 5-percent sales increase in the
first 3 months (with helpers terminated), since the help-
ers return there was a 2 percent overall decrease in sales.
Clearly that has a direct bearing on what helpers earn.
Meyers has testified he anticipated a turn around in cy-
clical summer months, particularly with three projected
other special sales, and his anticipation that Meister Brau,
with advertisement programs planned, was going to
become a major brand. Thus Meyers has testified he an-
ticipated that the helpers' wage should increase. In one
related sense (sales) Meyers acknowledged there would
be longer (sales) hours for both drivers and helpers. In
another sense helper hours were reduced because now
the helpers on return only have to load the truck in front
and their own truck, rather than staying around (as in
part) to load all trucks, when that previously happened
there had been 12 employees milling around doing little
at the end of the day. Meyers has testified (I find credi-
bly) that that particular change was also discussed after
the trip to the Atlanta distributorship and prior to Janu-
ary. There is indication that the month of April itself
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may have also distorted helper earnings. Thus the record
reveals that in contrast with Employer's April 1983 sales
of 144,128 equivalent units, Employer's 1982 sales in
April had been 159,359 units. Thus Employer's sales for
April were 15,231 units down from prior year. In con-
trast, for further comparison, of Vice President Meyers'
projections, sales in remaining summer months of the
busy season of 1982 were appreciably higher than the
144,128 of April 1983, as follows: May-182,432; June-
157,726; July-178,258; August-174,409; and Septem-
ber-168,463. (Actual comparison figures in 1983 were of
course not available.) Finally, the General Counsel of-
fered no evidence on a discriminatory relationship be-
tween the 11 or 12 cents prior cost of helpers to the base
rate now paid helpers; and such base rates otherwise
relate to that paid drivers.
The credible evidentiary base, from both the General
Counsel's and Respondent's witnesses, that Employer
had under prior consideration changes in pay method for
helpers from hourly to base plus commission, and the
(pre-helper termination) projected rate of 4 cents an-
nounced to Tuttle persuaded me in the end to credit
Meyers that the mid-April changes in method of pay,
and (as well) in helper loading assignments , were not dis-
criminatorily motivated, but were long planned, despite
the reduced earnings certain helpers may have suffered
to date as a result thereof. The real discrimination all the
helpers have suffered is in the demonstrably favored
treatment that Oliver is shown to have received, and that
is more a problem of fashioning an appropriate remedy.
The discrimination practiced against Tuttle is readily
remedied by a traditional make-whole remedy.
Analysis and final conclusions on the remaining
8(a)(1) allegations
The basic test for evaluating whether interrogations
violate the Act is "whether under all of the circum-
stances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act."
Rossmore House, 269 NLRB 1176, 1177 (1984); and see
Board expression of view, as consonant with that ex-
pressed by the 7th Circuit in Midwest Stock Exchange Y.
NLRB, 635 F.2d 1255, 1267 (7th Gr. 1980), inter alia,
that, "To fall within the ambit of § 8(a)(1), either the
words themselves or the context in which they are used
must suggest an element of coercion or interference."
Whitt's first alleged interrogation of Houg would at
first appear borderline. Thus, although Houg was not
openly advocating the Union at the time, it was Houg
who first openly broached the subject of the Union. The
circumstances were that Houg was clearly in a state of
anger over his perceived pay shortage; and his remark
made to the receding Whitt, in nature a warning about a
union with a request that, if the employees ' pay discrep-
ancies continued , was reasonably designed to indicate
generally to Whitt the degree of his, and any other em-
ployee present, disconcertment with perceived existing
deficient pay practices of their employer . It was also rea-
sonably designed, in my view , to get an immediate rise
out of Whitt on that subject, and/or cause Employer to
consider taking immediate measures to correct reoccur-
ring (perceived) employees ' pay deficiencies. However,
Whitt did not react with renewed addressment of the
pay problems that were the declared basis for Houg's
then believing he and other employees were "being
screwed," or seek to address the subject of Houg's per-
ceived need for a union directly, but whipped around to
direct a general inquiry of Houg on who was talking
about a union, thus clearly invading broadly the subject
of any recently commenced discussions and interests of
employees exhibited in a union by, and/or between,
Houg and other employees that might be unknown to
Whitt and Employer. On reflection, it is my view that
the broad nature of the inquiry in the above circum-
stances reasonably tended to interfere with one of em-
ployees' more fragile Section 7 rights, namely, to begin
initial discussions on employee interest in forming, join-
ing, or supporting a union among themselves for an ad-
dressment of their perceived grievances, without their
Employer's foreknowledge or inquisitive interference.
Houg arguably waived that as to himself, but certainly
not as to others. Cf. Greensboro News Co., 272 NLRB
135 fn. 2 (1984). Whitt's January 11 interrogation of em-
ployees Center and King, who had not openly declared
support of the Union, if they had heard or knew any-
thing about a union even more clearly tended to interfere
with such Section 7 rights, in that it put employees
Center and King on the spot, viz, of either declaring
their own or what they knew of fellow employees' union
activities, or plead ignorance.
Koontz' questioning of driver Lewis on January 14 as
to the reasons he supported the Union, and what benefits
he wanted to get out if the Union was selected, was also
coercive under all the circumstances. Thus, even assum-
ing that Lewis was wearing a union button at the time,
in conversations about the Union the same day Koontz
also told Lewis that "the old man [President Meyers]
would rather see the doors shut, than to see the Union
come in." Such constituted a classic coercive threat in
violation of Section 8(a)(1). Moreover, while the General
Counsel is not to be viewed as a privileged litigant on
matters not timely alleged in a complaint , not warranted
to be ignored is otherwise credible background evidence,
even of long duration, if related to an alleged violation,
see and compare ITT Lighting Fixtures, 267 NLRB 709,
710 (1983). Thus, a fortiore, to be considered is the back-
ground evidence in the same conversations that Koontz
then coercively told Lewis that the Union would not do
him any good on job security; that if the Company
wanted to get rid of Lewis, it could do so by writing
him up three times; and further, that regardless of Lewis
not doing anything to be fired, Employer could write
him up for anything. It is thus my view that under these
circumstances, even assuming Lewis was this day openly
supportive of the Union in wearing a union button,
Koontz' interrogation of Lewis as to his reasons for sup-
porting the Union and/or benefits he hoped to derive
from the Union, which lead during the resulting conver-
sations to the above threat and coercive remark, was
itself coercive , cf. Rossmore House, supra . In the absence
of convincing Lewis independent evidence thereon, and
in light of Koontz' uncontradicted and credited refer-
ences to his own experience with a prior employer in ex-
MID-STATE DISTRIBUTING CO.
