Nehi-Royal Crown Corp.

National Labor Relations Board - Board Decisions

Aug 15, 1969

178 N.L.R.B. 93 (N.L.R.B. 1969)

NEHI ROYAL CROWN CORP.
Nehi-Royal Crown Corporation and Liquor and Wine
Salesmen 's Union Local 62, Distillery, Rectifying,
Wine and Allied Workers International Union,
AFL-CIO and James W. Simmons. Case
13-CA-7875 and 13-CA-8510
August 15, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On February 27, 1969, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
alleged unfair labor practices. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel then filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the Trial
Examiner's findings, conclusions, and
recommendations only to the extent consistent
herewith.
The Trial Examiner found that Respondent's
discharge of employee James W. Simmons in June
1968 violated Section 8(a)(3) of the Act. He also
found that Respondent committed certain 8(a)(1)
violations in August and October 1968. Therefore,
the Trial Examiner concluded that the conduct of
Respondent also violated the terms of a settlement
agreement entered into in Case 13-CA-7875 in
August 1967 and he found certain violations based
in the facts surrounding that settlement. We do not
agree.
The Discharge of Simmons
The events involved in Simmons' discharge are
more fully set forth in the attached Trial Examiner's
Decision. For purposes of our Decision herein, a
brief factual summary will suffice.
On June 22, 1968, the annual picnic for
Respondent's employees was held. Among the
events at the picnic was a softball game between
93
Respondent ' s north and south side salesmen. The
competition was quite intense as the participants
had wagered $ 10 per person on the outcome of the
game.
Throughout the course of the ball game , Thomas
Cooksley, a north side employee , had been making
offensive remarks. Several of these remarks were
directed at Simmons , a south side employee. At one
point , Cooksley, who had been pitching, was
removed from the game by Respondent ' s supervisors
because his behavior was disrupting the game's
progress . However , Cooksley remained along the
sidelines near first base , the position that Simmons
was playing, and continued to direct comments at
Simmons and others. Ultimately, Simmons
informed Cooksley that he was not going to tolerate
further commentary and, upon the conclusion of the
inning then in progress , Simmons proceeded to
strike Cooksley, knocking him unconscious.
Subsequently , Simmons was discharged.
As noted above, the Trial Examiner found that
Simmons' discharge violated 8(a)(3). That finding
was based upon the following factors, which the
Trial Examiner considered to be of material
significance.
The incident between Simmons and Cooksley,
which took place at the annual company picnic, was
characterized by the Trial Examiner as having
occurred on "nonworktime , off premises , and . . .
not in connection with his [Simmons' ] job duties."
The Trial Examiner continued that although
Respondent had a rule which prohibited fighting,
that rule applied only to fighting on company
premises . Thus, he concluded that Simmons could
not have been discharged for violating Respondent's
rule against fighting. The Trial Examiner then
coupled the foregoing determination with the
observation that , because Cooksley had not been
disciplined for using offensive language , Simmons'
discharge revealed disparate treatment which, in
turn, he viewed as evidence of Respondent's
discriminatory intent.
The sum total of these determinations influenced
the Trial Examiner to examine the factual
allegations involved in the settlement agreement in
Case 13-CA-7875. The facts involved in that case
indicated , inter alia , that Simmons ' played an active
role in the Charging Union ' s organizational
campaign and that Respondent had exhibited union
animus. ' Thus, the Trial Examiner concluded that
Simmons was discharged because of his previous
activities on behalf of the Charging Union.
We are of the opinion that the record fails to
establish that Respondent discharged Simmons for
any reason other than his conduct at the company
picnic. The picnic itself was an established annual
event of which Respondent was the primary
organizer and a prominent sponsor . Whether or not
'In view of our Decision herein reinstating the settlement agreement in
Case 13-CA-7875, we do believe it necessary to discuss in detail the factual
allegations surrounding that proceeding.
178 NLRB No. 19
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's rule prohibiting fighting was
applicable to the company picnic is not the primary
criterion by which we determine the validity of
Simmons' discharge. The record clearly indicates
Cooksley presented no physical threat to Simmons
at the time he was struck. Simmons acted neither in
real nor imagined self-defense. In fact, the actual
blow, which resulted in serious physical harm to
Cooksley, does not appear to have been delivered in
response to a particular comment by Cooksley.
Rather, Simmons was motivated solely by a
calculated decision to silence Cooksley's stream of
commentary. Under these circumstances, prohibition
by specific rule of the physical force used by
Simmons is not an essential ingredient in
establishing that Respondent's motive for the
discharge was a lawful one. Nor do we believe that
Respondent's failure to take disciplinary action
against Cooksley indicates disparate treatment or
warrants a finding that Simmons was terminated for
unlawful reasons.
We note that the Charging Party had abandoned
its organizational efforts over a year before the
incident between Simmons and Cooksley and, after
the settlement agreement was entered into, the
relationship between Simmons and Respondent
appeared to have been quite harmonious until the
events resulting in his discharge. In these
circumstances and in view of our findings below, we
see no basis for inferring that Respondent acted
because of Simmons' previous union activities.
Accordingly, we conclude that the General Counsel
has not sustained his burden of proving that
Respondent's discharge of Simmons was motivated
by unlawful considerations or was related to any
prior union activity. Thus we shall dismiss the
8(a)(3) allegation of the complaint.
Other Post-Settlement Violations Found by the
Trial Examiner
As more fully set forth in the attached Trial
Examiner's Decision, the Trial Examiner found that
Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employee John Dusek,
threatening him with discharge, and creating the
impression that his union activities were under
surveillance. The events that led to the above
conclusions occurred in October 1968.
Dusek is employed as a driver-salesman and is
represented by the Teamsters Union, as are the vast
majority of Respondent's approximately 500
employees. On October 7, 1968, he encountered a
problem while making a delivery to one of
Respondent's customers. In the midst of unloading,
Dusek was compelled by the customer to move his
truck so that one of the customer's trucks could
unload immediately. This incident upset Dusek and
the next evening he voiced his complaints at a union
(Teamsters) meeting.
On October 9, Respondent was informed through
the customer involved that Dusek had persuaded the
Coca-Cola and Pepsi drivers not to make deliveries
until the unloading problem was resolved. The
customer was quite perturbed and told Respondent
that it did not want problems with the Coca-Cola,
Pepsi, or Royal Crown (Respondent's) drivers.
Thereafter, Dusek was summoned to discuss the
incident related above. At the ensuing meeting one
of Respondent's sales managers expressed concern
that Dusek's confrontation and subsequent actions
might result in a loss of business. Dusek then
defended his actions, whereupon Respondent's
president told him that he was paying Dusek's
salary and that, therefore, the amount of time it
took to make a delivery should not be Dusek's
concern. Dusek persisted and the sales manager then
suggested that if Dusek was unhappy with his job he
should quit. In addition, the sales manager offered
Dusek extra vacation pay and a letter of
recommendation. He concluded by telling Dusek
that if he liked his job he should stay out of trouble.
We can find nothing improper in Respondent's
meeting with Dusek. The record reveals that
Respondent's concern was not with Dusek's
attendance or actions at a union meeting. Rather,
Respondent's concern was directed towards the
legitimate business interest of protecting its sales
level and preserving customer relations. On the facts
of this case, we cannot concur with the Trial
Examiner's conclusion that Respondent's irritation
with Dusek resulted from his raising a grievance at
a union meeting. Therefore, we do not view the sales
manager's statements to Dusek as constituting an
unlawful threat of discharge, and we can find no
evidence on which to conclude that Respondent's
conduct toward Dusek created the impression that
his union activities were under surveillance or was
motivated by antiunion considerations. On the
contrary, the record discloses that Respondent has
enjoyed an established bargaining relationship in the
driver-salesnten's unit with the Teamsters Union for
over 25 years, and there is nothing to indicate that
Respondent sought to undermine its status.
Accordingly, we find that Respondent's conduct
toward Dusek did not violate Section 8(a)(1) of the
Act.
The Trial Examiner credited driver-salesman
O'Donnell's version of a dispute with his supervisor
on August 16, 1968. According to O'Donnell, the
supervisor told him that he was "sick and tired of
you [O'Donnell] bringing the union [Teamsters] in
every time we have a grievance." Even though, as
found by the Trial Examiner, the supervisor's
remark may have violated Section 8(a)(1), it is the
only such incident herein, and we find that it would
not serve any useful purpose of the Act to issue a
remedial order for such an isolated incident in the
circumstances of this case.'
'Stop & Shop . Inc, 161 NLRB 75, enfd . 377 F 2d 59 (C.A 1).
NEHI ROYAL CROWN CORP.
Inasmuch as we have not found any
postsettlement violations of the Act, we shall
reinstate the settlement agreement in Case
13-CA-7875 without passing upon the conduct that
occurred prior thereto.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint in
Case 13-CA-8510 be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the settlement
agreement in Case 13-CA-7875 be, and it hereby is,
reinstated.
'Teamsters General Local 200 ( Bachman Furniture Co), 172 NLRB No
119, Conroe Creosoting Co. 149 NLRB 1174
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on October 23,
24, 25, 29, 30, and 31, 1968, at Chicago, Illinois.
