Southwest Distributing Co.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 954 (N.L.R.B. 1991)

954
301 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The General Counsel and the Respondent have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resoultions unless the clear preponder-
ance of all the relevant evidence convinces us they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
In finding that the Respondent violated Sec. 8(a)(1) when Supervisor Gay
made a comment to employee Johle to the effect that Johle would get a better
route if the Union lost the election, the judge found that Supervisor Gay had
not addressed this conversation in his testimony. The record shows that Gay
did testify about this matter. We find it unnecessary, however, to pass on
whether Gay’s testimony constituted a denial warranting dismissal of this alle-
gation as this 8(a)(1) finding would be cumulative and would not affect the
remedy.
The General Counsel alleged that the Respondent violated Sec. 8(a)(1) by
Supervisor Horner’s telling employee Tharp that Tharp had been ‘‘set up’’ be-
cause of his pursuit of a grievance. Horner denied making the statement and
testified that it was Tharp who remarked that he had been set up and that
Horner had made no reply. Crediting Horner, the judge dismissed the 8(a)(1)
allegations. In assessing the evidence concerning the alleged discriminatory
discharge of Tharp, however, the judge drew an adverse inference from
Horner’s failure to reply to Tharp’s assertion at the time, and considered his
silence to be an admission that Tharp had, in fact, been set up. We do not
adopt the judge’s finding that Horner’s silence constituted an admission that
Tharp had been set up. In affirming the judge’s recommended dismissal of this
8(a)(1) allegation, we rely only on his finding that Supervisor Horner did not
make the allegedly unlawful statement in question. We do not rely on the
judge’s rationale set forth in his fn. 122.
In affirming the judge’s finding that the Respondent’s vice president Hayes
unlawfully solicited employee Lyons to sign a decertification petition and a
letter of resignation from the Union, we do not rely on the subjective evidence
contained in Lyons’ testimony about his personal reasons for signing those
documents.
3 Interest will be computed as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Southwest Distributing Company, Inc. and Brewery,
Soft Drink, Industrial & Allied Workers, a/w
International Brotherhood of Teamsters, AFL–
CIO,1 Local Union 1111 and Rodney I. Lyons
and Richard D. Jackson. Cases 23–CA–9824–1,
23–CA–9824–2, 23–CA–9824–3, 23–CA–9835,
23–CA–9835–2, 23–CA–10115–1, and 23–CA–
10115–2
February 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On August 11, 1986, Administrative Law Judge
Richard J. Linton issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief, the Respondent filed exceptions and a
supporting brief, the Charging Parties filed limited ex-
ceptions and a supporting brief, the Respondent filed
an answering brief to the General Counsel’s exceptions
and another to the Charging Parties’ exceptions, and
the Charging Parties filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, to modify the remedy,3 and to adopt the rec-
ommended Order as modified.
The Respondent argues that certain 8(a)(1) and (3)
allegations considered by the judge are barred by Sec-
tion 10(b) of the Act. On September 25, 1985, the
General Counsel issued a fourth amended consolidated
complaint (the complaint) in this proceeding which al-
leged for the first time that the Respondent violated
Section 8(a)(1) of the Act during June through Sep-
tember 1984, as follows:
Paragraph 10: Soliciting an employee to file a
decertification petition and rewarding him with a
promotion for doing so.
Paragraph 12: Causing the initiation and cir-
culation of Union dues check off revocations, and
encouraging employees to execute such revoca-
tions; and also providing job assistance to an em-
ployee to give him more time to solicit signatures
on the decertification petition during working
time.
Paragraph 13: Telling an employee that help
was needed in demonstrating to the Respondent’s
owner that there were black employees getting out
of the Union.
Paragraph 14: Telling an employee that the
time was approaching when the decertification pe-
tition would have to be filed, and directing that
employee to the employee who was in possession
of the petition at that time.
Paragraph 15: Interrogating an employee about
his failure to abandon his Union membership.
Paragraph 16: Soliciting an employee to sign a
dues check off revocation, and promising him un-
specified benefits if he did so.
Paragraph 17: Promising an employee that he
would receive an improved route if the Union lost
the decertification election.
Paragraph 18: Interrogating employees about
how they had voted in the decertification election.
None of the above allegations was contained in un-
fair labor practice charges or previous complaints.
The judge dismissed the allegations in paragraphs 10
and 12 but found that the Respondent violated Section
8(a)(1) of the Act as alleged in paragraphs 13 through
18. We affirm the judge’s substantive resolution of
these allegations, except as noted in footnote 1 above.
The September 25, 1985 complaint also alleged in
paragraph 26 for the first time that, inter alia, employ-
ees J. Holliday, Hartman, and Strange had been dis-
charged in violation of Section 8(a)(3) and (1) in late
October and November 1984. These discharges were
the subject of separate unfair labor practice charges in
955SOUTHWEST DISTRIBUTING CO.
4 Sec. 10(b) of the Act provides in pertinent part as follows: ‘‘[N]o com-
plaint shall issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board . . . .’’
5 The September 1984 charges in Cases 23–CA–9824–1, –2, –3, and –4 al-
leged the August 1984 unlawful discharges of employees Lofton, Rice, Tharp,
and Riley, respectively. The September 1984 charges in Cases 23–CA–9835
and 23–CA–9835–2 alleged the September 1984 unlawful discharges of em-
ployees Kimbrough and F. Holliday, respectively. The November 1984 charge
in Case 23–CA–9885 alleged the November 1984 unlawful discharges of em-
ployees Spina and Montgomery. Cases 23–CA–9824–4 and 23–CA–9885 were
ultimately severed from this proceeding. Case 23–CA–9835 was also for a
time severed from this proceeding, but was subsequently rejoined.
late 1984 and early 1985, but the charges themselves
were withdrawn or dismissed and were not reinstated.
The judge dismissed the allegation that Hartman was
unlawfully discharged but found that J. Holliday and
Strange were discharged in violation of Section 8(a)(3)
and (1), as alleged. We affirm the judge’s substantive
resolution of these allegations.
As a procedural matter, the Respondent argued to
the judge and contends before us on exceptions that
the above allegations in paragraphs 10 and 12 through
18, and 26 regarding J. Holliday, Hartman, and Strange
are time barred by Section 10(b) of the Act.4 For the
reasons discussed below, we affirm the judge’s find-
ings that these allegations were not time-barred by
Section 10(b).
There were seven outstanding charges filed by the
Union from September 4 through November 18, 1984.
Each charge alleged one or more discharges in viola-
tion of Section 8(a)(3) of the Act. All the alleged dis-
charges in these charges occurred from August through
November 1984.5 The theory of these charges as de-
veloped through the litigation of these cases was that
the Respondent was ridding itself of the union sup-
porters in the aftermath of its close victory in the de-
certification campaign. All the conduct described
above which the Respondent alleges is time-barred oc-
curred within 6 months of the timely filed charges.
Thus, the issue we must address is whether these alle-
gations are closely related to the allegations set forth
in the timely filed charges.
Initially, we note that the withdrawal of J.
Holliday’s and Hartman’s respective unfair labor prac-
tice charges, and the dismissal of Strange’s charge by
the Regional Director, do not preclude the subsequent
inclusion of these allegations in the complaint if they
are ‘‘closely related’’ to timely filed charges. Subse-
quent to the judge’s issuance of his decision, the Board
held in Redd-I, Inc., 290 NLRB 1115 (1988), under
similar procedural circumstances, that it would apply
the ‘‘closely related’’ test to determine whether an
amendment to the complaint is barred by Section
10(b), and that the closely related doctrine would be
applicable regardless of whether an earlier charge en-
compassing the untimely complaint allegation was
itself withdrawn or dismissed. Ibid. Thus, if the
amendment is closely related to allegations in a timely
charge it is not time-barred.
In Redd-I, the Board said that in applying the
‘‘closely related’’ test to determine the propriety of
complaint amendments it would consider the fol-
lowing: (1) whether the otherwise untimely allegations
are of the same class as the violations alleged in the
pending timely filed charge; (2) whether the otherwise
untimely allegations arise from the same factual situa-
tion or sequence of events as the allegations in the
pending timely filed charge. The Board also indicated
that it might consider whether a respondent would
raise the same or similar defenses to both allegations.
Ibid. The Board subsequently elaborated in Nickles
Bakery, 296 NLRB 927 fn. 6 (1989), that it will not
rely on a respondent’s mere claims of different lawful
reasons for taking different actions alleged in the com-
plaint as unlawful, but will look to whether the timely
and otherwise untimely allegations allege the same un-
lawful object.
Applying these principles to the instant situation, we
find that the alleged discriminatory discharges of J.
Holliday, Hartman, and Strange are sufficiently closely
related to the alleged discriminatory discharges in the
timely pending charges described above to permit the
inclusion of these amendments to the complaint.
First, the discharges of J. Holliday, Hartman, and
Strange are based on the same legal theory and the
same section of the Act as those allegations of dis-
charge in the timely filed charges. They were all part
of the Respondent’s alleged attempt to rid itself of
union supporters in the aftermath of the Union’s defeat
in the July 1984 decertification election, in violation of
Section 8(a)(3) and (1) of the Act. Second, the allega-
tions pertaining to J. Holliday, Hartman, and Strange
arise from the same factual situation or sequence of
events as the allegations in the timely pending
charges—the Respondent’s discharges of union sup-
porters during the 4-month period following the
Union’s defeat in the decertification election, for the
alleged purpose of ridding itself of union supporters
from its midst. Finally, although the Respondent has
asserted a different reason for discharging J. Holliday,
Hartman, and Strange (failure to report vehicular acci-
dents) than it asserted as the reason for discharging the
other employees in question during this time period
(failure to remove stale beer), the judge found, at least
with regard to J. Holliday and Strange as well as the
discriminatees named in charges, that the Respondent’s
asserted reasons were pretextual and that the allegedly
unlawful motive was the true reason for their dis-
charge. See Nickles Bakery, supra at fn. 6; Davis Elec-
trical Constructors, 291 NLRB 115 fn. 9 (1988).
Under these circumstances, the allegations pertaining
to the discharges of J. Holliday, Hartman, and Strange
were sufficiently closely related to pending timely
charges to permit their inclusion in the complaint, and
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We note that none of the unfair labor practice charges in this proceeding
alleges any independent violations of Sec. 8(a)(1); they allege only the 8(a)(3)
and (1) discharges discussed above. In addition to complaint pars. 10 and 12
through 18 in question here, complaint pars. 8 and 19 through 25 also contain
independent 8(a)(1) allegations, which are not procedurally challenged by the
Respondent.
7 The fact that the timely 8(a)(3) charge allegations and the otherwise un-
timely 8(a)(1) complaint allegations invoke different sections of the Act does
not preclude a finding that they are based on essentially similar legal theories.
Nickles Bakery, supra at fn. 5. 1 M. Lichtheim, 1 Ancient Egyptian Literature 97, 100 (1973; 1975 ed.).
Section 10(b) of the Act therefore did not bar those al-
legations.
The Respondent also asserts that the June–Sep-
tember 1984 violations of Section 8(a)(1) contained in
paragraphs 10 and 12 through 18 of the September 25,
1985 complaint, as summarized above, are time-barred
by Section 10(b).6
At the outset, we do not rely on the preprinted ‘‘By
the above and other acts’’ language on the Board’s
standard unfair labor practice charge form. In Nickles
Bakery, supra, issued after the judge’s decision, the
Board discontinued its reliance on this preprinted lan-
guage as procedurally sufficient support for particular-
ized 8(a)(1) complaint allegations where there has been
no showing of factual relatedness between the com-
plaint allegation in question and the particularized alle-
gations in the underlying unfair labor practice charge.
In Nickles, the Board stated that it would apply the
‘‘closely related’’ test set forth in Redd-I, supra, to
8(a)(1) allegations.
Applying the Redd-I ‘‘closely related’’ analysis, we
find that the 8(a)(1) allegations in complaint para-
graphs 10 and 12 through 18 were closely related to
the pending timely charges to permit their inclusion in
the complaint, and that Section 10(b) of the Act there-
fore did not bar those allegations.
First, the 8(a)(3) discharge allegations in the timely
filed charges involve the same legal theory as the oth-
erwise untimely 8(a)(1) allegations in question. Thus,
the alleged unlawful activity was assertedly part of the
Respondent’s overall plan of aggressively undermining
employee support for the Union, encouraging support
for the decertification movement, ridding itself of the
Union, and then cleaning house of employees who had
supported the Union or who had not supported the de-
certification movement.7
Second, the 8(a)(1) allegations arise from the same
factual situation and sequence of events occurring dur-
ing the same time period as the 8(a)(3) discharge alle-
gations.
Further, the alleged 8(a)(1) acts in question, which
assert substantial union animus, are clearly closely re-
lated to the timely alleged 8(a)(3) discharges. Accord-
ingly, we find under Redd-I that these 8(a)(1) allega-
tions are not barred by Section 10(b) of the Act. Be-
retta U.S.A. Corp., 298 NLRB 232 (1990).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Southwest
Distributing Company, Inc., Houston, Texas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
Substitute the following for paragraph 2(d).
‘‘(d) Post at its Houston, Texas facility copies of the
attached notice marked ‘‘Appendix.’’203 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.’’
Tamara J. Gant, Esq. and Arthur Safos, Esq., for the General
Counsel.
Robert S. Bambace, Esq., R. Michael Moore, Esq., Carolyn
Barefield Luedke, Esq. and Steven R. Baker, Esq. (Ful-
bright & Jaworski), of Houston, Texas, for the Respond-
ent.
Chris Dixie, Esq., of Houston, Texas, for the Union.
David B. Dickinson, Esq., of Houston, Texas, for Charging
Parties Lyons and Jackson.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. Starting
as a routine case involving eight dischargees, the principal
issues here have expanded to include allegations that the Re-
spondent unlawfully solicited and aided a successful effort to
decertify the Union. The number of the alleged
discriminatees has risen to 10.
The Government (the General Counsel) seeks an order (1)
declaring the decertification case to be a nullity, (2) requiring
Respondent either to execute or abide by a negotiated but un-
signed contract, or on request recognize and bargain with the
Union, (3) instructing Respondent to reimburse the Union for
all membership dues it has failed to withhold and transmit,
and (4) directing Respondent to offer reinstatement to 10 dis-
charged employees and to make them whole.
‘‘Do justice.’’ So the sages and lawgivers have instructed
us from ancient times, with the teachings for the Pharoah-
to-be Merikare about 2100 B.C.1 to the preamble of our
American Constitution. Striving to attain that goal here,
under the Act, I order Respondent to offer reinstatement to
8 of the 10 dischargees and to make them whole. I dismiss
the other allegations, and deny the requested relief, because
I find that the reach of the General Counsel’s allegations ex-
ceeds the grasp of her proof.
This case was tried before me in Houston, Texas, over 17
days, beginning 5 November and concluding 5 December
957SOUTHWEST DISTRIBUTING CO.
2 All dates are for 1984 unless otherwise indicated.
3 Counsel for the General Counsel attached to their brief a proposed order.
4 The Union and Charging Parties Lyons and Jackson filed a joint brief
signed by the Union’s attorney.
5 References to the 17-volume transcript of testimony are by volume and
page.
6 Raymond Lee Rice, Howard Lofton, Walter John Kimbrough, and Sammy
Leon Tharp.
7 ABI’s seriousness on the subject is illustrated in the recent case of Turner
Beverage Co., 279 NLRB 160 (1986).
1985, pursuant to the 25 September 1985 fourth amended
consolidated complaint (complaint) issued by the General
Counsel of the National Labor Relations Board through the
Regional Director for Region 23 of the Board. The complaint
is based on a series of charges, the first of which was filed
4 September 1984 by Brewery, Soft Drink, Industrial Allied
Workers, a/w International Brotherhood of Teamsters, Local
Union 1111 (Union or Local 1111) and served 5 September
1984, against Southwest Distributing Company, Inc. (Re-
spondent or SDC).2
In her complaint the General Counsel alleges that the Re-
spondent violated Section 8(a)(1) of the Act by various inter-
rogations and threats (express or implied) beginning 7 March
1984 and ending in June 1985, including soliciting an em-
ployee to file a decertification petition, assisting him to do
so, and thereafter promoting him, and Section 8(a)(3) of the
Act by discharging 10 named employees between 29 August
1984 and 3 July 1985.
By its answer Respondent admits certain factual matters
but denies violating the Act.
In the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel,3 the Union,4 and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A Texas corporation with an office in Houston, Texas, Re-
spondent is a wholesale distributor in Houston of beer and
related malt products for Anheuser-Busch, Incorporated
(ABI). During the past 12 months, SDC purchased and re-
ceived at its Houston facility goods and materials valued in
excess of $50,000 directly from points located outside Texas.
Respondent admits, and I find, that it is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Teamsters Local 1111
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s business and organization
As previously mentioned, SDC is the wholesale distributor
for the beer and related malt products of ABI in Houston.
To accomplish this distribution, SDC divides Houston into
about 39 routes for the sales department. The delivery drivers
are called route salesmen or driver/salesmen. Some of the
routes have helpers assigned to assist the drivers.
Respondent’s owner and chairman of the board of direc-
tors is Basil Georges. He sometimes uses, and is referred to,
by the name of Bill, the Anglicized conversion of Basil.
Since August 1982 James E. Craine has been president of
SDC (1:146–147).5 Craine came to SDC from ABI’s St.
Louis headquarters where he had worked for 20 years
(16:2770–2771).
Jack Gray is Respondent’s president emeritus, and he has
worked at SDC for 25 years (17:2974). Bobby Hayes, who
began over 14 years ago as a helper on a route and was a
member of the Union, has been Respondent’s executive vice
president for about 2 years (16:2853).
Daniel D. Crouse is an important witness for the General
Counsel in this case. Crouse began with SDC as an area su-
pervisor in September 1980. In the spring of 1982 he was
promoted to a brand manager. About late summer or early
fall 1983 Crouse was promoted to vice president and sales
manager (2:231, 233, 288, 359). On Monday, 13 August
1984, Crouse was promoted to be in charge of Respondent’s
Conroe, Texas branch as vice president and branch manager
(2:233; 3:426). On Sunday, 4 August 1985, Crouse resigned
at the request of President Craine (2:326; 3:537, 540). The
only reason Craine would give Crouse was that owner
Georges said ‘‘Crouse does not fit into our future plans.’’
(3:470, 538)
Preceding Crouse in the position of vice president and
sales manager at Houston was Les Mattinson (1:134; 2:361).
When Crouse left to head up the Conroe operation on 13 Au-
gust 1984, Clayton Hunt, a sales supervisor, succeeded to
Crouse’s position in Houston (1:69–70).
The foregoing officials figure prominently in the case.
Various supervisors, of course, also are involved. The area
supervisors supervise up to three routes.
As we shall see, Respondent’s lead counsel, Robert S.
Bambace, is described by Crouse as playing a key role in
Respondent’s alleged effort to solicit and support an em-
ployee movement to decertify the Union. Bambace is not
named in the complaint in any capacity.
The testimonial assertions of Crouse bear heavily on Re-
spondent’s overall motivation, and their impact is not limited
to the allegations added in September to the trial complaint.
Consequently, the credibility of Crouse is extremely impor-
tant to the General Counsel’s case.
A major portion of this case is devoted to what is called
‘‘out of date’’ or ‘‘overage’’ beer. Sometimes in the record
it is referred to as stale beer. The subject is important be-
cause four employees6 were fired for having overage beer on
their routes. There is no dispute that Respondent’s policy
was that drivers were not to have overage beer on their
routes. In practice there was flexibility, and discipline was al-
ways oral. The dispute centers on (1) whether Respondent
used a new and more mandatory form of the rule as a pretext
to discharge union supporters, and (2) whether there was any
old beer at all on the routes of the dischargees, and if so,
whether Respondent planted it there to provide the excuse to
fire union supporters.
ABI has a strict rule requiring that its beer be ‘‘rotated’’
on retail shelves.7 The rotation policy is designed to ensure
the freshness of ABI’s beer. To maintain the desired
freshness, ABI requires that each can or bottle of beer re-
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Some witnesses recall different shelf life periods. For example, Supervisor
Chris Garcia’s description differs somewhat (14:2361).
9 Although initially Craine inadvertently listed LA under both 90 and 105
days (2:186–187), he subsequently made clear that LA beer has a shelf life
of 90 days (7:1275, 1279).
10 The driver adds the number of shelf life days to the production date. If
the total exceeds the Julian date of inspection, it is overage. Thus, a Budweiser
(105-day shelf life) canned on 9 April 1984 (Julian day 100) and inspected
by a driver on 24 July 1984 (Julian day 206) would be 1 day overage (G.C.
Exh. 47).
11 There is some evidence that the out-of-date beer stacked aside is to be
tagged as old beer so that the store personnel will not sell it by mistake.
12 John Holliday, Ira Strange, and Edward Hartman.
13 Richard D. Jackson and Rodney I. Lyons.
14 By its terms the negotiated collective-bargaining agreement was to be ef-
fective 1 June 1984 through 31 May 1988 (G.C. Exh. 18 at 25).
15 Respondent fired three others: Louis Riley on 21 August, and Ronald
Spina and Franklin Montgomery on 8 November. All three, along with five
of the others, were named in the original complaint of 22 January 1985, but
maining on a shelf in a retail store be removed no later than
a specified number of days from the date the beer was bot-
tled or canned. The allotted time is referred to as the shelf
life.
The various beer brands have a different shelf life as fol-
lows (2:186–187, Craine; G.C. Exh. 47):8
75 Days 90 Days 105 Days
Michelob LA9 Budweiser
Michelob Light Busch
Bud Light
Busch Natural
At the brewery ABI stamps numbers on the bottoms of
cans and scratches certain marks on beer bottle labels (U.
Exhs. 24–26). The numbers stamped on the bottom of the
cans, and the marks on the labels, are coded to indicate the
date the beer was canned or bottled at the brewery (11:2138).
ABI sells to its distributors a code booklet (G.C. Exh. 47).
Using the book, which employs a Julian calendar system, a
driver is able to ascertain whether a can of beer is approach-
ing overage (2:186; 7:1264).10 Drivers also have a small
code card appropriate for carrying from which they can as-
certain when a beer is about to go overage (G.C. Exh. 47).
Rotation of the beer basically means that the drivers do
two things. First, as Crouse testified, they position the older
beer to the front of the shelves and move the newer beer to
the back or bottom (3:521). When customers take the closest
can or bottle, they are selecting the older beer. In other
words, the FIFO method is used—first in, first out.
Second, when beer reaches the point of becoming out of
date, the driver stacks the beer aside off the shelf (so it will
not be sold) and reports that fact to his supervisor.11 There
is a dispute concerning whether the report can be oral or
must be written. At this point it suffices to know that a re-
port is made to the supervisor.
The supervisor passes the overage beer reports to the sales
manager who in turn sends a letter to the Texas Alcoholic
Beverage Commission (TABC) requesting authority to re-
move the overage beer from the premises of the retail store
(G.C. Exh. 37; 2:241; 7:1289). In due course the TABC re-
turns the letter, but it now bears a signed authorization.
Texas law makes it illegal to remove overage beer from a
retail account without approval from the TABC (1:117;
2:184; 3:521).
As Craine and others testified, overage beer can be re-
moved one other way—a driver or supervisor can simply buy
it (7:1289). This is done only for small quantities, a couple
of cans or a six-pack. Supervisors can be reimbursed on their
expense accounts for these purchases, and some have been.
It is unclear whether all request reimbursement. Craine testi-
fied that the preferred method for removal is through the
TABC (7:1295). The apparent reason for this is that the re-
moval cost is then at the wholesale level rather than at the
approximately 25-percent higher retail price (16:2810). SDC,
not ABI, absorbs the loss represented by the overage beer
which must be removed and destroyed (3:520; 16:2804–
2805).
In addition to the four drivers or helpers discharged for
having overage beer on their routes, three drivers12 were
fired for failing to report accidents, and two employees13
were discharged for failing to make required delivery stops.
There is a dispute whether the 10th employee, Fred Holliday,
was fired or quit.
2. Collective-bargaining history
The Union has represented Respondent’s employees for
many years. The most recent collective-bargaining agreement
between Local 1111 and SDC was effective for the period
of 1 June 1981 through 31 May 1984 (R. Exh. 37; U. Exh.
32; 1:43–44). In the spring of 1984 the Union and SDC en-
gaged in negotiations for a renewal collective-bargaining
agreement. The first of nine bargaining sessions occurred
about mid-April, and the last one was held on 30 May
(16:2774, 2779, 2903). At the hearing the parties stipulated
that on 30 May 1984 Local 1111 and SDC concluded negoti-
ating a renewal collective-bargaining agreement covering em-
ployees in the following appropriate unit (1:42–44):
Included: All employees employed in the
warehousing departments, and all employees employed
as bottle route drivers, keg route drivers, hot shot driv-
ers, coil cleaners, and helpers on trucks employed at its
facility located at 1301 White Street, Houston, Texas,
or at any warehouse facility located in Houston, Texas.
Excluded: All supervisors as defined in the Act.
As we shall see, the renewal collective-bargaining agree-
ment was ratified by the Union’s members but never signed
by the parties.14 The General Counsel contends that the new
collective-bargaining agreement was never signed because
the Respondent did not want a contract with the Union and,
acting from that motivation, initiated and sponsored an em-
ployee movement to decertify the Union through the efforts
of employee Ross Miller.
On 15 June 1984 Ross M. Miller, in Case 23–RD–542,
filed a petition to decertify the Union (G.C. Exh. 3; 5:848,
913, Miller). Conducted 30 July, the election was close with
three challenged ballots being determinative. The parties
agreed on a resolution of the challenges, and a revised tally
issued on 7 August reflects that, of approximately 108 eligi-
ble voters, 52 ballots were cast for Local 1111 and 55
against (G.C. Exh. 7). The Union had lost.
On 13 August 1984 the Regional Director issued a certifi-
cation of the results (G.C. Exh. 8). Some 2 weeks later, on
29 August, Respondent fired the first of the 10 dischargees
named in the trial complaint.15
959SOUTHWEST DISTRIBUTING CO.
Riley, Spina, and Montgomery were deleted from the (first) amended com-
plaint which issued 5 April 1985. They appealed to the General Counsel’s Of-
fice of Appeals in Washington, D.C. By letter dated 11 July 1985 to Union
Attorney Chris Dixie, the Region advised that after conducting an additional
investigation it reaffirmed the decision to delete the three names (R. Exh. 65).
Presumably the Office of Appeals agreed, for the three names were never re-
stored to any of the succeeding complaints.
16 The original complaint contains six paragraphs alleging independent viola-
tions of Sec. 8(a)(1), beginning on 7 March and ending 30 August 1984, and
one paragraph listing eight employees as having been discharged in violation
of Sec. 8(a)(3) between 21 August and 8 November 1984 (G.C. Exh. 1n).
17 Although the alleged date for John Holliday is 28 October, a Sunday, I
find that the actual date of discharge was 30 October 1984.
18 No longer employed by Respondent at the occasion of his affidavits,
Crouse was a former vice president at SDC. Hence, counsel for the General
Counsel refers to his evidence as inside information (Br. at 132, 149).
19 Distinguish John Holliday from Fred Holliday. The latter has consistently
been listed among the alleged discriminatees.
20 That preprinted allegation reads, ‘‘By the above and other acts, the above-
named employer has interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.’’ (G.C. Exhs. 1a,
b, c, i, l, bb, and cc.) Compare Clark Equipment Co., 278 NLRB 498 (1986);
Red Food Store, 252 NLRB 116, 120 fn. 8 (1980).