pression of his view that there had been a change in the
former employer's attitude after a union was selected,
e.g., in regard to omission of Thanksgiving and Christ-
mas turkeys, and things; and the similar reference to em-
ployees' view of reason for contractual losses, it is con-
cluded and found that the complaint allegation, that
Koontz additionally threatened Lewis with loss of bene-
fits if the employees selected the Union is not supported,
and it will be recommended that allegation be dis-
missed.5
Walczak's interrogation of Gillis as to the reason he fa-
vored the Union was coercive. Thus, although Gillis also
was wearing a union button, Walczak told Gillis during
their discussions about the Union that, on Friday, Janu-
ary 14, President Meyers had instructed Walczak to go
out on Gillis' route and find a problem so he could fire
Gillis, because President Meyers thought Gillis was part
of the union campaign. The remarks made to Gillis re-
vealed to Gillis the depth of animosity of Employer's
highest officer, and clearly constituted a coercive threat
of potential discharge of employees who openly support-
ed the Union, within the meaning of Section 8(a)(1). In
combination with Walczak's clear solicitation of employ-
ees' grievances, Walczak also urged that Gillis (and em-
ployees) in substance and effect bypass the Union and
deal directly with President Meyers, implicitly promising
there would be resolutions of their grievances, and each
act independently (I find) was violative of Section 8(a)(1)
of the Act. Employer subsequently acted upon certain
grievances, e.g., providing drivers a desired deduction
and credit list, and removal of racing cars and Meyers'
Ferrari from the warehouse. But the major item of the
deduction is the more significant, for where the griev-
ance is one that has been earlier raised, but went unrerne-
died before union activity, the violation in present ad-
dressment and action is only made the more clear. Final-
ly, Walczak threatened Gillis there would be an imposi-
tion of more onerous working conditions if the Union
was selected as collective-bargaining representative in
Walczak's statements that Employer would make it hard
on employees; that Employer would not be as lenient in
certain matters, e.g., on employees' drinking of beer or in
helping employees or as Walczak summarized, tolerant
on employees' work performances and/or habits as in the
past. Under all of the above circumstances Walczak's in-
terrogations of Gillis were a coercive interference in vio-
lation of Section 8(a)(1). Moreover, an initial pattern of
immediate questioning and coercion of selected employ-
ees is apparent herein. The Board has in that regard held
"Questioning selected employees about their union sym-
pathies without any legitimate reason therefor and with-
out any assurance against reprisal by its very nature
tends to inhibit employees in the exercise of their right to
organize." Engineered Steel Products, 188 NLRB 298
(1971); Savings Bank Co., 207 NLRB 269, 273 (1973);
Birdsall Construction Co., 198 NLRB 163 (1972), enfd.
487 F.2d 288 (5th Cir. 1973). Compare (in full polling
s If to be viewed and concluded as more than viewpoint on prior em-
ployer, it would appear the result would be the same See Benchmark In-
dustries, 270 NLRB 22 (1984), and Harvstone Mfg Corp., 272 NLRB 939
fn. 1 (1984)
1555
circumstances) Strunkes Construction Co., 165 NLRB
1062 (1967). The more so where as here both threat and
personal coercion are in several instances directly evi-
denced.
Whitt's statement to driver King on January 24 that if
the Union came in King would be making a whole or a
hell of a lot less (than calculated $7.50 per hour) consti-
tuted a direct threat of loss of benefit in violation of Sec-
tion 8(a)(1); and Whitt's related urging that King ought
to go and talk to the boys to try to persuade them not to
vote union was also violative of the Act, cf. Frank Black
Mechanical Services, 271 NLRB 1302 (1984);6 and Apple
Tree Chevrolet, 237 NLRB 867 fn. 2 (1978), enfd. in perti-
nent part 608 F.2d 988, 1000 fn. 20 (4th Cir. 1979).
Whitt's further statement to Shearer on January 26 in
substance and effect also forewarned a loss of benefits
and more onerous working conditions if the employees
selected the Union as their collective-bargaining repre-
sentative and thereby coerced if not threatened employ-
ees in violation of Section 8(a)(l) in his telling Shearer
that Whitt did not know "why the employees want a
union here"; that the Employer would be strict on em-
ployees, there would be no helpers on the truck, employ-
ees would work (but) 40 hours a week; and the times
employees had off in the morn;ng would be cut out.
Finally, I in the end conclude and find myself in
agreement with the General Counsel's argument that the
statement of Covington, though to his longtime friend
Emmons, was nonetheless coercive within the meaning
of Section 8(a)(1), because they imparted President
Meyer's awareness of Emmons' prominence in the em-
ployees' union activities. Thus it is concluded and found
that Covington's statements to Emmons in early Janu-
ary-that "he better watch out"; that he was going to
get in trouble over the Union; and that the "old man"
(President Meyers) heard that Emmons was trying to
start a union again-violated Section 8(a)(1) of the Act.
Similarly, Covington's statement to Gillis on January 7
that "we [employees] better be careful because they were
watching us," even in context of emanating from a non-
hostile supervisor, clearly implied the union activities of
employees were as of then under active surveillance, by
others who were so, Scott's Wood Products, 242 NLRB
1193, 1197 (1979).
The remaining issues relate to alleged solicitation of
employees' grievances and complaints in the survey con-
ducted on January 25-27 and by General Manager Shutt
on February 8, and the alleged related promises to re-
solve them in order to discourage employees' union ac-
tivities. As to the survey, Employer advances essentially
two lines of defense: first, the opinion surveyors did not
specifically ask employees about their problems, and sec-
ondly they did not make any promises. The semantic
first argument is palpably without merit. The General
Counsel's evidence on the content of the survey con-
ducted in its form and substance established beyond
question that, inter alia, grievances and complaints of
6 In the circumstances of the Mechanical Services case, supra, Chairman
Dotson would not have found a violation on the matter of an employer's
request that an employee attempt to dissuade other employees to vote
against the union, id at fn. 1.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were solicited by the opinion surveyors as
agents of Respondent. It is difficult to imagine what
problem, grievance, complaint, suggestion, idea, or em-
ployee evaluation that w-1d be occasion, or constitute
reason, for an employee's interest in, sympathy with or
support of, a union has escaped notice. Employer ad-
vances argument that no employee name is returned to
management and the original copies of the surveys are
shredded after their results have been compiled. The
short answer to that, however, is that positions are iden-
tified, and answers are then compiled by departments;
and furthermore individual answers under both question-
naire narrative inquiry and question and answer session
are individually listed. It hardly seems open to question
on this record that in many instances the answers as
there recorded would effectively serve to identify the
speaker being recorded.
In final analysis Employer defends that the surveyors
made no promises; and that, under all of the above cir-
cumstances , the solicitation of employee grievances by
an employer is not illegal unless accompanied by an ex-
press or implied promise of benefits specifically aimed at
interfering with, restraining, and coercing employees in
their organizational effort. Employer would rely on ITT
Telecommunications, 183 NLRB 1129 (1970), where the
Board concluded that a multiple (98) question written
questionnaire there given in a plant of 570 to 600 em-
ployees with instructions that employees were not to in-
dicate their names, departments, or supervisors, and the
sole mention of the union being for view on one ques-
tion, viz, "Many company employees I know would like
to see the union get in," was determined innocuous in
the factual circumstances of that case; and there was in-
sufficient evidence that the purpose of the questionnaire
was to learn the employees' attitude toward unionism.
While in that case there was a followup meeting with
employees in groups of about 50 employees in which the
results were reported, and thereafter a period of discus-
sion provided employees in which individual gripes were
recorded, and a list then made of particular things the
employees wished corrected, there was no mention of
the union made in those meetings . However, the central-
ly distinguishing fact in the ITT Telecommunications case,
supra, it seems to me, is the questionnaire survey itself
was conducted 8 months after an election that the union
lost; and a later report and further questioning found no
more than a continuation of it.
Similarly with regard to the February 8 speech and
discussion of Shutt, Employer defends (his) solicitation
of grievances is not a per se violation of the Act in the
absence of an accompanying actual or implied promise to
remedy such grievances, with stated reliance on Chero-
kee Culvert Co., 262 NLRB 917, 921 (1982). Employer
acknowledges that inference of an implicit promise to
correct inequities may arise from solicitation of griev-
ances in a preelection meeting, Uarco, Inc., 216 NLRB 1
(1974); but it defends the inference is one that is rebutta-
ble, e.g., where, as here, employees are repeatedly told
the employer can make no promises. Finally, Employer
defends that it is not otherwise unlawful to advise em-
ployees that, whatever the problems an employer has,
employees do not need a union to solve them; or for an
employer to promise to listen to suggestions for improv-
ing the employer's operation, Visador Co., 245 NLRB
508 (1979). In Visador the promise made was "to be fair
and to listen to suggestions for improving our plan." The
Board noted that to listen to suggestions does not in and
of itself imply suggestions will be acted upon, and it also
indicated there was no evidence in that case that re-
spondent was deviating from past practice.