The charge in Case 13-CA-7875 was filed on May 8,
1968. The charge in Case 13-CA-8510 was filed on June
27, 1968. The order consolidating cases, complaint and
notice of hearing in this matter was issued on September
16, 1968
The issues in this case concern whether the Respondent
has engaged in certain acts of interference, restraint, and
coercion violative of Section 8(a)(1) of the Act, whether
the Respondent discriminatorily discharged James W.
Simmons on or about June 25, 1968, and whether certain
conduct of Respondent after August 18, 1967, violated the
terms of a settlement agreement in Case 13-CA-7875
All parties were afforded full opportunity to participate
in the proceeding. The General Counsel and Respondent
have filed briefs in this matter which have been
considered
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following.'
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The facts pertaining to the business of the Employer
are based upon the pleadings and the admissions therein.
Nehi-Royal Crown Corporation is, and has been at all
times material to this proceeding, a; corporation duly
organized under, and existing by virtue of, the laws of the
State of Delaware, and has maintained its principal office
and place of business in Chicago, Illinois.
Nehi-Royal Crown Corporation, at all times material
to this proceeding, has been engaged in the manufacture
and distribution of carbonated beverages, and during the
past calendar year sold finished products in excess of
$100,000 directly to customers located outside the State of
Illinois.
'All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
95
During the same period of time, Nehi-Royal Crown
Corporation purchased raw materials in excess of
$100,000 from points outside the State of Illinois, which
were shipped directly to its plant in Chicago, Illinois.
As conceded by the Respondent, it is concluded and
found from the foregoing facts that the Respondent is
now, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings and admissions therein, it is
found and concluded that Liquor and Wine Salesmen's
Union Local 62, Distillery, Rectifying, Wine and Allied
Workers International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
Ili. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Based upon the pleadings and admissions and record
testimony therein, it is concluded and found that the
following-named persons occupied positions with
Respondent Employer set opposite their respective names
and have been and are now supervisors or agents of
Respondent Employer, acting on its behalf, within the
meaning of Section 2(11) and (13) of the Act.
Myron Weil, President
Frank Passarelli, Sales Manager
Dennis Davoren, Sales Manager
Charles Palumbo, Supervisor
John Swistowicz, Supervisor
B. Settlement Issue
The Respondent sets forth that the 8(a)(1) conduct
occurring after the settlement was directed toward
employees not involved in the same bargaining unit of
employees as the ones with reference to the presettlement
conduct. The Respondent contends, therefore, that such
conduct should not be considered as a basis for setting the
settlement agreement aside and for considering the merit
question of the presettlement conduct. I consider such
contentions without merit. The question of rights
protected by the Act is not of such narrow and technical
construction.
This case involves issues relating to conduct prior to
August 18, 1967, the date of a settlement agreement in
Case 13-CA-7875, and issues relating to conduct after the
date of said settlement agreement. As I find later in this
Decision that Respondent engaged in conduct violative of
Section 8(a)(1) of the Act after August 18, 1967, I find it
proper to consider the conduct occurring prior to August
18, 1967, not only as background but with respect to the
question of conduct violative of the Act. Such events are,
therefore, set forth in substantially a chronological fashion
for ease in understanding.
C. Presettlement Conduct (1967)
1. Preliminary events'
Three employees of the Respondent, Simmons, Walker,
and Paris, contacted and met with Union Representative
'Based upon a composite of the credited testimony of Simmons , Walker,
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jim Ryan' in the latter part of March 1967 at the
Silverspoon Restaurant in the Marynook Shopping Center
in Chicago, Illinois. At this meeting there ensued a
discussion of organizing the Respondent's salesmen. Ryan
told the employees in effect that if they were interested in
unionization that they would have to get cards signed by
employees stating that they wanted a union Ryan gave
the said employees 20 cards for such use.
The foregoing contact with the Union by the said
employees occurred during the week, around Thursday.
On the following Saturday the employees attended a
company sales meeting. After the meeting the employees
were discussing the question of the possibility of one
salesman-one truck as compared to the current preselling
arrangement. After the meeting a few of the employees
told others to meet with them at a restaurant. Thereafter
some of the employees went to the restaurant, discussed
having a union, and some 13 of the employees signed
union cards.
On Saturday evening Simmons was away from home.
When he returned home, he was told by his wife that he
had received a telephone call from Dennis Davoren in
Puerto Rico. On Sunday, Simmons received a telephone
call from Davoren from Puerto Rico.
2. Concerning complaint allegations VI(a) and (b)'
On about April 2,1967, as indicated, Davoren, who was
in Puerto Rico, telephoned Simmons. What occurred is
revealed by the following credited excerpts from Simmons'
testimony.
A. Yes. He called Sunday afternoon about 3.00
o'clock Sunday afternoon.
Q. Did you talk to him?
A. Yes, I did.
Q. All right. Tell us that conversation.
A. I picked up the phone. "Person to person call.
Are you Mr. James Simmons?"
"Yes, I am."
"Go ahead."
Then he said, "Hello." I said, "Hello."
I asked him, "How are you doing?"
He told me, "Cut the bull shit. What's going on in
Chicago?"
and Paris , and a consideration of the logical consistency of the evidence.
'Of Local 62, Liquor and Wine Salesmen's Union.
'The complaint allegations and the answer place in issue events of April
2, 1967 The testimony of all witnesses and the evidence as to dates of
events were somewhat imprecise It is clear, however, that this event
occurred toward the last of March or first of April 1967. Considering the
manner of litigation , the exact date is immaterial To some extent I am
convinced that both Simmons and Davoren , the witnesses to the events,
testified in a manner to bolster the stories they desired Of the two,
however, I found Simmons to be more convincing in his demeanor as a
frank , forthright , and truthful witness than Davoren . In making this
determination I have considered the fact that as to several items in
Simmons' testimony that the same were not reflected in a prior deposition
or statement It is noted that with respect to knowledge of unionization
obtained by Davoren and Passarelli in Puerto Rico that the testimony of
Davoren and Passarelli was in conflict. It is clear from Davoren's
testimony that he and Passarelli received a telephone call about the
employees ' union activities . I discredit the testimony of Passarelli and
Davoren in their denial of such knowledge . Considering the demeanor of
the witnesses and the logical consistency of the evidence , I credit Simmons'
testimony and discredit Davoren ' s and Passarelli ' s testimony inconsistent
therewith
I said, "Well, what do you mean what's going on?"
He said, "You know damn well what I mean. What's
going on?"
And I went further to say, "I still don't know what
you are talking about."
He said, "I know you were at a restaurant this
afternoon with a bunch of guys to sign cards for some
kind of a union."
And I still said I didn't know anything about it.
He said, "I want you to call Mr. Weil, tell him
everybody who signed a card."
I told him then, I said, "I signed a card, but I am
not going to tell you who else signed a card."
And he told me no in so many words Well, I won't
say "so many." I will say his exact words.
He said, "If you don't like it at Royal Crown, why
don't you look for another job?"
Q. All right.Do.you recall -
A. I told him I liked my job, but if he wanted me to,
I'd call Joseph Lyng up, have him come over and get
my route books.
Q. What happened then?
A. That's all that was said as to that He said, "I
will talk to you later." And that ended the
conversation.
Considering the foregoing, I conclude and find, as
alleged in complaint paragraph V I(a), that the
Respondent, by Davoren, on April 2, 1967, engaged in the
conduct of threatening an employee with loss of his job
because he had engaged in union activities. Such conduct
is violative of Section 8(a)(1) of the Act. I so conclude
and find.
The General Counsel also alleged in complaint
paragraph VI(b) that the Respondent, by Davoren, on
April 2, 1967, gave an employee the impression that the
Respondent was engaged in surveillance. The only
evidence which touches this issue is the aforementioned
telephone conversation between Davoren and Simmons.
Considering the totality of the evidence, I conclude and
find that the Respondent did not give employee Simmons
the impression that the Respondent was engaged in
-surveillance. Thus, Simmons knew that union activity had
just commenced several days earlier, knew that the several
employees getting together at the restaurant was not a
formal or lengthy preplanned meeting, and knew that the
restaurant was a public area. From Davoren's remarks,
Simmons had reason to believe that the Respondent had
learned of the restaurant gathering by means other than
preplanned surveillance.' Accordingly, I conclude and find
that the General Counsel has not established, as alleged, a
violation of Section 8(a)(1) of the Act.'
3. Filing of representation petition; Davoren's talk
with employees
Because of the chronology of events, I find it proper to
officially notice from the Board's official records that a
representation petition in Case 13-RC-11137- Nehi-Royal
Crown Corporation was - filed by Local No. 62, Distillery,
Rectifying, Wine and Allied Workers International Union,
AFL-CIO, on April 7, 1967.
'Meade Manufacturing Company. 164 NLRB No 120.
'The incident was not alleged as being conduct of illegal interrogation
As indicated , the manner of presentation of this case reveals that it would
be improper to consider such event as litigated if not alleged In any event,
findings elsewhere reveal conduct of illegal interrogation in violation of
Sec. 8(a)(1) of the Act.
NEHI ROYAL CROWN CORP.
Some 4 or 5 days after the event litigated as occurring
on April 2, 1967, set forth in this Decision beforehand,
Davoren returned from Puerto Rico to Chicago. At some
point of time thereafter Davoren appeared at one of the
southside advance salesmen's meetings.' What occurred at
that time is revealed by the following credited excerpts of
Simmons' testimony.