3. Nature of the case
As the original complaint of 22 January 1985 reflects, this
proceeding began (in the pleadings, at least) as a routine
8(a)(1) and (3) case.16 Four complaints later we still have the
basics of an 8(a)(1) and (3) case, but a few knotty problems
have been added and now the General Counsel seeks a bar-
gaining order. The fourth amended consolidated complaint,
the trial complaint, has some 27 8(a)(1) allegations in 16
separate paragraphs beginning on 7 March 1984 and ending
in June 1985. The sole 8(a)(3) allegation remains that of dis-
charge, but now the list of discharges has increased to 10,
with the first on 29 August 1984 and the last on 3 July 1985.
The dischargees and the dates of their terminations are
(complaint par. 26; 1:46):
Raymond L. Rice 29 August 1984
Howard Lofton 30 August 1984
Sammy Leon Tharp 30 August 1984
Fred Holliday 10 September 1984
Walter J. Kimbrough 11 September 1984
John Holliday 28 October 198417
Edward Hartman 21 November 1984
Ira Strange 28 November 1984
Rodney I. Lyons 3 July 1985
Richard D. Jackson 3 July 1985
In the (first) amended complaint of 5 April 1985, three
names included in the original list of dischargees were de-
leted leaving a total of four. A fourth, Walter Kimbrough,
was deleted along with them, but Kimbrough was returned
to the listing of dischargees (bringing the total to five) in the
second amended complaint which issued on 11 July 1985
(G.C. Exh. 1y).
The third amended consolidated complaint, which issued
on 10 September 1985, added an additional 8(a)(1) paragraph
(alleging two interrogation-type counts for April 1985) plus
two employees (Charging Parties Lyons and Jackson) to the
dischargees, bringing that list of names to seven. This third
complaint scheduled the hearing for 2 weeks later on 24 Sep-
tember. However, the hearing was postponed because of a
rather dramatic development.
The development occurred on 18 September 1985 when
the Union’s attorney brought Daniel D. Crouse to the office
of NLRB Region 23 where Crouse gave the first of two affi-
davits (2:339–340, 354; 3:447). Crouse gave his second affi-
davit, a more detailed account, at his home 2 days later on
20 September 1985 (2:354; 3:447, 452). Based on the infor-
mation Crouse provided,18 the hearing was postponed and,
thereafter, the fourth amended consolidated complaint issued
on 25 September 1985.
4. The 10(b) issue
The trial complaint significantly expanded the allegations
to be litigated. Added to the complaint were allegations that
Respondent violated Section 8(a)(1) in June–July 1984 by
causing employees to execute dues-checkoff revocations by
encouraging and/or soliciting employee Ross Miller to file a
petition to decertify the Union, and by providing Miller help
with his regular work so that he could solicit signatures to
support the decertification and Section 8(a)(3) by adding the
names of John Holliday (fired 28 October 1984), Edward
Hartman (fired 21 November 1984), and Ira Strange (fired 28
November 1984) to the list of dischargees, bringing that
number to 10.
Respondent’s position is that these new allegations (com-
plaint pars. 10, 12–18 regarding Sec. 8(a)(1) and par. 26 as
to dischargees John Holliday,19 Hartman, and Strange) are
barred by the 6-month limitation period set forth in Section
10(b) of the Act. Observing that none of the charges contain
any 8(a)(1) allegation other than the generalized one
preprinted on the Board’s charge form,20 and arguing that the
new paragraphs are not related to the old, Respondent, at the
beginning of the hearing, filed a motion to dismiss those al-
legations (R. Exh. 2, 1:28). I denied the motion (1:32).
The General Counsel contends that she properly amended
the complaint to include paragraphs 10 and 12–18 because
they are ‘‘closely related’’ to other allegations in the prior
complaints (Br. at 129). Thus, in the original complaint the
General Counsel attacks statements by Respondent’s presi-
dent and executive vice president in August 1984 in which
such officials made statements discouraging interest in the
Union inasmuch as the Union was no longer at the plant.
These allegations postdate the decertification election of 30
July 1984 which the Union lost. The new allegations relate
to Respondent’s conduct in allegedly sponsoring employee
Ross Miller to solicit employees to sign a petition in support
of a decertification election. I agree with the General Coun-
sel, and I reaffirm my ruling denying the motion to dismiss.
NLRB v. Fant Milling Co., 360 U.S. 301 (1959); NLRB v.
Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952); Red Food
Store, 252 NLRB 116 (1980).
Respondent also moved at the hearing to dismiss the
names of John Holliday, Edward Hartman, and Ira Strange
from paragraph 26 of the complaint on the basis that the
charges naming them had been either withdrawn or dis-
missed and therefore, under the rule of Ducane Heating
Corp., 273 NLRB 1389 (1985), the 6-month limitation period
of Section 10(b) of the Act barred the General Counsel from
including them in the complaint (R. Exh. 1; 1:10).
John Holliday was fired 30 October 1984. On 29 January
1985 he filed a charge in Case 23–CA–9946 alleging that he
was discharged because of his membership and/or activities
in behalf of Teamsters Local 1111 (R. Exh. l, attachment E).
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 On the first day counsel for the Union expressed the view that it would
be much easier to present the whole case in the usual order before attempting
to decide the fraudulent concealment issue (1:21–22). Except where the evi-
dence on the matter will be limited, it is clear that the normal order for pre-
senting evidence is the better procedure.
Holliday withdrew his charge on 22 February 1985. The
charge was never reinstated, and the General Counsel simply
added John Holliday’s name to the complaint, as she did the
names of Hartman and Strange, based essentially on the evi-
dence furnished by former Vice President Crouse in Sep-
tember 1985.
Edward Hartman was fired 21 November 1984, and 5 days
later Attorney Chris Dixie, on Hartman’s behalf, filed a
charge in Case 23–CA–9885–2; he withdrew it on 26 De-
cember 1984.
After he was fired on 28 November 1984, Ira Strange, on
26 March 1985, filed his charge in Case 23–CA–9996. The
Region dismissed Strange’s charge on 6 May 1985. So far
as the record reflects, Strange did not appeal the dismissal.
When the names of John Holliday, Hartman, and Strange
were added to the complaint on 25 September 1985, no ac-
tive charge was on file naming them, and the discharge of
each had occurred well over 6 months earlier. On these facts
the Respondent raised the defense of Section 10(b) and, cit-
ing Ducane and other cases, moved that I dismiss these three
names from the complaint.
Under Ducane the limitations period of Section 10(b) is
tolled if the General Counsel shows that respondent fraudu-
lently concealed the ‘‘operative’’ facts relating to the action
in question. In our case the parties, at the hearing and in the
briefs, contest over whether the facts show such fraudulent
concealment. At the hearing, and out of an abundance of
caution, I ruled (1:26) that the General Counsel would have
to proceed first in the limited area of adducing evidence
showing a prima facie case of fraudulent concealment even
though the General Counsel argued that she would rely on
her entire case to show fraudulent concealment and that it
would be difficult, if not impossible, to separate the evidence
(1:23; 7:1301).
On the eighth day of the hearing the parties argued the
issue. Because the mass of evidence from the parties on the
point was too extensive, from a practical point, on which to
hazard a bench ruling, I denied Respondent’s motion to dis-
miss (8:1470).21
Although at the hearing and in the briefs the parties vigor-
ously debate the fraudulent concealment issue, the General
Counsel from the beginning has relied on the ‘‘closely re-
lated’’ theory as justifying adding the three names to the
complaint where their charges had not, as in Ducane, been
reinstated (1:13, 15–16; Br. at 127–132). As Member Dennis
noted in Ducane, the ‘‘closely related’’ theory was not liti-
gated or briefed there. Ducane, supra at 1391 fn. 9 (1985).
The General Counsel’s argument is persuasive. Here the
General Counsel simply added three names to a complaint
which named others as having been discharged as part of a
plan by the Respondent to discharge supporters of the Union.
In view of the overall thrust of the allegations of the com-
plaint, and as discharges already alleged to be unlawful span
from August 1984 to July 1985, I find that the General
Counsel acted within her statutory authority by adding the
names of John Holliday, Hartman, and Strange who were ter-
minated during the period spanned by the discharges of those
already named in the complaint. Fant Milling; Dinion Coil;
Red Food Store. Accordingly, I do not reach the fraudulent
concealment issue.
B. Some Crucial Credibility Resolutions
1. President Craine flies to Europe
The sequence of events during the first 2 weeks of June
1984 is very important. The General Counsel and the Union
contend that certain conversations occurred during that pe-
riod involving Craine and Bambace. A significant point is
that Craine contends he was on a vacation in Italy during
most of that period. Resolution of the dispute on this may
have far reaching consequences as to other determinations in
the case.
When SDC submitted its final offer to the Union at the
last bargaining session on 30 May, Business Manager Lynn
Wells did not agree to it, but did say he would present it to
the membership for ratification even though there would be
one item of the collective-bargaining agreement difficult to
sell (16:2781, 2905). It is undisputed that the next day,
Thursday, 31 May, Local 1111 voted to ratify the collective-
bargaining agreement. There also is no dispute that the par-
ties never signed the negotiated document.
The General Counsel (Br. at 21, 65) and the Union (Br.
at 3–4) argue that the contract was never signed because Re-
spondent did not want a new contract and stalled the signing
in order to initiate a decertification movement to get rid of
the Union. Respondent denies any such motivation, and con-
tends, in effect, that there really was no delay because the
drafting and execution process usually requires several
weeks.
Bearing on these respective contentions is a conversation
which Lofton and Craine had at the start of the workday,
about 7 a.m., on Friday, 1 June. Unlike other conversations,
Craine (13:2306–2307) agrees essentially with Lofton’s testi-
mony (7:1307–1308) that on this occasion Lofton informed
Craine that the membership had ratified the contract and that
it appeared the Union would be there another 4 years.
Craine, who already was aware of the ratification, replied
that he was glad it was over, and that now they could pro-
ceed to prosper together into the future.
Relevant to this same subject is a letter owner Bill
Georges, chairman of the board for Respondent, sent to em-
ployees on Wednesday, 6 June. A copy of one is in evidence
as Respondent’s Exhibit 5, and it reads:
961SOUTHWEST DISTRIBUTING CO.
22 Although I sustained an objection when offered for the truth of the con-
versation, driver and chief steward Howard Lofton testified that in early June
Wells informed him that Bambace had to go to San Antonio to check on his
father who had undergone heart bypass surgery (7:1308–1309).
23 The parties stipulated that about 1 a.m. on 1 June a Federal mediator noti-
fied Bambace that Lynn Wells had called him and reported that the member-
ship had ratified the collective-bargaining agreement (1:163–164).
24 Even though Wells, as he testified, received his copy of Bambace’s trans-
mittal letter on 9 or 10 June, he concedes that, although no copy of the drafted
document was enclosed, ‘‘I didn’t really do anything.’’ (17:2994)
June 6, 1984
Dear Mark,
I was pleased to learn of your support in the decision
to accept the Company’s contract proposal and of your
presence for work on Friday morning, June 1. This de-
cision of yours has offered us the opportunity to be
more effective in a very competitive market. With our
agreement in place, we now have the flexibility needed
to go after the number one position in this area, which
in turn will result in more volume of sales and addi-
tional earnings for you as well as the company.
It shouldn’t surprise you to know that Southwest
Distributing Company, Inc. has spent millions of dollars
in capital improvements during the past several years
and has committed many millions more in future ex-
pansions in warehouses, in the purchase of more trucks,
forklifts, equipment, and including inventory, etc—all
tools necessary to do the job.
Our projection for 1984 sales indicated about an 8%
increase over 1983, then compounded to about a 12%
increase in 1985. Barring the unforeseen, indications
forecast that we should attain about 40% share of the
market in a relative short period of time.
An open door policy has always existed in this com-
pany whereby your suggestions or gripes can be dis-
cussed with Jim Craine, Jack Gray, who although is on
a limited work schedule because of his health is never-
theless available, or with me. Mr. Jim Craine, our new
president and chief operating officer, will have com-
pleted two years this August. Those of you who have
the opportunity to get to know him will realize his suc-
cess in this business was based on hard work and dedi-
cation to not only his job but to the people with whom
he works. I can guarantee you of his sincerity and sen-
sitivity with regards to his employees. You ought to get
to know him. He’s like a lot of successful people who
came up the hard way, and promise you he will treat
you fairly and wants nothing better than the success of
this company and the welfare of its employees.
It is my understanding that your decision to accept
the company’s proposal was based on mutual trust we
have enjoyed over the years. I personally pledge to you
that this trust will continue in our relations during the
future, as it has in the past.
Best regards,
/s/B Georges
Bill Georges
Chairman of the Board
Respondent’s contention that a delay of several weeks is
not unusual in getting a collective-bargaining agreement
typed and submitted for signing finds support in certain testi-
mony of Wells. Wells concedes that Bambace represented
the ABI and Miller beer distributors in Beaumont, Texas, on
contract negotiations which concluded about 3 June 1985, yet
it was not until late July that Wells received a copy of the
draft from Bambace. Because of certain errors that had to be
corrected by the Union, Wells delayed returning the docu-
ments until after Bambace wrote him a letter requesting that
Wells expedite the matter. The contracts were not signed
until October 1985 (10:1957–1960).
According to Wells, Bambace telephoned him during the
week beginning Monday, 4 June 1984 and told Wells not to
be impatient about the contract getting typed because he,
Bambace, would be busy on something else, that Respondent
had decided to change the commission arrangement whereby
the drivers probably would earn more money than what had
been agreed to, and that it was not his intention to leave
Wells ‘‘hanging out to dry.’’ Wells understood the latter
phrase to refer to the wage cut the Union had agreed to.
Wells said he appreciated that position, but it was important
to get the contract signed because many of the employees
were ‘‘bugging’’ him about it (10:1942, 1957).
Wells subsequently testified that it was he who called
Bambace, and that he made the call about midweek fol-
lowing the 31 May ratification vote, or about Wednesday, 6
June (10:1949). Still later he reverted to say that Bambace
placed the call (10:1952–1953).
On numerous occasions beginning the week of Monday,
11 June, Wells testified, he unsuccessfully tried to reach
Bambace by telephone, but the secretary said that Bambace
was out of the city and unavailable, and Bambace never an-
swered the messages Wells left (10:1943).
Wells later testified that he did not hear the secretary say
that Bambace was out of town (10:1952), and that it was not
until he had been calling a couple of weeks that the secretary
informed Wells that Bambace was out of town (10:1951).22
Bambace admittedly accepted responsibility at the last
meeting for having the renewal collective-bargaining agree-
ment typed and transmitted to the parties (16:2905).23 By let-
ter of 8 June, Bambace sent a ‘‘rough draft of the proposed
contract’’ to Gray for review by him, Hayes, and Craine (R.
Exh. 66). The letter shows an enclosure (presumably a copy
of the document) with a copy of the letter to Wells.
It seems clear that Bambace intended that a copy of the
drafted contract go to Wells, for he testified that his regular
practice was to send a copy and that Wells never called say-
ing he did not receive the ‘‘enclosure’’ (16:2910, 2940).
However, Bambace did not personally observe his then sec-
retary packaging the letter (16:2908), and one of his co-coun-
sel, in a letter dated 20 June to Region 23, acknowledged
that a copy of the ‘‘rough draft’’ was not enclosed with
Wells’ copy of the letter (G.C. Exh. 53). Wells testified that
he never received a copy of the drafted agreement (10:1946;
17:2994).24 I find that although Bambace intended that a
copy of the drafted contract be enclosed with Wells’ copy of
the 8 June letter, in fact the copy was not enclosed.
Wells testified that on receiving word that a decertification
petition was being circulated at SDC with supervisory assist-
ance and on working time, he telephoned Craine, reported
the matter, and said he thought it was highly irregular that
this was being done on company time (10:1943–1944).
Craine said he was unaware of this and would check into it
and call Wells back. To Wells’ question on the status of get-
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Wells testified that employees informed him about 7 or 8 June that a de-
certification petition was being circulated and he tried to call Craine then but
did not reach him until about 11 or 12 June (10:1943, 1951, 1962). Driver
Howard Lofton, who was the Union’s chief steward, testified that his first ob-
servance of anyone circulating the petition to decertify was about 7 or 8 June
and he went that same morning and protested the matter to Craine who said
he would have to confer with Attorney Bambace (7:1310–1312, 1348–1349,
1353). Lofton testified that he reported the matter to Business Agent Dennis
Byrd, and that it was not until 15 June that he talked with Wells (7:1361–
1362). Craine was not asked about the Lofton conversation but, as we shall
see, he indirectly contradicts it by his testimony that he left for Rome, Italy,
the afternoon of 5 June and returned to his office on 15 June (8:1441–1442).
Craine denies having any conversation with Lynn Wells at any time after the
ratification vote (13:2329–2330).
26 An undated statement of 15 pages of handwritten notes (R. Exh. 32), pre-
pared chiefly by Lofton but assisted by Rice, is in evidence for limited pur-
poses (17:3107). Using his assortment of original notes (not in evidence)
Lofton (and Rice) wrote out the 15-page statement in Attorney Dixie’s office
in late March 1985 (11:2033–2034). The sequence of dates set forth in the
15-page statement corresponds to the testimony of dates and events Lofton de-
scribed at the hearing.
ting the contract typed, Craine said it was about ready but
he needed to ask Bambace a couple of questions but the law-
yer was unavailable. Craine never called Wells back
(10:1943–1945). Wells places his conversation with Craine
about Monday, 11 June, and testified he was ‘‘absolutely’’
certain that the earliest date would be Friday, 8 June and the
latest being Wednesday, 13 June (10:1943, 1949, 1953,
1962–1963).25
Bambace testified that he left for San Antonio the late
afternoon of 11 June, returned briefly to Houston on 15 June,
went back to San Antonio the same day, and again returned
to Houston the morning of 18 June where he remained the
next 10 days before leaving again (16:2912, 2947). He de-
nied the telephone conversation described by Wells, and tes-
tified that although his then secretary called him daily, she
never reported any messages from Wells (16:2913, 2948,
2951).
As just noted, Craine testified that he left his office about
midafternoon on Tuesday, 5 June 1984, preparatory to leav-
ing on a trip to Rome, Italy (8:1441). His expense account
for the first 2 weeks of June reflects that his actual departure
from the Houston airport for Italy was the following day, 6
June (R. Exh. 24). Although Craine referred to the trip as a
vacation (8:1441; 13:2307–2308), he apparently discussed
some business at the Houston airport on 6 June, at the Rome
airport on 13 June, and at Kennedy airport in New York City
on 14 June (during the return) because certain expenses for
dinner, drinks, and car expenses are claimed as reimbursable
expenses (R. Exh. 24). Craine testified that he arrived back
in Houston late that night on Thursday, 14 June. Because of
‘‘jet lag’’ he did not report to his office until about 10:30
a.m. on Friday, 15 June 1984 (8:1442).
No Respondent witness offered corroborating testimony
concerning the dates of Craine’s absence and vacation, and
Respondent did not offer any supporting documents, such as
copies of airline tickets, hotel receipts, or charge card re-
ceipts.
Lofton described a second meeting with Craine during the
first 2 weeks of June. He testified that on Wednesday, 13
June, he, assistant stewards James Bailey and Raymond Rice,
and Business Agent Dennis Byrd of the Union met with
Craine and Executive Vice President Bobby Hayes in the
latter’s office to protest again the circulation of the decerti-
fication petition by Kirk Nelson during working time
(7:1312, 1353). Lofton testified that, based on his notes, he
was ‘‘absolutely certain’’ of the 13 June date (7:1356–
1357).26 Because it contends that Craine was in Europe dur-
ing the timeframe in issue, Respondent describes Lofton’s
testimony as an ‘‘outright fabrication.’’ (Br. at 161.)
During their turns on the witness stand, neither Bailey,
Rice, Craine, nor Hayes was asked about the meeting of 13
June. Byrd did not testify.
According to Lofton, on the afternoon of 13 June he ob-
served Craine talking with Ross Miller near the truck shed
when Miller was holding the decertification petition. The fol-
lowing day, 14 June, Lofton observed that Miller was solic-
iting signatures on the petition (7:1313–1318, 1358–1360).
Craine did not address the afternoon conversation of 13 June
during his testimony.
I find Wells’ testimony unreliable as to dates and contents.
By contrast, Bambace testified on this subject with speci-
ficity and persuasiveness. I therefore find that Wells did not
converse with Bambace about 6 June or Craine (about 11
June) concerning the contract as he testified. Moreover, I do
not credit Wells’ testimony that he tried to contact Bambace
numerous times during June. Wells was not anxious, I find,
to get the contract signed, and his admitted inaction when his
copy of Bambace’s 8 June transmittal letter did not contain
a copy of the ‘‘enclosed’’ draft reflects that unconcern. In-
deed, he does not contend that he raised the subject of not
getting his enclosure when he supposedly spoke with Craine
about the contract only a couple of days later.
This is not to say that Wells did not have reason to be
concerned, for he did. But he never testified that he was
aware of the Board’s rule that a contract not signed before
the filing of a petition cannot serve as a bar to the petition
even though the parties consider the contract properly con-
cluded and implement some or all of its provisions. Appa-
lachian Shale Products Co., 121 NLRB 1160, 1161–1162
(1958).
This does not necessarily mean that Wells at no time had
a conversation with Craine about employees circulating a de-
certification petition during working time. It is possible that
both Lofton and Wells incorrectly placed the first observance
as occurring on Thursday, 7 June, or Friday, 8 June. Con-
ceivably that incident could have occurred on Monday, 4
June, or even the morning of 5 June before Craine left for
Italy. Nevertheless, the Thursday, 31 May, ratification vote
was an event so fixed in everyone’s minds that they an-
chored other dates to it, either expressly or impliedly. When
both Lofton and Wells, therefore, place the first decertifica-
tion observation at a time at least a week after the ratification
vote, I am disinclined to find that their dating was slightly
off (not uncommon for all of us regarding dates in general)
and that the actual sighting, and telephone call to Wells, oc-
curred on 4 or 5 June.
There is no margin for error on the second meeting date
of Lofton and Craine because Lofton is ‘‘absolutely certain’’
it was on 13 June and because he specifically describes see-
ing Ross Miller soliciting signatures the next day, 14 June.
This, of course, had to be before the petition was filed, and
therefore, before Craine returned from Europe.
Neither the General Counsel nor the Union addressed the
matter of Craine’s trip to Italy in their briefs, and neither of-
fers any suggested resolutions of the contradictions in the
evidence brought about by the existence and timing of
963SOUTHWEST DISTRIBUTING CO.
27 Crouse was unsure of the precise date, and he vacillated in placing the
date from mid-May to the last week in May, ending with the date of mid-
May as specified in his second pretrial affidavit, given on 20 September 1985
(2:277, 413–416; R. Exh. 4).
28 Crouse initially placed Bambace in the room before Crouse asked his
question of Craine (2:277–278).
29 As developed on cross-examination, in his second pretrial affidavit, given
20 September 1985, Crouse puts this portion first in Craine’s answer, and
places the part about the Union agreeing to everything at the close (2:413–
414; 3:477). Also, Crouse acknowledged in his initial affidavit of 18 Sep-
tember 1985 he told the Board that either Craine or Bambace made the state-
ment about the Union agreeing to everything (2:414). Crouse was still uncer-
tain at the beginning of cross-examination on this topic, even saying he did
not think it made any difference which one said it (2:412). That may be true
substantively, but as an aid to resolving credibility, it does make a difference.
Crouse concluded by attributing the statement to Craine (2:414).
30 In his first pretrial affidavit Crouse reports that Bambace (not Craine) said
that the Union was going to sign anything and, therefore, ‘‘we’re going to
have to move into another arena.’’ Crouse testified that his second affidavit
correctly attributes the signing anything statement to Craine (3:477–478).
31 Craine testified that during lunchbreaks in negotiations the executive
group that met with Bambace consisted of Georges, Gray, Craine, and Hayes
(16:2782).
Craine’s trip to Italy. It is clear that the parties could have
introduced a great deal more evidence on this important sub-
ject, but, for whatever reason, they elected not to do so.
Craine’s testimony about a trip to Italy is indirectly sup-
ported by one of the General Counsel’s own exhibits. Thus,
General Counsel’s Exhibit 53 contains an assortment of let-
ters. In one of the letters, dated (Tuesday) 12 June 1984,
Gray writes to Bambace concerning certain discrepancies in
the negotiated collective-bargaining agreement. The final
paragraph of the letter reads:
Of course I have not had the opportunity to have Jim
Craine review this draft because of his trip to Europe,
however upon his return to the Company on Thursday,
I will do so.
Although I treat the package of letters as evidence only of
correspondence between the parties, and not affirmatively for
the truth of the matters asserted in the letters (except to the
extent admissions are made by a party), Gray’s letter is evi-
dence that on 12 June he told Bambace that Craine was in
Europe but would be back on Thursday, 14 June. It may be
a fine distinction to write in one line that I do not consider
the statement as independent proof, and in the next write in
that I treat it as indirect corroboration of Craine’s testimony.
Even so, the distinction seems valid and I do view the fact
that Gray made the statement—long before he could have
known there would be a question on whether Craine went to
Europe—as indirect corroboration of Craine’s testimony.
Lofton appeared to be a sincere witness, but Craine’s testi-
mony was supported by an expense report plus Gray’s letter
to Bambace. As the General Counsel has the burden of per-
suasion, when the evidence leaves the scales at equilibrium,
the General Counsel loses. Accordingly, I find that Craine
did make the trip to Italy as he described. Because of
Lofton’s favorable impression as a witness, and because
Craine never testified that there were no such meetings with
Lofton, I shall not find that the meetings with Craine of 7
and 13 June 1984, described by Lofton, never occurred at
anytime. I simply find that the General Counsel failed to
show that they did occur and when.
We now have two objective factors to assist in deciding
when, or if, certain other events or conversations occurred.
First, everyone agrees that the ratification vote occurred on
31 May. Apparently the vote occurred late on 31 May, for,
as the parties stipulated, it was after midnight (and into Fri-
day, 1 June) when the Federal mediator notified Bambace.
The ratification date is important because various witnesses
were able to date other events in relation to the date of the
ratification vote.
Second, we now know that Craine left his office at mid-
afternoon on Tuesday, 5 June, thereafter vacationed in Italy,
and did not return to his office until about 10:30 a.m. on Fri-
day, 15 June—the very day Ross Miller filed the petition in
Case 23–RD–542.
2. The testimony of former Vice President Crouse
a. Craine’s ‘‘don’t want a contract statement’’;
Bambace’s purported ‘‘different arena’’ remark
Former Vice President Crouse testified that he and Craine
frequently discussed the progress of the bargaining negotia-
tions for a renewal collective-bargaining agreement (2:275,
376). According to Crouse, at one point in May when he was
in Craine’s office, he asked Craine how the negotiations
were progressing.27 Bambace entered at that moment,28 and
Craine answered Crouse that it appeared the Union was
going to agree to virtually everything SDC wanted (2:277).
Crouse remarked, ‘‘Well, at least we’ll have a contract this
time that we can live with.’’ Responding to this, Craine said
(2:278:
Yes, but we really don’t want a contract.29
Following Craine’s statement, Bambace purportedly re-
marked (2:278, 414–415; 3:499):30
Well, it’s obvious we’re going to have to move into an-
other arena.
If there was any subsequent discussion on that occasion,
Crouse did not describe it at the hearing.
Craine denied (1) saying that Respondent did not want a
contract, (2) that the Union was agreeing to everything SDC
proposed, (3) that Bambace said the Company did not want
a contract, and (4) that Bambace said anything about moving
into a different arena (16:2781, 2802–2803). Craine testified
that it would be unusual for Crouse to be in Craine’s office,
that whenever they conversed the site normally was in
Crouse’s office, and that there was no meeting in Craine’s
office of Craine, Crouse, and Bambace (16:2814–2815).