The General Counsel acknowledges the basic holdings
of Uarco, Inc., supra, but would distinguish it and other
cases where the Board has held that there was a legiti-
mate purpose behind administration of a survey.? Rather
the General Counsel would rely on Burns Motor Freight,
246 NLRB 368, 372 (1979), in which a labor consultant
hired by the employer conducted an unprecedented
meeting with all employees in which they were asked (as
here) to state their views about management and their
opinions about their conditions of employment. The
Board adopted the finding of the administrative law
judge that it was "essentially 'a programmed technique
again to draw from the drivers what their `gripes' might
be. The implied message that the Company would at
least try to do something to satisfy the employees was
unmistakable." In regard to evidence of record that the
opinion surveyors did not promise anything , the General
Counsel's counterargument essentially is that neither did
they tell employees that their grievances would not be
remedied, and that the inference they would be remedied
emanating from the circumstances of the conduct of the
survey remained intact, with claimed reliance on Merle
Lindsey Chevrolet, 231 NLRB 478 fn. 2 (1977).
In fact, the record reveals the employees were express-
ly told in the survey that their ideas, suggestions, etc.,
would be summarized and their ideas, suggestions,
and/or problems brought back to management for them
to do with whatever they wanted Conduct of such a
survey was unprecedented at this Employer. It is con-
cluded and found from the circumstances of the conduct
of this survey, fair inference lies in Employer's implied
promise that at least some of the surveyed grievances
would be resolved; and with the clear evidence that one
major, longstanding grievance was in fact subsequently
remedied, the implied promise not only remained intact,
it was firmly reinforced. In reaching such preliminary
conclusion on the survey as conducted, I have not relied
on other (limited) evidence of record that employees
were also told that the problems of employees would be
in the summary for management to correct. However, in
the absence of corroboration from President Meyers or
Poole, as to the timing of discussion and decision to con-
duct this survey at Employer, and on basis of fair infer-
ence to be drawn therefrom, the only evidence or record
deemed persuasive and credited indicates that this survey
was determined and conducted after Employer was
aware of union activity. It is clear it was conducted after
Employer was given notice of union petition filing; and
thus, it was in any event a survey conducted for the first
9 In Leland Stanford Jr. University, 240 NLRB 1138, 1142 (1979), also
referenced there was no active union campaigning.
MID-STATE DISTRIBUTING CO. 1557
time at this Employer during an active union organizing
campaign.
There is thus merit in the General Counsel's arguments
that the survey was conducted with design to undermine
the union organizational effort as evidenced by its solicit-
ing grievances in an entirely new manner, in much
broader scope, and by inviting essentially direct dealing
on all employees ' grievances; and thus effectively inter-
fering with employees' freedom of choice in an upcom-
ing election , Tom Wood Pontiac, 179 NLRB 581 (1969),
enfd. 447 F.2d 383 (7th Cir. 1971); St. Joseph's Hospital,
247 NLRB 869, 877 (1980); Ben Franklin Div., 251
NLRB 1512, 1519 (1980); and Edward A. Utlaut Memori-
al Hospital, 249 NLRB 1153, 1156 (1980). In the above
circumstances there must be equally unmistakable evi-
dence presented of Employer's rebuttal of the implied
promise of resolution of at least some of the employees'
grievances that were raised in the survey. The only addi-
tional evidence of followup on the survey occurs in the
Shutt February 8 speeches, in which it is further con-
tended that Shutt even otherwise solicited grievances,
and further promised grievances resolution.
At the outset it is observed that inference of a promise
of benefits stemming from solicitation of grievances
during an organizational campaign can be negated by an
employer's clear and repeated expressions to employees
that "no promises" could be made, Uarco, Inc., 216
NLRB 1, 2 (1974), although it was also noted therein
there was a lack of both animus and context of other
unfair labor practices in preelection activities. An em-
ployer may set forth its opinion based on demonstrable
facts as to strike possibility and its consequences, concur-
rent with its request that it be given a chance, so long as
there is no accompanying promise of benefits, and em-
ployer had done no more that that here. Cf. Agri-Interna-
tional, Inc., 271 NLRB 925 (1984). The Board has also
held an employer need not ignore operational problems
that may come to light in an organizational campaign,
but there, unlike here, there was no alleged solicitation
of grievances, nor problems which had been previously
brought to the attention of employer, and been left unre-
medied. Cf. ARA Leisure Services, 272 NLRB 1300
(1984). Finally, clear expressions of no promises prevail
over comment of an employer "that they were working
on it" where the remark remains ambiguous in total con-
text made, cf. Mariposa Press, 273 NLRB 529 (1984); but
an employer's "double talk" in total context of what is
said is not to be ignored, nor disclaimers of "no prom-
ises" given efficacy in such a context, Montgomery Ward
& Co., 228 NLRB 750, 756-757 (1977). See also
Presbyterian/St. Luke's Medical Center v. NLRB, 723
F.2d 1468, 1474-75 (10th Cir. 1983).
Insofar as pertinent, Shutt began his first speech on
February 8 by clearly telling employees that he could
not say or do much, and "can't promise anything." He
also told the employees that he did not think the Union
could solve as many of the problems that they (employ-
ees) and he felt they had, from the recent evaluation and
survey. He told the employees he did not care what the
Union's promises were, right now the Union had no
power to deliver, and the Union could guarantee noth-
ing. Shutt also told employees, "Right now our hands
are legally tied." Earlier he had told them "there were a
few things we needed to do, that we can do by working
together." Shutt told the employees that his decisions
were not going to be questioned; that if he told employ-
ees something, he could get it done; and that he had the
power to deliver it, and the Union did not. Shutt told the
employees if they had problems about their job, or about
anything they wanted to talk about, to come to him,
Walczak, or other supervisors, and it would get back to
him; and "we'll try to get something done about it."
(Shutt clearly also solicited grievances of employees.) Fi-
nally in question and answer session Shutt told the em-
ployees "if they want to pay somebody to speak for
them, fine"; and if they do not, then come to him and
talk to him, "we'll get something done," adding "where
it's possible, and that" [he] "can't do everything."
The General Counsel points with particularity for con-
tended revealment of the purposive role of the earlier
survey in Shutt's statement made as follows:
Like I said nobody came to us with any problems
so how did we find out about the problems. The
Union came in, we did surveys then we found out
we had some problems and now we are trying to
straighten them out.
In otherwise speaking directly to the recent survey Shutt
said that they were going to have other meetings to dis-
cuss the survey, "to see exactly what we can do to make
this a better place to work." (That employment condi-
tion was specifically mentioned by Shutt as being one of
the employees' reported major concerns.) Shutt told the
employees that "if there are things in the survey that we
can work with, we will be more than happy to do
them"; but adding, "I'm not going to promise anything."
That disclaimer of promising anything does not alter the
message being reasonably held out to employees that
Employer would look with favor on the workable sur-
veyed grievances and ideas of employees for making
Employer a better place to work.
In question-and-answer session Shutt was called to task
by Ebert in Shutt's assertion of not knowing of certain
problems, including the shortage problem, with Ebert as-
serting someone had to know it; and he asserted a claim
that Employer should have been doing things like help-
ing the employees on the shortages all along, and now
they had to do it. Shutt in answer made it clear that Em-
ployer did not have to do it (help drivers on the shortage
problem with an itemization list); and he renewed an as-
sertion it did not know of the problem, only to have that
challenge immediately picked up on by Lewis ( essential-
ly) that that could not have been the case with all the
times the subject was mentioned in prior sales meetings.