Q. Do you recall what happened-the next thing that
happened after this conversation that you had with Mr.
Davoren?
A. Well, when Mr. Davoren got home, which would
be probably the following- I forget when we had the
next meeting. He called on Sunday. I think it was the
following Wednesday or Thursday he got back from
Puerto Rico. He stayed there a few days and he got
back-
Q. All right. Did you have any conversations with
any other persons from management or from Nehi
prior to the time Mr. Davoren got back?
A. No, sir, I did not
Q. All right. Did you talk to Mr. Davoren then
afterwards?
A. Yes, sir, I did. He came into a sales meeting and
in his hand he carried an actual-a filing for an election
which he received the day that he came back, from the
cards that we had signed and turned into the union.
Q. And did he talk to you?
A. He talked to us as a whole, everybody, and he
told us that he couldn't understand our grievances, what
was wrong, why we would want a union, conditions
around there were pretty good.
And we just said that we were a little bit unhappy.
Q. Was this at a meeting?
A. This was at a meeting.
Q. Go ahead.
A. Then we asked Mr. Davoren if he and the
supervisors would leave the room, which they did, and
we further discussed this amongst the salesmen.
Q. And what was your discussion at that time?
A. About the union.
Q. All right. And - wlelli,what was said?
A. Well, we dust said, "Now, you signed the cards.
You have a right for the election. Don't worry. Don't
be afraid."
And that was about it.
4. Concerning complaint allegations VI(c) through (p)
The complaint in allegations VI(c) through (p) alleged
(1) violative conduct of Davoren on or about April 6, 8,
13, 16, and 18, 1967, (2) violative conduct of Passarelli on
or about April 13, 15, 18, 19, and on or about May 3,
1967, and (3) violative conduct of Palumbo on or about
April 18, 1967. The General Counsel's opposition to a
motion of Respondent to strike revealed the following:
"To apprise Respondent of the place where the alleged
violations set forth in paragraph VI(a) through (q) took
place, Counsel for the General Counsel states that
Respondent's place of business was the situs of the alleged
violations in paragraphs VI(c) through (q) and the alleged
violations in paragraph VI(a) and (b) were committed
during a phone conversation between Dennis Davoren and
an employee." The witnesses' testimony as to all of the
events was generalized as to approximate dates. The
complaint allegations contained many allegations that
were similar excepting as to dates alleged. As a result the
'The Respondent regularly held two such meetings weekly
97
parties were requested to submit detailed briefs so as to
clearly point out the issues and contentions. Briefs were
submitted and have been construed to such effect
Considering the record, the briefs, and all the
foregoing, I note the following- The issues litigated
concerned (1) interrogation of an employee by Passarelli
before a joint meeting on a Saturday in April 1967, (2)
the conduct of Passarelli at a joint meeting of north- and
south-side advance salesmen on a Saturday in April 1967,
(3) the conduct of Davoren as related to several employees
after an advance salesmen's meeting at some date after
the events of (1) above, (4) the conduct of Palumbo
directed toward employee Walker, and (5) the conduct of
Passarelli with respect to the withdrawal of an employee's
union membership card.
As indicated herein the parties entered into the trial of
this case after attempts to set the issues. There was much
testimony and evidence presented. From the manner of
presentation, the setting of the issues, and the relevance of
much of the testimony to the question of the alleged
discriminatory discharge of Simmons, it cannot properly
be said that the existence of some testimony in the record
not related to specific alleged 8(a)(1) conduct constitutes a
litigation of unalleged 8(a)(1) type issues. I thus note that
the testimony relating to a telephone call from Passarelli
to Simmons on the night before the "joint meeting of
advance salesmen" is relevant to a consideration of the
Simmons discharge. It does not refer, however, to an
event alleged in the complaint, and as indicated does not
constitute a litigated issue as to conduct violative of
Section 8(a)(1) of the Act. There was also evidence of
several telephone calls from Davoren to Simmons after
the "joint meeting" in which Passarelli talked to the
north- and south-side salesmen. It is noted that with
respect to complaint allegations of contentions the setting
of the issues would reveal these telephone conversations
not to be in issue. It can be said that these conversations
were admissible with reference to the Simmons discharge
case. It can also be said, under all the circumstances, that
such does not constitute a litigated issue as to conduct
violative of Section 8(a)(1) of the Act.
As indicated herein, I am convinced that certain facts
were not litigated with respect to possible 8(a)(1) type
contentions. The parties seem to recognize this. I am sure
that the presentation of the case by the parties was made
difficult by the time lapse, by witness frailty, as to timing
of events or subject matter, and because of other
complexities. I would note that where attempts have been
made to set the issues, where much evidence is admissible
for various reasons, and where much evidence is presented
in a generalized fashion, it is hard to believe that a litigant
is on notice, within the meaning of due process, that issues
other than those specifically alleged are being litigated. In
this case the totality of all events, procedural matters,
requests for detailed briefs, and the briefs are convincing
that such matters were not litigated other than as
indicated herein.
The evidence reveals that Davoren telephoned Simmons
around the last of March or first of April 1967, that
Davoren returned to Chicago some 4 or 5 days later, that
a petition for representation was filed with the Board on
April 7, 1967, that shortly thereafter Davoren spoke to the
southside advance salesmen at a meeting, that there were
two regular meetings per week for advance salesmen, that
one of these meetings was on a Saturday, that the other
appeared to be on Tuesday or Wednesday, that the "joint
meeting" held by Passarelli clearly was held on a
Saturday and occurred after the meeting referred to
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beforehand with Davoren and the southside advance
salesmen, and that later Davoren after another meeting
with southside advance salesmen spoke to two or three
employees separately.
Considering the evidence and the logical probabilities
therefrom, I fix the time for the Passarelli "joint meeting"
with all advance salesmen as being on or about April 15,
1967, as alleged. I fix the time for the Davoren meeting
with southside advance salesmen and his followup remark
to Simmons and Walker as being after April 15, 1967,
and being on April 22, 1967. The manner of litigation
reveals that the possible variance of a few days from the
April 18, 1967, allegation thereto is not material. In fact,
the precise fixing of dates either as set forth in the
General Counsel's brief or the Respondent's brief would
not affect the results herein. It is clear that these events
were litigated fully.
The only evidence which indicated that Davoren
participated in the "joint meeting" with advance salesmen
was the testimony of Walker. Simmons clearly testified to
the effect that Davoren did not so participate. I am
convinced that Walker has confused events in his
testimony, and I discredit his testimony to such effect.
The evidence relating to complaint paragraph V(o) with
respect to Passarelli and an attempt to get an employee to
withdraw a union membership card is either missing or
insufficient, if based upon Passarelli's testimony.
Considering all of the foregoing, I conclude and find no
credited evidence to support complaint allegations VI(c),
(d), (e), (f), (g), (j), (k), (1), (o), or (p). It will, therefore,
be recommended that such allegations be dismissed.
5. The events of April 15, 1967; interrogation of Parise
On April 15, 1967, Passarelli called employee Paris into
his office. What occurred is revealed by the following
credited excerpts of Paris' testimony.
Q. Mr. Paris, some time after that, did you have an
occasion to have a conversation with Mr. Passarelli in
his office?
A. Yes. There was a time when it was on a
Saturday' s sales meeting, I believe it was, he called me
in.
Q. And who else was in his office with you?
A. No one. There was no one in the office. He just
says, "I'd like to talk to you." That's all.
Q. And did you go in and talk to him?
A. Yes, I did.
Q. And what was said at that time?
A. Nothing. He just asked me if I had signed a card
Q. And what did you say?
A. Yes, I did.
Q. And what did he say then?
A. Nothing. He seemed to be taken back by it. He
didn't say nothing. He said, "I think I will handle the
situation myself." And that was the extent of it.
Q. And then what did he do?
A. He walked out in the office.
Q. And where did he go?
A. He went out in the drivers' room.
Q. (By Mr. Maslanda ) Was there a meeting called at
any time after that, or gathering -
'The facts are based upon the credited testimony of Paris.
A. Yes.
Q. - of the salesmen?
A. Yes.
Q. And how much after this conversation that you
had with him?
A. About ten minutes later.
Considering all of the foregoing, I conclude and find
that Passarelli interrogated Paris concerning his union
activities and desires in a manner constituting interference,
restraint, and coercion within the meaning of Section
8(a)(1) of the Act.
6. The events of April 15, 1967; the joint meeting of
all advance salesmen'
A few minutes after Paris had left Passarelli's office,
Richard Navarro came into the office. Navarro told
Passarelli that the employees were talking about joining a
union and that Simmons was telling the employees that if
they joined the Union that they would get 100 percent of
everything they had in the profit sharing plan. Passarelli
went out of his office into the "supervisors' room" and
found Simmons talking to some of the employees about
the profit sharing plan. Passarelli asked Simmons why he
was having a meeting without his permission. Simmons
told Passarelli that it was not an open meeting but a
discussion. Passarelli remarked that as long as Simmons
wanted to discuss the profit-sharing plan that they should
call everyone in. Passarelli called to other advance
salesmen to gather around. Passarelli told the employees
in effect that there was "something going on around here
about a union." Passarelli told the employees in effect
that if they joined the Union that they would lose their
profit sharing because they would no longer be considered
part of management. Passarelli also told the employees
that they would not get 100 percent of what they had in
the profit-sharing plan but a percentage according to the
number of years they had been in the plan. Passarelli told
the employees that there was a chance that if they joined
the Union that the Respondent would discontinue their
method of preselling because they could not afford it.