Bambace also testified that Craine did not state that it ap-
peared the Union was agreeing to everything, he denied mak-
ing any statement about shifting to a new arena, denied that
such a conversation occurred, and testified that whenever he
spoke with Crouse it was in the sales office area (16:2913–
2915). Bambace testified that he dealt with Georges, Gray,
Craine, and Hayes, and not with Crouse (16:2916).31
There appears to be no dispute that the major portion of
the renewal collective-bargaining agreement was negotiated
at the final two bargaining sessions, 29–30 May. Lofton, a
member of the Union’s negotiating team (7:1302; 17:3014,
3098), agrees that during the last 2 weeks of May the Union
did not agree to just anything, and that for the most part the
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Although Lofton placed the closing time of the 30 May meeting at 7:30
p.m., he concedes that it was dark when they left (11:2072). At that time of
the year, and with daylight savings time, it is very likely that ‘‘dark’’ means
9 p.m. or later.
33 At that time Hunt was simply one of the sales supervisors in charge of
three routes and drivers (1:70, 135–136).
34 Crouse subsequently confirmed that his second pretrial affidavit recorded
this meeting as ‘‘around mid-June.’’ (2:398)
35 Crouse subsequently testified that ‘‘dummy up’’ is not an exact quote, but
rather is his interpretation of what Gray said (2:409).
36 In one of many corrections made on cross-examination, Crouse testified
that his reference here to Craine was erroneous and that in fact it was
Bambace who said Ross Miller would be spearheading the decertification
movement (2:398–399).
37 On cross-examination during the second day of his testimony, Crouse
conceded that in his first pretrial affidavit he recorded Gray as being present
and as answering Crouse’s question with the statement not to worry about it,
that Miller would be taken care of (3:464). Crouse testified that on reconsid-
ering the matter he now recalled that Gray was not present at that point, that
his first affidavit was in error. and that the version in his second affidavit at-
tributing the statement to Craine, was correct (3:464, 466, 474).
parties were taking hard positions in lengthy discussions
(17:3021–3022).
Craine testified that less than one-third of the collective-
bargaining agreement had been agreed to before the meeting
of 29 May, that the most productive sessions of all were the
last two, with the last one, 30 May, being the most produc-
tive of all and it did not conclude until 11 p.m. or later
(16:2780).32 Lofton testified that by the end of the 29 May
session about 75 percent of the contract had been agreed to,
with six or seven major items still open, and economic issues
were part of the open items (7:3012, 3031). Lofton did not
estimate the percentage which had been agreed to before the
29 May session opened. I accept Craine’s estimate of less
than one-third, which I take as meaning about 30 percent.
On brief the General Counsel does not suggest which con-
tract articles had been agreed to by the parties that could
have prompted Craine to say it appeared the Union was
going to agree to virtually everything SDC wanted. Absent
evidence on that point, I am relegated to extrapolating from
the other evidence that the only days Craine could have been
prompted to make the statement would have been after either
the 29 or 30 May sessions. Even then we do not know what
was agreed to on 29 May, and we know also that six or
seven major items, including economics, were unresolved at
the start of the long session of 30 May. Moreover, Lofton
testified that the bargaining during the last 2 weeks of May
was long and hard. The best that can be said for the General
Counsel’s evidence is that Craine possibly could have made
the statement on either 30 May, before the last session
began, or on 31 May as SDC awaited the outcome of the
Union’s ratification process. Those 2 days seem to be the
most likely ones which could qualify.
I have no real problem with Crouse’s vacillating on the
approximate date of the conversation with Craine and
Bambace. Very few persons can recall dates accurately, and
Crouse was handicapped by the fact he apparently did not
record his memory in written form until he gave his two
Board affidavits in September 1985—some 16 months after
the event in question (2:388, 401). As we have seen, and
shall see in more detail, there are several contradictions on
important items between those two statements.
Crouse conceded that he was having a problem recalling
dates, the sequence of events, and the actual words, but he
asserted that his recollection was correct on the thought con-
tent (2:354, 403, 406; 3:481).
Assuming, for the moment, that Crouse’s ‘‘thought con-
tent’’ is correct, then I find that the date of the conversation
would have to have been either late 29 May, early 30 May,
or sometime on 31 May, with the first two being the more
likely possibilities since Craine’s purported statement implies
that the bargaining was not yet concluded. I therefore find
that the conversation between Crouse, Craine, and Bambace
occurred, if at all, about 30 May 1984.
b. Gray’s ‘‘dummy up’’ instruction; Craine’s assertion
that Ross Miller will lead a decertification movement;
Bambace’s ‘‘orchestrated’’ plan remark
Crouse testified that beginning at ‘‘the end of May’’ or ‘‘a
day or two’’ after the ‘‘different arena’’ discussion, and con-
tinuing until early August 1984, Respondent held a series of
meetings of its managers with Crouse attending 8 or 10 of
the meetings (2:279–280). The attendees would not be the
same at each of these meetings, but, Crouse testified, the nu-
cleus included Gray, Craine, Hayes, Crouse, Warehouse
Manager Don Hollingsworth, Clayton Hunt,33 and, at times,
Jim Hammond, vice president and manager of draft oper-
ations. At the first meeting, a day or two after the ‘‘arena’’
discussion, this nucleus, including Hammond, was present
(2:280–281).34
Crouse testified that the meeting was brief, and that it
started with Gray instructing the attendees to ‘‘dummy up’’
and to avoid conversations with rank-and-file employees on
union negotiations, whether they were union members, or
whether they were eligible to vote for membership in the
Union (2:281–282).35 The meeting adjourned, but Crouse de-
layed leaving with the others. Attorney Bambace entered.
With just Craine, Crouse, and Bambace present, Craine stat-
ed that Ross Miller would be leading a movement for decer-
tification.36 Crouse asked Bambace (not Craine), ‘‘Well,
what exactly is a decertification movement?’’ Bambace re-
plied that decertification is ‘‘the legal way for the company
to divest itself of the union.’’ Why is Ross Miller going to
do this, Crouse asked. Because, Bambace replied, this was
‘‘an orchestrated plan for the company to rid itself of the
union.’’ To Crouse’s inquiry of whether his law firm was
going to represent Miller in this, Bambace answered, ‘‘No.
The Company and my law firm can’t have anything to do
with this. Another firm has been selected for him to go to.’’
Inquired Crouse, ‘‘What’s in it for Ross?’’ Craine stated,
‘‘Don’t worry about it. Ross Miller will be taken care of.’’
At that point, Crouse testified, he left (2:282–283).37
On cross-examination Crouse admitted that in his first pre-
trial affidavit he reported that at one of the meetings ‘‘one
of the managers (I don’t recall which) said that Ross Miller
would be used to spearhead the decertification movement,
and Craine said another law firm, other than Bambace’s,
would be used for Miller to go to for help,’’ whereas in his
965SOUTHWEST DISTRIBUTING CO.
38 As earlier noted, Crouse gave his first affidavit, 4 pages, on 18 September
1985 and his 19-page second affidavit 2 days later (2:352– 353, 388; 3:447).
39 Craine confirms Bambace’s testimony that Wells did make a strike threat
(16:2788).
40 There is a reference in the record that the third meeting with the super-
visors could have been as late as Friday, 22 June. That is the date Craine
specifies in his pretrial affidavit of 24 October 1984 (G.C. Exh. 54 at 4). How-
ever, the date of 19 June is close enough.
second affidavit Crouse attributed the statement about Ross
Miller to Bambace (2:396–399, 403, 472–473).38
Crouse testified that he had little time to devote to the first
affidavit because he had to leave for work at his new job,
but he had the leisure of 4 hours for the second affidavit at
his home (2:397–398). He testified that the version in the
first affidavit was erroneous, and that the account set forth
in the second affidavit (attributing the statement about Ross
Miller to Bambace) is the correct one (2:397, 399, 403, 473).
Nevertheless, he subsequently attributed the statement to
Gray (2:409), only to correct that the following day at the
hearing by testifying that Gray was not present when Craine
made the statement (3:464, 466, 474).
Crouse also testified that he erroneously attributed, in his
first affidavit, the other law firm statement to Craine, but that
the correct version, as shown in his second affidavit, is that
Bambace said it (2:473–475).
According to Crouse, after the meeting in which Gray in-
structed the managers to ‘‘dummy up,’’ and following
Craine’s and Bambace’s subsequent remarks to Crouse in
their private conversation, Respondent held a general meeting
in the salesroom attended by all supervisors and, presumably,
managers. Bambace repeated to the entire supervision,
Crouse testified that Ross Miller and a couple of employees
he trusted would be leading a decertification movement
(2:408–409). Crouse placed these two meetings as occurring
about the first of June (2:409).
At another point in his testimony Crouse asserted that at
the second meeting for the managers, conducted about the
first week in June, Craine told the attendees that Ross Miller
and a couple of employees Miller trusted were gathering sig-
natures for the decertification, and that the managers were
not to have any group meetings with employees, and in any
conversations with employees, do not promise or threaten,
but to try and sway employees toward SDC’s position before
the voting. Craine told them there was no point in talking
to the prounion employees such as Lofton, Rice, or
Kimbrough because it would just alert them to be on watch
(2:283–286).
We need to digress for a moment to discuss the matter of
when attorney Bambace addressed Respondent’s supervisors.
There appears to be no dispute, and I find, that Bambace
spoke to Respondent’s supervisors on three occasions during
the period of April–June 1984. The first of these meetings
was held shortly before the first bargaining session in April.
Attorney Bambace was introduced to the assembled super-
visors by either Craine or Basil Georges (2:274–275, Crouse;
16:2774, Craine; 16:2917, Bambace). Before Bambace spoke,
Georges said that Bambace and his law firm had been hired
to assist in the forthcoming contract negotiations, and that
everyone was to follow Bambace’s instructions (2:275).
Bambace told the supervisors that during the period of nego-
tiations they likely would hear rumors, that they should refer
any questions to Gray, Craine, or Hayes, and to delete
‘‘union’’ from their vocabulary (2:368; 16:2775, 2917).
Bambace met with the supervisors a total of three times
(16:2776, 2814, 2916).
The second time Bambace met with the assembled super-
visors was about Friday, 18 May (16:2776, 2918). SDC had
arranged for advertisements to run in the local newspapers
announcing that Respondent would be interviewing for the
positions of drivers, helpers, and warehousemen on Saturday,
19 May (16:2777). There is a dispute between Bambace
(16:2918) and Lynn Wells, the Union’s president and busi-
ness manager (10:1936; 17:2993–2994), concerning whether
Wells, at one of the negotiating sessions, expressed the threat
of a strike and, therefore, whether the interviewing was in re-
sponse to that threat.39 I need not resolve that collateral dis-
pute.
The third occasion when Bambace met with the assembled
supervisors was about Tuesday, 19 June, following the 15
June filing by Ross Miller of the decertification petition in
Case 23–RD–542 (16:2777, Crouse; 16:2918, Bambace). At
this third meeting Bambace informed the supervisors about
the petition, distributed copies of a set of ‘‘Do’s and Don’ts’’
(R. Exh. 6), and instructed them in what they could and
could not say or do through the use of the acronym TIPS,
meaning no threats, interrogation, promises, or surveillance
(2:369–374; 16:2777, 2918–2919).
Although Crouse testified that he did not recall a third
meeting between Bambace and the supervisors, he confirmed
the contents of the meeting (as described above) and does
not argue with the date of 19 June (2:369–374).40
I return now to the summary of Crouse’s testimony about
statements he attributes to Gray, Craine, and Bambace in the
period of late May to sometime in June. On cross-examina-
tion Crouse admitted that he could have confused his testi-
mony about Ross Miller’s spearheading a decertification
movement with Bambace’s statements to the supervisors on
19 June about Miller’s filing the decertification, and
Bambace’s discussing the ‘‘Do’s and Don’ts.’’ Nevertheless,
Crouse testified, he did not think he was mistaken (2:399).
For their part Craine (16:2806–2807) and Bambace
(16:2914–2915) vigorously deny that Craine made any state-
ment that Ross Miller would lead a decertification movement
and that Bambace made an ‘‘orchestrated’’ plan remark. As
earlier noted, Craine testified there was never a conversation
in his office between him, Crouse, and Bambace (16:2814–
2815), and Bambace testified that the only place he met with
Crouse was in the sales office (16:2914). Bambace asserts
flatly that the conversation about Ross Miller circulating a
decertification petition never occurred (16:2915).
Although Bambace did not specifically deny broadcasting
to all the supervisors that Ross Miller would be leading a de-
certification movement, Craine (16:2775–2777) denied it as
did Supervisor Robert Gay (14:2472). Whatever difficulty I
have in making findings on other issues, I have no hesitancy
at all in finding that Bambace did not announce to the as-
sembled supervisors that Ross Miller would be leading a de-
certification movement. Actually, Crouse’s testimony at that
point followed so many other corrections of either his pre-
vious testimony or his first affidavit that it is possible (al-
though not certain) that he momentarily became confused
and mistakenly reported that Bambace did broadcast to all
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 Elsewhere Respondent describes another portion of Crouse’s testimony as
the product of his ‘‘vindictive imagination.’’ (Br. at 178.)
supervision what, according to Crouse’s earlier testimony,
was a confidential report to a few managers.
c. Possible animosity of Crouse toward owner
Basil Georges
As mentioned earlier, Crouse left SDC’s employment on
Sunday, 4 August 1985. On that day, Craine asked Crouse
for his resignation (2:326; 3:536, 540). The ‘‘request’’ came
as a complete surprise and shock to Crouse (3:537). When
Crouse asked why, Craine stated that owner Basil Georges
said that Crouse ‘‘just doesn’t fit into our future plans.’’
(3:470, 538) Crouse was not given anything more specific
than that.
Crouse admits that for a short time he was angry. He testi-
fied, however, that he does not dislike Georges, but that he
was concerned about what Crouse viewed as Georges’ (1) in-
consistent and irrational business decisions, and (2) his unbri-
dled lack of concern about the loyalty and happiness of his
employees (3:470, 483–484). Because of his feeling that
Georges acted unfairly in discharging him and others, Crouse
concedes that anger over such unjustness was a factor moti-
vating his decision to go to NLRB Region 23 in September
1985 and give evidence (3:485). Notwithstanding that con-
cession, Crouse testified that the manner of his termination
did not cause him to shade his testimony (3:540).
Crouse’s decision to go to the Labor Board followed a call
from Howard Lofton suggesting that he contact Chris Dixie,
attorney for the Union. Actually, Lofton had called Crouse
earlier to suggest this, twice before Crouse’s termination and
possibly once afterward before this call, but Crouse would
never discuss the matter with him (3:470–471). Even though
Crouse had rejected these previous suggestions by Lofton,
Crouse had been doing much ‘‘soul searching,’’ ‘‘agoniz-
ing,’’ and examining his conscience for the past 10–12
months concerning the various discharges (3:470, 482, 510).
To preserve his job, and to protect SDC, Crouse remained
silent for fear that Georges, whom he considered as incon-
sistent and irrational, would retaliate (2:328, 332; 3:483,
512).
Finally, on 18 September 1985 Crouse went to see Attor-
ney Dixie. After he and Dixie conferred about 5 minutes,
Dixie took him to NLRB Region 23 where Crouse, as de-
scribed earlier, gave the first of two affidavits (2:339–340,
354; 3:447–448).
Also to be considered in conjunction with Crouse’s credi-
bility is the Union’s argument that Crouse testified under the
strain of knowing that attorney Bambace represents Crouse’s
current employer (Br. at 60). On Monday, 16 September
1985 Crouse began work at Moore’s Foods in Houston
(2:342).
In late September 1985, after Crouse had begun work at
Moore’s and given his affidavits to NLRB Region 23,
Crouse observed Attorney Bambace in the store where he
worked conversing with Moore. Crouse went over and shook
Bambace’s hand. Crouse was informed by one of them that
Bambace was retained counsel for Moore’s Foods. A mo-
ment later Moore left and Crouse and Bambace continued to
talk. Crouse informed Bambace of his termination, his visit
to Region 23, and that he would testify concerning
Bambace’s ‘‘different arena’’ and ‘‘orchestrated plan’’ re-
marks and other matters (2:342–346; 3:493–494, 524–525).
Crouse testified that Bambace denied saying these things
(3:525–526). Bambace asked for a copy of Crouse’s affi-
davit. Crouse agreed, but as Crouse had not yet been fur-
nished a copy, Bambace had to come back to the store to
get the copy in the week before Crouse testified (3:527–528).
Asserting Crouse was unable to tell the same story twice,
and that the reason for his shifting positions was something
other than honest confusion, Respondent argues that Crouse’s
testimony was ‘‘utter fabrication.’’ (Br. at 144.) Crouse made
his ‘‘preposterous’’ (Br. at 144, 147, 150) claims, argues Re-
spondent, because he was angry at owner Georges for firing
him, and he twisted innocent events and fabricated others in
order to achieve revenge against Georges (Br. at 148–149).41
Respondent even suggests a solution to the credibility rid-
dle. It theorizes that ‘‘Crouse, proceeding on the assumption
that only Bambace was smart enough to start a decertifica-
tion petition, jumped to the conclusion that Bambace must
have been involved and proceeded from there to fabricate the
events concerning which he testified.’’ (Br. at 148–149.)
Respondent goes on, for example, to suggest that
Bambace’s acknowledged statement to the assembled super-
visors that Ross Miller ‘‘had filed’’ a petition was converted
by Crouse to the ‘‘orchestration’’ statement (Br. at 149). On
this, and other examples, Respondent contends that Crouse
‘‘continued to weave his fictitious tale that he was advised
that another law firm would be representing Miller and that
Miller ‘would be taken care of.’ In short, Crouse decided
what must have happened in light of his low estimation of
Company officials and, motivated by his anger at Georges,
concocted a scenario, and a preposterous one at that, wherein
the Company, led by Bambace, instituted the decertification
effort.’’ (Br. at 149–150.)
Ignoring the possibility of revenge as Crouse’s motive,
counsel for the General Counsel contends that ‘‘Crouse had
no reason whatsoever to testify to admissions against his in-
terest or to relate anything but the complete truth.’’ By con-
trast, they argue, Craine and Bambace have an ‘‘extremely
strong motive to deny the facts.’’ (Br. at 62.)
d. Crouse essentially credited
Crouse testified with apparent sincerity even though he ad-
mittedly had a problem with dates, the sequence of events,
and recalling who was doing the speaking. He stands by the
accuracy of his recollection as to the contents of the con-
versations. For the most part, Crouse’s ultimate reconstruc-
tion of the two most important conversations boils down to
his attributing some comments to Craine and others to
Bambace. At one point Crouse dismissed his confusion over
whether it was Craine or Bambace speaking by saying he did
not think it made any difference which one said it (2:412).
Bambace was persuasive in his denials of statements at-
tributed to him, but Craine testified unpersuasively. Accord-
ingly, to the extent I now describe, I credit Crouse.
I find that the statements Crouse described were in fact
made—but by Craine, not by Craine and Bambace. Thus, I
find that in a conversation between Craine and Crouse about
Wednesday, 30 May 1984, in Craine’s office, Craine made
the remarks about the Union’s agreeing to virtually every-
thing, that Respondent really did not want a contract, and
967SOUTHWEST DISTRIBUTING CO.
42 Lofton confirmed that the pay for the drivers was reduced following the
ratification (7:1308).
43 Nelson did not testify. Miller testified that so far as he knows Nelson is
the one who wrote the preamble (5:867). The sales drivers, as Miller was at
that time, are part of the package sales department. Miller testified that Nelson
was classified as a coil line cleaner in the keg or draft department (5:919–
920).
44 References to the decertification petition can be confusing. The document
bearing the preamble and the signatures of 61 employees is actually the evi-
dence satisfying the Board’s discretionary practice, set forth in Statements of
Procedure, Sec. 101.18(a), that a petition for decertification filed under Secs.
102.60 and 102.61 of the Board’s Rules and Regulations must be supported
by a showing of at least 30 percent of the employees in the affected bar-
gaining unit. The document which is the formal petition is on a form provided
by the Agency, and that it is the document which is docketed here as Case
23–RD–542 (G.C. Exh. 3). To distinguish between the two documents, I shall
Continued
that it was obvious SDC would have to move into another
arena.
Some 2 days later, about Friday, 1 June, and again in
Craine’s office with just Craine and Crouse present, the con-
versation occurred as Crouse described except that Bambace
was not present and Craine made the remarks Crouse at-
tributes to Bambace as well as those Crouse attributes to
Craine.
It was, I find, Craine who said that Ross Miller would be
used to spearhead a decertification movement, Craine who
explained what that was, Craine who described it as an ‘‘or-
chestrated’’ plan to get rid of the Union, and Craine who,
in answer to Crouse’s question whether Bambace’s law firm
would represent Miller, said that SDC and Bambace’s firm
could have nothing to do with it and that another firm had
been selected to assist Miller. The conversation concluded, as
Crouse testified, with Crouse asking ‘‘What’s in it for
Ross?’’ and Craine answering:
Don’t worry about it. Ross Miller will be taken care of.
C. The Decertification Events
1. The allegations
The trial complaint contains a series of paragraphs (10 and
12–16), some with subparagraphs, alleging that from early
June through July 1984 Respondent encouraged, solicited,
and assisted (1) employee Ross Miller to circulate and file
a decertification petition, and (2) employees to resign from
the Union and to revoke their dues-checkoff authorizations.
Complaint paragraph 10 alleges the solicitation by Craine
of Ross Miller and the eventual promotion (as a reward) of
Miller to supervisor. Paragraph 12(a) alleges both Craine ini-
tiated and encouraged the dues-checkoff revocations, and
12(b) alleges that Respondent assigned extra help to Ross
Miller to give him free time to solicit signatures on the de-
certification petition. Paragraphs 13, 14, and 16 allege that
in June Executive Vice President Hayes solicited an em-
ployee to sign both the decertification petition and the dues-
checkoff revocation in order to demonstrate to owner Basil
Georges that black employees were withdrawing from the
Union. Paragraph 15 alleges that about mid-June Vice Presi-
dent Crouse interrogated an employee concerning his failure
to abandon his union membership.
2. Preliminary facts
To understand the relationship of events we need to sum-
marize the sequential facts concerning the decertification pe-
tition. The allegations in complaint paragraph 10 concerning
this will be addressed later.
There is no dispute that beginning 1 June Respondent ap-
plied the terms of the negotiated but unsigned 1984–1988
collective-bargaining agreement (2:394, Crouse; 13:2331,
Craine). These terms included some items less favorable to
employees than those existing in the prior collective-bar-
gaining agreement. For example, a more restrictive set of
work rules was attached, and the Union agreed that seniority
would no longer be the controlling factor in layoffs and on
job bids. Ross Miller testified that under the wage concession
granted by the Union, some employees could receive as
much as $7000 to $8000 less in commissions each year, and
they also would have to pay more for their insurance (5:902–
904).42
Miller testified that the drivers became upset and consid-
ered that the ‘‘union had sold us down the river.’’ (5:858,
902–903) Driver James T. Bailey was a strong and open
union supporter and a member of the Union’s contract com-
mittee in 1984 (9:161–1653). Bailey testified that the union
negotiators seemed upset at the end with SDC’s proposals,
and that the work rules were just part of the cause of their
unhappiness (9:1655–1656).
The membership ratified the agreement, but the dissatisfac-
tion of the employees surfaced in their circulating and sign-
ing the petition to decertify the Union. Although the com-
plaint alleges, and the General Counsel argues, that Respond-
ent encouraged and solicited Ross Miller to file a decertifica-
tion petition, the undisputed evidence is that it was employee
Kirk Nelson, not Ross Miller, who initiated the petition the
employees signed. Ross Miller so testified, explaining that he
became involved in early June shortly after Nelson initiated
it (5:849, 858, 864, 878–882).
The petition already was worded when it came to him,
Miller testified.43 He told Nelson he wanted to get involved
and get back the extra charge on the pension fund the Union
was taking from the employees (5:864). The preamble to the
petition reads (G.C. Exh. 2):
WE THE UNDERSIGNED BELIEVING THAT
LOCAL 1111 DOES NOT REPRESENT OUR BEST
INTEREST PETITION FOR DECERTIFICATION OF
TEAMSTER 1111 AS BARGAINING AGENT FOR
SOUTHWEST DISTRIBUTING COMPANY’S DRIV-
ERS, HELPERS, KEG DRIVERS, LINE CLEANERS
AND WAREHOUSEMEN. THIS WAS VIVIDLY
DEMONSTRATED BY THEIR HANDLING OF
SOUTHWEST DISTRIBUTING’S PENSION PLAN
Under the preamble appear two columns of signatures
numbered 1 to 45. On the second page the numbered signa-
tures end at 50, but there are an additional 11 unnumbered
signatures, for a total of 61, with the last one being R.
Lyons. As Ross Miller testified, the first signature is that of
Daryl Kirk Nelson, with Miller’s being the fourth (5:865).
Appearing in the upper right corner of the petition is the date
‘‘6-15-84.’’ There is no dispute that the petition was cir-
culated before that date, and Miller testified that, as best he
could recall, he wrote the date on the petition the day (15
June 1984) he filed it at the office of NLRB Region 23 in
Case 23–RD–542 (5:865, 866).44
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
refer to the paper with the preamble and 61 signatures (G.C. Exh. 2) as the
decertification petition, or just ‘‘petition,’’ and to the formal petition (G.C.
Exh. 3) as the RD petition. Copies of the docketed RD petition are mailed
to the interested parties, but copies of the showing of interest (the decertifica-
tion petition) are not mailed since the showing of interest is a purely adminis-
trative matter. 2 NLRB Casehandling Manual Secs. 11008, 11010 (Apr. 1984).
The showing of interest, confidential in the representation case, may become
an exhibit, as here, in a subsequent unfair labor practice case.
45 Rule 4 provides that employees shall not interfere with other employees
on the job (G.C. Exh. 18 at 32). Rule 35 reads, ‘‘Solicitation for any cause
during working time without permission is prohibited.’’
46 Crouse testified that Supervisor John Roschal told him that Miller had
‘‘information’’ in the folder pertaining to the petition that he was getting peo-
ple to sign (3:497). Union supporter James T. Bailey testified that when he
observed Miller soliciting (before 7 a.m.) he was carrying the petition on a
clip board (9:1642–1644). Miller testified that he circulated the petition in the
morning before leaving on his route and on a few occasions after checking
in during the afternoon (5:849–850). There were two exceptions to this, he tes-
tified. One was the period of 7–13 June when, as part of his vacation, he vis-
ited his daughter in Lockhart, Texas (5:846, 970–972; G.C. Exh. 36). The
other was 15 June when he came to the plant and obtained permission to be
off work that day because of the hospitalization and anticipated surgery on his
brother. On his way to the hospital Miller stopped at Region 23’s office and
filed the RD petition. Miller’s brother subsequently died (5:847–848, 913–
915).
47 Recall that Ross Miller was out of the city for 5 working days in early
June on vacation: 7–8 and 11–13 June (3:462; 5:846, 971–972).
48 Such an instruction, if it occurred, likely would have been around 11 July
when the parties signed the election agreement scheduling the election for 30
July (G.C. Exh. 4). The Acting Regional Director approved the agreement
(Stipulation for Certification upon Consent Election) on 12 July.
49 On cross-examination Crouse testified that in his first affidavit he erro-
neously placed the Cook conversation in mid-June because he had no 1984
calendar to inspect when he gave his statement (3:434–435).
50 He also testified that he never met or spoke with Craine about the petition
and did not even go to his office during the first 15 days of June (5:858, 907).