It was only then that Shutt came to a much more frank
acknowledgement with the drivers that it might have
taken this threat of a union to get some things done, and
most revealing (I find) on the survey, "at least now we
know where we stand"; and "we know what we got to get
done. In my view it is made clear enough from the above
that at least some of the grievances and problems as re-
ported by employees were to be acted upon. It is further
concluded and found that message is not one reasonably
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be considered by employees as negated by any Shutt
disclaimer of promising anything. Poole's later statement
to Lewis that he knew there were problems after the
survey, and improvements would not stop at the elec-
tion, confirms it; as does Aldridge's request of Lewis to
vote against the Union, and both Aldridge and Poole's
request of Lewis to give Poole a year to straighten it
out; and the same, together with Poole's further state-
ment that if at the end of a year he had not done as he
promised he would personally help get the Union, all
confirm beyond question that it was being variously
promised that the surveyed grievances were going to be
positively addressed, and that an undermining of the
Union was an underlying substantial motivating purpose.
That the operative motives may include a benign one
does not detract from the effect of an unlawful one.
Accordingly it is concluded and found that on January
25-27 an opinion survey was conducted by two agents of
Respondent Employer in which employees' grievances,
suggestions, ideas, and complaints were solicited, with an
implied promise of Employer's resolution of at least
some of them, in violation of Section 8(a)(l). It is further
concluded and found that, on February 8, Employer, by
its General Manager Shutt, both additionally solicited
employees' grievances, etc., and (at least) kept intact an
implied promise of Employer's favorable resolution of at
least some of the employees' grievances, ideas, sugges-
tions, and complaints both as surveyed and as might be
brought directly to Employer through General Manager
Shutt, Walczak, or other supervisors, in violation of Sec-
tion 8(a)(1) of the Act.
Part III
The Representation Case Issues
It will be recalled that, in the election conducted on
March 4, 14 votes were cast for petitioning Local Union
No. 651, 12 against, and there were 4 challenged ballots
which were sufficient in number to affect the results of
the election. The challenged ballots were cast by Wayne
Qualls, Cliff Gross, Benny J. Zaranka, and Karen Smith.
The General Counsel and Petitioner have urged that
the challenges to the ballot of Wayne Qualls and Cliff
Gross should be overruled, and their ballots should be
opened and counted on basis of contention that they
were unlawfully terminated, while Employer contends
the challenges to these ballots should be sustained, and
their ballots should not be opened and counted based on
its contention that Qualls and Gross were among the
nine helpers earlier permanently terminated, and though
subsequently reemployed, as of election day had contin-
ued without reasonable expectation of any reemploy-
ment. As I have heretofore concluded, inter alia, that
Qualls and Gross were unlawfully terminated on January
12, it is clear they continued to occupy protected em-
ployee status under the Act. It will be recommended to
the Board that the challenged ballots of Wayne Qualls
and Cliff Gross be now opened and counted.
The remaining challenged ballots were cast by Benny
J. Zaranka and Karen Smith. Employer contends that
Zaranka, a part-time employee with title of "merchandise
sales," is properly to be included in the unit, and would
have Zaranka's ballot be opened and counted. Petitioner
Teamsters Local 651, who challenged the ballot cast by
Zaranka, would have Zaranka excluded from the unit,
and the challenge to his ballot sustained. Employer
would also have the ballot of Karen Smith, who it con-
tends (not without some preelection vacillation) has the
job title of inventory clerk, included in the unit as a
plant clerical, and her vote counted, while Petitioner
would have Smith excluded as an office clerical, and the
challenge to her ballot, apparently made by the Regional
Board agent conducting the election, sustained. It ap-
pears that the General Counsel (or counsel for the Re-
gional Director) has not taken a position on the ballots of
Zaranka or Smith, beyond offering observation that, if
the ballots of Qualls and Gross be opened, the resolution
of the eligibility of Smith and Zaranka would appear un-
necessary. However, I shall address the litigated ques-
tions of unit placement and eligibility of Zaranka and
Smith.
Benny J. Zaranka
Zaranka has worked 27 years for the Lexington Fire
Department, where he is presently employed as a battal-
ion chief. He has also worked 18 years, part-time, for
Employer. Zaranka works (full time) 24 hours on
(ending his shift at 7 a.m.) and 48 hours off for the Fire
Department. Normally, he arrives at Employer at 7:30
a.m. (just as do some drivers and helpers) and works to 3
p.m. for Employer, 3 and 4 days a week, in alternative
weeks. However, unlike other employees, Zaranka sets
his own hours, and prepares his own monthly work
schedule, which he supplies to Employer. Zaranka is also
subject to fire emergency call, which has been under-
stood and agreed to by President Meyers for years. Zar-
anka 's hours additionally fluctuate in football season, as
he played for, and loves to follow the State University,
which has also met with President Meyers' approval,
who, according to Zaranka, is also an avid fan. Zaranka
is not related to any of management.
Zaranka is paid at the rate of some $4 plus an hour
(with no commission); and he punches a timeclock as do
warehouse unit employees and office clerical employees.
Zaranka's existing benefits include a dental and hospital
plan and life insurance; and he has been a participant in
Employer's profit-sharing plan for at least I year. These
benefits are the same benefits that are currently paid
other unit employees although the record reveals there
are others not mentioned by Zaranka. However, Vice
President Meyers has testified without contradiction that,
excepting use of company car, all employees receive the
same benefits.
Zaranka's principal duties are to be responsible for the
receipt, storage, and distribution of advertising displays
and material; and to go out to the trade, principally in
Lexington, when and as directed, to put up displays, to
save the driver time, and/or otherwise to check on rota-
tion of beer and to work on the lineup of beer on the
shelves to make Employer's retail customer's display
more attractive. His visits are usually in between driver
deliveries. Zaranka has testified (I find credibly) that he
is not checking up on drivers; and that in all of his years,
MID-STATE DISTRiBUTING CO. 1559
he has never found beer on the shelves not to be proper-
ly rotated. Zaranka drives a company vehicle and re-
ceives gas from a company account. However, he also
has used his personal car a lot, for which he receives gas
reimbursement (only). Zaranka has never hired or fired
anyone, nor has he recommended either. Neither does
Zaranka issue directions to drivers.
Displays may be in nature electrical, elaborate neons,
mirrors, or case (paper). The displays are kept in a
locked room (or cage) in the warehouse. Zaranka has a
key to the room, as do the other supervisors (only). Zar-
anka keeps (essentially) a daily inventory of the displays,
and he reconciles it at the end of the month (with inter-
im supervisor use of displays), but he does not order dis-
plays. Shortages are reported to Shutt. Zaranka has use
of a desk in an office downstairs in the warehouse, for
drawing signs up for specials. Employer's management
and office force work upstairs, though Employer's recep-
tionist works in the room downstairs where Zaranka
works on his displays. Drivers use the same room in
going over their accounts. Zaranka's preparation of sales
signs is essentially minor, requiring simple use of felt
pens, and price entries.
Prior to the reorganization Zaranka worked more di-
rectly with the supervisors. Since reorganization he re-
ceives his instructions on display work assignments daily
from Walczak, though he may also receive a request
from a supervisor, driver, or even notation of visits to be
made from the receptionist (as do drivers on their work).
When Zaranka completes the more usual assignments
from Walczak, he returns to Walczak for additional dis-
play work assignment. If there is none, Zaranka makes
the rounds on the retailers, checking on displays, rota-
tion, and the product.
As noted, Zaranka will still handle a display request,
on request of a busy supervisor, as he has done on re-
quest of a driver, though drivers may and do set up their
own displays. He will also help a driver set up a display,
etc., when he meets one on route, though such a meeting
is more likely to have been accidental than prearranged.