Passarelli then stated that "there is somebody around here
that's got something to say about the union," "Simmons
what have you got to say?"
Simmons proceeded to read from a pamphlet from the
National Labor Relations Board about employee rights
'The facts are based upon a composite of the credited testimony of
Simmons, Passarelli , Soltis, Paris, Walker, Freeman, and Weil The
testimony of all of these witnesses was presented in fragmented fashion. In
addition the depositions of Walker and Simmons reveal that their
questioning at the deposition hearing was similarly handled The main
thrust of Simmons' testimony was to the effect that Passarelli referred to
the loss of profit sharing and preselling and that later a discussion of the
percentage of profit sharing the employees would get if profit sharing were
terminated. The main thrust of Passarelli ' s testimony was to the effect that
the discussion was concerning the percentage of profit sharing the
employees would get if profit sharing were terminated . The thrust of the
testimony of Soltis, Paris, and Walker was with reference to the loss of
profit sharing I am convinced that all of the witnesses were attempting to
truthfully testify as to what they thought the thrust of the events were. A
careful consideration of the total testimony of all the witnesses reveals that
there is not substantial conflict as to what happened . Thus, Passarelli's
testimony related to a question by Dugo and Passarelli's answer thereto
reveals that the impact of his remark was to the effect that if you j oin the
Union you are out of the profit-sharing plan and only get a percentage of
what was in the plan. Thus, Walker's and Passarelli ' s testimony reveals
that the remarks about preselling were related to the cost of operation
Accordingly, the facts are found as set out, and to the extent that any
witnesses' testimony is inconsistent therewith, it is discredited
NEHI ROYAL CROWN CORP.
not to be threatened with loss of job, loss of security in
job, or loss of profit sharing and related items about the
right to unionize. What occurred then is revealed by the
following excerpts from his credited testimony:
I went from there, told Mr. Passarelli, "If they
turned around and took profit sharing away from us,
stop it because of getting into the union, this, I know
they could do because we no longer would be
considered management. But if they stop our profit
sharing, they must pay us 100 percent in that profit
sharing because we didn't terminate. They would be the
ones who terminated it. We didn't quit or get fired."
That's all I had to say.
Passarelli and some of the employees discussed the
Respondent's preselling policy. Unlike other similar type
companies in the area, the Respondent used a preselling
salesman plan. Thus, one saleman would presell for the
deliveries to be made by several trucks. Other companies
used salesmen per truck for sales at time of delivery. It
appears the gist of the discussion was as to respective
competitive cost.
Toward the end of the meeting Passarelli indicated that
he would check with the Respondent's attorney about the
details of what would happen if the employees were
terminated from participation in the profit-sharing plan.
Considering all of the foregoing, I conclude and find
that the Respondent, by Passarelli, on April 15, 1967,
engaged in conduct which threatened employees with loss
of earnings if they continued to engage in union activities.
The conclusions and findings are essentially based upon
Passarelli's conduct and statements with reference to
profit sharing. Thus the employees as employees were
participants in a profit-sharing plan. Their right to engage
in union activity was protected from a decrease in benefits
because of such activity. There was nothing in Passarelli's
remarks to indicate that the Respondent intended to
equalize or substitute similar benefits for the benefits to be
taken away. Accordingly, I conclude and find that
Passarelli's conduct, as indicated, constituted conduct
violative of Section 8(a)(1) of the Act.
7. The events of April 22, 1967; Davoren's advance
salesmen ' s meeting'°
Preliminary Considerations
The General Counsel contends that as to the events set
forth herein as occurring on or around April 22, 1967,
that Davoren threatened employees with loss of earnings if
they continued their union activities.
There was an advance salesmen's meeting for the
southside, on or about April 22, 1967. Simmons'
testimony about this meeting does not reveal violative
conduct, as alleged, on the part of Davoren.
Walker appears to have been a General Counsel witness
presented in support of the foregoing contended event or a
similar event concerning Davoren. I have considered the
nature of his questioning and testimony as a whole and
have compared such testimony with his pretrial deposition
statement. Upon such consideration I conclude and find
"It is clear that this event happened after the events of April 15, 1967.
The complaint allegation par . VI(o) alleges the date of April 18, 1967.
Simmons' testimony was to the effect of the Saturday after the April 15,
1967, events. I fix the date as of April 22, 1967. The date is not material,
however, since it is clear the event was litigated and occurred on or about
April 18 or 22, 1967.
99
that his testimony is insufficient to support a finding of
violation herein. Apparently the General Counsel is in
agreement since, in answer for a request for a detailed
brief, there is no reference to Walker's testimony as
relating to this event.
Events of April 22, 1967
After the advance salesmen's meeting for the southside,
on or about April 22, 1967, Davoren asked Simmons and
Walker to remain to see him.
Simmons testified with reference to this event as
revealed by the following excerpts from his testimony.
Q. (By Mr. Maslanka) Do you recall anything else?
A. Just what he brought up a real-I mean this, I
don't- I won't use it as a threat, I will just say what he
said. The company couldn't afford it and if the union
went in, they would have to take pre-selling off the
street.
Simmons' pretrial deposition reveals an inconsistency
with the foregoing. In his deposition the following is
revealed.
Q. I think you did mention it, it might have been in
different words, but do you recall Daveron [sic] at a
meeting saying that pre-salesmen-that's what you are
called, right?
A. Right.
Q. Thatpre-salesmen- the [sic] the company would
take the pre-salesmen off the street if the union came
in?
A. Those were not his words.
Q. All right.
A. He said if expenses got too great that something,
as in any business, has to go. We would either go back
to the way Pepsi Colawa&-;;but this had no direct
bearing on pre-salesmen coming off the street if the
union went in.
Q. How did he say -
A. In other words, our price is below our
competition, Pepsi Cola and Coca-Cola, and one of the
reasons for this is pre-selling, because a salesman can
go out on the street, and I can run two trucks in an
area and, say, do five thousand cases a week. The cost
is only two trucks and two helpers, the expense of two
truck drivers. But Pepsi and Coca-Cola, they would
have to run five trucks in that area to get that many
cases. Where I do all the selling, merchandising,
anything like that, it can keep it low. But this gives us
the opportunity to stay below our competition.
The questioning of Davoren concerning statements
about "preselling" was not directed to the event testified
to by Simmons. Davoren testified to the effect that at a
meeting he answered a question about "preselling" as is
revealed by the following excerpts from his testimony.
A. They're - no. No, not that.
But the question came up,would they would we
drop-the question came up by several of the men: "If
we had a union, would that eliminate advance selling
and go back to like all of the other companies have,
Pepsi and Coke and 7-Up?"
They don't have advance selling, and would they go
back- the question was asked, would it go back just
like it was?
Q. Do you recall who asked that question?
A. Oh, several. Several. It seemed to be a big, topic.
Q. Do you remember their names?
A. I wouldn't be able to tell you exactly. It could
have been Meyers, it could have been Wells, it could
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been Simmons, it could have been Freeman. It
could have been anyone.
Q. All right. Was there anything else discussed at
this meeting?
A. No. As I say, they wanted to know if we would
drop it.
Q. Drop advance selling?
A. Drop advance selling.
Q. All right. What-
A. And I said that if it got too expensive, sure, we
would. Just like we would drop a promotion if it got
too expensive, and for no other reason.
Q. Did you make a statement that if a union came
into the plant, you would drop advance selling?
A. No, sir.
Q. Did you make any statement to that effect?
A. No, sir.
As I view the evidence, Davoren's testimony was not
directed to the event testified to by Simmons and has little
value in determining the issue alleged herein. However,
Simmons' testimony when considered in light of the
inconsistency therewith to his pretrial deposition also lacks
persuasive probative value and is not reliable to establish
that Davoren made the remarks of a violative nature.
Accordingly, I conclude and find that the General Counsel
has not established, as alleged, that the Respondent, by
Davoren, on or about April 18 or 22, 1967, threatened
employees with loss of earnings if they continued their
union activities.
8. The events of April 18, 1967; Palumboi i
Sometime prior to the election held on May 9, 1967,
apparently on April 18, 1967, Supervisor Palumbo went
on Walker's route with Walker. While on the route
Walker and Palumbo discussed the question of the Union
and the employees' involvement. Palumbo told Walker
that the Union would never get in, and that the northside
and the supervisors would vote against the Union. Walker
disputed the fact that supervisors could vote, but Palumbo
said that they would be allowed to vote. Palumbo told
Walker in this conversation that the Respondent was a
small family-owned Company, that most employees were
relatives, that Walker had a good job, that Walker was
doing better on this job than he had on his last job, and
that Walker should be careful.
Considering all of the foregoing, I conclude and find
that Palumbo in effect threatened Walker with reprisal if
he engaged in union activity. Such conduct is violative of
Section 8(a)(l) of the Act.