Chief Steward Howard Lofton testified that his first sight-
ing of someone circulating the decertification petition was
approximately Thursday, 7 June, when he observed Kirk
Nelson soliciting employees to sign it about 7:15 or 7:20
a.m. When Lofton approached him, Nelson showed the peti-
tion to Lofton who informed Nelson that he was violating
rules 35 and 44 of the ratified agreement.45 They disputed
the matter, and Lofton said he would protest the matter to
Craine (7:1310–1311). Previously summarized is Lofton’s
testimony about protesting the matter to Craine a few min-
utes later (7:1311, 1348–1349). As I have found, on 7 June
Craine had just arrived in Italy.
Lofton did not observe Ross Miller with the petition until
the afternoon of 13 June, when he observed him with it as
Miller and Craine conversed in the yard of the compound by
the truck shed, and again the next morning, 14 June, when
he was showing the petition to some other employees
(7:1313–1315, 1354–1360). As his expense report reflects, on
13 June Craine departed Italy (R. Exh. 24).
Crouse testified that Executive Vice President Bobby
Hayes instructed him to provide Ross Miller extra help on
his route so he would have sufficient time to solicit the vote
of employees, including those in the warehouse and draft de-
partments (2:287). Crouse testified that this conversation was
in mid to late June (2:287, 298).
Crouse testified that he had extra help dispatched to assist
Miller during the first 2 weeks of July (2:298). During early
June Crouse observed that Miller would remain at the com-
pound until 9 or 9:30 in the morning, proceed in his private
car to his route, and return about the earliest permitted
check-in time of 3 p.m. On some of these occasions Crouse
observed that Miller, who was carrying a manila folder,
would talk with employees (2:286, 293; 3:496 497).46
Several drivers testified that at some point during the first
2 weeks of June Ross Miller and Kirk Nelson either solicited
them to sign the petition or they observed them soliciting
others. However, these witnesses place the time of such oc-
casions as being at the compound before the drivers em-
barked on their routes or after they had returned. There is no
testimony that Miller (or Nelson) solicited on the routes, or
interrupted employees who were working at their jobs. More-
over, there is no testimony from any warehouse employee
that Miller entered there and solicited signatures during the
day while others supposedly delivered Miller’s route for him.
As with other areas of his testimony, Crouse testified in
an uncertain manner regarding dates and the sequence of
events. It is possible that he merged two separate periods.
One period was the first 2 weeks in June when Ross Miller
and others (Kirk Nelson and Guy Wright) solicited signatures
on the petition.47 The second was the campaign period which
followed Miller’s filing of the RD petition. Conceivably,
therefore, Vice President Hayes could have instructed Crouse
to assign extra help in July to enable Ross Miller to solicit
votes (the word Crouse used in his testimony) against the
Union in the election scheduled for 30 July.48
I find the General Counsel’s evidence on this subject to
be unreliable.
3. The alleged assistance to Ross Miller; Gray gets a
copy of the petition; promotion allegation dismissed
Crouse testified that at some point in the week of 28 May–
1 June Supervisor Mel Cook asked whether Crouse had no-
ticed that Ross Miller seemed to be meeting frequently with
owner Georges in the latter’s office. Crouse replied that he
had not noticed it, but that he knew Ross Miller had been
across the compound (in the building housing the offices, ap-
parently) quite a bit although he did not know what he was
doing there or where (whose office) he was going (2:278–
279; 3:434–435).49
Cook denied having any such conversation with Crouse,
and he testified that he never saw Ross Miller going to
Georges’ office or in Georges’ office ( 15:2671–2672).
Ross Miller testified that he was not in owner Georges’ of-
fice at anytime during May or the first 15 days of June and
that he did not speak with Georges at any time during that
timeframe (5:858–861). I credit Crouse. Ross Miller testified
that on 15 June he went to President Emeritus Jack Gray, his
friend of over 30 years, told him he had a list of employees
who wanted to get out of the Union, and he asked if Gray
could help him. Saying that he thought he could, Gray tele-
phoned Bambace who in turn furnished some names and
telephone numbers of agents at NLRB Region 23 to call.
Miller called, made an appointment, went to Region 23, and
filed the RD petition (5:848, 909–913).
Miller testified that he never mentioned the petition to
Gray (presumably, that is, before 15 June),50 that he never
showed the petition to employees in the office, that he never
showed it to anyone in management, nor did he ever tell
anyone in the office or in management who had signed or
not signed the petition (5:917–918). He testified that no one
(in management) asked to see it (5:975).
Shortly after he filed the RD petition, Miller returned to
Gray and said he might need an attorney because he did not
969SOUTHWEST DISTRIBUTING CO.
51 As Attorney Susman signed the 7 August agreement resolving the chal-
lenged ballots which, in turn, led to the revised tally of ballots, and the certifi-
cation of results, it presumably was about mid-August when Ross Miller ten-
dered the $300 to Craine.
52 Former Chief Steward Howard Lofton testified that in 1984 it was pos-
sible that a driver could make as high as $58,000 (11:2171).
53 The meetings allegedly occurred from early June through 15 June. As I
have found, Craine was on his European vacation during most of that period.
know what was going to happen. Saying he would try to get
an attorney for Miller, Gray telephoned Bambace who in turn
recommended Attorney Karen H. Susman (5:851–854, 913).
Miller contacted Susman (5:876), and there is no dispute that
Susman represented Miller in the proceedings on Case 23–
RD–542.
When he hired Susman to represent him, Miller did not
learn what her fee would be to represent him. This is so, he
testified, because he needed an attorney and did not feel that
money was important at that point (5:877). After the elec-
tion, Miller went to Craine (not Gray), gave him $300, and
asked Craine if he would take care of the attorney’s bill for
him.51 Craine accepted the $300. If Susman charged more
than the $300, Miller testified, then Craine paid it because
Miller did not (5:854–855, 877, 908).
The parties stipulated that Ross Miller became a super-
visor in September 1984 as alleged in complaint paragraph
6 (1:42). Miller places the date of his promotion as 1 Sep-
tember (5:842).
Miller was hired by SDC’s predecessor on 11 November
1953, and he has been a driver for over 30 years (5:841).
Miller’s particular supervisory position is both unique to him
and unprecedented at SDC. Although he is not superior to
the other route supervisors, he is over all routes as a kind
of supervisory trainer in relation to customer relations. He re-
ports to Sales Manager Hunt (5:842, 886–889). It is clear,
and I find, that Respondent created the position for Miller.
In their brief at 63–64, counsel for the General Counsel
argue that Respondent ‘‘cut a deal’’ with Miller whereby it
agreed to reward him with a promotion if he would front for
Respondent in the decertification movement. They point to
the timing of the promotion, observing that it occurred barely
3 weeks after the certification of results, yet Respondent of-
fered no evidence explaining why it took over 30 years for
it to recognize Miller’s potential talents as a supervisor.
However, in 1983 Miller earned about $50,000 as a driv-
er.52 As a supervisor he began earning about $31,000 a year
(5:885, 972). He received no bonus in 1984, although he
hopes to receive a bonus for 1985 (5:886).
In about November 1983 Miller’s Achilles tendon was in-
jured when he was robbed. Surgery was performed, his ankle
was in a cast for 6 to 8 weeks, and he had to walk with
crutches.
In January 1984 Miller approached President Emeritus
Gray about the possibility of his moving to some other posi-
tion since it now was so difficult for him to perform his job
with his bad ankle. Because a new position would entail a
pay cut, Miller testified that he delayed leaving his driver’s
position. Eventually, however, ‘‘my leg told me I better get
off’’ the truck (5:975–977).
Miller testified that in the past Respondent has promoted
several drivers or helpers to supervisory positions after they
were injured and could no longer perform their route delivery
jobs. He named three, and testified that there have been oth-
ers (5:973).
The General Counsel offered no evidence contradicting
Miller’s testimony about his ankle injury, his medical need
to leave his driver position, or Miller’s testimony about Re-
spondent’s past practice of having promoted other injured
employees to the position of supervisor. Counsel for the
General Counsel argue (Br. at 64) that Miller’s condition
made him ‘‘an obvious choice for fronting a decertification
petition in return for a supervisory position.’’
In view of Craine’s statement to Crouse that Ross Miller
would spearhead a decertification movement, and that Miller
would be taken care of, it is possible that Miller was prom-
ised a supervisor’s position if he agreed to lead the decerti-
fication effort. On the other hand, the inference seems equal-
ly strong that Respondent simply followed its past custom of
promoting some injured employees. That inference seems
particularly applicable here because Miller had served Re-
spondent for over 30 years.
I attach no significance to Miller’s promotion to super-
visor, and I shall dismiss complaint paragraph 10(d) which
alleges that Miller’s promotion was an unlawful reward.
Notwithstanding my dismissal of the reward allegation, I
find that when Ross Miller went to President Emeritus Gray
on 15 June seeking advice regarding the petition he carried,
he showed the signed petition (G.C. Exh. 2) to Gray, and
Gray made a copy, or had a copy made, before Miller left
his office. I further find that President Craine utilized Gray’s
copy (or one made from it) in preparing his yellow score-
card, a subject I discuss later.
Although complaint paragraph 10(a) alleges that Craine
held meetings with Ross Miller and urged him to file a de-
certification petition,53 there is no evidence that Craine in
fact either (1) met with Miller or (2) asked him to circulate
a decertification petition. The only direct evidence on that
point is Crouse’s credited testimony that Craine, about 1
June, said Miller would lead the decertification movement,
and that about the same time Miller was seen entering owner
Georges’ office several times. A few days later, at the second
meeting of the managerial nucleus, Craine told the managers
that Ross Miller and a couple of persons Miller trusted were
gathering signatures for the decertification (2:283–285).
Craine’s statement to Crouse can be interpreted at least
three ways. (1) Craine met with Miller and solicited him to
circulate the petition. (2) In a conversation with Miller,
Craine learned that Miller was preparing to circulate a decer-
tification petition. (3) Craine heard by the grapevine that
Miller was going to circulate a decertification petition. No
one interpretation is the most compelling even though the
third is the least likely.
The second occasion (Craine’s comment to the managers)
assertedly occurred after the petition was being circulated.
Even the third interpretation is possible here, although it still
remains the least likely.
There is too much speculation, and the inferences have to
reach too far, to support a finding that Craine solicited Ross
Miller to file a decertification petition. I shall dismiss com-
plaint paragraph 10(a).
Complaint paragraph 10(b) alleges that Miller solicited
signatures of other unit employees. As this is an allegation
Miller did so as Respondent’s agent, I shall dismiss the alle-
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 There is a John Holliday and a Fred Holliday named in the record. They
are brothers. Although only the surname of Holliday appears at this point in
the record, the testimony of Crouse at other points makes clear that John
Holliday was the person named (2:347, 358; 3:487).
55 The last letter is dated 9 July 1984 (G.C. Exh. 15–45).
gation. I shall dismiss paragraph 10(c) (the filing of the RD
petition) for the same reason.
As for complaint paragraph 12(b), which alleges that Re-
spondent, through Hayes and Crouse, provided additional
employees to assist Ross Miller, I shall dismiss the allegation
on two grounds. First, the timeframe could well have been
during July with Miller talking to employees about voting
‘‘No’’ in the election. Even assuming that Respondent ap-
pointed Miller as its agent for that purpose, it is questionable
whether the appointment, plus the additional employees fur-
nished to do Miller’s regular job, would be illegal as a mat-
ter separate from some illegal statement Miller could have
made.
The principal reason I shall dismiss paragraph 12(b) is that
the evidence on the point fails to establish that employees
were approached during their worktime. Although Crouse
testified about Miller approaching employees as late as 9:30
a.m., I find his testimony on the point unbelievable. Crouse
did not specify who the other employees were, and the driv-
ers leave for their routes about 7 a.m. If Crouse meant to say
he observed Miller soliciting employees in the warehouse, he
certainly did not make that clear. I shall dismiss paragraph
12(b).
4. Withdrawals from the Union and the
scoreboard meetings
a. Crouse’s testimony
Crouse testified that the first item he observed regarding
union resignation forms or scoresheets was not a form but
a yellow legal pad in Craine’s office shortly after the decerti-
fication petition effort began, or ‘‘sometime in the first part
of June, first to the middle of June.’’ (2:300–301) As with
his recollection of other dates, Crouse conceded that he was
rather confused about the timeframe (2:301–302).
Crouse testified that on this occasion he observed a list of
names, in Craine’s handwriting, of the employees ‘‘eligible
to vote.’’ (2:300) One column was to the left of the list of
names, and two columns were to the right. In the column to
the left Craine had marked a ‘‘C’’ or ‘‘U’’ (for Company or
Union) beside various names. One of the columns to the
right designated whether the employee had signed the decer-
tification petition, and the other was checked if the employee
had submitted a notice to the Union that he had resigned his
union membership (2:300–301, 308–309; 3:439).
Asked whether he saw the list more than once Crouse re-
plied that he had seen it four or five times—all during July
(2:309). On the other hand, Craine discussed the list with
Crouse ‘‘almost every day’’ before and after the RD petition
was filed and beginning about the week of 11 June (3:436–
437). Hedging, Crouse said ‘‘almost every day’’ that he and
Craine were available at the Houston office to discuss it
(3:437).
Although he did not count the names, Crouse estimates the
number at around ‘‘the 107 figure that I think were eligible
voters.’’ (3:440) On the first occasion when he saw the list
Crouse observed that some 30 to 35 names were checked as
having signed the decertification petition, and about 20
names were checked as having withdrawn from the Union
(3:442, 445). At this point in his testimony Crouse seems to
place the incident as being between 11 and 22 June (3:442).
Crouse testified that between 15 June and the election (30
July) Respondent conducted a series of ‘‘scoreboard’’ meet-
ings, at least one a week, in Craine’s office (2:310). Only
the officers and department managers, not the supervisors, at-
tended (2:390). Going down the list of names on his yellow
pad scorecard, Craine would ask the managers their opinion
on how each employee was ‘‘going to do’’ (2:390). Man-
agers would either volunteer or be designated to speak to
various employees to attempt to sway them toward SDC’s
position (2:311). Gray would keep a record of which man-
agers would be talking to which employee, such as, for ex-
ample, when Crouse volunteered to talk to Rodney Lyons
(2:311; 3:531). Craine told the group not to talk to certain
employees because to do so would only alert them to what
management was doing. Named in this connection were
Howard Lofton, Raymond Rice, Sam Tharp, and John
Kimbrough (2:311–312).
At more than one meeting, Crouse testified, Craine named
several employees who had neither resigned from the Union
nor signed the decertification petition. Included were the
names of Howard Lofton, Sam Tharp, John A. Holliday,54
Raymond Rice, John Kimbrough, Franklin Montgomery,
Ronald Spina, Richard Jackson, and Rodney Lyons (3:440,
530–532). Crouse apparently dates the first of these occa-
sions as being between 11 and 22 June (3:441–442).
Crouse testified that he no longer has his copy of the
scorecard, for it has been destroyed (2:305).
In addition to describing the scorecard Craine maintained
on a yellow legal size pad, Crouse testified that on one occa-
sion when he was in Craine’s office, office secretary Carrie
Jean Skinner came in and gave Craine a handful of papers.
On top of the stack were the original handwritten (resigna-
tion) letters of employees, and on the bottom, paperclipped
together, were some unsigned and typed (resignation) forms
(2:307; 3:445–446). Craine said, ‘‘Well, let’s see where we
stand today.’’ On saying this, Craine produced his yellow
legal scorecard, and he marked his scorecard as indicated by
the letters (2:307; 3:500).
Crouse initially dated this incident as occurring ‘‘shortly
after the decertification movement was started by Ross Mil-
ler (2:300), or in ‘‘early June.’’ (2:306) Saying he could
come a little closer than that to the correct date, Crouse esti-
mated that the ‘‘gathering of signatures’’ took place in the
middle 2 weeks of May (2:307). Perhaps he meant to say the
middle 2 weeks of June. His final estimate appears to be that
it could have occurred somewhere between 11 and 22 June
(3:446). Whatever the date, he saw the resignation forms in
Craine’s office only that once (2:307).
The record contains copies of letters from 45 employees
resigning their membership from Teamsters Local 1111
(G.C. Exh. 15). Dated 15 May 1984, the earliest letter is
from Kirk Nelson (G.C. Exh. 15–13).55 Nelson’s handwritten
letter is addressed to Skinner. He tells Skinner that he has
been on temporary withdrawal from Local 1111, that he has
decided not to seek reinstatement to membership in the
971SOUTHWEST DISTRIBUTING CO.
56 Johle signed the petition in place 36 (G.C. Exh. 2), and his union mem-
bership revocation letter is dated 26 June (G.C. Exh. 16–32).
57 Complaint par. 17 alleges this to be, in effect, the promise of ‘‘an im-
proved route if the Union lost the election.’’ 58 His initial testimony on the point was a flat denial (1:160).
Union, and requests that Skinner forward copies ‘‘of this re-
quest to the appropriate parties.’’
The balance of the letters are addressed to the Union. A
handful of these are handprinted and advise that the signer
resigns his union membership. The rest, about 30 or so, are
typed and signed. The one-sentence text of the typed letters
states: ‘‘I hereby resign from membership in the Brewery,
Soft Drink, Industrial & Allied Workers Union No. 1111.’’
Except for Nelson’s and a couple of others, the letters bear
a certified mail number typed (or handprinted on the
handprinted letters) in the lower left-hand portion of each let-
ter. Of the 45 letters, 20 bear a date earlier than Friday, 22
June.
Under this heading of Crouse’s testimony I shall include
a summary of his description of a statement made by Super-
visor Robert Gay to driver Kirby L. Johle. Crouse testified
that in early July he heard Gay remark to Johle,56 ‘‘Just
think, Kirby, as soon as we get rid of the Union how much
better route you can have.’’57 Kirby responded, ‘‘Yeah.’’
After Crouse and Gay were alone, Crouse admonished Gay
that they were not to make such remarks to employees
(2:312–313; 3:479–481). Gay did not address this when he
subsequently testified. In crediting Crouse on this point I find
that the remark, as alleged, violated Section 8(a)(1) of the
Act.
b. The testimony of Skinner and Craine
Carrie Jean Skinner testified that she has worked 15 years
for SDC, is in charge of the payroll, and handles correspond-
ence and clerical matters pertaining to the Union (16:2817–
2818). Skinner testified that in June, after Nelson had given
her his letter resigning, in effect, from membership in the
Union, several warehouse employees came in also wanting to
resign (16:2822, 2824–2825). Apparently these employees, as
Nelson, were tendering handwritten notes. Skinner testified
that she did not have time to handle the different pieces of
paper the employees were tendering (16:2825, 2835). Be-
cause she did not want to take these notes, Skinner went to
her supervisor, Vice President Ralph Baldwin, seeking relief.
Baldwin telephoned Attorney Carolyn Luedke, an associate
of Bambace in the Fulbright and Jaworski firm. Luedke sent
a note by messenger (2:2825– 2826).
The note (R. Exh. 63) from Luedke advises than on inquir-
ies concerning resigning from the Union, the ‘‘Employer
cannot solicit or otherwise encourage employees to resign
their membership in a union. However, if an employee in-
quires how he can resign, it is permissible to respond to the
inquiry by giving the employee the following factual infor-
mation:’’
You can resign your membership in the Union if you
choose to do so by submitting a written document to
the Secretary-Treasurer of the Union, stating that effec-
tive immediately, you hereby resign from membership
in Brewery, Soft Drink, Industrial & Allied Workers
Local Union No. 1111.
As a final line in her memo, Luedke advised that any in-
formation given to an employee should be limited strictly to
the above indented sentence.
Using Luedke’s memo as a guide, Skinner typed a form
letter to the Union with the one-sentence text stating ‘‘I here-
by resign from . . . Local 1111.’’ She then made copies of
the forms that employees could sign. She did this in order
to have the documents of uniform size for ease and uni-
formity in filing (2:2826, 2835–2836, 2841, 2849).
On some of the forms in evidence there is a slight vari-
ation either in the placement of a word or two, or by the
kind of typewriter used. Thus, it is clear that all the typed
forms did not come from a single batch of photocopies.
Skinner testified that some of the employees picked up letters
and, apparently, returned them later, and that some may have
used their own form (16:2845, 2849).
Either Skinner or one of the office clerks typed a certified
mail number on many of the letters and mailed them, at
SDC’s expense, to the Union (16:2841–2842). She testified,
however, that in the past she has frequently mailed items for
employees, at SDC’s expense, to the Union or to the credit
union (16:2821).
On Friday, 22 June, Skinner typed a list showing three
subjects: (1) employees who had withdrawn from the Union
by letter, (2) names of those who were not union members,
and (3) the total number of employees in the bargaining unit,
showing the number of union members and the number of
employees not union members (16:2828, 2836; G.C. Exh.
16). Skinner testified that she prepared the list on her own
initiative, that she showed it that day to Baldwin who told
her to keep up the good work, and to Craine who thanked
her after looking at it for a few moments (16:2839).
According to Skinner, she showed the list to Craine on 22
June because he is SDC’s president, because she thought he
needed to know who had dropped out of the Union, and be-
cause she thought he should know what was happening
(16:2829, 2837). She denied that Craine had asked about
such data (16:2837). She testified that the occasion of 22
June was the only time she ever showed the list to Craine
even though she added names to it thereafter as a ‘‘running’’
list, and he never once asked her who had resigned (16:2829,
2837). Although Skinner admits there was a lot of talk at
SDC about employees resigning from the Union (16:2829),
she denies knowing anything about the decertification matter
(16:2838).
According to Craine, it was not until Skinner, in June,
showed him the list she typed on 22 June (G.C. Exh. 16) that
he learned the clerical staff had prepared resignation letters
(G.C. Exh. 15) for employees to sign (1:159; 2:208–209;
13:2322–2324). Even then he did not learn that the clerical
staff was mailing the resignation letters, at SDC’s expense,
to the Union (1:160; 2:209–210). He does not think manage-
ment ordered or authorized it, but thinks that it just took
place (2:210; 13:2323).58
Craine’s testimony on the 22 June list is a little different
from Skinner’s. He confirms that in June Skinner brought the
22 June list (G.C. Exh. 16) to him. However, Skinner said
that employees wanted to know how to stop the deduction
of union dues now that they had resigned their union mem-
bership (2:208–209; 13:2324). Craine said he would have to
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon
Co., 394 U.S. 759 (1969); 2 NLRB Casehandling Manual Sec. 11312 (Apr.
1984).
60 Skinner’s ‘‘running’’ list shows a final total of 109 employees in the unit
(G.C. Exh. 16), whereas the Excelsior list has 108 names (G.C. Exh. 17).
61 Crouse testified that management expected to win by a ratio of 70 to 30
or even 80 to 20 (2:312).
62 Not only was the assistance consistent with SDC’s past practice, but here
the employees are the ones who requested assistance.
63 As we are about to see, other complaint paragraphs cover the cir-
cumstances pertaining to Rodney I. Lyons.
64 Complaint pars. 13, 14, and 16. Lyons also testified in support of com-
plaint par. 15, an allegation of interrogation in mid-June by Vice President
Crouse.
65 During his initial testimony Lyons placed the incident as occurring in late
May rather than early June (8:1395, 1414). As a rebuttal witness, Lyons dated
the event in early June (17:3058). This conversation is the subject of complaint
par. 13 which alleges the incident as occurring in early June 1984.
call SDC’s attorney. He then called Attorney Bambace. After
talking with Bambace, Craine explained to Skinner that there
was a window period in which employees could cancel their
deduction authorizations based on the date the cards were
signed, and he asked Skinner to prepare a list of names with
the dates of the dues-deduction authorizations. Skinner and
Baldwin, Craine testified, prepared the list. After Skinner
showed Craine the ‘‘window period’’ list, he gave it back to
her so she could be watching for the dates in order to stop
the dues deductions at the proper time (13:2325–2326).
According to Skinner, after union dues were deducted for
June some of the employees who had signed resignation let-
ters complained to Skinner. She therefore prepared a list of
employees with the dates they had signed their dues-deduc-
tion authorization (16:2827–2828). However, the list appar-
ently was not typed until 3 August 1984, for that is the date
reflected in the upper right corner of the first page (R. Exh.
64).
Craine denies that he maintained any master scorecard,
such as on a yellow legal pad, showing who had resigned
from the Union or who had signed the decertification petition
(1:158–159; 13:2326; 16:2809). The only list he kept, Craine
testified, was a copy of the Excelsior59 list (16:2808–2809;
G.C. Exh. 17). As explained by Craine, he would take occa-
sional readings from the supervisors at meetings, attended by
Crouse, on how they thought employees might vote. He did
not mark the list, but simply tried to keep track of it ‘‘in my
head’’ on the numbers. Because the estimates of the super-
visors indicated that SDC would win by a wide margin, tak-
ing about 75 votes out of 109 eligible voters,60 he did not
remember names but only numbers, for he figured that an es-
timate of 75 votes for SDC was sufficient.61 Because he had
no concern about the positions of individuals, no record was
kept indicating whether an employee was for or against the
Union (16:2809, 2811–2813).
Crouse testified that a copy of the Excelsior list (G.C.
Exh. 17) was not used at the meetings where supervisors
would be asked how they thought employees would vote
(2:389). The only occasion he recalls seeing the Excelsior
list, Crouse testified, was when SDC was preparing a mailout
to the employees and Crouse requested a copy of the list so
he would not have to write the names by hand (2:389).
Crouse testified that Craine did not utilize the yellow score-
card pad at the meetings with the supervisors, but only with
the managers (2:390). If Craine took notes at the supervisory
meetings, as distinguished from the managerial meetings,
Crouse did not describe the process.
Craine equivocated slightly on the subject of whether
Skinner periodically showed him the updated version of the
22 June list, the ‘‘running’’ list (G.C. Exh. 16), or told him
about new resignations. He testified that the list was updated
from time to time, but that he could not recall if he ever saw
the whole list (13:2321). Moments later he testified that he
did not recall whether he saw any updated version of Skin-
ner’s ‘‘running’’ list or received any supplemental reports,
but that he ‘‘probably’’ was shown that others had resigned
(13:2327). He again said that if there was ‘‘another list’’
(meaning an updated version of G.C. Exh. 16), ‘‘I’m sure
that Carrie Skinner probably had notified me that these peo-
ple were on this list.’’ (13:2328) Continuing its examination
of Craine (as an adverse witness), the Union asked whether
Craine got reports from time to time regarding resignations
from the Union, and Craine answered that he did not and
that any earlier testimony that he had was a mistake
(13:2328).
Craine did not specifically deny Crouse’s testimony about
meetings of just the managers when certain managers would
volunteer or be designated to talk to and try to sway certain
employees, although he did testify that he did not recall any
meetings in his office in June–July with just Craine, Gray,
Hayes, and Crouse (16:2812–2814).
c. Crouse credited
I credit Crouse on this subject. I find that Craine did uti-
lize a yellow scorecard as described by Crouse. Moreover, I
further find that payroll clerk Skinner supplied Craine a copy
of her original list (G.C. Exh. 16) of employees submitting
union membership revocation letters, and that she furnished
him copies of the modified list as she updated it.
As mentioned earlier, complaint paragraph 12(a) alleges a
violation by Craine’s causing the initiation and circulation of
dues-checkoff revocations. There is insufficient evidence that
Craine engaged in such conduct. I also find that the limited
assistance which Skinner gave Respondent’s employees was
no more than permissible ‘‘ministerial aid,’’ and that the rev-
ocations (with the exception of that submitted by Rodney I.