Zaranka will work with a vendor on the way the vendor
wants a display set up. If a vendor makes a request for a
particular display, Zaranka will try to accommodate,
many times first going to a supervisor for approval, but
not always, considering it justifiable under public rela-
tions. Zaranka spends approximately one• half of his time
out on the road, and one-half of his time in the ware-
house, in between the caged display location in storage
and inventory, or the display room where he works on
his signs.
Zaranka wears the same jacket as do other unit em-
ployees, but to date does not were the uniform pants.
Zaranka rarely works with drivers as a helper, having
done so only two to five times in the past year; and he
has also infrequently attended the drivers sales meetings
on Monday, having done so only two to four times in
the past year.
Employer essentially argues that Zaranka shares a
community of interest with drivers and warehousemen;
and that his duties are closely integrated with the driv-
ers, creating a substantial degree of interaction between
the drivers and him, and he should be included in the
unit and his ballot should be counted, with stated reli-
ance on Gustave Fischer, Inc., 256 NLRB 1069 (1981),
and Healthco, Inc., 233 NLRB 835 (1977). Petitioner
argues to the contrary, essentially that Zaranka's basic
job duty is in advertisement; that he does not share a
community of interest with other unit employees, essen-
tially because it is contended his unrestricted and unusual
schedule indicates casual employment, and he does not
have the same job interests by virtue of possession of a
full-time county government job, coupled with Zaranka's
own testimony of having a lack of concern with his pay
and benefits from Employer. Petitioner states reliance on
Blade-Tribune Publishing Co., 161 NLRB 1512, 1520
(1966), in which it was held that an individual on active
duty in the Armed Forces, who worked an average of 2
to 3 days a week on an unscheduled basis, was not prop-
erly in the unit; and Fresno Auto Auction, 167 NLRB 878,
879 (1967), where a public relations man was excluded
from a unit of drivers, delivery men, starters, and detail
shop employees because there was no community of in-
terest. It seems to me Petitioner's case reliance must be
distinguished. Thus in Blade Tribune, supra (and cases
cited therein), the employee excluded also worked only
when work was available as well as when it fit the em-
ployee's availability, and hence the employee was more
casual; and similarly Fresno Auto must be distinguished as
in excluding the public relations man there it was ob-
served by the Board that "various aspects of his job call
for the exercise of completely independent judgment."
While I am not persuaded that Zaranka's job duties are
"closely integrated" and with "substantial degree of
interaction" with the drivers to compel inclusion, it is no
less clear to me that Zaranka is a nonsupervisory, regular
part-time employee, whose limitations of availability by
another job, or that self-imposed, were long since found
acceptable for the performance of Employer's regularly
available work. Zaranka is essentially a display man,
with related inventory clerical responsibility, and with
job responsibilities in the trade that are directly related
to future driver sales. In my view Zaranka, in the per-
formance of his duties, appears to share sufficient com-
munity of interest, as evidenced in the supportive nature
of his duties to other unit employees, in his being paid
comparable wages, and benefits as other unit employees,
and with sufficient opportunity for unit employee con-
tact in his day-to-day part-time work exhibited to war-
rant his inclusion in this unit, particularly with observa-
tion that otherwise he would run risk of remaining un-
represented, appearing to have far less community of in-
terest with employer's office clerical force. It is conclud-
ed that Zaranka is a regular part-time employee properly
includable in the unit, and it will accordingly be recom-
mended that the challenge to his ballot be overruled, and
his ballot be opened and counted.
Karen Smith
As of hearing, Smith had been employed for 6 months;
thus, Smith was hired approximately in December 1982.
It may be recalled that it was on December 6, 1982, that
former inventory clerk Tuttle left the office on reassign-
ment to the trucks as a helper. Employer does not ad-
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vance contention that Smith was hired specifically as a
replacement for Tuttle as inventory clerk; indeed, Smith
testifies she was initially interviewed as a receptionist.
Smith's prior work experience had been in bookkeeping.
Smith is paid a salary of $200 a week for a 40-hour
week. Employer correctly notes that in rate per hour her
wages are comparable to that paid Doss and Hong.
Smith receives no overtime. Her hours are always 7 a.m.
to 4 p.m. Smith receives the same benefits as both unit
and nonunit employees as all of Employer's employees
receive the same benefits. Smith punches a timeclock lo-
cated in the (multipurpose) drivers' room on the first
floor. Both warehouse and office personnel punch the
same timeclock. Smith does not wear a uniform.
Employer's general office areas are located on the
second floor . They have air-conditioning and heating in
contrast with the (noncooler) warehouse areas which do
not. The Meyers and Office Manager Wiseman have sep-
arate offices. Shutt, Walczak, and three supervisors
occupy one office room there. There is another room on
that floor which has a half wall that separates out an
area where Employer's computer is located. That side of
the room, the computer area, is hereinafter referred to as
the computer room. There are two computer terminals,
boards, printers, and three desks in the computer room.
Assistant Office Manager Robin Haskins occupies one of
the desks in the computer room. Computer operator Pat
Runkle occupies the other desk, and she regularly oper-
ates the computer. Smith occupies still another desk in
the room.
On Smith's desk is a calculator, a calendar, file hold-
ers, and a stapler. She does not have a phone at her desk,
nor a typewriter. Smith essentially works with the calcu-
lator, though also the computer at times each day. As
earlier noted, there is a multipurpose room on the first
floor, where Employer's receptionist is regularly located,
but which is also used by Zaranka when he works on his
displays, and by the drivers in their accounting. The re-
ceptionist's official hours are 8 a.m. to 5 p.m., but she
usually arrives early, between 7:30-7:45 a.m. It appears
from Smith's testimony that Hopkins and Runkle's arriv-
al hours are set at 7:30 a.m., though Smith did not know
when they left, as she was always gone before they left.
The fact is Smith's hours are not the same as the office
clerical employees.
The first thing that Smith does on arrival at work at 7
a.m. is clear off a recorder used for people who have
placed orders after hours. If there are orders on the re-
corder, Smith enters them in a book. There may also be
messages for drivers , and some customers only call in
their orders. If drivers are still there, Smith goes down-
stairs and delivers the orders/messages to the drivers. If
a particular driver has already left, she delivers them
when the driver next comes in, if she does not have ear-
lier opportunity, as discussed infra. Presently Smith re-
mains downstairs at the receptionist's desk in the early
morning because of a recent change made in (apparently)
Employer's open hours, previously 8 a.m. to 5 p.m. to
presently 7 a.m. to 5 p.m. Prior thereto, and at time of
election, Smith would return upstairs. However, the
work done by her in this period of her day is essentially
the same. Smith now remains at the receptionist's desk
until the receptionist arrives, usually about 7:30 a.m.
Smith goes to the post office every day, around 10 a.m.,
posting any outgoing mail and packages , and picking up
the day's mail, which she delivers to President Meyers.
Smith also signs for certified mail. The post office trip
normally takes about 15 minutes.
In the interim Smith makes an inventory count every-
day, which she tries to start at 8 a.m., but must wait on,
for all the drivers to be loaded. Usually only draft (keg)
drivers are there at that time, the other package drivers
having left earlier. Smith also fills in for the receptionist
every day when the receptionist takes her 1-hour lunch.
Drivers usually call in every 2 hours. If Smith has an un-
delivered order/message for a driver calling in while she
is at the receptionist desk, she will deliver it to the driver
at this time.
Smith makes an inventory of product in the warehouse
every day which takes approximately 2 hours, some 45
minutes of which is spent actually out in the warehouse.