"The facts are based upon Walker ' s credited testimony. I noted that
Respondent ' s brief refers to the fact that the event occurred on a route and
not at the plant as indicated in pretrial pleadings. However, statements of
counsel directed to the Trial Examiner at the hearing and the evidence
reveal this matter to have been litigated as occurring on the route It must
further be noted that the General Counsel ' s pleadings on this matter
essentially were of legal conclusions . Nor does General Counsel' s statement
at the hearing spell out his contention of the thrust of the evidence
General Counsel's brief sets forth contention only as to facts adduced The
Respondent ' s brief was to the point that the issue was as to a threat of
reprisal (watch his step) Considering the pleadings , the record, and the
briefs, I am convinced that due process is only accorded if the issue
litigated is limited to the question of threat of reprisal.
"The facts are based upon a composite of the credited aspects of the
testimony of Simmons , Walker , and Davoren.
9. The events of July 14, 196712
Shortly before July 14, 1967, employees Simmons,
Paris, and Walker notified Davoren that they had
subpenas to appear for depositions on July 14, 1967,
concerning charges filed with the National Labor
Relations Board." Later Davoren saw the employees,
either individually or together. The employees expressed
some reluctance on having to goto the deposition hearing. 14
It is not clear whether such reluctance was limited to
having to go during worktime or was to having to go at
all. Davoren told the employees that he would check with
the company attorney about the matter. Apparently after
a telephone call to such attorney, Davoren told the
employees that they would have to go to said hearing and
that he would have the attorney go with them. Davoren
also told the employees to take care of some details
concerning work arrangements while they were gone.
Davoren told the employees he wanted to see them when
they returned from the deposition hearing.
The employees went to the deposition hearing on July
14, 1967, and gave depositions. The company attorney did
not go to the deposition hearing.
After returning from the deposition hearing, Simmons,
Walker, and Paris met with Davoren and one of the,
Respondent's owners, Mr. Henry Schimberg. Davoren
asked the employees how the deposition hearing went.
Davoren then asked the employees, "What did they ask
you?" The employees told Davoren of questions asked
them at the deposition hearing. Davoren asked the
employees, "How does it look?" The employees told
Davoren that it looked all right.
I do not consider Davoren's predeposition conduct with
reference to this event to have significance. However, it is
clear that Davoren's and Schimberg's meeting with the
employees after the deposition hearing and the
accompanying questions directed to the employees by
Davoren constituted violative conduct within the meaning
of Section 8(a)(1) of the Act. It is clear that such conduct
would inhibit the employees' right to engage in union
activity and to participate in conduct protective of such
rights. Accordingly, I conclude and find that the
Respondent, by Davoren, as alleged, on July 14, 1967,
engaged in conduct violative of Section 8(a)(1) of the Act.
D. Postsettlement Conduct (1968)
1. The discharge of Simmons
On June 25, 1968, the Respondent discharged James
Simmons. The General Counsel contends that the facts
reveal that the Respondent discharged Simmons because
of his union activities and because he had participated
with respect to the filing of charges and the giving of
testimony in an unfair labor practice case in violation of
Section 8(a)(1) and (4) of the Act. The Respondent
contends that Simmons was discharged for cause and/or
that the evidence does not establish that Simmons was
discharged for discriminatory reasons within the meaning
,of the Act.
The facts relating to the issue of Simmons' discharge
may be summarized as follows:
"Considering the record as a whole and the nature of the testimonial
presentation, I find the evidence as to what occurred regarding this event
prior to the depositions is not of sufficient probative clarity as to make a
finding other than as indicated
"I take license to describe the scheduled taking of depositions as a
deposition hearing.
NEHI ROYAL CROWN CORP 101
a Simmons was one of a small number of employees
who initially contacted the Union in March 1967 The
evidence is overwhelming that thereafter Simmons was an
active and leading union adherent during the months
preceding the representation election held on May 9, 1967
Simmons' oral participation in the April 15, 1967,
"joint-meeting" of north- and south-side salesmen, in
which Passarelli participated clearly revealed to the
Respondent his interest in and active support of the
Union Simmons acted as one of two union observers at
the May 9, 1967, NLRB representation election
Thereafter, clearly known to the Respondent, Simmons
appeared as a witness at a deposition hearing on July 14,
1967, with respect to unfair labor practice charges against
the Respondent
b The evidence is overwhelming that the Respondent
knew of Simmons' union activity and his involvement in
April, May, June, and July 1967
c " A couple of weeks before the election (held on May
9, 1967), Supervisors Joe Lyng, John Swistowicz, and
Kenny Grieder were standing near the door to Davoren's
office 16 Davoren, who was in his office about 4 or 5 feet
away, remarked to the three supervisors that "he won't be
here long " It is clear from the circumstances that
Davoren was referring to Simmons
About a week before the election, Supervisor Palumbo
told Supervisor Grieder that he had been instructed to go
on Simmons' route and see what he could find wrong 17
Shortly thereafter, on several occasions, Grieder saw
Palumbo at places located in the route area serviced by
Simmons is
Approximately I week after the May 9, 1967, NLRB
representation election Supervisors Palumbo, Lyng, and
Grieder were standing near Passarelli's office when
Simmons passed Passarelli, who was nearby, remarked,
"The facts are based upon the credited testimony of Grieder Grieder
was a Respondent s supervisor at the time of the events in question At the
time of the hearing Grieder was no longer employed by the Respondent
Grieder indicated in his testimony that he left the Company because he felt
the supervisors were entitled to raises and he did not like to drive the
distances that he had to drive Grieder impressed me by his demeanor as a
frank forthright and truthful witness whose only interest was to tell the
facts as he knew them Grieder testified to the effect that Supervisors Lyng
and Swistowicz were present when Davoren made his remarks Grieder
testified to the effect that Palumbo and Lyng were present when Passarelli
made his remarks The General Counsel used Lyng who was still a
supervisor at the time of the hearing with respect to certain issues but not
as to this issue The Respondent did not call Lyng as its own witness in the
presentation of its case The Respondent used Palumbo and Swistowicz as
witnesses but not as to this issue I attach no significance to the General
Counsels not using Lyng as a witness to this issue While ordinarily I
might attach significance to Respondents failure to use Lyng Palumbo
and Swistowicz aswitnesses to this issue I do not do so The presentation of
this case by the General Counsel and the Respondent was done in such a
manner that I find it unrealistic to attach such significance I am convinced
that Grieder was the most reliable and credible witness of those who
testified to this issue I credit Grieder s testimony and discredit Davoren s
and Passarelh s denial thereof
"As indicated I found Grieder to be a truthful and credible witness The
questioning of Grieder and the conduct of both the General Counsel and
Respondent s counsel in their trial objections and responses thereto were of
such a nature that I am convinced that Grieder became confused in his
testimony on direct examination as to the timing of this event I find as he
testified to on cross examination that the event occurred at the time set
forth in the facts herein
"I credit Grieder s testimony to this effect I discredit Palumbo s denial
thereof Of the two witnesses Grieder was more impressive by his
demeanor as a frank , forthright truthful and honest witness
As I evaluate the evidence it is insufficient to reveal that in fact
Palumbo went on Simmons route for the purpose of finding something
wrong
"He won't be here long I will see to that "
d Subsequent to Davoren's questioning of Simmons
and others on July 14, 1967, about what transpired at the
July 14, 1967, deposition hearing, the Respondent entered
into a settlement agreement in Case 13-CA-7875 which
was approved on August 18, 1967 The terms of the
settlement agreement provided for compliance with the
terms of the agreement and the posting of a remedial
notice The terms of the agreement indicated that the
notice would be posted for 60 days and the term of
posting apparently ended around October 18, 1967 There
is no evidence that Simmons engaged in union or
concerted activity during this time Nor is there evidence
to indicate that he committed any act in relation to his
work which would create the remotest possibility for
reprimand or other similar action by the Respondent
Similarly, there is no evidence to indicate that the
Respondent engaged in any antiunion or other conduct
violative of the Act during this period of time Also, from
that point forward in time, there is no evidence to indicate
that Simmons engaged in union or protected concerted
activity until the date of his discharge Similarly, there is
no evidence that Simmons committed any act in relation
to his work which would create the remotest possibility
for reprimand or other similar action by Respondent until
the June 22, 1968, picnic incident Nor does the evidence
indicate any antiunion or other conduct violative of the
Act during this time up to the June 25, 1968, discharge of
Simmons
e There was much evidence submitted by the General
Counsel and Respondent concerning rules, rules relating
to fighting, and past action relating to fights The General
Counsel's witnesses testified to the total effect that the
Respondent had certain rules which from time to time had
been read or adverted to, or which had been posted, that
the rules they had seen were on separate sheets of letter
size paper or on yellow legal size paper, that the rules in
the form presented at the hearing by the Respondent were
never seen by them, and that they had never heard of a
Respondent rule against fighting The Respondent's
witnesses in general testified to the effect that the
Respondent had had a rule against fighting for several
years, that in early 1968 such rule and other rules had
been put together in the form submitted at the hearing,
and that when such was done it had been done so that
copies thereof could be given to all employees The
Respondent's witnesses testified to the effect that the rule
against fighting was the one set forth in this compiled set
of rules Davoren, one of the Respondent's top
supervisors, when first examined, testified that he had seen
this set of rules only shortly before the hearing in this case
in October 1968 Many of Respondent's witnesses testified
that this last compiled set of rules had been read to
employees several times in early 1968 and in June or July
1968 Most of the witnesses, except Harley, could not
recall whether they had read the fight rules themselves nor
could they identify who read the "fight" rules Harley,
Respondent's witness and a supervisor, testified in effect
that he had read the rules and the fight rules to employees
in early 1968 Harley, however, testified that the "fight"
rule that he had read was not the rule as set forth in the
rules the Respondent now contends were in effect, that the
rule he read simply said employees fighting would be
subject to dismissal
Subsequent to the discharge of Simmons and during the
investigation of this case by the Region, the Respondent
submitted on its stationery dated July 1, 1968, references
to two incidents of fights, the Respondent' s actions
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto, and reference to a rule to the effect that fighting
would not be tolerated on the premise.