Lyons) were the free and uncoerced acts of the employees.62
See Eastern States Optical Co., 275 NLRB 371 (1985). Ac-
cordingly, I shall dismiss paragraph 12(a).63
d. Hayes solicits Lyons to sign the petition and to
resign his union membership
(1) The testimony of Rodney I. Lyons
Alleged discriminatee Rodney I. Lyons testified in support
of the complaint allegations that in June 1984 Executive
Vice President Bobby Hayes unlawfully (1) solicited an em-
ployee to sign the decertification petition and a dues-check-
off revocation, and (2) informed the employee that if he did
so everything would be all right for him with SDC and that
the employee had everything to gain and nothing to lose by
signing.64
Lyons testified that in late May, or early June,65 as Lyons
was dismounting from his truck, Hayes approached him and
said he needed some help. Hayes explained that he needed
some help in showing owner Basil Georges that he could get
some blacks out of the Union, and that he wanted Lyons to
973SOUTHWEST DISTRIBUTING CO.
66 They could not see the restroom from where they were standing (8:1416).
67 The General Counsel apparently relies on this testimony of Lyons to sup-
port comp1aint par. 15. Par. 15 alleges a mid-June interrogation of an em-
ployee by Crouse concerning the employee’s failure to abandon his union
membership.
68 Lyons eventually received a card from the Union acknowledging the can-
cellation of his membership (8:1408).
withdraw from the Union. Speaking further, Hayes com-
mented that Lyons had been at SDC as long as Hayes and
that they both were fully vested in the pension plan. Lyons
ended the conversation at that point by saying he would talk
to Hayes later (8:1395–1396; 17:3064). Hayes and Lyons are
black.
Formerly a member of the Union, Executive Vice Presi-
dent Hayes began his employment with SDC in about 1971
as a driver’s helper (16:2853). SDC hired Lyons in August
1971 and fired him on 3 July 1985 (8:1393, 1484). During
the relevant time, Lyons was a member of Local 1111, and
his membership dues were paid by payroll deduction
(8:1394; R. Exh. 64).
About 2 weeks later, Lyons testified, he received a tele-
phone call at home about 6 a.m. from Hayes. On this occa-
sion Hayes said time was running out and he wanted Lyons
to sign the decertification petition to show that Lyons was
getting out of the Union, for the petition had to be filed in
a day or two. Hayes said Kirk Nelson would have the peti-
tion, but if he did not then Ross Miller would. Lyons said
he would talk to Hayes when he arrived at work (8:1396–
1400, 1415; 17:3059, 3064–3065).
About 30 minutes later, after Lyons had arrived at the
plant, Hayes approached him in the salesroom and informed
Lyons that Nelson did not have the petition, that Ross Miller
did, and that Miller was over near the restroom (8:1401,
1415–1416; 17:3065).66 Lyons went over to Miller and
signed the petition (8:1401; 17:3065). Lyons’ name is the
very last one on the petition (G.C. Exh. 2). He testified that
he signed the petition in order to keep his job (8:1402;
17:3065).
In about June, Lyons testified, he also had a conversation
about the Union with Vice President Crouse. Dating the con-
versation as occurring shortly after one of his reported con-
versations with Hayes, Lyons testified that Crouse asked him
why he had not withdrawn from the Union.67 Lyons replied
that he had not thought about it. In order to get rid of
Crouse, Lyons said he would talk to Crouse about it later.
They never conversed on the subject again (8:1420–1422).
Crouse was not asked about this during his testimony. I cred-
it Lyons. As the interrogation was part of a systematic plan,
was by a vice president, and would tend to coerce an em-
ployee about his basic right under the Act to belong to a
labor organization, I find that Respondent violated Section
8(a)(1) of the Act as alleged in paragraph 15.
About a week after his second conversation with Hayes,
Lyons testified, Lyons was called into Hayes’ office. With
just the two present, Hayes told Lyons that he had to sign
another document in order to get out of the Union and so
that everything could go through as it should, for signing the
petition alone was not enough (8:1402; 17:3059, 3063,
3066). Continuing, Hayes said that Lyons would be better off
out of the Union because the Union was weak, that it was
going to lose the election, and because SDC had more to
offer Lyons (8:1403, 1416–1417; 17:3066.
Hayes handed the document to Lyons and Lyons signed it
at Hayes’ desk (8:1410; 17:3067). Lyons identified one of
Skinner’s typed form resignation letters (G.C. Exh. 15–44) as
the sheet of paper he signed in Hayes’ office (8:1409–1410;
17:3067). Addressed to the Union, the letter’s one-sentence
text states, ‘‘I hereby resign from Brewery, Soft Drink, In-
dustrial & Allied Workers, Local Union No. 1111.’’ The
word ‘‘membership,’’ present in most of the form letters, is
omitted from the text here.68
Lyons had heard talk among the employees that SDC had
a ‘‘hit list’’ with union members at the top. Because he
feared that his name would be included on the hit list if he
did not sign, and that, based on what Hayes had said, signing
would help preserve his job, Lyons signed the resignation
letter in Hayes’ office (8:1410–1411, 1416–1419).
On cross-examination Lyons admitted that most of the
members of the unit were members of Local 1111 (8:1419).
According to Respondent’s records, only about 10 of the bar-
gaining unit’s 108 or 109 employees were not on SDC’s list
for payroll checkoff of union dues (G.C. Exh. 16; R. Exh.
64).
Although Lyons testified that he thought it was June when
he signed the letter (8:1402, 1409–1410), the letter bears the
date of ‘‘July 5, 1984.’’ It is the penultimate of the 45 res-
ignation letters. The last one bears the date of 9 July.
(2) The versions of Bobby Hayes and
Carrie Jean Skinner
Denying that he ever telephoned Lyons and asked him to
sign a decertification petition, Hayes testified that he was un-
aware of the petition’s existence until Respondent received a
letter from NLRB Region 23 notifying SDC that such a peti-
tion had been filed in Case 23–RD–542 (16:2862, 2870).
Hayes also testified that he never asked Lyons to sign a
letter resigning his union membership (16:2863–2864). What
did happen, Hayes testified, is that Lyons came to Hayes’ of-
fice, displayed Lyons’ resignation letter of 5 July (G.C. Exh.
15–44), and said he wanted Hayes to see that he had re-
signed from the Union. Hayes merely glanced at the letter
and asserted that such was the business of Lyons. Hayes was
busy, and nothing else was discussed (16:2863). He denies
ever having a conversation with Lyons about the latter revok-
ing his dues checkoff and getting out of the Union (16:2869–
2870).
Hayes was asked by the Union on cross-examination why
he thought Lyons would come to his office and show him
the resignation letter of 5 July. In Hayes opinion, Lyons did
so as a form of ‘‘blowing smoke’’ at the ‘‘ranking black in
the company.’’ (16:2880)
Carrie Jean Skinner testified that Lyons came to the office
and asked for a letter to resign from the Union. She gave
him one of the copies from the stack she was keeping, and
he signed it on the spot. Rather than returning the letter to
Skinner, however, Lyons left saying he wanted to talk to
Hayes. Although Skinner did not recall receiving the letter
back from Hayes, she testified that he could have left it with
one of the other clerks in the office (16:2829–2831).
At the rebuttal stage Lyons denied Skinner’s assertions,
denied that he took the resignation letter to Hayes’ office,
and denied that he voluntarily went to Hayes’ office. He tes-
tified that he was called to Hayes’ office where, as pre-
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
69 I previously found merit to the allegation of complaint par. 15 regarding
the interrogation by Vice President Crouse.
70 Driver Richard Jackson testified that about a week after the election three
supervisors asked him how he had voted in the election. I discuss that testi-
mony, and the complaint allegation pertaining to it, as part of the discussion
of Jackson’s discharge.
71 Crouse actually dated the event as about ‘‘the first week of August before
I had been asked to go to Conroe.’’ (2:316) He was promoted to his position
of vice president and branch manager of the Conroe operation on Monday, 13
August (2:233). As the revised tally issued on 7 August (G.C. Exh. 7), and
as SDC withdrew its objections to the election on 7 August (footnote to G.C.
Exh. 8), such a conversation possibly could have occurred between 7 and 13
August.
72 As the summary of Lofton’s testimony shows, Lofton does not quote
Craine as using the word ‘‘trouble.’’
viously described, Hayes said he wanted Lyons to sign the
resignation letter (16:3049–3050).
(3) Conclusions
In crediting Lyons, as I do, concerning these events, I find
that Respondent violated Section 8(a)(l) of the Act by the
conduct of Executive Vice President Bobby Hayes as alleged
in complaint paragraphs 13, 14(a) and (b), and 16(a) and
(b).69
D. Certain Events in August 1984
1. Craine’s remark to Crouse about getting rid
of ‘‘troublemakers’’
As noted earlier, on 7 August 1984, following the election
on 30 July, the Regional Director approved an agreement by
the parties resolving the issue of challenged ballots in Case
23–RD–342 (G.C. Exh. 5). After the challenged ballots were
counted, a revised tally, dated 7 August, reflected a union
loss by a vote of 55 to 52 (G.C. Exh. 7).70 The Regional
Director issued a Certification of Results of Election on 13
August (G.C. Exh. 8). On that date Respondent held a party
in its hospitality room for the drivers and other unit employ-
ees as they checked in at the close of the day. Free beer was
served.
Between 7 and 13 August, Crouse testified, Crouse and
Craine had a conversation in Craine’s office in which Craine,
after informing Crouse that the election results had been fi-
nalized, stated, ‘‘Now we can go ahead and get rid of some
of the troublemakers.’’ (2:316)71 Craine went on to name
four employees: Howard Lofton, Raymond Rice, Sam Tharp,
and Ira Strange (2: 316).
Craine denied ever telling Crouse or anyone that he want-
ed to get rid of Lofton, Rice, Tharp, and Strange as the first
four (16:2803). He did not specifically deny the quote about
getting rid of some of the troublemakers. I credit Crouse
completely concerning Craine’s ‘‘troublemakers’’ remark and
Craine’s naming of certain employees.
2. Craine warns Lofton on 23 August 1984
Complaint paragraph 19 alleges that on or about 23 Au-
gust Craine told an employee that he had been causing
‘‘trouble’’ about the Union’s coming in and that Respondent
did not need that kind of waves.
In support of this allegation, Howard Lofton testified that
he was called to Craine’s office about 7:15 the morning of
23 August. Also present at the meeting, besides Craine and
Lofton, were Clayton Hunt, the new sales manager suc-
ceeding Crouse, and Bob Gay, Lofton’s supervisor (10:1992–
1993). Craine’s first comment to Lofton was that Hunt and
Gay were not there as witnesses but merely to understand the
situation.
Addressing the reason for calling in Lofton, Craine said he
had heard a rumor that Lofton was still talking up union ac-
tivity among the employees and that SDC was not going to
tolerate this, that SDC had a year to prove to the employees
what it could do for them and that the Company would not
stand for any talk of union activity. Lofton testified that he
replied he was there just to do his job, and that he denies
‘‘talking up this activity, per se.’’ (10:1993)
Another rumor he had heard, Craine said, was that
Lofton’s mother-in-law had sold some property and that
Lofton was going to receive some of the money and quit his
job at SDC. Lofton replied that what his mother-in-law did
was her business, but that he had been working there 16
years, so ‘‘why would I want to quit?’’ Craine said it was
just a rumor. In closing the meeting, he reminded Lofton not
to talk anymore about the Union (10:1993–1994).
Acknowledging such a meeting, Craine testified that he
had heard reports that Lofton was telling some employees
that the election would be overturned and there would pos-
sibly be another election. He therefore called Lofton in and
told him to cease, that SDC was trying to pull everyone to-
gether, and that Craine wanted Lofton to do a good job and
stop this discussion with the other employees. Craine names
Supervisor Gay as being the only other person present
(16:2798–2800).
Confirming that the Union was mentioned in the conversa-
tion in the context of the Union’s planning to have the elec-
tion set aside, Craine admits he voiced to Lofton the expres-
sion that SDC did not need those kind of waves, but he testi-
fied that he could not recall saying that Lofton had been
causing ‘‘trouble’’ about the Union’s coming in, although he
might have said it (16:2801–2802).72
Craine identified a file memo he prepared on 23 August
immediately following the meeting. The memo reads (R.
Exh. 61):
MEMO TO FILE
Aug. 23, 1984
On this date at 6:45 a.m. I had a meeting with driv-
er-salesman Howard Lofton. Bob Gay, Sales Super-
visor, was asked to attend as well. I told Howard
Lofton that he had been seen contacting some of our
employees during working hours and that some of those
he contacted told me that he was telling them that the
union was going to have the recent NLRB election set
aside and that they should be aware of it. I told Howard
that we did not appreciate his actions and that I wanted
it stopped immediately or we would be forced to take
corrective action. I went on to say that we are trying
to build a strong team here at Southwest and his job
should command all of his attention.
Howard said he would direct his efforts toward his
position and that he wanted to do a good job. I told
him that was all I could ask and we parted at approxi-
mately 7 :10 a.m.
/s/ James E. Craine
975SOUTHWEST DISTRIBUTING CO.
73 The record contains several references to both 21 or 22 August as being
the date of Riley’s discharge. The original complaint shows the date as 21 Au-
gust.
74 Hunt was the General Counsel’s first witness, and Respondent called him
briefly on the last day.
75 As we see in a moment, after leaving this meeting Fred Holliday went
to the office of President Emeritus Jack Gray. In the conversation with Gray,
Holliday spoke as if Hayes had quoted Basil Georges as describing Fred
Holliday as the black leader. Whether through inadvertence or whatever,
Holliday did not include that when he testimonially described what Hayes said
to him and the others. Thus, if Holliday intended to report that at the hearing,
he omitted doing so.
8/23/84
As Lofton clearly had the right to discuss the subject of
any union efforts to overturn the election, or to mount a new
organizing campaign aimed at having a new election a year
later, and in view of Crane’s total ban on any future union
talk by Lofton, under pain of discipline, I find that the Gen-
eral Counsel has established the facts alleged in complaint
paragraph 19. Although Lofton did not quote Craine as using
the word ‘‘trouble,’’ it is clear that Craine considered
Lofton’s protected conduct as being precisely that—trouble.
I find, as alleged in complaint paragraph 28, that the 23
August conduct of Craine, as described in complaint 19, vio-
lated Section 8(a)(1) of the Act.
3. At the instruction of owner Basil Georges, Hayes
interrogates and threatens Fred Holliday and others on
24 August 1984; Gray adopts the threat to Holliday
Complaint paragraphs 20–22 contain a series of allegations
that on 22 August Hayes and Jack Gray interrogated and
threatened Fred Holliday and other employees. The events
arise from Respondent’s discharge of Louis L. Riley about
21 or 22 August 1984.73
There is some difference on who was present at Riley’s
August termination. Hayes names himself and Clayton Hunt
plus Riley and Fred Holliday whom, it is undisputed, Riley
had requested as a witness (16:2853–2854, 2871). Neither
Hunt nor Riley was asked about the meeting during their tes-
timony. Fred Holliday testified that the discharge meeting
took place in Hunt’s office and that Craine was present as
well as the four named by Hayes (8:1577). Craine was not
asked about the meeting by any of the parties. Hayes testi-
fied that Riley was fired on the asserted ground that he fal-
sified documents in order to steal money (16:2855, 2872–
2874). The truth or falsity of that assertion was not litigated,
and the subject is relevant only to show the background of
the next meeting which evolved from Riley’s discharge.
This next meeting was held in Hayes’ office. Hayes testi-
fied that about a week after Riley’s termination he sum-
moned Fred Holliday to his office because of a report Hayes
received that Fred Holliday was still protesting among em-
ployees that Riley’s discharge was unjust. Angered by this
report, Hayes called in Holliday plus drivers Ira Strange, Joe
Dixon, and Jimmy Manning (16:2856–2857).
Called as witnesses by the General Counsel, Fred Holliday
and Ira Strange testified concerning the meeting. No party
called Joe Dixon or Jimmy Manning. Fred Holliday dates the
discharge meeting of Riley as 22 August (8:1577) and the
subsequent meeting as a day or two later (8:1579; 9:1629).
The second meeting began about 6:45 a.m., Holliday testi-
fied. In addition to the attendees listed by Hayes, Fred
Holliday names Sales Manager Clayton Hunt (8:1579). Hunt
was not asked about this meeting during his testimony.74
Ira Strange names the same attendees as Fred Holliday
(6:1092, 1147–1148). At the hearing Strange dated the meet-
ing as 22 August (6:1092), 1147), but in his pretrial affidavit
of 26 March 1985 he placed the meeting on 23 August (U.
Exh. 5 at 5).
Hayes testified that at this meeting he told Fred Holliday
of the report that Holliday was still carrying the banner for
Louis Riley by complaining that his discharge was unjust.
Hayes said he did not like it, for he thought the matter was
closed. He then explained to Strange, Dixon, and Manning
SDC’s reason for terminating Riley. Hayes then told the em-
ployees that he did not want to hear any more talk that Riley
had been treated unfairly. To Holliday Hayes said, ‘‘If you’re
preaching about Louis Riley, I wish you would preach about
something else.’’ (16:2857) Hayes testified he singled out
Fred Holliday because the report named Holliday, and not
because Hayes considered Fred Holliday a leader among the
black employees (16:2879–2880).
Hayes did not explain at the hearing why he called in
Strange, Dixon, and Manning as well as Fred Holliday. Fred
Holliday concedes that all the employees talked about the
subject, and that he had talked with Strange, Dixon, and
Manning about it (9:1628–1629). Holliday testified that he,
Louis Riley, Strange, Dixon, and Manning are black
(8:1579). Executive Vice President Hayes is also black.
Fred Holliday testified that the meeting began with Hayes
announcing they had been called in because SDC had heard
of secret meetings being held, that the employees present
were supporting Louis Riley, and that Fred Holliday was the
‘‘ringtail’’ leader of the group (8:1579–1580.75 Holliday as-
sumed that in referring to the employees supporting Riley,
Hayes meant that they did not think Riley’s termination was
fair (9:1629). Holliday testified that Hayes polled the group,
asking each one whether he had attended any secret meet-
ings, and each employee denied attending any and denied
even the existence of such (8:1580).
Hayes continued, Holliday testified, by asserting that
owner Georges had said to tell Fred Holliday that he is
preaching in the wrong place if he was preaching about
Louis Riley, and that from that day forward Fred Holliday
should be seeking employment elsewhere because there was
no more union and no more need for any union stewards
(8:1580; 9:1629). Holliday never served as a steward
(9:1601). Nevertheless, if Holliday is credited, it is clear that
owner Georges considered Fred Holliday’s concerted activity
to be the type of conduct a union steward would engage in.
Hayes denied that he mentioned the name of Basil
Georges, referred to secret meetings, or mentioned union
(16:2857–2858). He also denied that there is a leader of the
blacks, denied that he considered Fred Holliday to be such,
and testified that he simply considers Fred Holliday to be a
man (16:2879).
Strange testified that Hayes called Fred Holliday the leader
and told Holliday that if he was going to preach he should
go preach someplace else and preach and not preach about
Louis Riley, that since there was no longer a union at SDC,
Holliday should get a job where there was a union (6:1093,
1148–1150, 1151, 1186).
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
76 On cross-examination Holliday testified that Gray did not threaten him
about his union activities (9:1630).
77 Complaint par. 22(a) alleges that in the conversation with ‘‘employees’’
Gray said Supervisor Bob Gay was ‘‘very upset about Holliday’s leadership
among black employees.’’ That is probably a garbled version of the reference
to Basil Georges. Even though I find that the name of Basil Georges was liti-
gated, there is no direct evidence that Georges said he was upset. Nevertheless,
the facts found support an inference that such was what Georges either said
or implied, and I so find.
78 The rules also appear in evidence as a separate exhibit (R. Exh. 7).
On cross-examination Strange denied that Hayes said Fred
Holliday was a leader of the blacks, testified that he did not
consider Holliday to be such, and had no recollection of
Hayes’ saying anything about secret meetings (6:1149–1150).
During redirect examination by the Union, Strange, after
having various passages in his 26 March 1985 pretrial affi-
davit read to him, confirmed that at the meeting Hayes spoke
as expressed in the affidavit (6:1188). The portion so con-
firmed reads (U. Exh. 5 at 6):
Fred, you are the leader. You’re preaching and you
ought to go someplace else to work. There’s no union
here. If you want a union you need to get a job where
they have one. This goes for all of you.
When Fred Holliday left the 24 August meeting in Hayes’
office he went to the office of President Emeritus Jack Gray
(8:1580; 9:1630). Holliday considered Gray to be a friend
(9:1630). Holliday asked Gray if there was truth to Hayes’
statement that owner Georges considered Fred Holliday to be
‘‘the black leader’’ or ‘‘leader of the blacks.’’ ‘‘Responding,
Gray said his staff had given him that information (8:1581;
9:1632). Gray expressed the opinion that if Holliday felt so
strongly about the Union that Holliday should be seeking
employment elsewhere (8:1581).76 Holliday said he was
being falsely accused, that there were no secret meetings,
that he was not trying to serve as leader of the blacks, and
that all he wanted was to do his job and forget the rest
(8:1581; 9:1602).
Acknowledging he had a meeting With Fred Holliday in
late August, Gray testified that Holliday came to him upset
following a meeting with Hayes in which, Holliday reported,
Hayes expressed surprise that Holliday was saying SDC had
unfairly discharged Louis Riley. According to Gray, he sug-
gested that if Holliday was that upset then he should go
down the hall and talk with Craine. Gray denies that the
word union or the name of owner Georges was mentioned
by either of them (17:2975–2977). Gray did not address
Holliday’s testimony about ‘‘the black leader’’ or ‘‘leader of
the blacks.’’
Strange (6:1151) and Fred Holliday (9:1630) confirm that
during the relevant time Holliday, in addition to his job as
a driver-salesman for SDC, was a preacher of a church the
denomination of which is unspecified in the record. Thus, it
appears that Holliday is a minister in some denomination,
and that ‘‘preaching’’ is not simply an adjective descriptive
of some vocal trait. Whether owner Georges and Hayes were
aware of Holliday’s service as a minister or, possibly, con-
sidered that Holliday had a nickname of ‘‘preacher’’ is im-
material. The point is that Hayes, quoting owner Georges, re-
ferred to Fred Holliday’s protected ‘‘preaching.’’
I find that the group meeting occurred about 24 August
1984, and I credit Fred Holliday, essentially supported by Ira
Strange, in his account of that meeting with Hayes. Thus, I
find that Hayes spoke as Holliday described. I further credit
Fred Holliday in his version of his 24 August conversation
with Gray.
In light of the foregoing, I find that Respondent violated
Section 8(a)(1) of the Act by the conduct alleged in com-
plaint paragraphs 20(a), (b), (c), 21, and 22(a) and (b).77
E. The Discharges
1. Introduction
a. Grounds and dates of discharges
There are 10 terminations in issue here, 8 in 1984 and 2
in 1985. Respondent admits that it discharged 9 of the 10,
but contends that the other one, Fred Holliday, quit. For con-
venience, at times I refer to them all as dischargees. One un-
usual feature in this case is the rather long service record of
the alleged discriminatees as appears below. Although the
below-stated numbers average 13.5 years, the actual average
is closer to 14 years because the stated years do not include
the month exceeding the last full year. Chronologically the
terminations occurred as follows:
1984
Raymond L. Rice—29 August—12 years
Howard Lofton—30 August—16 years
Sammy L. Tharp—30 August—6 years
Fred Holliday—10 September—16 years
Walter John Kimbrough—11 September—13 years
John A. Holliday—30 October—7 years
Edward Hartman—21 November—12 years
Ira C. Strange—28 November—14 years
1985
Richard D. Jackson—3 July—26 years
Rodney I. Lyons—3 July—13 years
The employees can be grouped by the basis of their termi-
nations. First, four of the first five names were fired on the
asserted ground of having overage beer on their routes: Rice,
Lofton, Tharp, and Kimbrough.
Fred Holliday alone occupies the second category. As
mentioned, the question is whether he quit or was dis-
charged.
Group three consists of John Holliday, Hartman, and
Strange. Each was fired because, Respondent asserts, he
failed to report a vehicular accident.
Fourth, and last, Jackson and Lyons were fired because
they missed delivery stops.
b. The new work rules
The negotiated collective-bargaining agreement for 1984–
1988 (G.C. Exh. 18) contains, as appendix B, two lists of
rules.78 The first group is a set of 48 general work rules, and
the second is a list of 46 safety rules. Penalties are provided
for violations. Violations of some rules result in progressive
977SOUTHWEST DISTRIBUTING CO.
79 R. Exh. 7 appears to be a retyped copy of the rule appearing in G.C. Exh.
18. Because R. Exh. 7 contains a typographical error in the quoted paragraph
(‘‘nor’’ rather than ‘‘for’’), I have copied from G.C. Exh. 18.
80 Whether this was the speech Craine made on 25 July is unclear
(1:160;2:182).
81 Hayes denies that he in fact had a hit list, although he testified that from
time to time he would express to different sales managers, including Crouse,
his criticisms of the dirty uniforms and the unkempt appearance of different
employees (16:2865–2866).
82 Although Crouse at this point referred to the spring of 1985, it is clear
that he meant 1984.
83 Kimbrough denies that Crouse ever approached him with that suggestion
(17:3036–3037), and he denies having a drinking problem (17:3037). I will
cover this point in more detail later.
84 As we shall see, Tharp was reinstated in the spring of 1984 pursuant to
an arbitrator’s decision. Crouse felt that Tharp should never have been rein-
stated, and Crouse testified that Tharp’s performance remained consistently
low after his reinstatement (2:358; 3:490–492).
85 Apparently John Holliday was so named because, as Crouse testified,
Holliday was deficient in the arithmetic Skills a driver-salesman needs for pre-
paring paperwork and handling money (2:358).
86 The complaint does not allege Cook’s statement to Bailey to be violative
of the Act.
discipline, while others call for discharge at the first trans-
gression.
Notwithstanding the penalties specified for any offenses, a
postscript paragraph grants SDC complete discretion to im-
pose a lesser penalty. Thus, (G.C. Exh. 18 at 37–38):79
The Company may, when it determines in its discre-
tion that the circumstances warrant, impose a lesser
penalty for a particular offense, but the imposition of
a lesser penalty for the first or subsequent offenses shall
not preclude the Company from imposing the maximum
penalty for any subsequent offense or be deemed a
precedent. While the Company shall endeavor to en-
force all rules uniformly, failure of the Company to en-
force all rules with complete uniformity shall not ex-
cuse any violation of such rules or justify reduction of
any penalty provided for violation of such rules.
As summarized earlier, the proposed new rules were read
in full at the ratification meeting of 30 May (9:1704, Rice).
Business Manager Wells and Union Attorney Ted Kuhn ap-
parently took turns for the lengthy process of reading the en-
tire contract and the rules to the assembled members
(8:1542–1543, Jackson). Thus, when Respondent imple-
mented the provisions of the negotiated collective-bargaining
agreement of 1984–1988 on 1 June 1984, the new rules went
into effect on that date.
SDC previously had in effect a set of 39 general work
rules. A written copy of the earlier rules, dated ‘‘July 1,
1981’’ and appearing over the typed name of President John
P. Fauntleroy, is in evidence (U. Exh. 4). These rules do not
specify progressive penalties, but provide simply, in a final
note, that SDC ‘‘will consider violations as cause for dis-
charge.’’
During the week of 18 June, Craine testified, he personally
taped a copy of each page of the new (but unexecuted con-
tract and rules to the glass wall which separates the sales and
keg departments (13:2308). Crouse confirms that the docu-
ment, including the rules, was so displayed around 18 June
or so (2:393; 3:424).