Smith walks up and down aisles, visually counting and
entering the counts as made (by pallets) on tally sheets.
If in need of assistance Smith may speak to one of the
warehouse managers or warehouse personnel . However,
most of her daily conversation with warehouse personnel
is of casual nature, and if she needed assistance, as in an
instance of requiring that something be moved to aid her
in making a particular count, she would speak to one of
the warehouse managers. On completion of the counting,
Smith takes the tally sheets back to her office where she
does the required calculations leading to final figures of
on-hand inventory. Smith also daily receives related
truck (load) counts, which she has actually initiated
work on while sitting at the receptionist's desk in the
early morning, in between handling any phone calls
and/or walk-in traffic. When both truckloads count, and
warehouse products count are on hand, a final tally is
completed, and Smith has a preliminary total inventory
accounting or that day.
Smith's use of the computer is essentially in mainte-
nance of an inventory control. The computer operator
has punched in reports from the managers on receipts,
sales particulars, load counts, and driver tickets. Some-
time during the day, after the computer operator has en-
tered the drivers' load counts and tickets, Smith will op-
erate the computer, punching in her truck and ware-
house inventory, with a certain software program that
will print out a comparison of the total day's inventory
with the inventory of the day before. If there is an ap-
preciable variance in the comparison, Smith will make a
recount, which may or may not involve a similar period
of time out in the warehouse. If still off, Smith will make
inquiry whether something was punched in wrong into
the computer, She will check the shipping and receiving
log which is maintained, and from which the data is en-
tered into the computer (by someone else). She will also
inquire of the warehouse managers if there is a truck
broken down somewhere,, with product on board, that
she does not know about , e.g., in the garage . Some such
recheck is normally occasioned a couple of times a week.
The inventory comparisons are maintained in a file
folder at her desk, until it becomes too full. At that time
MID-STATE DISTRIBUTING CO. 1561
Smith removes the accumulated comparisons to general
storage in a file drawer downstairs.
Smith spends her afternoon comparing bills of lading
with shipping and receiving records, on certain days
going in the afternoon to the bank and railroad office on
related matters ; and she makes efforts to spend one-half
hour in the afternoon , every day, again in the warehouse
area making progressively an inventory of dated product.
Smith usually completes an entire inventory of dated
product, once a week.
Smith's duties thus involve keeping records of shipping
notices, bills of lading , and lists and/or invoices on
Miller railcars and incoming truck shipments . Smith has
rare contact with the brewery , contact in that regard
being handled by computer hookup . In instance of com-
puter difficulty she will communicate with the brewery
directly. Smith regularly receives initial shipping notices
(orders) from those who order product for Employer.
Smith notes the shipment 's (due) date on her calendar;
and she keeps track of confirmations . Smith also com-
pares bill of lading when received with the shipment
notice . Smith has related regular contact with the rail-
road 's office in getting railcar releases, arranging railcar
placements, and also in tracking down a railcar , if miss-
ing.
Two or three times a week Smith will take Employer's
checks to the bank, and obtain bank drafts payable to the
railroad . Actual transfer of funds between accounts is
handled by the bank automatically . Employer has bond
(on payment) to the railroad , and there is some flexibility
in Smith's trips. Smith obtains copies of a bill of lading
on a railcar shipment, stamped paid, which she shows to
the railroad office , delivering copy of it (apparently) on
railcar shipment arrival at the warehouse . Smith also
keeps a copy of all paid bills of lading in a file on her
desk. At the end of the month Smith summarizes certain
of the shipping and invoice data , which, with an invento-
ry record, goes into Employer's revenue report for the
month. In general , Smith clears out her inventory and in-
voice records at the end of the month , essentially pack-
aging them in a folder secured by a rubber band, and
then storing them in a drawer downstairs . On much
more frequent occasions, though not necessarily daily,
Smith similarly stores the compared and paid bills of
lading downstairs . The records are not filed by name.
Otherwise, in the occasional spare time Smith has had
she has helped others in their work , namely, Assistant
Manager Hopkins and computer operator Runkle; and
she has helped the receptionist with typing when the
latter was backed up. Normally Smith does not type cor-
respondence . What little she types basically relates to the
railcars. Smith has on occasion made signs , to keep busy.
Smith has testified that she is aware of what Employer
has paid for its ordered beer from the records. However,
no contention is raised by Employer that Smith is there-
by party to privileged trade or confidential information.
Smith is supervised directly by Office Manager Gina Wi-
seman . Smith has also testified, without forethought or
instruction, though seemingly without contradiction, that
she guessed her line of progression would lead to the as-
sistant office manager position , if qualified . On the other
hand Smith has testified generally that most of her
(present) morning is taken up on the daily inventory, and
its comparison ; and that most of her afternoon is taken
up in the comparison of bills of lading, or going to the
railroad office. In the latter regard Smith estimated that
an hour and 15 minutes is spent on that trip alone. Smith
is normally in the warehouse a total of an hour and 15
minutes daily. Smith had at first elected to drive her own
car on trips, with gas reimbursement by Employer; but
only a month ago (April) she switched to driving a com-
pany car, because the former had become too expensive
for her. Smith has nothing to do with payroll. Smith uses
a restroom utilized by office people.
Essentially Employer contends that the majority of
Smith 's worktime is spent on duties normally associated
with an inventory clerk; those duties are an integral part
of the warehouse operation; her duties bring her into fre-
quent contact with unit employees ; and accordingly
Smith should be properly classified as a plant clerical
and be included along with the warehouse workers in
the unit. Employer would rely, inter alia , on Ives Business
Forms, 263 NLRB 286, 289 (1982). Essentially Petitioner
contends that Smith is an office clerical employee, not
properly within the unit. Petitioner would have noted
her pay is dissimilar to that of unit employees ; contends
Smith spends approximately only 10 percent of her time
actually on the warehouse floor, and the rest (essentially)
at her separate desk in the general office area, that is
heated and air-conditioned , and well away from other
unit employees, or in relieving the receptionist, or com-
municating with banks, shippers , and suppliers. Petitioner
would rely on Filler Products, 159 NLRB 1536, 1553
(1966), a case in which it was initially determined that
production control employees who spend 90 percent of
their time in clerical work in the Employer's front office
were properly excluded from an appropriate production
and maintenance unit.
Smith is a dual function employee, cf. Berea Publishing
Co., 140 NLRB 516, 519 (1963). While Smith's worktime
spent actually out in the warehouse is clearly less than
the majority of her time, such daily work duties are im-
plemented by work performances at her desk directly re-
lated to those of an inventory clerk . She also performs
substantial clerical duties in relation to shipping and re-
ceiving functions , much as a shipping and receiving
clerk. Contrary to Petitioner I am persuaded, from the
above recitement of her duties , that the majority of
Smith's time each day is spent on duties more associated
with inventory and shipping and receiving clerical
duties, thus plant clerical duties , though she unquestion-
ably does perform no insignificant office clerical func-
tions, and differs in method of pay and supervision.
The Filler Products case , supra, must be distinguished,
for in that case it is apparent that the General Counsel
had urged , and the Trial Examiner " found that, as ap-
plied to the plant there involved, a production and main-
tenance unit that excluded "all office and plant clericals"
was appropriate, which finding was among findings
adopted by the Board without comment . That case is
8 The title of "Trial Examiner" was changed to "Administrative Law
Judge" by P.L 95-251 sec 3 , effective August 19, 1972
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly inapposite to the facts here, where it was stipulat-
ed by the parties that (only) office clerical employees
were to be excluded.9 It would appear, in contrast, that
the Ives Business Forms case is the more apposite on its
facts.