There was evidence as to certain fight incidents among
employees and the fact that Respondent had discharged
such employees for fighting." With respect to the evidence
relating to employees discharged for fighting, such
evidence would be consistent with a finding of no rule at
all against fighting but normal exercise of judgment, with
a finding that there was a rule against fighting on the
premises, or with a finding of the rule contended by the
Respondent as being in effect. All of the employees
discharged for fighting were involved in fights on the job
excepting for one knifing incident involving an employee
riding with other employees on the way home. It is clear
that, even if the last incident were not covered by a rule,
the Respondent, absent discriminatory reasons, could have
discharged the employee involved.
I am convinced that the weight of the evidence requires
a conclusion that Respondent did not have in effect on
June 25, 1968, the rule against fighting which it contends
was in effect. This contended rule was as follows:
Disobedience- Fights
All sales personnel who intend to incite or to create a
disturbance by action, verbally or by fights shall be
subject to discharge. Any employee striking another
person shall be discharged immediately. If one person
or persons enter into the fight, the person or persons
striking the blows shall be subject to discharge. Abusive
or threating [sic] language, profanity to a customer, or
the employees supervisors shall be reason for discharge.
I find it hard to believe that the Respondent would have
compiled the rules (in the form contended in January 1968
for distribution to employees) and not have distributed
such copies to the employees shortly thereafter. It is clear
that copies of the rules had not been shown or distributed
to employees prior to June 25, 1968. I further find it hard
to believe that Davoren would have testified at one point
in his testimony that he had seen the set of rules
submitted only shortly before the October 1968 hearing in
this matter. I am convinced that Harley testified truthfully
when he said that the rule he read in early 1968 was not
the rule in the contended set of rules. The language in
Respondent's July 1, 1968, reference to fights and rules
indicate that the fight rule was designed for
on-the-premises problems. Considering all of the
foregoing, I am convinced, conclude, and find that the
Respondent's rule relating to fighting is not the one
presented in this hearing in document form.
The weight of the evidence, however, convinces me that
the Respondent did in fact have a simple rule to the effect
that employees who engaged in fighting on the premises or
at work would be subject to discharge. I am convinced
that this rule was read to some employees by Harley. The
evidence is not convincing, however, that this rule was
read often or emphasized. I am convinced that the
General Counsel's witnesses' denial of having heard of a
rule against fighting is because it was not read to all
employees and was not greatly emphasized in reading.
Further, I am convinced from the positions each held that
it would have been passed off as not being likely to occur
with respect to himself.
There was also evidence, and I find such evidence
credible and so credit, that Respondent had rules against
"The General Counsel ' s brief refers to the failure of Respondent to
discharge an employee Womach for fighting . The evidence thereto was
hearsay in nature, was objected to, and was stricken
"shortages" and against use of profanity toward
supervisors.
With respect to the rule against shortages, the evidence
reveals that there was an employee with `shortages" who
had not been discharged. I credit Passarelli's testimonial
explanation that the employee was not discharged because
of a desire to recoup the shortages. The evidence as to the
rule on "shortages" and the failure to discharge the
employee for shortages, therefore, has no persuasive value
with respect to the issue in this case
f 20 Prior to June 1968 there had been for some years an
annual picnic for personnel of the Nehi-Royal Crown
Corporation. Prior to June 1968 management personnel
started the impetus for the annual picnic in 1968. Thus it
may be said that the planning and preliminary details for
the June 1968 picnic for personnel of Nehi-Royal Crown
Corporation was done by management. Management
caused a permit to be secured for use of the Dan Ryan
Woods and made arrangements for food. It may be said
that management provided the impetus but that the
impetus was in somewhat of a suggestive manner with
employees having a degree of approval. Thus employees
contributed $15 each for the costs of the picnic.
Management contributed certain prizes for the picnic.
These prizes had been awarded the Respondent as prizes
in a contest sponsored by American Can Company in
relationship to the sale or usage of American Can
Company products. These prizes had been given to
Passarelli, for the Respondent, by the American Can
Company without instructions or restrictions on his usage
or disposition thereof. It appears that Passarelli's decision
to distribute such prizes at the annual picnic was in
recognition of the employees' work in connection with
such contest. In any event Passarelli did decide and did
distribute such prizes at the June 22, 1968, annual picnic.
It may be said that the background of facts of the
annual picnic would lead to a conclusion that the annual
picnic was a practice that the employees could rely on
continuing . On the other hand there are no facts to
suggest that the employees were compelled to participate
in such fringe "benefit" of employment.
"The facts are based upon a composite of the credited testimony of all
witnesses who testified with respect to the picnic and fight As to the
testimony with respect to what Cooksley said and to the fight , there is
conflict The testimony of all witnesses reveal that Cooksley's conduct
created a problem. Freeman , Clawson, O'Donnell, Paris, and Simmons all
testified to Cooksley' s using extremely profane and offensive language at
the picnic and directing such language toward Simmons . Soltis' testimony
as to the incidents was generalized and has little value in determining the
facts Noti testified to Cooksley's use of profanity but not to the precise
words attributed to Cooksley by Freeman and the others . Krolak testified
to the extent that he heard Cooksley use profanity but not the words
attributed to Cooksley by Freeman and the others Harley testified to what
he heard, but his questioning as to detail leaves the question open as to
whether words may have been used that he did not hear. Cooksley as a
witness was unimpressive , and I am not convinced that he actually could
recall much that occurred . Weil's testimony indicated that he was at the
picnic for such a short time that much could have gone on that he did not
know about Davoren and Passarelli, in their testimony to this event,
appeared reluctant to go into detail and were somewhat evasive Graebner
as a witness did not appear to be strong or forthright As is obvious, at a
picnic there is much activity and a witness may hear only part of what
goes on . Considering the demeanor of the witnesses and the logical
consistency of all of the evidence, I am convinced that Freeman, Clawson,
O'Donnell , Paris, and Simmons were frank , honest , and truthful witnesses
to the events and credit their testimony as to what Cooksley said. I
discredit the testimony of Passarelli, Davoren, Cooksley, and Graebner,
which appears contradictory thereof, because of demeanor and logical
consistency of the evidence I discredit the testimony of Harley and Krolak
to the extent that it may be argued to contradict the facts found on the
basis of unreliability as in relation to specific words used.
NEHI ROYAL CROWN CORP. 103
At this picnic, in addition to food, soft drinks, beer,
and sundry games, there was a softball game between the
north- and south- side salesmen . The participants in this
game had made a bet of $10 each on the outcome of the
game.
Attending this picnic were management personnel,
supervisors, employees, and wives and children of the
foregoing. As indicated, there was beer available for those
at the picnic and some of the employees drank beer during
the picnic. One employee named Doss apparently drank
too much beer and as a result lost control of proper
discretion in the language he used. Harley, around the
fifth inning, took Doss away from the picnic to his home.
Employee Cooksley also drank too much beer and as a
result lost control of proper discretion in the language he
used. Cooksley's language became more offensive as the
softball game progressed and especially after the fifth
inning. Respondent's supervisors took him out of the
softball game but allowed him to stay near the first base
position on the sidelines. Cooksley referred to Supervisor
Passarelli in an offensive way but Passarelli passed the
remark off.
As indicated at this picnic Cooksley, an employee from
the "north side," used language in the presence of fellow
employees and wives and children of employees which
clearly reached a very offensive stage. Much of his
language of offensive quality was directed toward
Simmons, an employee from the "south side "
The verbal abuse that Cooksley showered upon
Simmons occurred during the playing of the softball game
and continued for a number of innings." Finally,
Simmons indicated to Cooksley that he had stood all that
he could stand and that he was going to smack him when
the third out came. Cooksley, who was near Simmons
who was playing first base, replied in continued offensive
language that he would be there. After the third out
ensued , Simmons proceeded to hit and to knock Cooksley
unconscious.
Passarelli, Davoren, and others proceeded to calm
things down. In remarks made at the time both Passarelli
and Davoren indicated to Simmons that he should not
have done what he did and that it would mean his job.
Cooksley and Simmons apologized to each other for their
conduct.
g. On Monday, June 24, 1968, Simmons went to work
as usual Simmons attended the morning sales meeting
and thereafter went out on his route. That night Davoren
telephoned Simmons at home. Davoren in effect told
Simmons that they were in trouble as a result of the
Saturday incident and that he should come in and see him
the next morning.
h. On Tuesday, June 25, 1968, Simmons went in to see
Davoren and saw him in a Mr. Schultz' office. Davoren
told Simmons that in his position he had to do a lot of
things he did not like to do, that what he was about to tell
Simmons he did not like to tell him, but that he had no
alternative but to fire him. Simmons pleaded with
Davoren for his job.22 Davoren told Simmons that he
could not do anything about the matter, that Weil made
the final decision. Simmons asked Davoren if it would do
any good for him to see Well. Davoren told Simmons that
it might do some good but that he would have to wait
until the next day to see Weil.