Craine testified that Respondent made two or three
preelection speeches to the employees, and that he gave one
of them in about July (13:2311–2312). During his talk,
Craine testified, he told the employees to make sure they re-
viewed the rules posted on the glass partition, and that it was
their responsibility to know the rules (13:2315).80 Indeed,
when the rules were posted the week of 18 June Crouse told
his supervisors to have their drivers read the rules, and he
further told them that he expected to have the rules enforced
(3:424).
c. SDC’s hit list’’
Crouse testified that beginning before the negotiations in
the spring of 1984, and extending until Crouse left for Con-
roe near mid-August 1984. there were meetings of Respond-
ent’s managers. One of the subjects discussed was the need
to terminate certain employees for a variety of reasons
(2:323). The reasons included poor performance, unkempt
personal appearance, insubordination, drunkenness, improper
driving habits, and drinking on the job. Union affiliation was
not one of the reasons. Crouse testified that Executive Vice
President Hayes dubbed it the ‘‘hit list,’’ and Crouse ex-
plained that it included union members as well as nonunion
employees (2:324–325).81
In one of the earliest of these conversations Crouse did his
best to add a couple of names to the list (2:346).82 The dis-
cussion included the names of Lofton, Rice, Walter John
Kimbrough, Tharp, Eddie Hartman, John Holliday, Ben
Bender, and Jerry Long. Richard Jackson was not named
(2:347). Crouse apparently suggested the names of
Kimbrough, whom he described as an alcoholic who had re-
jected Crouse’s suggestion that he obtain treatment under the
plans provided by both ABI and the Union (2:324, 356;
3:486–490),83 and Sam Tharp. Crouse suggested Tharp be-
cause of his disinterested attitude which resulted in poor per-
formance (2:357–358; 3:486, 490–492).84 Although John
Holliday was named by the managerial nucleus as one of
those on the hit list (2:347).85 Crouse first would have de-
moted Holliday to the position of helper and attempted to
train him to improve his math skills (2:358; 3:487).
During questioning by the Charging Party, Crouse testified
that he did not recall the name of Rodney Lyons being men-
tioned as one of those on the hit list (2:348). Nevertheless,
Crouse described Lyons as being exceedingly lazy and un-
productive, and Crouse asserted that had he remained in
Houston, Lyons would have been terminated on proper docu-
mentation (2:348). Despite Crouse’s low opinion of Lyons’
productivity, Crouse never specifically testified that he
sought to add Lyons’ name to the hit list. So far as Crouse
was aware, the hit list was never reduced to writing (2:351).
The General Counsel contends that additional confirmation
for the existence of a ‘‘hit list’’ of union supporters Re-
spondent intended to fire comes from evidence that Super-
visor Mel Cook, on separate occasions, cautioned known
union supporters James T. Bailey and Richard D. Jackson
that they were in line to be fired.
Bailey testified that about early September 1984, in front
of a drive-in grocery at Vollmer and Sherwood, Cook said
that if Bailey could find a job he should do so because ‘‘they
were going to get’’ Bailey ‘‘sooner or later.’’ (9:1679)86
Hired in 1959, Bailey is still employed by Respondent. How-
ever, he has been off work since 16 November 1984 because
of a back injury (9:1634).
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
87 Of course, he perhaps has returned to work at some point after his 20
November 1985 testimony.
88 Complaint par. 25, in conjunction with conclusionary par. 28, alleges this
statement to be a violation of Sec. 8(a)(1) of the Act.
89 The General Counsel argues that such evidence confirms the existence of
a ‘‘master plan’’ by Respondent ‘‘to rid itself of union adherents. (Br. at 79.)
As we shall see in more detail during the discussion of the
discharges of drivers for having old, or overage, beer on their
routes, Respondent, had it been out to get Bailey, was pre-
sented with the opportunity to do so in November. By 9 No-
vember 1984 several union supporters had been fired in re-
cent weeks on the ground of having old beer on their routes.
About 9 November 1984, Bailey testified, he was called
into Hunt’s office. Supervisor Cook also was present. They
told Bailey three or four cases of old beer had been found
at some stores on his route. Expressing the view that Bailey
was a valuable employee, Hunt and Cook said that both
owner Georges and resident Emeritus Gray knew Bailey to
be a good driver-salesman and that his departure would be
a loss to SDC. Hunt and Cook cautioned Bailey, and Bailey
said he would try to keep a closer watch (9:1640–1641,
1668–1670). The alleged overage beer was not shown to Bai-
ley. As noted earlier, a few days later Bailey injured his
back, and he has been off work ever since.87
Jackson testified that in early June 1985 Cook informed
him that he and Bailey were the next two on the ‘‘list’’ to
go.88 When Jackson observed there was nothing he, Jackson,
could do to prevent it, Cook instructed him not to reveal that
Cook had leaked the information to Jackson (8:1521). Jack-
son worked for SDC for over 26 years, from 1959 to his dis-
charge on 3 July 1985 (8:1506, 1559).
Cook testified that a month or two before Jackson’s termi-
nation Jackson came to him and said he had heard that he
was next on the ‘‘list,’’ and he asked Cook if he were the
next to go. Cook responded that he knew nothing about any
list or about the subject. He denies telling Jackson that he
was next on the list to be terminated, testified that Jackson’s
question surprised him because they are not confidants, and
testified that he does not know what would prompt Jackson
to ask such a question (15:2669–2670, 2685–2686). Cook
was not asked about the conversation Bailey described.
I credit Bailey and Jackson on this subject.89 Having
found that the General Counsel established the facts alleged
in complaint paragraph 25, I also find that by Cook’s state-
ment to Jackson in early June 1985, Respondent violated
Section 8(a)(1) of the Act.
It is clear that the hit list was a concept separate from
Craine’s yellow legal pad ‘‘scorecard’’ (2:351). Thus, Crouse
testified that there was no correlation between the hit list and
Craine’s yellow scorecard, although there was some overlap-
ping of names (2:351).
Crouse did not explain in detail the overlapping. As the
main column of Craine’s yellow scorecard contained the
names of all unit employees, there necessarily would be an
‘‘overlapping’’ or repetition of names. What Crouse appar-
ently meant is that some or all of the names on the hit list
were also checked under one or more of the other columns
on Craine’s yellow scorecard.
Recall that Craine’s scorecard had three additional col-
umns. To the left of the employee’s name was a column for
marking ‘‘C’’ or ‘‘U’’ to indicate the anticipated vote by the
employee in the upcoming election of 30 July. To the right
of the names were two other columns indicating whether the
employee had signed the decertification petition, signed a
union membership resignation letter, or both.
Crouse testified that it was as to the latter two columns
that nine names repeatedly were mentioned by Craine at
management’s scoreboard meetings as not having signed ei-
ther. These nine were (3:439–441, 530–532):
John A. Holliday Franklin T. Montgomery
Richard Jackson Raymond L. Rice
Walter John Kimbrough Ronald L. Spina
Howard Lofton Sammy L. Tharp
Rodney I. Lyons
As with the ‘‘hit list,’’ this group of nonsigners, so far as
Crouse knows, was never placed on any separate written list
(3:440–441). On the other hand, three of the employees were
consistently discussed at the scoreboard meetings as being
‘‘solid, grieving, union members’’ (3:535): Lofton, Rice, and
Tharp.
As Crouse testified (3:532), and as we shall see in more
detail when I discuss the various discharges, Lofton was the
Union’s chief steward, Rice was a union steward, and Tharp
had been reinstated through arbitration. There is evidence,
discussed later, showing that owner Georges was outraged at
having to reinstate Tharp.
2. The discharges for stale beer
a. Rule 29 and the late September conversation between
Daniel Crouse and Clayton Hunt
Rule 29 of the new rules provides (G.C. Exh. 18; R. Exh.
7):
Our supplier has a strict stock rotation policy and pro-
cedure which your company subscribes to and follows.
It is mandatory that route salesmen and helpers check
stock rotation on each and every retail call made. Ware-
housemen will check stock rotation on each delivery
truck loaded. (When extenuating circumstances exist,
there will be no discipline involved. Extenuating cir-
cumstances will be investigated immediately by the
Company.)
The penalty specified for a first offense violation of the
rule is discharge. This is the rule used to discipline employ-
ees having out-of-date beer on their routes. No distinction is
made in the rule concerning whether the driver finds and re-
ports the old beer, or whether the rule applies only if a su-
pervisor, in monitoring a route, discovers unreported old
beer.
Under Fauntleroy’s July 1981 rules, superseded by the
foregoing. Rule 30 reads (U. Exh. 4):
It is mandatory on the part of Anheuser-Busch that we
rotate stock, in the warehouse, on our trucks and in our
retail accounts and that we pick up any out of date
product in the trade with TABC approval at your com-
pany’s expense. Therefore, it is mandatory on the part
of each employee to rotate product on every retail call.
There is no question that at frequent intervals before and
after 1 June 1984 SDC’s managers stressed to the drivers the
importance of their rotating the product in the retail accounts
979SOUTHWEST DISTRIBUTING CO.
90 Current Sales Manager Clayton Hunt testified that so far as he knew Ray-
mond Rice is the first driver in SDC’s history fired for having old beer
(1:131–132). Similarly, Supervisor Wi11iam T. Spears testified that in his 28
years at SDC he has not known of a driver having been fired solely for (unre-
ported) overage beer on his route (15:2649).
91 Bailey dated this sales meeting as Friday, 31 August (9–1637). Sales
meetings normally were held on Mondays, but as the next Monday, 3 Sep-
tember 1984, was the Labor Day holiday, it is quite possible that Hunt did
hold this sales meeting on Friday morning.
92 Unfortunately for Rice, Lofton, and Tharp, Hunt’s de facto amnesty pro-
gram was installed only after they had been fired.
93 G.C. Exh. 37 is a 1132-page exhibit, in three volumes, containing all the
reports Respondent could locate and, so far as known, all that it has, of old
beer SDC made to the TABC from 3 January 1984 through 23 August 1985
(2:202). The reports are numbered in chronological order in the exhibit. A
very few blank pages are included and numbered (pp. 93–95 and 555), and
two pages consist of a law firm’s letter apparently inadvertently included (pp.
992–993).
94 During August 1984 SDC submitted 15 reports to the TABC (G.C. Exh.
37:140–153).
and of keeping their routes free of overage beer. Even so,
Crouse testified he could not remember a single route that
was entirely free of overage beer, and that in the past this
was handled by oral warnings (1:246). Testimony by some
of the supervisor witnesses called by Respondent confirms
this.
Clayton Hunt testified that before he succeeded Crouse as
sales manager of the package department, Crouse warned all
the drivers at one of the weekly meetings of the package de-
partment that having old (overage) beer on a route would be
a dischargeable offense, and that Crouse told them they were
liable to be fired if old beer is found on their routes (1:98–
99, 133–134). Driver Lofton (11:2151) denies this, and
Crouse denies ever telling any employee that having old beer
on a route was a dischargeable offense (2:247; 3:494). I
credit Lofton and Crouse. For reasons which appear later, I
disbelieve Hunt on every point not confirmed by credited
evidence.
In fact, as stipulated by the parties, from the time Craine
became president in August 1982, no drivers were discharged
for having old beer until Rice, Lofton, Tharp, and
Kimbrough were fired for that reason (1:149–150).90 Craine
could not recall any other drivers having been fired after the
four for old beer (13:2336–2338), and he attributes to coinci-
dence the fact that all four were union supporters (13:2323,
2335). Before the election that would make sense, for ap-
proximately 90 percent of the bargaining unit were members
of the Union. After the election, however, and after so many
members revoked their membership in the Union, less than
a majority of the unit supported the Union. In these cir-
cumstances, the ‘‘coincidence’’ begins to take on the taint of
mathematical improbability.
Although Clayton Hunt claimed (1:71) that under SDC’s
policy (presumably a reference to the new rules) old beer on
the route results in ‘‘automatic dismissal,’’ Craine testified
that in his July speech to employees he intended for the driv-
ers to understand that SDC, in its discretion, might decide to
impose a lesser penalty than the one specified for the viola-
tion of a rule (13:2315). Of course, the rules specifically ac-
cords SDC discretion.
According to Hunt, around early to mid-August, at the first
sales meeting he conducted after becoming sales manager, he
told the assembled drivers that having old beer on a route
was a dischargeable offense (1:132–133). Denying Hunt’s as-
sertion, driver James T. Bailey testified that at the weekly
sales meetings before Rice, Lofton, and Tharp were fired for
having old beer on their routes, he never heard any super-
visor or manager mention a penalty for that situation
(9:1635). Indeed, Bailey continued, it was at the very next
sales meeting following their discharges that Hunt informed
the drivers he had discharged some employees for having old
beer on their routes.91
Hunt said that one of the discharged employees even had
16 years of service, and that although it was difficult to let
someone go with 16 years of service, he nevertheless had to
do it. Hunt concluded the point by telling the assembled
drivers that if they had any old beer on their routes he want-
ed it cleaned up because SDC would not tolerate the pres-
ence of old beer. Bailey and his helper immediately re-
checked their route and found a small amount of old beer
(9:1637–1638, 1664–1665). On cross-examination Bailey
conceded that Hunt’s dogmatic interpretation of the rules was
different from that of his predecessors, Dan Crouse and Les
Mattinson (9:1665). I credit Bailey rather than Hunt.
Hunt’s 31 August announcement to the employees that he
had fired some drivers, including one with 16 years’ service
(Lofton), for having old beer on their routes, and his warning
them they had better purge their routes of old beer, were ef-
fective.92 From Tuesday, 4 September through the balance of
September 1984, Respondent reported a tidal wave of old
beer to the TABC. Thus, as reflected in General Counsel’s
Exhibit 37,93 during the first 8 months of 1984, Respondent
made 151 reports of old beer (usually no more than two or
three cases) showing approximately 481 cases.
By contrast, during September alone Respondent filed 234
reports (G.C. Exh. 37:155–389) requesting the TABC to au-
thorize it to pick up some 740 case.94 I count some 820
cases for the first 8 months of 1985 (ending 23 August). The
number of reports, some 298, more than doubles the approxi-
mately 146 reports made in 1984 through 23 August.
Still, we have the testimony of James Bailey, whose sup-
port of the Union was well known, that in November 1984
he received no more than an oral warning for three or four
cases of old beer supposedly found on his route (9:1640–
1641, 1668–1669). However, I note that in both 1982 and
1983 Bailey had the ‘‘top rated’’ route by virtue of having
the highest volume of route sales (9:1662, 1687). In other
words, Respondent recognized Bailey as its highest producer
in 1982 and 1983. He was injured in 1984, and the record
does not project whether he would have had the highest pro-
ductivity figures for 1984 absent his injury. The Union ar-
gues that Respondent, having fired several of the union lead-
ers, ceased discharging employees for having old beer after
the Union filed the initial charges in this case in September
1984 (Br. at 26).
Former Vice President Crouse described a conversation he
had with Hunt at the Woodlands Country Club in late Sep-
tember or early October 1984. The occasion was a golf tour-
nament which Respondent had sponsored for some of its cus-
tomers (2:317–318). During the conversation on business
matters in general, Hunt stated that owner Basil Georges had
told him (2:318):
I thought Les Mattinson was a tough sales manager, but
you are the meanest son-of-a-bitch that we’ve ever had
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
95 Gay’s handwritten reports of 29 August, included in G.C. Exh. 19, were
typed on 11 September and signed by Gay (G.C. Exh. 19; R. Exh. 41).
96 If Lofton was describing Respondent’s ‘‘All Aboard’’ program, Craine
differs. Craine testified that under the ‘‘All Aboard’’ program supervisors
would accompany the drivers on their routes once or twice a month (1:151–
152; 2:185; 7:1262–1263).
97 Although the General Counsel argues that under the then current contract
(U. Exh. 32; R. Exh. 37) the warning was void if the employee and the Union
were not each given a copy (Br. at 13, 94), the old contract, art. I, sec. 6,
merely provides that the disciplinary action will not be effective if the ‘‘rea-
son’’ is not given to the employee and to the shop steward at the time of the
discipline. Lofton was the chief steward. However, as the Union points out
in its Br. at 19, Craine testified it was SDC’s policy for an employee to be
given a copy of any written reprimand placed in his file (16:2812).
here. Crouse couldn’t have done what you’ve done
these last few weeks.
Crouse asked Hunt what he was referring to, and Hunt
said, ‘‘The discharges we have been going through.’’ Crouse
asked what reasons he had been using for the discharges, and
Hunt replied, ‘‘Old beer and improper rotation.’’ (2:318;
3:522)
Crouse said, ‘‘Clayton, that’s ludicrous. There’s old beer
and improperly rotated beer on every route that Southwest
Distributing has ever had at any time.’’ Hunt replied (2:319;
3:522):
That’s what I’ve been told to do, and that’s what I’m
doing.
Crouse was unable to fix the exact words, and his quotes
vary from that shown to ‘‘I do what I’m told to do’’ and
‘‘I did what I was told to do.’’ (3:522) The essential mean-
ing is the same whichever quote is used.
When Hunt was called by Respondent to the witness stand
the final day of the hearing, he did not address the subject
of the conversation between him and Crouse at the Wood-
lands Country Club. I credit Crouse.
b. Howard Lofton
(1) General facts
Hired by SDC on 23 August 1968, Howard Lofton had
worked 16 years for the Company when, on 30 August 1984,
Respondent fired him (7:1301; 11:2110). As the leading sup-
porter of the Union, Lofton had served in several union ca-
pacities before becoming chief steward in January 1984
(7:1302; 11:2027). Lofton worked as a driver-salesman on
route 31 under Supervisor Robert Gay.
Lofton was terminated on 30 August in the office of Exec-
utive Vice President Hayes in the presence of Hayes, Hunt,
and Gay (10:1994). Hunt is the one who fired Lofton.
Lofton testified that Hunt pointed to some beer stacked on
the floor, said the beer had been in several named accounts
on his route, that it was out of date, that SDC’s quality con-
trol policy could not tolerate this, that owner Georges risked
losing the distributorship over such as this, and that Lofton
was terminated (10:1995).
Lofton stated he knew this was going to happen because
he had learned the previous day he was on SDC’s hit list.
When they asked what hit list, Lofton told them never mind,
that he would pursue his own remedies (10:1995–1996).
Hunt testified that he fired Lofton for having old beer on
his route, that the old beer was the only reason he discharged
Lofton, and that under Respondent’s policy old beer calls for
automatic dismissal (1:70–71, 77). He testified that Robert
Gay, Lofton’s supervisor, reported the old beer to him, and
he identified the lists of old beer Gay submitted (1:71–76).
At the hearing Gay identified the reports he submitted and
signed on which Hunt relied (14:2457–2463; G.C. Exh. 19;
R. Exh. 41). The report pages reflect that on 29 August 1984
Gay purportedly found old beer on Lofton’s route at four dif-
ferent stores.95 The quantity ranged from two six-packs at
one store to a high of three six-packs at another. The beer
reportedly ranged from 3 days to 32 days stale.
Gay testified that in all of 1984 he found old beer only
on Lofton’s route; he could not recall finding even a single
can of old beer on the route of any other driver during 1984
(14:2480). Indeed, in his over approximately 4 years experi-
ence as a supervisor, and having been in charge of different
routes over the years, Gay supposedly found out-of-date beer
on the route of only one driver—Lofton (14:2488). Gay testi-
fied unpersuasively, and I disbelieve him as a witness.
Gay testified that he made no recommendation regarding
discipline of Lofton for the overage beers he found on 29
August (14:2466). Hunt testified that Respondent’s route su-
pervisors, such as Gay, have no authority to recommend ter-
mination (1:136).
James A. Bastida was Lofton’s helper. When Lofton was
fired for having old beer on the route, Bastida quit because
he thought Lofton’s discharge was unjust in that the old beer
ground was fake (5:984, 995). Bastida testified that for about
a month before 30 August Lofton and Bastida increased the
frequency they rotated the beer on their route because Lofton
felt Respondent was going to discharge him (5:985–986).
Bastida testified that there was no old beer on the route when
Lofton was fired (5:986). Lofton modifies that slightly to say
that there was no unreported old beer, for he had reported
some old beer in recent weeks as part of his survival effort
(10:1989–1991).
Once or twice a year, Lofton testified, a supervisor would
ride with the driver to monitor such things as beer rotation
on the route.96 Lofton testified that on 15 August Supervisor
William Jordan monitored Lofton’s route. At the end of the
day Jordan told Lofton that overall the route looked ‘‘very
well’’ and that he had found only a single can nearing over-
age, with 3 days left, and that Jordan had simply purchased
it to remove it from the market (10:1991–1992). When called
as a witness by Respondent on the antepenultimate day of
the hearing, Jordan was not asked about this testimony. I
credit Lofton.
To the question of whether he had ever been ‘‘written up’’
for any misconduct while employed at SDC, Lofton an-
swered that, to his knowledge, he had never received any
reprimand (10:1992). Supervisor Gay testified that he
checked Lofton’s route the week of 26 March 1984, found
numerous out-of-date items (ranging from singles to a full
case) at nine stores, discussed it with Lofton, orally warned
him not to let it happen again, and submitted a written report
(R. Exh. 19) to his own superior on the matter (14:2454–
2457, 2498). Gay does not recall whether he gave a copy of
the report to Lofton (14:2497).97
Lofton testified that he never saw the report until his un-
employment compensation hearing before the Texas Employ-
981SOUTHWEST DISTRIBUTING CO.
98 Tharp testified that so far as he knows, owner Georges is Greek (3:657)
99 This threat by Georges is not alleged in the complaint as being unlawful.
100 As the photographs in evidence reflect, the items, sitting on skids, are
stored in plastic bags.
101 Hunt did not explain how 1985 cans could have gotten in the plastic
bags.
102 It turns out, apparently, that Attorney Dixie served as the amanuensis.
ment Commission (TEC) following his discharge (11:2079–
2082; 17:3010–3011), and he is certain that Gay never spoke
to him about such a matter (11:2079–2080). I credit Lofton.
As observed by the General Counsel, the purported warn-
ing by Gay during the week of 26 March follows by only
a few days an incident involving Tharp, Lofton, and owner
Georges. As we shall see later in more detail, Respondent
fired Tharp on 3 May 1983, but on 20 February 1984 Arbi-
trator John F. Caraway awarded Tharp reinstatement, but
without backpay (R. Exh. 10). Tharp returned to work about
28 February.
As he prepared to leave the salesroom for his truck on 17
March, Tharp testified, owner Georges approached him and
said, ‘‘You’re Tharp, aren’t you? I want to talk to you out-
side.’’ When they stepped outside to the parking lot Georges
told him, ‘‘You’re a goddamn jackass. You really have a lot
of guts coming back to work for me and taking my money
from me. What do you have against Greeks?’’ ‘‘Nothing,’’
said Tharp, and he then asked Georges if he would repeat
his statement in front of witnesses. Georges replied that he
would do so before any ‘‘union buddies’’ Tharp wanted to
get (3:563–564). Tharp went back inside to look for Lofton,
and Georges apparently went to the main building.
Crouse testified that in March as he, Craine, and Vice
President Ralph Baldwin were standing in the hallway near
Georges’ office, Georges came in the building and remarked
to them, ‘‘I just cornered that stupid jackass out on the park-
ing lot. I can’t believe we had to take him back.’’ Crouse
was aware that Tharp had been reinstated (2:334–335).
In the meantime Tharp had found Lofton, and the two of
them located Georges in Gray’s office (3:564; 11:2022).
Georges again asked Tharp what he had against Greeks, and
Tharp answered as before.98 After a question as to whether
Tharp had even been in the military, Georges remarked that
there were not 10 men in the Union who would back Tharp
on any given point and, pointing at Tharp, told him that the
Union could do him no good (11:2022–2023, Lofton).
Georges then told the two that if they missed one stop or
did anything wrong they both would be gone (11:2023).99
Tharp asked if he would repeat what he said on the com-
pound, and Georges said, ‘‘No, I don’t mind whatsoever.
You’re a goddamn jackass. Now either get off the compound
or get on the truck and go to work.’’ (11:2023). Georges and
Baldwin did not testify, Craine did not testify about the hall-
way remarks, and Gray did not address the office conversa-
tion in his brief testimony. I credit Tharp, Crouse, and
Lofton.
(2) The bench view and its aftermath
The morning of the last day of the hearing Respondent
pulled one of its beer trucks to the rear of the courthouse.
The truck had four bays open on the driver’s side. As photo-
graphs in evidence reflect, in the four bays on the driver’s
side Respondent had placed several items of beer bearing a
label for each of the four drivers fired for old beer (R. Exh.
69). Hunt testified concerning these items.
Before Hunt testified, however, the parties and I went
downstairs for a ‘‘bench view’’ of the items (17:2972–2973).
Thereafter, Clayton Hunt, called by SDC, testified con-
cerning the items.
Hunt testified that after he fired Lofton the beer was re-
moved from Hunt’s office and stored on skids in the ware-
house vault where it remained until he supervised its loading
onto the truck used for the bench view (17:2981–2984).100
On voir dire examination by the General Counsel, Hunt
conceded that the bags also included old beer allegedly found
on the routes after the discharge of the four (17:2983). Dur-
ing the Union’s voir dire examination, Hunt admitted that
warehouse employees work in the vault and he testified that
if there were some 1985 cans included in the items for
Lofton, then possibly their presence could be explained on
the basis that the cans had been damaged and left in the
truck by another driver (17:2984).101
During the bench view, and after the photographs were
made which are in evidence, Lofton, designated as the
Union’s amanuensis for the bench view (17:2973),102 under
the observation of Supervisor Ross Miller, opened the plastic
bags containing the items labeled as coming from his route.
Lofton and Attorney Dixie began checking the items.
Later that morning the parties agreed that a joint inven-
tory, showing code dates, would be prepared concerning the
items seen during the bench view, and that the joint inven-
tory would be submitted reasonably soon after the close of
the hearing. Union Exhibit 33 was reserved as the exhibit
number for the joint inventory (17:3000–3009). Alas, there is
no joint inventory.
By date of 31 December 1985 the Union moved to reopen
the record on the basis that it had been unable to arrange a
joint inventory because of delays by SDC. The General
Counsel joined by her own motion to reopen of the same
date. In the Union’s 31 December 1985 motion to reopen the
record, Attorney Chris Dixie avers, in part (bracketed por-
tions added):
Notwithstanding the stipulation, Charging Parties
have been unable to arrange with Respondent the prep-
aration of the inventory. Further, they have been unable
to obtain any explanation from Respondent’s counsel of
the reason for the extended delay.
In this connection, undersigned counsel shows the
Administrative Law Judge that he offered to make
Howard Lofton available to meet any company rep-
resentative to prepare jointly the inventory on Friday
morning [6 December 1985] at 9:00 o’clock a.m., the
first morning following the conclusion of the hearing.
The offer was made by undersigned counsel to Ms.
Carolyn Luedke. On that Friday, in a telephone call
from undersigned counsel to Ms. Luedke, Ms. Luedke
advised that Mr. Bambace would be going to the com-
pound of Respondent over the weekend and would ar-
range for the joint inventory the following week. [The
week of 9 December 1985.] During the following week,
undersigned counsel called Ms. Luedke three times.
One explanation given by Ms. Luedke was that she had
been unable to ‘‘catch’’ Mr. Bambace. A second expla-
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
103 These motions and other items are part of a package of documents, in-
cluding the General Counsel’s transmittal letter of 4 February 1986, in evi-
dence as G.C. Exh. 67.
104 The phrase ‘‘throw-down’’ derives from situations where a police officer
carries a gun to throw down, or ‘‘plant,’’ at the scene of a confrontation be-
tween an officer and an arrestee. The planted weapon is relied on as justifica-
tion for the force, even death, inflicted by an officer on the arrestee. See Web-
ster v. City of Houston, 735 F.2d 838, 840, 843, 845–846 (5th Cir. 1984); U.S.
v. Mays, 470 F.Supp. 642 (S.D.Tx. 1979).