Thus in Ives Business Forms, supra, 263 NLRB at 287,
289, eight warehouse clericals, who spent 60 percent of
their worktime at desks in a separate clerical area, and
who were supervised directly by an office manager and
that employer's vice president, were included in a basic
unit of warehousemen, drivers, and shipping and receiv-
ing employees, because of the considerable time they
spent in the warehouse, inter alia, taking merchandise
counts, and because the nature of their duties was essen-
tially atypical of office clerical employees. Here, Smith
spends regularly anywhere from an hour and 15 minutes
in the warehouse on inventory counts, to as much as 2 or
more hours. Her duties at her desk in the morning clear-
ly add (at least) another hour and 15 minutes on the in-
ventory count, and its day-to-day comparison. Most of
her weekly afternoon work is spent on assignments, most
of which are related to shipping and receiving matters.
To be sure Smith has been assigned not insignificant
office clerical functions, e.g., to work on the receptionist
desk until the regular receptionist arrives, and to spell
the latter for lunch, and apparently occasionally filling in
for her when absent, if possible. However, even when
normally working at the receptionist desk, Smith may be
working on truckload counts (in early morning) and at
lunch have occasion for work-related contact with driv-
ers. Though Smith may not have opportunity for contact
with all drivers in the morning, and her contact with
warehouse personnel is primarily of casual nature, the
contact she has with both drivers and warehousemen is
not insubstantial. Although Smith's method of pay is dif-
ferent from warehousemen, so is the latter from drivers
and helpers. Not only is the method of Smith's pay not
controlling, it is otherwise comparable with certain
warehouse unit employees. Smith did not seek to vote in
the election at Employer's direction, but on her own, on
this record, with understanding she was considered an
inventory clerk and warehouse personnel, and in recog-
nition of her related job interests . As the parties are in
dispute over the inclusion of this dual function employee,
and as it is in the end my view that although with differ-
ent supervision and (perhaps) ultimate end in line of pro-
gression, nonetheless, in analysis of present duties, Smith
both works more as an inventory, and shipping and re-
ceiving clerical, and shares a sufficient community of in-
terest with other unit employees as to be properly in-
cludable, it will be recommended that she be included,
Ives Business Forms, supra. Accordingly, it will be fur-
ther recommended that the challenge to the ballot of
Karen Smith be overruled, and her ballot be opened and
counted.
9 The stipulated unit in the underlying representation case thus provid-
ed as an appropriate bargaining unit
All full time and regular part time drivers, including all drivers,
helpers and warehouse employees employed by Employer at its Lex-
ington, Kentucky warehouse and garage , but excluding all office
clerical employees , and all professional employees , guards and super-
visors as defined in the Act.
CONCLUSIONS OF LAW
1. Mid-State Distributing Co., Inc., Respondent Em-
ployer, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 651, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. By Warehouse Manager Whitt's interrogation of
forklift operator Houg in mid-October 1982, as to who
was talking about a union, and by his interrogation of
employees Centers and King on January 11, if they
heard or knew anything about the Union; by Route Su-
pervisor Koontz' interrogation of Lexington driver
Lewis on January 14, as to the reasons Lewis supported
the Union, and what benefits Lewis wanted to get, if the
Union were selected; and by Sales Manager Walczak's
interrogation of Gillis on January 17, as to the reason
Gillis favored the Union, Respondent has coercively
and/or unlawfully interrogated its employees in regard
to their union interests, sympathies, and activities, and
those of fellow employees, thereby interfering with, re-
straining, and coercing its employees in, the exercise of
Section 7 rights, in violation of Section 8(a)(1) of the
Act.
4. By Assistant Warehouse Manager Covington's state-
ment to long-haul driver Emmons in early January, that
the "old man" (President Meyers) heard that Emmons
was trying to start a union again, and that Emmons
better watch out, that he was going to get in trouble
over the Union; and by Covington's statements to Gillis
on January 7 (Friday), telling Gillis of recent inquiry of
Vice President Meyers and General Manager Shutt
about the Union, and by then telling Gillis that employ-
ees better be careful because they (Meyers and Shutt)
were watching them, thereby implying that as of then
the union activities of employees were under active sur-
veillance; by Route Supervisor Koontz' statement to
driver Lewis on January 14, that "the old man (President
Meyers) would rather see the doors shut, than to see the
Union come in."; by Sales Manager Walczak's statement
to Gillis on January 17 and/or 19, that on the prior
Friday, President Meyers had instructed Walczak to go
out on Gillis' route and find a problem so he could fire
Gillis, because President Meyers thought Gillis was part
of the Union's campaign, and by Walczak telling Gillis
that Employer would make it hard on employees, and
that Employer would not be as lenient in certain matters,
e.g., on the drinking of beer, in helping employees, or, in
substance and effect, as tolerant on employees' work per-
formances and/or habits as in the past; by Warehouse
Manager Whitt's statement to driver King on January 24,
that King would be making a whole or a hell of a lot less
(than a calculated $7.50 per hour), and that King should
go out and talk to the boys, and try to persuade them
not to vote for the Union; and by Whitt's further state-
ments to Shearer, on January 26, that he did not know
why the employees want a union here, that the Employ-
er would be strict on employees, there would be no help-
ers on the truck, employees would work 40 hours a
week, and the times the employees had off in the morn-
MID-STATE DISTRIBUTING CO. 1563
ing would be cut out, Respondent Employer has thereby
variously threatened and coerced its employees, includ-
ing threats of warehouse closure, potential discharge for
engagement in union activities, threats of loss of existing
benefits, and threatened imposition of more onerous
working conditions, all in violation of Section 8(aXl) of
the Act.
5. By Sales Manager Walczak's clear solicitation of
grievances from Gillis on January 17 and by his, in sub-
stance and effect, equally clear urging that Gillis and
other employees bypass the Union and deal directly with
President Meyers, thereby implicitly promising a resolu-
tion of employees' grievances, if they did so; by the con-
duct of an unprecedented and broad survey on January
25-27 by two agents who solicited and recorded, inter
alia, the grievances, complaints, ideas, and suggestions of
employees, under circumstances implying promise of fa-
vorable resolution of at least some of them; by General
Manager Shutt's additional solicitation of employees'
grievances, etc., on February 8 and statements made (at
least) keeping intact an implied promise that at least
some of the grievances, complaints, ideas, and sugges-
tions of employees, both as surveyed and as might be
brought directly to Employer through supervisors,
would be resolved, Respondent Employer has interfered
with, restrained, and coerced employees in violation of
Section 8(a)(1) of the Act.
6. By discriminatorily terminating nine helpers on Jan-
uary 12, namely, Thomas Mayborg, Robert Tuttle,
Wayne Qualls, Cliff Gross, Paul Joseph, James R. Oliver,
Tommy King, Steve Spicard, and Gary Haskins; by si-
multaneously increasing the commission paid its drivers
from I1 cent to 18 cent per case sold; by extending a dis-
criminatory preference to James Oliver, both in rehire on
March 14, and method of pay thereafter, over more
senior helpers, and more particularly in regards to rehire,
over helper Wayne Qualls and by indefinitely laying off
long-haul driver Robert C. Emmons on March 25, Re-
spondent Employer has violated Section 8(a)(3) and (1)
of the Act.
7. Except as found herein Employer has not violated
the Act in any other manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I find it necessary to order Respondent to
cease and desist therefrom and to take certain affirmative
action.