"The language used by Cooksley was so offensive that it is not set forth
herein Suffice it to say that it was such that one should not blame
Simmons for his reaction thereto.
"Exactly what was said was not testified to.
Simmons went out and helped the supervisors, who
were running his route, to run the route for the rest of the
day.
The next day, June 26, 1968, Simmons saw Davoren
prior to seeing Weil. Davoren told Simmons that he was
going to have to be away on business but to see him later
also. Simmons then went in to see Weil in Weil's office.
Simmons spoke to Weil and asked for a few days'
suspension instead of a discharge. Simmons referred to
past incidents as to other employees where layoffs had
been used. During the conversation Weil mentioned twice
that the discharge of Simmons had nothing to do with
what Simmons had been involved in last year (1967).
Simmons replied that he had not brought that matter up.
Weil told Simmons in effect that the decision to discharge
him was final.:"
i. In summary, with respect to the contentions and
conclusions, the following is set forth.
The complaint alleged in effect that the discharge of
Simmons on June 25, 1968, was because of union activity
and because he had filed charges or given testimony under
the Act. The complaint places in issue conduct violative of
Section 8(a)(3) and (4) of the Act. In my opinion the
evidence is speculative as to whether the Respondent was
thinking in terms of Simmons' deposition appearance at
the time of his discharge. The General Counsel apparently
agrees because his contention in his brief is directed
specifically to a discharge because Simmons engaged in
union activity.
The General Counsel contends in effect that the totality
of the evidence reveals that Simmons was discharged on
June 25, 1968, because of his past union activities. The
General Counsel argues that the evidence of Simmons'
union activities, the Respondent's knowledge of such
activities, the Respondent's acts violative of Section
8(a)(1), the Respondent's expressed hostility toward
Simmons made in connection with his union activities,
and the disparate treatment of Simmons with respect to
the picnic fight incident reveal conduct violative of Section
8(a)(3) of the Act. Certain of the General Counsel's
factual contentions, not referred to above, have already
been disposed of.
The Respondent contends that Simmons was discharged
for cause, was discharged for violation of a contended rule
against fighting, and that Simmons was not
discriminatorily discharged.
Considering all of the facts set forth herein, I find merit
in the General Counsel's contentions and lack of merit in
Respondent's contentions.
The facts do not support a discharge for cause defense.
The incident for which Simmons was discharged occurred
on nonworktime, off premises, and certainly was not in
connection with his job duties. Nor do the facts support a
finding that Simmons was discharged for violating a rule
against fighting. The credited facts reveal that the
Respondent's rule against fighting was with reference to
employees on the premises or on the job. It is clear that
the rule was not applicable to the June 22, 1968, picnic
incident. Furthermore, at the picnic neither Davoren nor
Passarelli referred to the rule in talking to Simmons, nor
did Davoren or Weil refer to the rule in talking to
Simmons later with respect to his discharge. Even were I
to accept the Respondent's contended rule against
fighting, the overall evidence would reveal the intent of the
rule to apply only to employees on the premises or on the
job. It is thus clear that Simmons was not discharged for
"The facts are based upon Simmons ' credited testimony.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of a rule.
I am convinced from a consideration of all of the facts
that the Respondent discharged Simmons on a
pretextuous basis because of fighting, later decided to use
a rule as a pretextuous reason, realized its rule was not
applicable, and devised a new rule that would appear
applicable.
The facts simply reveal that the Respondent discharged
Simmons allegedly because of fighting. The question is
Respondent's motivation in such discharge.
The evidence clearly reveals that Simmons was a
leading spokesman for the Union in March, April, May,
June, and July 1967, that Respondent knew of this, that
Respondent was opposed to unionization and interfered
with its employees' rights in violation of Section 8(a)(1) of
the Act, and that Respondent expressed hostility about
Simmons because of his activities and revealed a desire to
get rid of him. Intervening facts between such activities
and June 22, 1968, reveal no opportunity for Respondent
to have an alleged basis to get rid of Simmons.
Respondent's acts in August and October 1968 reveal
continued opposition to employees' rights under the Act.
The Respondent's treatment of Simmons by discharging
him as compared to no action against Cooksley reveals
disparate treatment and is evidence of discriminatory
intent. Cooksley's extremely provocative and vulgar
language certainly warranted equal, if not harsher,
disciplinary action.
One of Respondent's testimonial contentions was that
because of mixed employee groups it felt it had to be rigid
in its rule for discharge because of fighting This
contention does not hold up in view of the disparate
treatment of Simmons and Cooksley.
Considering all of the facts and the foregoing, I
conclude and find that the evidence establishes that the
Respondent was discriminatorily motivated in the
discharge of Simmons on June 25, 1968. Accordingly, I
conclude and find that the Respondent by such conduct
violated Section 8(a)(3) and (1) of the Act.2°
2. Other postsettlement conduct
a. The events of August 16, 1968
On or about August 16, 1968, employee Eugene
O'Donnell, a driver-salesman, had a conversation with
Supervisor John Swistowicz.26 What occurred is revealed
by the following credited excerpts from O'Donnell's
testimony.26
Q. And do you recall about how long ago this
conversation took place?
A. I would say around August 15th or 16th, in
around there.
A. I brought back three stops I was unable- I was
unable to finish them on the route.
* * * * *
A. Accounts that I was supposed to do that day. I
brought back -
A. I walked in and I told him, I said, "John, I got
three stops."
And Mr. Spiotto started, said, "You can't handle the
route " And various things.
And John Swiss says, "That's right, you can't handle
the route. Give us your stops. You know what the rules
are."
I told Mr. Swiss, I said, "John, I do know what the
rules are. These -- there is a question whether these are
my stops or not." I says, "I will run these stops." I
says, "I will take the commission on all pop put in
these stops in the last six months."
Mr. Swiss said, "You are going to run these stops or
you ain't going to work."
We went out in the drivers' room, got out there, took
two steps and says, "O'Donnell, I am sick and tired of
you bringing the union in every time we have a
grievance "
I said, "John, I am going to run these stops, but I
want the commission on them for the last six months."
Q Do you recall anything else being said at that
time?
A. He said he is going to find out about this, and
that was it. He dropped it.
Considering the foregoing, I conclude and find that the
Respondent, by Supervisor Swistowicz, coercively
interfered with O'Donnell in the exercise of Section 7
rights. Such conduct is violative of Section 8(a)(1) of the
Act. I so conclude and find.
b. The events of October 9, 196827
On October 7, 1968, Dusek, a driver-salesman for the
Respondent, encountered a problem while making
deliveries to a Mayflower store in the Chicago area. At
the time Dusek was making his delivery there were drivers
present from other companies (Coca-Cola and Pepsi
Cola). The Mayflower receiving clerk told Dusek and the
other drivers to move their trucks immediately because a
Mayflower truck was coming in. Dusek told the receiving
clerk that he had to finish his delivery. The clerk
responded, "You get your truck out of here now."
On October 8, 1968, Dusek attended a union meeting
(Teamsters). At this meeting there were other Respondent
drivers as well as drivers from other companies. The
foregoing Mayflower incident was discussed with Dusek
taking an active part therein. The union president was
requested to and stated that he would take care of the
problem.
Prior to the foregoing incident, Dusek had had similar
problems at Mayflower. About 9 to 12 months before
October 1968, Dusek had reported such problems to his
supervisor, Chuck Fanson. Fanson had indicated that
there was nothing that could be done about the problem
although he spoke sympathetically about the problem to
Dusek.
On an occasion prior to this Dusek and other
Respondent's drivers had been at a union meeting in
which Dusek had voiced a grievance on behalf of a driver
named Ceroti. Later, Passarelli had called Dusek into his
"Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059.
"Referred to in the complaint and testimony as John Swiss.
"Swistowicz as a witness did not appear to have a reliable memory of
the event . To the extent that it differed from O' Donnell's version it is
discredited because of unreliability
"The facts are based upon a composite of the credited testimony of
Dusek , Weil, and Passarelli and the logical consistency of the evidence.
Well's testimony on direct largely corroborates Dusek ' s. I discredit
Passarelli' s and Weil's testimony inconsistent with the facts found. I
discredit Weil's and Passerelli' s testimony to the extent the Respondent did
not know of the union meeting before this event.
NEHI ROYAL CROWN CORP. 105
office and said, "Come here, Crusader," had asked Dusek
why he took it on himself to stick up for Ceroti, had
asked Dusek who did he think he was questioning the
union president, and had told Dusek that he should not
interfere because Ceroti was a southside driver and that he
should not be misled by those "guys."
On October 9, 1968, Passarelli received a telephone call
from Graebner, the salesman who handled Dusek's route.
Graebner told Passarelli that the Respondent had a
problem at the Mayflower Food Store, that they could
lose all or part of the business. Graebner related that the
Mayflower grocery manager had told him that Dusek had
talked the Pepsi Cola and Coca-Cola drivers into not
making deliveries to the store unless the situation was
cleared up. The problem as indicated was about such
drivers having to move their trucks so that other trucks
could be moved in their place for unloading.