105 When I asked if a witness had suggested that the items were ‘‘planted,’’
Respondent’s counsel explained that Lofton, at an unemployment compensa-
tion hearing before the Texas Employment Commission (TEC), had testified
that he told Hunt (at the discharge, apparently) that the (old) beer was taken
from the warehouse and planted on his route (15:2613–2614). Lofton confirms
that he did so tell the TEC (11:2108–2109).
nation was that delay had occurred because Mr.
Bambace thought Ms. Luedke was taking care of the
matter, while Ms. Luedke thought that Mr. Bambace
was taking care of the matter. In the third conversation,
Ms. Luedke advised that she would take the matter in
hand and would contact undersigned counsel to con-
clude the arrangements. To this date, there has been no
call back from any of Respondent’s counsel. Under-
signed counsel made one further unsuccessful effort to
telephone Ms. Luedke and left a message with a sec-
retary of her law firm that he was calling about the in-
ventory in this case. No response followed.
On 14 January 1986 the Union served its supplemental
motion to reopen the record. In its supplemental motion the
Union stated that Attorney Luedke advised that someone had
disposed of the beer items to be inventoried. The Union
therefore moved that an attached affidavit, dated 12 January
1986, of Lofton be received into evidence.103
On 16 January 1986 Respondent submitted its reply
(signed by Attorney Luedke) to the previous motions in
which it opposed receiving Lofton’s partial inventory. Para-
graph 10 of Respondent’s reply includes the following (num-
bers added):
(1) The thrust of Counsel for the General Counsel’s
theory is not that the old beer was not found on the
routes, but rather that the old beer found was used as
a pretext to discharge the employees because of their
union activities. (2) Thus, the old beer was displayed
by Respondent merely to demonstrate physically the
quantities of old beer found on these routes, not to but-
tress the testimony of the supervisors that the old beer
was found.
The second point Respondent’s counsel makes rather
strangely disregards the last day testimony of Respondent’s
witness, Sales Manager Hunt, who described a chain of cus-
tody of the beer from his office at the discharges, to the
vault, to the truck, and thence to the courthouse where we
all viewed it. Thus, by Respondent’s counsel Moore
(17:2981–2982):
Q. Mr. Hunt, you testified earlier in this proceeding
about the reason for the termination of John
Kimbrough, Raymond Rice, Sam Tharp, and Howard
Lofton. When you met with those individuals and ter-
minated them, did you have any beer in the office at
the time?
A. Yes, sir.
Q. Where had that beer come from?
A. Came out of their accounts.
Q. Who had gotten them out of their accounts?
A. Supervisors.
Q. Did you show the employees the beer at the time
of their termination interview?
A. I said that was their beer that we got out of their
accounts right there, and this was the papers that we
had written them up on.
Q. And what did you do with that beer afterwards?
A. We, we took it and put it in the vault, and it was
on a skid back there.
. . . .
Q. And did you ever move the beer out of the vault?
A. No, sir.
Q. So, until yesterday, the beer stayed in the vault?
A. Yes, sir.
Q. Now, did you supervise the loading of that beer
onto the truck that we saw just a little while ago?
A. Yes, sir.
Q. When was that done?
A. Yesterday.
On voir dire examination by Tamara Gant, one of the two
counsel for the General Counsel, Hunt testified (17:2983):
Q. Well, the beer you loaded yesterday, you super-
vised the loading of this beer on the truck.
A. Yes, ma’am.
Q. isn’t that all the old beer you found on their
routes both before and after they were discharged?
A. Yes, ma’am.
The first point quoted earlier from Respondent’s 16 Janu-
ary 1986 reply, to the effect that the General Counsel is con-
tending only a pretext, disregards the question I raised at the
hearing on this specific point. I inquired whether the General
Counsel and the Union were contending that these items of
beer were ‘‘throw-down’’ beer104 planted in the stores by
Respondent or its agents as, in effect, fraudulent evidence
(15:2614).105 The General Counsel and the Union appeared
desirous of making both contentions.
Even so, the General Counsel stated (15:2615):
MS. GANT: I might add, I think we believe there’s
probably substantial evidence that it may well have
been throw down beer, in effect.
Although the General Counsel and the Union do argue se-
lective enforcement, or pretext, in their posthearing briefs,
they also contend that there was no old beer on the routes.
The General Counsel, for example, asserts that the evidence
‘‘strongly suggests’’ that the beer was not found on Lofton’s
route (Br. at 92) and that the old beer ‘‘did not exist.’’ (Br.
at 84.) Indeed, at page 145 of their brief, counsel for the
General Counsel argue, ‘‘Such alteration of records to ‘cre-
ate’ old beer on the discriminatees’ routes is further serious
evidence of fraudulent concealment of the operative facts un-
derlying these discharges.’’ The briefs, of course, were filed
after the motions to reopen the record were resolved.
Regarding the two points quoted earlier from the 16 Janu-
ary 1986 reply of Respondent’s attorney, I consider Respond-
983SOUTHWEST DISTRIBUTING CO.
106 I am reminded of Hamlet’s expression in act 3, scene 4, L. 81:
O shame, where is thy blush?
107 Lofton’s reference here to the ‘‘right-hand side’’ is in error. The bays
opened were on the driver’s side as reflected in the photographs in evidence
as R. Exh. 68.
ent’s two points to be unfortunate and disturbing, particularly
the second one suggesting that the beer displayed at the
bench view was merely illustrative and not the actual old
beer found.106
In a conference call held 21 January 1986 I granted the
motions to reopen the record to receive affidavits. Lofton’s
affidavit was in hand, and thereafter Respondent supplied an
affidavit, dated 24 January, from Craine. Subsequent to that
the parties signed a stipulation of six numbered paragraphs
which I approved by order dated 13 February 1986 (G.C.
Exh. 67).
The six points of the stipulation are that if called to the
witness stand, (1) Attorney Dixie would testify that the asser-
tions in his two motions to reopen are true and correct, (2)
Lofton would do likewise regarding his 12 January 1986 af-
fidavit, (3) Attorney Luedke would do the same on the fac-
tual assertions in Respondent’s reply, (4) as would Craine
concerning the contents of his affidavit of 24 January, (5) the
documents make a composite exhibit, and (6) the stipulation
may be received in evidence (G.C. Exh. 67). As noted, by
my order of 13 February inscribed at the bottom of the stipu-
lation, I approved the stipulation and received the stipulation
and attachments in evidence. Because the General Counsel’s
transmittal letter of 4 February confirms the conference call
date and specifies the exhibit number, I have included it as
part of the package identified as General Council’s Exhibit
67.
Craine, in his affidavit of 24 January 1986, explains things
this way (emphasis added):
On Thursday, December 5, 1985, I was present at
the hearing before the National Labor Relations Board
in the matter of Southwest Distributing Company, Inc.
and Brewery, Soft Drink, Industrial and Allied Work-
ers, Case Nos. 23–CA–9824–1 et al. A bench view of
old beer found on the routes of Howard Lofton, Sam
Tharp, Raymond Rice, and John Kimbrough was con-
ducted, and we agreed to conduct a joint inventory of
this beer following the hearing.
The beer was brought to the Bob Casey Federal
Building on a spare twelve bay delivery truck. since we
did not anticipate needing the truck as of December 5,
we planned to leave the beer on the truck until the joint
inventory was conducted. Following the hearing, I di-
rected supervisory officials, to remove the plastic bags
which had covered the beer during transportation to the
bench view and to stack the beer in an orderly fashion.
The beer had previously been piled into the bays in a
disorderly manner. In doing so, we discovered that the
beer had somehow been mixed up among the various
bays. For example, the ‘‘Lofton bay’’ contained beer
found on the routes of Tharp and Kimbrough. The beer
had been stored in the keg vault for over a year. It
could have been moved and intermingled as employees
moved kegs in and out of the keg vault. The beer re-
mained on the truck until around December 27 or 28,
1985.
At the end of December, we were having a pro-
motion on Michelob Brands; that is, we were selling
these brands at a discounted price. This fact plus the
coming New Year’s holiday caused us to sell more beer
and to need the spare twelve bay truck for deliveries.
I told the Warehouse Manager that we were through
with it and he could use the truck for deliveries on the
following Monday, December 30.
On or about January 3, 1985, I talked to Carolyn
Luedke, an attorney with Fulbright & Jaworski. Ms.
Luedke wanted to make arrangements for the joint in-
ventory. In attempting to do so, I discovered that the
beer could not be located. On further investigation, I
discovered that my statement that we were through with
it, by which I had meant we were through with the
truck, had been taken as an instruction that we were
also through with the beer. Since the hearing was over,
the beer had been inspected by TABC and disposal au-
thorized, the beer was over a year old, and the Ware-
house Manager misunderstood my statement to mean
that we were through with the beer, it was disposed of
by our usual procedure—pouring out the product and
putting the cans in a large dumpster for pick up by a
refuse collector. This occurred sometime over the week-
end of December 27, 1985.
When I discovered the above facts, I determined if
we could retrieve the empty containers from the dump-
ster. However, the contents had already been picked up
by the refuse collector.
Attached to Lofton’s 12 January 1986 affidavit is a list of
the items he inventoried. The list covers most of one page
and includes mostly singles, with some six-packs, and a cou-
ple of cases of Michelob, Busch, Budweiser (Bud), and Bud
Light. In his affidavit Lofton states:
On Thursday, December 5, 1985, I accompanied the
attorneys and Administrative Law Judge to view the
Budweiser truck outside the Federal Building. I noticed
that the Company had brought Truck No. 75, a twelve-
bay truck. Four of the bays on the right-hand107 side
of the truck were opened to exhibit cans and bottles al-
legedly found on the routes of myself, Sam Tharp, Ray-
mond Rice, and John Kimbrough. In each bay, the cans
and bottles were in a cellophane sack, and the sacks
were sealed with staples. There were painted signs in
each bay designating the driver-salesmen involved in
overage beer found on his route.
During the exhibition, my attorney, Chris Dixie, and
I examined each can or bottle which was located in the
bay bearing my name. To examine these, I opened the
cellophane container and picked up and looked at the
code number on each item. My attorney stood by my
side and wrote down the code date on each item as I
called it out.
As I called out each code date, I watched while my
attorney wrote that date down on a yellow pad and
looked carefully enough to see that the attorney was
writing down the correct code date that I called out.
Also, during this examination, Mr. Ross Miller stood
immediately to my left and observed the process. As I
examined each item and called out the code date, I ex-
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hibited that item to Ross Miller who looked at it to see
that the code date was correctly called out by me.
Attached to this affidavit is the list of items exam-
ined and the code dates which they bore.
After this examination, I put the items back in the
cellophane bag in my bay.
By the time Mr. Dixie and I had completed the ex-
amination of items in my bay, the party returned to the
courtroom, so an item-by-item examination was not
made of the materials in the bays of Tharp, Rice, and
Kimbrough. I only had time to spot-check a couple of
items in each of these bays.
There is a near total discrepancy between Lofton’s inven-
tory and Gay’s reports. Thus, Gay reported finding two six-
packs of out of date Bud Light in 12-ounce cans on 29 Au-
gust 1984 at a U-Totem on Hollister (R. Exh. 41–42), yet
Lofton’s inventory contains only five cans (12-ounce, pre-
sumably) of Bud Liqht plus four 16-ounce cans of Bud
Light.
Gay reported on 29 August that he found some old
Michelob, one six-pack of Busch in 16-ounce cans, and some
Bud Light at M-G Food on Fairbanks (R. Exh. 41–43), yet
Lofton’s inventory lists no 16-ounce cans of Busch. Indeed,
all the Busch listed by Lofton is in bottles except for two
cans bearing code dates for 1985.
In Gay’s third report for 29 August, he records finding
three six-packs of out-of-date Busch in 12-ounce cans at
Quick Check on Campbell (R. Exh. 41–44), yet, as seen
above, the only cans of Busch listed by Lofton bear 1985
code dates.
Gay’s 29 August report for M & M Food on Hollister
records finding two six-packs of Bud Light plus one single
of the same (R. Exh. 41–45), yet Lofton’s inventory, as
noted earlier regarding Gay’s report concerning the U-Totem,
lists only five 12-ounce singles of Bud Light plus four 16-
ounce cans of Bud Light. Granting that four of the singles
may have been in a six-pack container since they bear the
same code date, the items listed are far fewer than the nu-
merous Bud Liqht recorded in Gay’s reports.
The General Counsel asserts that none of the code dates
Gays recorded for the old beer he supposedly found on 29
August matches the code dates in Lofton’s inventory (Br. at
144). She does not explain the process by which she arrives
at that conclusion. Lofton’s inventory, in three columns, lists
the number of items, and the brand of beer followed by a
column of five digits after each beer itemized. In some in-
stances the digits could reflect a calendar date, but in others,
such as 35783, it apparently would not. And Gay’s reports
are by code date by number, such as 131. The two lists are
not converted to a common system which I can understand.
However, even without the benefit of a conversion to a
common designation, it is very clear that the discrepancy be-
tween Gay’s reports and Lofton’s inventory is substantial. I
do not credit Craine in his posttrial description of events. For
example, I do not believe his assertion that the beer in the
bays was ‘‘intermingled’’ beer.
At page 144 of their brief, counsel for the General Coun-
sel request that I draw an adverse inference against Respond-
ent from these circumstances. They do not suggest the spe-
cific nature of the inference which they request I make.
(3) Conclusions
Lofton testified with a sincere demeanor. At times he was
offbase as to dates, but I generally credit the substance of his
testimony.
By contrast, I do not credit Respondent’s witnesses except
where I make a specific finding on some point. I particularly
do not believe President James Craine, Sales Manager Clay-
ton Hunt, or Supervisor Robert Gay. Moreover, in drawing
the strongest possible adverse inference from the cir-
cumstances surrounding the bench view and the destruction
of the beer, I find as follows:
1. The beer displayed in the four bays of Respond-
ent’s truck during the bench view did not come off the
routes of the four drivers, Lofton, Rice, Tharp, and
Kimbrough as beer which went overage on their routes
during their employment.
2. Following the bench view, and around mid-De-
cember 1985, Respondent deliberately destroyed the
beer displayed at the bench view in order to prevent the
parties from making the joint inventory agreed to on
the last day of the hearing.
3. Respondent intentionally destroyed the bench view
beer because a joint inventory would have revealed that
the beer did not come from the routes of Lofton, Rice,
Tharp, and Kimbrough as beer which went overage on
their routes during their employment.
4. The beer displayed at Lofton’s discharge interview
did not come from Lofton’s route.
5. The beer shown to Lofton on 30 August 1984 was
throw-down beer planted by Respondent in the office to
serve as a fraudulent basis for discharging Lofton.
6. Respondent considered Howard Lofton a trouble-
maker because of his union activities.
7. Respondent fired Lofton on 30 August 1984 be-
cause of his activities as chief steward for Teamsters
Local 1111.
8. Respondent’s deliberate destruction of the beer
displayed at the bench view was a fraud on this pro-
ceeding and an abuse of the Board’s processes.
9. After considering whether to strike all of Re-
spondent’s evidence on the overage beer issue, I have
decided not to do so.
By discharging Howard Lofton on 30 August 1984, SDC,
I find, violated Section 8(a)(3) of the Act. Accordingly, I
shall order Respondent to offer him reinstatement and to
make him whole, with interest.
c. Raymond L. Rice
(1) General facts
Hired about mid-August 1972, driver-salesman Raymond
L. Rice had worked for SDC slightly over 12 years when
Respondent fired him on 29 August 1984 (9:1690). At the
time of Rice’s discharge, Chris Garcia had been his super-
visor for about 2 days (14:2365, Garcia). Before that, Rice
was supervised by Mel Cook.
During his employment with SDC, Rice was active for the
Union. In 1984 he was an assistant steward and served on
the contract committee and the negotiating committee
(9:1696, 1706). Rice did not sign either the petition to decer-
985SOUTHWEST DISTRIBUTING CO.
108 Rice had never been disciplined previously in his 12 years at SDC
(9:1703).
109 The pages of R. Exh. 40 were not independently numbered at the hear-
ing. I have numbered its seven pages as 1 through 7.
110 Supervisor Garcia testified that he found the old beer in the cold box
and in a display of hot beer (14:2415).
111 Cook was uncertain when he was reassigned, dating it from 2 weeks to
a month before Rice was fired (15:2674–2675, 2677). I find that he supervised
Rice until Chris Garcia took over on Monday, 27 August.
112 When asked about the other stores in which Garcia found old beer over
29–30 August, Stone said there was no old beer there when he left so far as
he knew (6:1062–1063).
tify the Union (G.C. Exh. 2) or a union membership resigna-
tion letter (G.C. Exh. 16), and as previously summarized,
Craine mentioned his name in that regard during July at the
meetings of Respondent’s managers. Recall also that in Au-
gust, after the revised vote tally showed that the Union had
lost the decertification election, President Craine, in a con-
versation with Sales Manager Crouse, named Rice as one of
the ‘‘troublemakers’’ Respondent could proceed to eliminate
(2:315–316).
About 7 a.m. Wednesday, 29 August, Rice was called to
Hayes’ office. Present were Hayes, Hunt, Garcia, and Rice
(9:1700–1701). Hunt testified he informed Rice that old beer
had been found on his route, that the old beer present in the
office came from his route, and that Rice was terminated for
having the old beer on his route (1:131; 17:2981). Garcia’s
version is consistent with Hunt’s (14:2372–2373, 2425).
Rice testified that Hunt said he had lunched with Garcia
the previous day, that after lunch they checked at a Save-On
Liquor and, possibly, a 7-Eleven, and found out-of-date prod-
ucts. Hunt said he was disappointed because Rice had been
a good driver-salesman over the years, but because of this
old beer and things that had gone on in the past, Rice was
terminated.108 Hayes asked if the decision was final, and
Hunt said, ‘‘Yes. There’s nothing I can do about it. That’s
orders from above.’’ (9:1701, 1738–1739)
Garcia testified that Rice said nothing, and he denies that
Hunt referred to ‘‘other things.’’ (14:2373) Hayes did not
discuss this meeting when he testified. I credit Rice who im-
pressed me as a witness.
Garcia testified that on 28 August Hunt arranged in ad-
vance to meet him for lunch (14:2412). Hunt met Garcia
there to deliver to him a promotional packet for the 1985
Rodeo and Live Stock Show. Garcia does not know why
Hunt did not give it to him that morning at the compound
(14:2413–2414). As they left the restaurant, Hunt announced
that he would accompany Garcia on his next calls.
Garcia and Hunt went to a nearby Save-On Liquor store
at 9329 Katy Freeway where they found some old beer. At
the 7-Eleven store, 819 Antoine, they found a case of old
beer. Garcia identified the reports he prepared on the old
beer found at these two stores. The reports were subse-
quently typed and are in evidence in duplicate (G.C. Exhs.
22–10, 12; R. Exhs. 40–6, 7).109
Hunt testified that the old beer found 28 August at the
Save-On Liquor and at the 7-Eleven was what he relied on
in discharging Rice, and that he fired Rice for having old
beer on his route (1:95–98). Over the next couple of days
after Rice’s discharge Garcia continued to check stores on
Rice’s former route, found more old beer, and submitted ad-
ditional reports covering it (G.C. Exh. 22–7, –8, –9). Hunt
testified that the beer displayed under Rice’s nametag at the
bench view was that present in the office at the discharge
plus the beer found on his route subsequent to his discharge
but attributable to Rice (17:2981–2983).
Rice was off work from late October 1983 to about 1
April 1984 for medical reasons (9:1717, 1742). Charles C.
Stone testified that he took over as driver of Rice’s route in
February 1984 and served as the driver until Rice returned
when Stone converted to helper on the route (5:1038). Stone
worked as Rice’s helper until the end of May when Stone
left SDC (5:1037; 6:1054).
About mid-April Rice reported old beer at the Save-On
store in issue to Supervisor Mel Cook. Rice testified that he
listed the items on a portion of a beer package called a ‘‘beer
flat,’’ about the dimensions of a sheet of legal-size paper,
and gave it to Cook in the presence of Stone (9:1691–1692,
1722–1727, 1742). Stone confirms this, although he does not
mention the beer flap specifically (5:1045–1046). Cook de-
nies receiving this report or any other from Rice about old
beer at the Save-On store (15:2666, 2668, 2673).
Indeed, Supervisor Cook testified that he checked the rota-
tion of the cold beer on the shelf and the gondola, although
not the beer in the storeroom,110 in that Save-On twice a
month, yet he found no old beer before the route was as-
signed to Garcia (15:2676–2680).111
Stone testified that Rice had separated out the old beer at
the Save-On and placed it in a hallway, but without tagging
it ‘‘old beer’’ as he would have done (6:1068–1071, 1073).
Rice testified he did not separate it and tag it because there
was so much old beer it would have depleted the supply
available for purchase (9:1729). He testified that he orally re-
minded Cook of the old beer at Save-On about mid-May and
again about mid-June but that nothing was done about it
(9:1728–1730, 1742). Cook testified that the beer sold slowly
at that store (15:2680).
Stone testified that when he left SDC at the end of May
there was no old beer, to the best of his knowledge, at any
store on the route except for the old beer at the Save-On
store (6:1057–1058).112 When he left SDC, Stone testified,
there were about five cases of old beer at Save-On (6:1068).
Supervisor Cook testified that he even checked the storeroom
at the 7-Eleven on Antoine and found no old beer at that
store (15:2679).
Rice testified that he did not believe there could have been
any old beer at the 7-Eleven on Antoine because the store
had run out of beer for 2 straight weeks (9:1739).
Garcia’s reports reflect that the old beer at Save-On had
been out of date 131 days (one case), 110 days (two six-
packs), 61 days (one case), and 6 days (two cases). At the
7-Eleven it was 1 case of two 12-pack cartons 26 and 36
days old. At the Pacific Super Market on Long Point (which
Garcia checked on 29 August) a half-dozen brands, totaling
over five cases, were out of date from a low of 100 days
to a high of 155 days (G.C. Exh. 22–7). The two checks
Garcia made on 30 August, at a U-Totem on Bunker Hill
and a 7-Eleven on Westview, reflect product out of date
from 7 to 276 days (G.C. Exh. 22–8, –9).
Rice testified that about 2 or 3 weeks after the decertifica-
tion election he discovered that warehouse personnel (who
load the trucks) had loaded six cases of completely out-of-
date beer plus two cases of beer on the verge of being stale.
All eight cases had been repackaged by warehouse personnel.
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
113 The repackaging was not unusual, but never before had Rice found beer
so old in such quantity on his truck (9:1697, 1698).
114 I also rely on the adverse inferences which I have drawn (as described
earlier) from Respondent’s destruction of the bench view beer.
115 Thus, as I find the stated reason for the discharge to be false, I may,
and do, infer that there is another reason—an unlawful motive, particularly
since the surrounding facts tend to reinforce that inference. Shattuck Denn
Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966).
116 Tharp was a member of Local 1111 and had served on the Union’s con-
tract negotiating committee in 1981. He was not an officer in the Local, and
he apparently was not a steward (3:562, 581).
117 Roschal’s alleged statement apparently is the subject of complaint par. 8.
This was highly unusual.113 Rice telephoned Cook who told
him to bring the beer back in. When Rice returned he asked
Warehouse Manager Donny Hollingsworth about the old
beer. Hollingsworth asked if Price was being facetious. Rice
said he was dead serious. Without answering, Hollingsworth
turned and walked away (9:1696–1700, 1731–1733).
It appears that Hollingsworth was no longer employed at
SDC at the time of the hearing. The parties stipulated that
Hollingsworth was under subpoena from the General Counsel
who did not call him to the witness stand (16:2752). I draw
no inference from the General Counsel’s failure to call Hol-
lingsworth. It is possible to infer that Hollingsworth initially
indicated a willingness to testify favorably to the General
Counsel, but that he later had a ‘‘sudden’’ memory lapse and
the General Counsel therefore did not call him as a witness.
But that calls for speculation, so I draw no inference.
(2) Conclusions
At page 91 of their brief counsel for the General Counsel
argue:
The repeated reports of old beer at Save-On were not
acted upon, thus leaving the beer there. A portion of
this old beer became over-age because it was placed
there with little shelf-life remaining, circumstances for
which it was not Company policy to blame the em-
ployee. The old beer at 7-Eleven, if it existed, was
clearly planted by Hunt, as neither Rice nor Cook could
find any there. A few days before his discharge, Rice
found large amounts of extremely old beer on his truck,
for delivery, about which Warehouse Manager Hol-
lingsworth acted suspiciously silent. When Rice failed
to plant this old beer on his own route, Hunt himself
did so and arranged to perform calls with the supervisor
at the necessary stores. Not surprisingly, he then
‘‘found’’ the old beer.
In agreeing with the above assessment, and finding that
Respondent (through Hunt in person or at his instruction)
planted throw-down beer on Rice’s route, I credit the testi-
mony of Rice and Stone.114 To the extent his testimony is
consistent with the testimony of Rice, I credit Supervisor
Cook. Where Garcia conflicts with Rice I do not credit Gar-
cia. For the most part, Garcia seems to have been used by
Hunt without Garcia’s knowledge. I particularly do not be-
lieve Hunt, and I find that his ‘‘orders from above’’ were to
get rid of Rice on the pretext of old beer.
As Hunt unwittingly confessed to Crouse at the Wood-
lands Country Club in late September or early October, old
beer and improper rotation was the pretext he had used to
earn owner Georges’ crude expression of gratitude and admi-
ration in implementing the order to eliminate those fired for
that reason (2:317–319; 3:522).
Hunt did not specifically tell Crouse that Georges told him
to get rid of those fired for old beer, but it is clear that the
order emanated from owner Georges even if relayed through
President Craine. Moreover, the order apparently included
the old beer pretext, for when Crouse described that as a lu-
dicrous excuse inasmuch as old beer could be found on any
route, Hunt said, ‘‘I did what I was told to do.’’ (3:522)
Although I infer an unlawful motive from the fore-
going,115 Respondent’s illegal motive is seen also in Craine’s
early August listing of Rice as one of the ‘‘troublemakers’’
that Respondent, now that the revised tally on the decertifica-
tion election was final, could proceed to eliminate (2:316).
As previously discussed, I have found that Craine used the
term ‘‘troublemakers’’ as a shorthand expression of the ani-
mus he, and particularly owner Georges, held for hardcore
union supporters.
Accordingly, I find that Respondent fired Raymond L.
Rice for unlawful reasons, and I shall order Respondent to
pay him backpay and to offer him reinstatement.
d. Sammy L. Tharp
(1) General facts
SDC hired Sammy L. Tharp in October 1977. On 3 May
1983 SDC fired Tharp, but Arbitrator John F. Caraway, in
his award of 20 February 1984, directed SDC to reinstate
Tharp without backpay (R. Exh. 10).116 Tharp returned to
work a few days later. Respondent fired him on 30 August
1984 for having (unreported) old beer on his route (3:559–
560, 568, 594).
There appears to be no dispute that the day Tharp returned
to work, about late February, his supervisor, John Roschal,
covered with him his duties under Respondent’s rules and
policies (3:560, 581, 588; 14:2524–2525). Tharp testified that
Roschal had him sign a memo to that effect, but there is no
such memo in evidence bearing his signature.
There is a memo in evidence signed by Roschal (then)
Sales Manager Dan Crouse, and (then) Brand Manager Clay-
ton Hunt on this topic (G.C. Exh. 13), but Roschal testified
that it was the subject of a second meeting of all four the
same day (14:2526–2527). Tharp denies the group meeting
(3:589). Neither Crouse nor Hunt was asked about this meet-
ing in their testimony. I need not resolve the dispute about
the second meeting.