Respondent discriminatorily terminated nine helpers
on January 12. Although helpers were later reemployed
on various dates in February, March, and April, it is
clear of record that all were treated as new hires and
none were fully reinstated. It will be recommended that
Respondent Employer be ordered to offer all nine help-
ers immediate and full reinstatement to their former posi-
tions or, if such positions are not now available, to ones
which are substantially equivalent thereto, without preju-
dice to full seniority and other rights and privileges of
each. Cf. Face Motor Lines, 260 NLRB 1395 fn. 2 (1982),
and Cf. Charles H. McCauley Associates, 248 NLRB 346
fn. 2 (1980). I shall further recommend an order that Re-
spondent make each of the nine helpers whole for any
loss of earnings he may have suffered by reason of Re-
spondent's unlawful termination, by payment to each of
them, respectively, a sum of money equal to that which
he normally would have earned from date of termination
on January 12, 1983, to the date an offer of full reinstate-
ment is made, to be, computed in the manner described
below. As customary, all backpay provided herein shall
be computed in accordance with F. W Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977).10 However, it
would appear warranted to observe that in this case the
General Counsel has already litigated, but failed to pro-
vide, convincing proof that the institution of change in
method of pay of certain helpers in mid-April 1983 was
itself discriminatory. In regard to application, while the
evidence offered by the parties established that in the rel-
atively few weeks of application three helpers had re-
ceived, on average, varying amount less per week than
they would have on a nondiscriminatory continuation of
pay on hourly basis another helper received more under
the new method of pay. Thus, in the end, evidence of a
broad discriminatory application appeared at best mixed,
suspicious, but not convincing. In contrast what stands
out clearly from the litigation of discriminatory applica-
tion is that Tuttle's $4.60 rate of pay pretermination was
reduced 35 cents (after his participation in the Union's
picket line) to $4.25 per hour, and was continued thereaf-
ter without a 5-cent commission, even after other helpers
were placed on base rate plus commission, while Oliver
on preferential hire (after his nonunion declaration and
support of Employer) was given a raise of 40 cents from
pretermination rate of $3.85 to $4.25, and which is (at
least) now plus 5-cent commission.
First, it will be recommended that Employer be or-
dered to immediately cease and desist from affording its
employees any deference in pay matters based on unlaw-
ful discriminatory factors. It would appear that full rein-
statement remedy of all helper terminations cures prefer-
ential hire of Oliver. In otherwise fashioning an appro-
priate make-whole backpay remedy for the helpers it
would appear to me that some remedial provision must
be tailored into the remedy to accommodate an equaliza-
tion of that discriminatory pay preference extended
Oliver vis-a-vis the other helpers. To begin with, Tuttle
was not changed to a base rate or given commission rate.
Thus, a computation of Tuttle's gross earnings on basis
of $4.60 per hour, as enjoyed by Tuttle prior to his dis-
criminatory termination, is on its face minimally justifi-
able; but even then, it may subject Tuttle to a continued
pay discrimination by virtue of Oliver being paid at $4.25
per hour, plus a 5-cent-commission rate. An alternative
provision, that the gross backpay construction for Tuttle
after March 14 be in no event less than that to be con-
structed on basis of Oliver's method of pay, would
appear an appropriate remedy to equalize any such pref-
erence, as to Tuttle. A similar approach would appear
also appropriate on other helpers as an alternative to
their base rate, plus a 5-cent commission applicable to
10 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their gross backpay period following Oliver's rehire on
March 14. It is so recommended. It is observed that the
evidence of record establishes that Employer planned on
keeping Emmons' assigned tractor 516 until after the
brown tractor (seemingly lease) whose fourth year lease
anniversary was,May 4, 1984. It will be recommended
that Respondent Employer be ordered to offer Robert C.
Emmons an immediate and full reinstatement, with full
seniority and all rights and privileges, and that he also be
made whole for any loss of earnings suffered, from date
of discriminatory indefinite layoff to date of such offer of
reinstatement, but with provision that Respondent may
raise defense in compliance stage on such reinstatement
requirement (and related issues of period of backpay) on
showing that it no longer operates long-haul tractors,
either under lease or otherwise.
It will be further recommended that Employer be or-
dered to expunge from its files any and all references to
the discriminatory terminations and layoff practices
against its above-named employees, and that it notify
each employee, respectively, that it has done so. Posting
of an appropriate notice to employees will also be pro-
vided. Finally, because of Respondent' s egregious mis-
conduct, demonstrating a general disregard for the em-
ployees' fundamental rights, I find it necessary to recom-
mend issuance of a broad order, requiring Respondent to
cease and desist from infringing in any other manner on
rights guaranteed by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recominend-
edit
ORDER
The Respondent, Mid-State Distributing Co., Inc.,
Lexington, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, laying off, refusing to reemploy, or
otherwise discriminating against any employee for sup-
porting Teamsters Local 651.
(b) Threatening and coercing employees, including
threatening warehouse closure, potential discharge for
engagement in union activities, loss of existing benefits,
and imposition of more onerous working conditions, if
employees select the Union.
(c) Creating the impression that employees' union ac-
tivities are under surveillance.
(d) Unlawfully soliciting grievances from employees
and explicitly or implicitly promising to remedy or
adjust them, and granting increases in pay and benefits in
order to induce employees to oppose a union.
(e) Coercively and/or unlawfully interrogating em-
ployees in regard to their union interests, sympathies,
and activities, or as to those of their fellow employees.
(f) Extending and/or maintaining preference in hire
and any preference in pay of helpers based on unlawful
discriminatory factors.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the nine helpers, viz, Thomas Mayborg,
Robert Tuttle, Wayne Qualls, Cliff Gross, Paul Joseph,
James R. Oliver, Tommy King, Steve Spicard, and Gary
Hoskins, and also long-haul driver Robert C. Emmons,
an immediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
they may have suffered as a result of the discrimination
against them, all in the manner set forth in the remedy
section herein.
(b) Expunge from Employer's files any reference to
the termination of the above nine helpers on January 12,
1983, and indefinite layoff of Robert C. Emmons on
March 25, 1983, and notify each of them, in writing, that
this has been done and that evidence of their unlawful
terminations and layoff will not be used as a basis for
future personnel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its warehouse in Lexington, Kentucky,
copies of the attached notice marked "Appendix."12
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the challenges to the bal-
lots of Wayne Qualls, Cliff Gross, Benny J. Zaranka, and
Karen Smith be overruled, and that their ballots be
opened and counted , and that the appropriate certificate
thereupon be issued.
i i If no exceptions are filed as provided by Sec. 102 . 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
MID-STATE DISTRIBUTING CO. 1565
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge , lay off, refuse to reemploy,
or otherwise discriminate against any employee for sup-
porting Teamsters Local 651.
WE WILL NOT threaten and coerce employees , includ-
ing threaten warehouse closure, potential discharge for
engagement in union activities, loss of existing benefits,
and an imposition of more onerous working conditions, if
employees select the above Union.
WE WILL NOT create the impression that the union ac-
tivities of our employees are under surveillance.
WE WILL NOT unlawfully solicit grievances from our
employees and explicitly or implicitly promise to remedy
or adjust them, and WE WILL NOT grant increases in pay
and benefits , in order to induce employees to oppose a
union.
WE WILL NOT coercively and/or unlawfully interro-
gate our employees in regard to their union interests,
sympathies, and activities , or as to those of their fellow
employees.
WE WILL NOT extend and/or maintain any preference
in hire, and any preference in pay of helpers based on
unlawful discriminatory factors.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer Thomas Mayborg , Robert Tuttle,
Wayne Qualls , Cliff Gross , Paul Joseph, James R. Oliver,
Tommy King , Steve Spicard, and Gary Hoskins, and
long-haul driver Robert C . Emmons, immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions , without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed , and WE WILL make them
whole for any loss of earnings and other benefits result-
ing from their discharge , less any net interim earnings,
plus interest.
WE WILL notify each of them that we have removed
from our files any reference to their terminations, and
layoff, and that the same will not be used against them in
any way.
MID-STATE DISTRIBUTING CO., INC.