Passarelli called the Mayflower grocery manager. The
Mayflower grocery manager stated that he was quite
upset, that if Dusek had come to him that he might have
been able to do something about the matter, and that he
did not want problems with the Coca-Cola, Pepsi, or
Royal Crown (Respondent) drivers.
Passarelli thereafter related to Weil the effect of his
conversation with Graebner and the Mayflower grocery
manager.
Thereafter on October 9, 1968, Dusek found a note on
his spindle at work which set forth that he was not to
leave on Thursday a.m. (October 10, 1968) without seeing
Passarelli. On October 10, 1968, Dusek saw Passarelli
who told him that President Weil wanted to see him and
Union Steward Mrowek.
Shortly thereafter there was a meeting in Weil's office
with Dusek, Weil, Passarelli, and Mrowek in attendance.
Weil started the meeting by asking what had happened
at Mayflower. Dusek told him that nothing had happened.
Passarelli stated that the Company was having trouble
with Mayflower because the drivers had gotten together
concerning having to move their trucks for trucks
Mayflower felt more important. Passarelli stated that he
had heard through his salesmen that Mayflower was
contemplating cutting down on Respondent's business.
Passarelli asked if Dusek had gone around talking to the
other drivers and gotten together with the other drivers
and talked to the Union about having the Union
straighten the matter out. Union Steward Mrowek stated
in effect that the Mayflower incident must have been what
the Coca-Cola driver had referred to at the union meeting.
Dusek said at that point, "Yeah, and I backed up the
Coca-Cola driver too. You don't know what we have to
go through backing up our trucks and pulling out for a
produce truck, meat truck or dairy truck."
What then occurred is revealed by the following
credited excerpts from Passarelli's credited testimony.
A I mean Mr. Weil says, "I am paying you to make
the delivery, so what is the difference if we wait a little
longer?"
He said - gave his opinion why he shouldn't. He could
make more stops, et cetera, et cetera.
So I turned around then and I said , something to the
effect, "Why don't you quit?" I said, "You have had so
many problems with me in the last four or five years,"
I said , "Why don't you just quit. I will give you a
couple extra weeks' vacation pay. I will give you a
letter of recommendation."
I never bum rapped a guy once he left my company.
I never bum rapped or refused the man a letter.
He says, "I like my job."
I said, "If you like your job, why the hell don't you
do a good job and stay out of trouble?"
Under a different factual situation the Respondent
might defend on the basis of motivation because of
legitimate business interests. The instant case, however,
does not support such defense. The facts herein clearly
support a finding that Respondent was irritated because
Dusek had carried his grievance to the Union,
interrogated Dusek about his activities at the union
meeting, revealed knowledge of such union meeting, and
strongly suggested that Dusek quit. It is true that the
conversations took place in the presence of a union
steward. Considering the nature of the threat, however,
little weight is given this fact. As I see the total
conversation, it reveals that it was done in a coercive
manner. Thus it is clear that the interrogation of Dusek as
to his concerted and union activities was done in a manner
constituting interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act. It is also clear that
the revelation of knowledge as to the union meeting was
done in such a manner as to create an impression of
surveillance as to union activities. And it is also clear that
the strongly suggested "quit" was tantamount to a threat
to discharge Dusek because of his union activities. Such
conduct, as indicated, is violative of Section 8(a)(1) of the
Act. I so conclude and find.
c. The events of August 1968 ="
The General Counsel alleges in complaint paragraph
VI(v) that "[d]uring the months of August, September
and October, 1968, Frank Passarelli coerced, interfered
with, and threatened to discharge employees because they
were engaging in protected concerted and/or union
activities."
From time to time for at least about 4 years, some of
the employees of Respondent went to Tureks Tavern,
located close to the plant. The occasions were not
preplanned meetings. On such occasions, after work, such
employees discussed the events of the day. Thus, there was
discussion of their working conditions such as loading
problems, and waiting in line . From time to time some of
the Respondent's employees also frequented other taverns
close to the plant.
As would appear obvious, some of the employees who
frequented these taverns drank alcoholic beverages. Some
of the employees played pool for money and some of the
employees played cards.
During the 4-year period preceding August 1968 the
Respondent by one means or another had reason to
believe that some of its employees were drinking at said
taverns and not going home within a reasonable time after
work. When some of the employees' wives telephoned
Respondent and inquired as to where their husbands were,
the Respondent believed them to be in the nearby taverns.
Some employees showed up to work in a condition (from
drinking) that Respondent did not desire in its employees.
The Respondent also had reason to believe that some of
its employees were gambling in the referred to taverns.
During the same 4-year period the Respondent had reason
to believe that some of its employees were stealing from
the Respondent and its customers. The Respondent also
had reason to believe that some of the plans for such
believed stealing and some of its drivers' shortages arose
"The facts are based upon the credited testimony of Dusek, Noti,
Davoren , and Passarelli
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in discussions by some employees in the taverns and
flowed from activities in the taverns
During the 4-year period preceding August 1968,
Respondent's supervisors, from time to time, advised
employees not to frequent the said taverns At various
times the Union representing Respondent's drivers told
the Respondent that the Respondent had no right to tell
the employees to stay out of said taverns
Sometime in August 1968 Passarelli left a note for
Dusek as follows
It has come to my attention that you are patronizing
taverns in or around the plant I would advise you to
stop this practice or you may be in trouble You can
take this advice or leave it, but only you will suffer the
consequences
Frank
The General Counsel apparently contends that the facts
of employees' discussing (at the taverns) working
conditions and problems, coupled with the foregoing note,
and Passarelli's remark to Dusek about being a
"crusader" concerning the voicing of a grievance about
Ceroti at a union meeting add up to a finding that the
note constituted a threat to discharge employees because
of protected concerted and/or union activities
Considering all of the facts, I find that the General
Counsel's evidence does not rise beyond the stage of
suspicious speculation I am convinced and conclude and
find that the evidence is insufficient to support a finding
of violation as alleged
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by the discriminatory discharge of
James W Simmons, it is recommended that Respondent
offer to him immediate and full reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of such discrimination by payment of a
sum of money equal to that which he normally would
have earned as wages from the date of discharge to the
said offer of reinstatement, less his net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F W
Woolworth Company 90 NLRB 289, 294, and with
interest thereon as prescribed by the Board in Isis
Plumbing & Heating Co 138 NLRB 716
As the unfair labor practices committed by the
Respondent were of a character which go to the very heart
of the Act, it is recommended that the Respondent cease
and desist therefrom and cease and desist from infringing
in any other manner upon the rights of employees
guaranteed by Section 7 of the Act
CONCLUSIONS OF LAW
I Nehi-Royal Crown Corporation is an employer
within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Liquor and Wine Salesmen's Union Local 62,
Distillery, Rectifying, Wine and Allied Workers
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4 By discriminating in regard to the hire and tenure of
employment of employees thereby discouraging
membership in or activities on behalf of a labor
organization, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that Respondent, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Discouraging membership in or activities on behalf
of Liquor and Wine Salesmen's Union Local 62,
Distillery, Rectifying, Wine and Allied Workers
International Union, AFL-CIO, or in any other labor
organization of its employees, by discharging or otherwise
discriminating in regard to the hire or tenure of
employment or any terms or conditions of employment of
any of its employees
(b) Interrogating employees concerning their or other
employees' union affiliations or protected activities in a
manner constituting interference, restraint, and coercion
within the meaning of Section 8(a)(1) of the Act
(c) Threatening its employees with discharge, loss of
earnings, loss of jobs, or other reprisals because of their
activity on behalf of any labor organization
(d) Creating the impression of surveillance of its
employees' union activities by informing them of their
knowledge of such activities in a manner constituting
interference, restraint, or coercion within the meaning of
Section 8(a)(1) of the Act
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer to James W Simmons immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority and other rights
and privileges
(b) Make whole James W Simmons for any loss of pay
he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal
to the amount he normally would have earned as wages
from the date of his discharge to the date of Respondent's
offer of reinstatement in the manner set forth in the
NEHI ROYAL CROWN CORP. 107
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant or necessary to the determination of the
amounts of backpay due and to the reinstatement and
related rights provided under the terms of this
Recommended Order.
(d) Post at its premises in Chicago, Illinois, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.3°
IT IS FURTHER RECOMMENDED that , excepting for the
allegations relating to conduct found violative of the Act,
the other allegations of violative conduct be dismissed.
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer James W. Simmons immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any
loss of pay he may have suffered by reason of the
discrimination against him.
WE WILL NOT discourage membership in or activities
on behalf of Liquor and Wine Salesmen's Union Local
62, Distillery, Rectifying, Wine and Allied Workers
International Union, AFL-CIO, or in any other labor
organization of our employees by discharging or
otherwise discriminating in regard to their hire or
tenure of employment or any term or condition of
employment of any employee.
WE WILL NOT interrogate our employees concerning
their or other employees' union affiliation or activities
in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT threaten our employees with: discharge,
loss of earnings, loss of fobs. or other reprisals because
of their activities on behalf of any labor organization.
WE WILL NOT create the impression of surveillance of
our employees' union activities by informing them of
our knowledge of such activities in a manner
constituting interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
All our employees are free to become or remain or to
refrain from becoming or remaining members of Liquor
and Wine Salesmen's Union Local 62, Distillery,
Rectifying, Wine and Allied Workers International Union,
AFL-CIO, or any other labor organization.
NEHI-ROYAL CROWN
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7570.