According to Tharp, Roschall apparently the same day
Sharp returned, told Tharp he should stay away from the
Union and not get involved in union activities (3:562).117
Tharp did not reply (3:657). Roschal did not address this al-
legation during his own testimony. I credit Tharp and find
a violation as alleged.
On 24 May Craine gave Tharp a written reprimand (R.
Exhs. 11, 59) for remarking (erroneously, according to the
reprimand) to a customer about negotiations for a renewal
collective-bargaining agreement (3:596–597; 16:2789–2796).
Craine was not shown to have any personal knowledge about
Tharp’s alleged remarks, and no other witness established the
facts of the incident. Tharp testified that Craine did not iden-
tify the customer and gave him no opportunity to reply.
Tharp denies any such conversation with a customer, and he
987SOUTHWEST DISTRIBUTING CO.
118 Horner had replaced Roschal as Tharp’s supervisor about 2 weeks earlier
(3:566; 15:2547–2548, 2594).
119 Horner testified that Hayes did the discharging (15:2566). When he testi-
fied, Hayes did not address this topic.
120 Tharp testified that Hunt pointed to the beer found on Tharp’s route
(3:642). Presumably Hunt pointed at the three six-packs since that is what
Hunt moments before had identified as coming from Tharp’s route.
121 Complaint pars. 23(a) and (b). The General Counsel argues that such a
statement is illegal because it indicates punishment for exercising statutory
rights (Br. at 98–99).
122 I nevertheless shall dismiss complaint pars. 23(a) and (b) since they
focus on the arbitration.
123 Tharp testified that the Thunders Club and Cartoons are one and the
same (3:604).
thinks he filed a grievance over the warning although he is
unsure (3:657–662).
Craine testified, without contradiction, that when the warn-
ing was raised by Lofton or Wells during the collective-bar-
gaining agreement negotiations he explained the matter in
detail, and he did not thereafter remove the warning from
Tharp’s file (16:2795). There is no complaint allegation re-
garding this written reprimand. I need not resolve the dispute
about this item.
On 30 August Mark Horner escorted Tharp to the office
of Bobby Hayes where Tharp was fired.118 Present at the ter-
mination were Tharp, Horner, Hunt, and Hayes (3:569). Al-
though Horner omits Hunt in naming the attendees
(15:2566), Hunt testified that he was present and, confirming
Tharp (3:570), explains that he discharged Tharp (1:88).119
Tharp testified that he and Horner were the first to arrive
at Hayes’ office, and not even Hunt was present at first.
Tharp observed five cases of beer, in six-packs, stacked on
the floor. Four of the cases were in one stack, and the fifth
case off to the side had three six-packs in it. When Tharp
inquired whether he was being fired for old beer, Horner said
it looked that way. Answering Tharp’s question of whether
all the beer came off his route, Horner replied, ‘‘No, just the
three six-packs.’’ (3:569, 642) Shortly thereafter Hunt and
Hayes entered. Hayes sat at his desk and Hunt sat on a
couch near the stack of beer.
Reading from a written statement, Hunt informed Tharp
that he had old beer on his route at K & L Liquor, One Con-
venience, and Thunders Club (also known as Cartoons),120
and that Tharp was terminated. Hunt said SDC could not tol-
erate this because it could cause owner Georges to lose the
distributorship. Hayes asked if Tharp had any questions, and
Tharp answered no. The meeting ended (3:570, 642).
During his own limited version of the discharge interview,
Horner did not deny Tharp’s version, including Tharp’s de-
scription that Horner said the three six-packs were Tharp’s
and that Hunt pointed to, apparently, the same three six-
packs (15:2566).
According to Tharp, as he and Horner walked back toward
the salesroom he asked Horner what was really behind this.
Horner replied that SDC was setting Tharp up from the day
he returned after the arbitration when SDC had him sign the
paper (3:570).121 Horner denies this item. He testified that
Tharp remarked he had been set up, and that he made no
reply to Tharp (15:2567). Although I credit Horner on this
point, I draw an adverse inference from his failure to deny
Tharp’s assertion that he had been set up. That is, I count
Horner’s silence as an admission that Tharp indeed was set
up for discharge.122
Explaining that he relied on reports from Horner of old
beer at five stores, Hunt testified that he terminated Tharp
for that reason only, and he identified the five stores as a
Safeway, K & L Liquor, Superway, One Convenience, and
Cartoons (1:88–89).
As subsequently typed, Horner’s reports are in evidence
and reflect, in part, the following:
Exhibit Store Date ofHorner’s call Old beer
R-42 Safeway 24 August two 6-packs
7645 Dashwood
R-43 K & L Liquor 29 August three 6-packs
7323 Bellerine
R-44 Superway 29 August three cases
7640 Clarewood
R-45 One Convenience 29 August equivalent of
5805 S. Gessner nearly four
cases
R-46 Cartoons 29 August one case
3860 S. Gessner
The staleness of the beer, according to Horner’s testimony
and his reports, is 16 days at the Safeway store; 24 days and
9 days at K & L Liquor; 36 days at Superway: 24, 24, and
112 at One Convenience, and 19 days at Cartoons.
Tharp testified that in late July he orally reported to Super-
visor Roschal that there was old beer at K & L Liquor, at
One Convenience, and that the Thunders Club123 had closed
with about 100 cases of beer that would be going out of date
very soon (3:566–567, 602–603, 611–613). When Horner
took over about mid-August, Tharp also reported the old beer
at these three stores to him (3:567, 602, 613). Tharp testified
he could not recall whether he reported any old beer at the
Safeway, the Superway, or some three other stores Horner
identified in his testimony as places where he, on 11 Sep-
tember, found old beer attributable to Tharp (3:603, 621–622,
651). On an average day Tharp delivered beer at some 40
stores or about 200 stops a week (3:650).
Roschal denies that Tharp reported any old beer to him
(14:2531–2532). Roschal testified that beginning at least as
early as 1983 he explained over and over to Tharp that oral
reports of old beer were unacceptable, that he had to fill out
the proper reporting form (14:2530–2531). Horner testified
that drivers are to report old beer only in writing on the
proper form, and that he has never accepted an oral report
and filled out the form himself (15:2552–2553, 2580, 2608).
He testified that Tharp never submitted a written report of
the old beer Horner found at the stores (15:2566).
Horner testified that on 25 August, the day he found the
old beer at Safeway on Dashwood, he orally warned Tharp
that he must clean up his route. Indeed, Horner testified, the
first day he became Tharp’s supervisor he told him that they
were to clean up the market (15:2558, 2576).
(2) Conclusions
Respondent certainly felt animus toward Tharp over the
Union’s successful effort to get him reinstated through arbi-
tration. Owner Georges was furious, confronted Tharp,
cursed him, repeated the name-calling in a meeting with
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
124 A listing of ‘‘3/4 case of cans,’’ as at One Convenience, is the equiva-
lent in amount to three six-packs, but it is not the same as beer packaged in
six-packs.
125 I also credit Tharp that in his conversation with Horner in Hayes’ office
Horner said that only the three six-packs came from Tharp’s route.
126 In reading the arbitrator’s decision, and acknowledging Crouse’s low
opinion of Tharp’s performance, one might conclude that Tharp is less than
a model employee. But Respondent fired Tharp on the sole ground of old beer.
Its evidence as to this ground was wholly unreliable. 127 Issued by President John P. Fauntleroy on 1 July 1981 (U. Exh. 4).
Tharp and Lofton minutes later, and concluded that meeting
by threatening to fire them both if they made a single mis-
take.
Even if I were to find that Craine’s 24 May reprimand of
Tharp was prompted in fact by a complaint by a customer,
that would not require a finding that owner Georges, by not
firing Tharp then, no longer harbored animus toward Tharp.
In the circumstances of this case, I would find that cooler
heads prevailed on Georges to adopt a more patient and so-
phisticated approach by giving Tharp a written warning that
termination could be next.
Regardless of whether I credit Tharp’s testimony that in
late July he informed Roschal of the old beer at K & L Liq-
uor, One Convenience, and Thunders Club (Cartoons), even
by Horner’s records nearly all of it was removed. Thus, of
the three stores Tharp says Hunt named, none of the items
at K & L Liquor or Thunders Club (Cartoons) was old
enough to reach back into July. At One Convenience only
one of three items was old enough—Bud Light, 3/4 case, 112
days old (R. Exh. 45).124
Crediting Tharp in his account of the discharge inter-
view,125 I find that Hunt specified those three stores. I there-
fore find that Respondent fired Tharp for three six-packs
which it claims was old beer purportedly removed from
Tharp’s route.
Although Hunt read from a prepared statement in dis-
charging Tharp, we do not have the benefit of that statement
in evidence.
It is useless to attempt to find the three six-packs in
Horner’s reports. In the first place I do not credit Horner’s
testimony regarding the old beer he supposedly found, and
I therefore do not credit his ‘‘reports’’ which are in evidence.
The unreliable nature of Respondent’s old beer reports, as
so disturbingly highlighted by Respondent’s deliberate de-
struction of the beer displayed at the bench view, further per-
suades me that none of the reports submitted by Horner can
be trusted. Indeed, as with Lofton and Rice, I find that the
beer displayed for Tharp was throw-down beer planted by
Respondent to serve as a fraudulent basis for discharging
Tharp because of his union activities, including his success-
ful effort to gain reinstatement through arbitration.
The General Counsel presented a prima facie case that Re-
spondent was motivated by unlawful animus in firing Tharp,
and Respondent has failed to show that it would have fired
him notwithstanding that animus.
Accordingly, I shall order Respondent to reinstate Tharp
and to pay him backpay.126
e. Walter John Kimbrough
(1) General facts
Walter John Kimbrough worked l3 years for SDC, from
May 1971 to his discharge on 11 September 1984 (10:1803–
1804). A union member on dues checkoff, Kimbrough was
a member of the Union’s negotiating committee about 6
years ago (10:1804). He never signed a union membership
resignation letter (G.C. Exh. 15). In forceful language
Kimbrough denied Ross Miller’s inquiry, the second week of
June, whether he wanted to sign the decertification petition
(10:1806–1807).
Kimbrough injured his back while delivering beer on 29
August and was off work thereafter (10:1807, 1854). He was
at home from his injury when Sales Manager Clayton Hunt
telephoned him about midmorning on 11 September and,
Kimbrough testified, told him he was terminated for old beer
and ‘‘others’’ (10:1810, 1854; R. Exh. 28 at 2). When
Kimbrough asked what the ‘‘others’’ were, Hunt asked if he
wanted to talk to Supervisor William T. Spears about that.
Kimbrough said he wanted to hear from Hunt. Sales Man-
ager Hunt said that neither Kimbrough nor SDC owed the
other anything, and if Kimbrough had any further questions
he should talk to Bob Toombs. Immediately thereafter
Kimbrough called and asked Assistant Controller Bob
Toombs, but Toombs said he knew nothing about it
(10:1811–1812). Toombs did not testify.
Hunt testified that he fired Kimbrough for (1) having old
beer on his route and (2) drinking on the job, and that for
both grounds he relied on reports submitted by Supervisor
Spears plus prior reports contained in Kimbrough’s personnel
file (1:80–85). Hunt testified the file also reflected that on
2 August Supervisor John Platt warned Kimbrough not to
drink at a customer’s location on driver Kimbrough’s route
(1:85–86). Other than Platt’s memo, Hunt conceded that
there was nothing in the file indicating Kimbrough was
warned that his job was in jeopardy if he did not correct his
drinking habits (1:86, 87), and Kimbrough testified that he
was never warned to that effect or told that drinking at all
on the route was a dischargeable offense (10:1813, 1818,
1930). Even when he was suspended 3 days in about March
1984 for having an open can of beer in his vehicle on his
route he was not told, Kimbrough testified, that another of-
fense would be cause for discharge (10:1813, 1931).
Under Respondent’s 1981 rules,127 rule 18 provided, in
part, ‘‘This company will not permit intoxication while on
duty or the carrying, or use of any drugs or hard liquor.
(Doctor’s prescription exception.)’’
Respondent’s rule changed with the new rules imple-
mented on 1 June 1984. Thus. rule 2 provides (G.C. 18 at
26; R. Exh. 7):
Reporting to work or working under the influence of,
or consuming on or off the premises of the company,
or bringing into a warehouse or plant at any time,
whether on duty or not, any form of alcoholic beverage
or intoxicating or hallucenogenic drug or substance is
prohibited.
The penalty specified for a first offense violation is dis-
charge.
Rule 2 will receive no prizes for clarity of thought or pre-
cision of expression. Aside from the question of whether
‘‘under the influence’’ is a more restrictive standard for em-
ployees than the ‘‘intoxication’’ of old rule 18, new rule 2
addresses, in part, the matter of consuming alcoholic bev-
erages while off company premises. Presumably the drafter
989SOUTHWEST DISTRIBUTING CO.
128 Although the Union read rule 2 and all the others at the ratification
meeting on 31 May, and Crouse, according to Kimbrough, did so later
(10:1840–1841), the rule itself, without clarification or interpretation, is overly
broad and confusing.
129 The new rules do not have a counterpart to old rule 39 which provided
(U. Exh. 4):
There shall be no drinking of alcoholic beverages on the company
premises except when the company has an authorized function where beer
is served.
130 Craine testified that he attempts to review all disciplinary actions
(2:182). He apparently does review all discharges (2:210).
meant to prohibit, among other conduct, working ‘‘under the
influence’’ or drinking while on duty. Unfortunately, the lan-
guage would prohibit an employee from drinking beer in the
privacy of his home while off duty. There is no evidence that
Respondent ever clarified this garbled rule by any notice or
announcement to its employees as to how the rule should be
interpreted,128 nor is there any evidence that Respondent,
even after the decertification election, issued a modified rule
using plain English.
To the extent rule 2 addresses drinking while on SDC’s
premises, even when off duty, Respondent itself violated the
rule when it threw a party for unit employees in its hospi-
tality room to celebrate the announcement of the Region’s
certification of results.129 On that occasion free beer was
served to the drivers as they came in from their routes.
Kimbrough testified that Kevin Tully was his supervisor
for about the first 7 months of 1984 (10:1815). He also testi-
fied that over the years Tully and several other supervisors
and managers had bought him beers many times while they
both were on duty (10:1814–1816, 1901). The last such oc-
casion, Kimbrough testified, involved his new supervisor,
William T. Spears. As Kimbrough describes it, about 1 Au-
gust Spears bought Kimbrough and his helper, Barry Bittner,
each a beer at Dalton’s Saloon on Dairy Ashford, and Spears
consumed one with them (10:l817, 1874).
Spears not only denies that testimony (15:2638), but as-
serts, without contradiction when Kimbrough appeared as a
rebuttal witness, that on 29 August he observed Kimbrough
order a beer at Dalton’s then Kimbrough made a delivery
stop there. Spears was there to arrange a promotion with the
manager and Kimbrough did not see Spears when
Kimbrough entered (15:2634-2635).
Spears also was drinking a beer that day at Dalton’s. He
explained to Kimbrough that he was there to arrange a pro-
motion. He said nothing about the drinking to Kimbrough
then because there were bar customers present, but he did
tell Kimbrough that he would see him in the morning. Spears
testified that although company policy forbids drinking on
the job under pain of dismissal, that policy does not apply
to supervisors who drive their personal cars. Spears was driv-
ing his personal car that day (15:2635, 2642–2643).
There is no other evidence that Respondent had a different
set of rules for its supervisors as far as drinking off premises
while on duty is concerned. Under general tort law it would
make no difference, on the issue of liability, whether a third
person was run over by an ‘‘under the influence’’ driver in
a beer truck or by a supervisor, in like condition, driving his
personal car on company business. From a public relations
standpoint a distinction can be made between a personal car
and a well identified company beer truck, and perhaps SDC
makes that distinction in its policies.
Whatever Respondent’s policy is for supervisors, Spears
prepared a memo that day covering his observations at Dal-
ton’s, and he submitted the memo to Sales Manager Hunt on
30 August when Kimbrough, because of his injury the late
afternoon of 29 August, did not come to work (15:2626–
2638). The memo covers the essentials described by Spears
at the hearing (G.C. Exh. 20 at 6).
John Platt testified that on 2 August, when his normal
classification was merchandiser, he served as acting super-
visor in the absence of the vacationing Kevin Tully
(15:2658–2659). About 12:30 p.m. that day Platt entered the
Gessner Inn Club and observed Kimbrough and helper Barry
Bittner at the bar drinking beer. After speaking with the
manager about business, Platt, on his way out, told
Kimbrough that he should not drink any more beer because
Kimbrough was driving a company vehicle (15:2660). In the
memo he prepared on the subject Platt states he told both
‘‘not to sit here and drink.’’ (G.C. Exh. 20 at 7.)
Platt testified that he gave the memo to Tully when the
latter returned a few days later, ‘‘less than a week.’’
(15:2660) As 2 August was a Thursday, Tully apparently re-
turned to work Monday, 6 August.
Although Kimbrough denies that the incident occurred, he
concedes that he occasionally consumes a beer at the Gessner
Inn Club, and that Platt has come in there (on other occa-
sions, apparently) while Kimbrough was servicing the ac-
count (10:1880–1882). Bittner did not testify. I credit Platt.
General Counsel’s Exhibit 20 contains several copies of
items drawn from Kimbrough’s personnel file. Several items
appear to be handwritten memos by Supervisor Tully con-
cerning unsatisfactory performance of Kimbrough related to
drinking, old beer, and customer relations. The memos range
in date from January to mid-July 1984.
Former Sales Manager Crouse testified that he thought
Kimbrough was an alcoholic, that Kimbrough rebuffed his
suggestion that he seek treatment at the expense of either
ABI or the Union, and that in the spring of 1984 Craine re-
jected his effort to fire Kimbrough on the ground that there
was insufficient documentation to support a discharge (2:324,
356; 3:487–490).130 Hayes also testified that about mid-May
he unsuccessfully tried to persuade Kimbrough to enter a re-
habilitation program if he had a drinking problem, but that
Kimbrough responded, ‘‘I don’t have a problem.’’ (16:2867–
2868)
Denying that Crouse or Hayes ever talked to him about
seeking treatment for alcoholism, Kimbrough testified that he
does not have a drinking problem (17:3036–3037). Through-
out his testimony Kimbrough conceded that several super-
visors and managers from time to time would tell him to
watch his drinking, but that always it would be in a context
that all drivers should be cautious concerning their drinking.
Kimbrough admits that periodically during 1984 he would
drink one to three beers while making his route, but never
more than four beers (10:1900–1901).
Evidence regarding the old beer appears in Hunt’s limited
testimony (1:82–84), and by stipulation that Spears would
testify that he did find on Kimbrough’s route the items speci-
fied in certain reports (15:2621–2626; R. Exhs. 50–55).
Some of the reports are based on calls made following
Kimbrough’s discharge but, because of the extended overage,
supposedly attributable to Kimbrough. On the post discharge
reports as to Kimbrough, as well as to the other affected dis-
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
131 Other than one can 7 days old, the next range from 18 to 169 days old.
132 From 31 to 248 days overage.
133 From 18 to 83 days overage.
134 Where ‘‘416 cans’’ of Michelob were 60 days out of date.
135 At p. 108 of their brief, counsel for General Counsel observe that the
transcript has an answer missing which would appear at the top of 10:1810,
and they assert that the answer would be the name of Supervisor Kevin Tully.
Thus, at 10:1809, L. 25 the question asked is, ‘‘Okay. And what supervisor
was that?’’ L. 25 being the last numbered line, the answer should appear, but
does not, at the top of 10:1810. Instead, a new question appears. My notes
reflect that Kimbrough answered Kevin Tully. By letter of 6 June 1986 to me,
copies to all counsel, the court reporter confirms the answer was ‘‘Kevin
Tully.’’I hereby correct the record accordingly.
136 The record fails to reflect precisely when Tully ceased being
Kimbrough’s supervisor, and it is not clear exactly when Spears took charge.
137 The respondent in Hillside apparently failed to make a motion to dismiss
when the General Counsel rested his case-in-chief.
138 In Aikens the Postal Service moved, at the close of the plaintiff’s case,
to dismiss on the ground that no prima facie case was established. In a bench
trial, the district court denied the motion. 460 U.S. at 714 fn. 4.
139 ‘‘Any objection . . . . No such objection shall be deemed waived by
further participation in the hearing.’’
140 FRCP 41(b) reads, in part, ‘‘After the plaintiff, in an action tried by the
court without a jury, has completed the presentation of his evidence, the de-
fendant, without waiving his right to offer evidence in the event the motion
is not granted, may move for a dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. The court as trier of
the facts may then determine them and render judgment against the plaintiff
or may decline to render any judgment until the close of all the evidence.’’
141 In Esco Elevators, 271 NLRB 1261, 1267–1268 (1984), the respondent
preserved its position by making such a motion.
chargees, I received them over the General Counsel’s objec-
tion solely as an aid in resolving credibility concerning the
overage beer allegedly found before the discharge.
The old beer Spears purportedly found before Kimbrough
was fired included three different U-Totems visited on 29
August (R. Exh. 50). Two cans of Budweiser were found at
U-Totem, 12420 Memorial, 41 and 77 days overage; 21 cans
of Bud and Bud Light plus 2.5 cases of 16-ounce cans of
Bud Light were found at U-Totem, 950 Tulley, with the cans
ranging from 79 days to 246 days overage and the 2.5 cases
being 69 days out of date; and two 16-ounce cans of Bud
Light were found at U-Totem, 14344 Memorial. A final re-
port in this series is either stale itself or garbled, for it shows
the date of call as ‘‘January 24, 1984.’’ Although the report
bears the same signature date as the previous ones, 11 Sep-
tember, it reflects that Spears ‘‘made account with Kevin
Tulley.’’ A total of nine cases were found, with the overage
dates not stated.
A second set of reports covers two stores visited on 10
September, Greener Fields on T & C Lane and Walgreens
on Town and Country (R. Exh. 51). At Greener Fields
Spears found three six-packs of Michelob Light ‘‘Nrs’’ 210
days old, and at Walgreens two cases of Michelob 7-ounce
‘‘Nrs’’ 241 days old plus one can of Budweiser 53 days
overage. The abbreviation ‘‘Nrs’’ means nonreturnable bot-
tles (15:2560).
Next come the post discharge discoveries of overage and
unrotated product on 12 September at two Stop-N-Gos,131 a
Midget Market,132 a Pick-N-Pack,133 and the Shadow Oaks
Drive-In134 (R. Exhs. 52–56).
As the General Counsel points out in her brief (at appen-
dix A), none of this old beer, not one can, whether purport-
edly found before Kimbrough’s discharge or after, is the sub-
ject of any of the many reports Respondent began making
about that time to the TABC. Nor is any of this old beer re-
ported on expense accounts as having been purchased at re-
tail and discarded.
Kimbrough testified that, about a month before he was in-
jured, Supervisor Kevin Tully135 checked his route and told
him the route was clean (10:1809–1810). Tully did not tes-
tify. According to Supervisor Chris Garcia, Tully had moved
to St. Louis by the time of the hearing (14:2402).
According to Spears, in late July he found a few cans of
old beer at three locations (Cobweb Liquor, Bigwig Liquor,
and a 7-Eleven) on Kimbrough’s route, that he purchased
them, discarded them, told Kimbrough about it, instructed
him to clean up his route, to document the old beer, and to
submit the old beer reports to Spears so action could be
taken to remove the overage beer (15:2640–2642).136 Al-
though Kimbrough was not asked about this, I specifically do
not credit Spears on this point. He testified very
unpersuasively on this item.
Kimbrough testified that to his knowledge there was no
overage beer on his route as of 29 August, the date he was
injured (10:1809, 1858). Respecting the old beer point, I
credit Kimbrough. I therefore find that Tully pronounced
Kimbrough’s route clean in late July, that it was clean on 29
August, and that Spear’s overage beer reports are nothing but
fraudulent fabrications.
(2) Conclusions
Respondent first argues that the complaint should be dis-
missed as to Kimbrough because the General Counsel failed
to establish a prima facie case (Br. at 170, 174, 185). That
raises the question of whether, in determining if a prima
facie case was established, I must consider only the evidence
adduced during the cases-in-chief of the General Counsel and
the Union, or whether I am to weigh all the evidence in the
record.
In Hillside Bus Corp., 262 NLRB 1254 (1982), the admin-
istrative law judge assessed all the record evidence to deter-
mine whether the General Counsel had established a prima
facie case.137 Relying on the allocation of burdens it an-
nounced in Wright Line, 251 NLRB 1083 (1980), the Board,
in Hillside, held that the administrative law judge erred by
not weighing the General Counsel’s evidence in isolation
from that presented after the General Counsel rested his case-
in-chief.
Compare, however, United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609
(1983).138 In Aikens the Supreme Court held that where a
case is tried in full on the merits, whether the plaintiff made
out a prima facie case ‘‘is no longer relevant,’’ and the trier
of facts should proceed to decide the case on the merits.
Even if it can be said that Section 102.41139 of the
Board’s Rules and Regulations can be interpreted differently
from FRCP 41(b)140 (the former speaks of not waiving the
motion whereas the latter simply provides that the right to
present evidence will not be waived by making the motion,
here SDC made no motion to dismiss when the General
Counsel and the Union rested their cases-in-chief.141
Under the rationale of Aikens, did Respondent, by failing
to make a motion to dismiss, waive its right to insist that,
in determining whether a prima facie case was established,
I disregard all evidence adduced after the General Counsel
and the Union rested their cases-in-chief? If so then I am at
liberty to consider all the evidence of record, including the
991SOUTHWEST DISTRIBUTING CO.
142 Craine perhaps was thinking of the documentation necessary to satisfy
the ‘‘good and sufficient cause’’ standard provided in art. 1, sec. 6(a) of the
1981–1984 collective-bargaining agreement (U. Exh. 32).
143 Promoted to supervisor on 1 September, Miller’s position was both un-
precedented with SDC and unique. In his new position, Miller was a route
supervisor over all routes although he was not supervisor to the other route
supervisors. Primarily he handled driver training in customer relations (5:842,
886–889). Jordan had been a supervisor for 8 years as of the hearing, or about
7 years as of September 1984 (15:2689).
testimony of Hunt regarding the beer displayed for the bench
view and the strong adverse inference I have drawn from Re-
spondent’s subsequent destruction of the bench view beer.
Although Aikens does not expressly apply to Board pro-
ceedings, its rationale appears to do so. Nevertheless, in ab-
sence of clarification by the Board, I shall follow Hillside.
Accordingly, in determining whether a prima facie case was
established regarding Kimbrough, I shall weigh only that evi-
dence adduced as of the time the General Counsel (13:2341)
and the Union (13:2339) rested their cases-in-chief.
Kimbrough was named on Hayes’ ‘‘hit list’’ well before
he declined Ross Miller’s request to sign the decertification
petition, and in the spring of 1984 Craine rejected Crouse’s
request to fire Kimbrough only because Craine considered
the documentation insufficient.142
Crouse testified he knew of no correlation between the
‘‘hit list’’ names, which included both union and nonunion
employees, and the scorecard Craine maintained for purposes
of the decertification election (2:351).
In these circumstances, that Craine named Kimbrough in
August as one of the ‘‘troublemakers’’ Respondent could
now proceed to discharge is just as consistent with a view
that Craine wanted to fire him for lawful reasons as it is with
a theory that Craine wanted to eliminate Kimbrough because
he refused to sign the decertification petition or resign his
union membership.
I now consider the discharge reasons which Hunt an-
nounced to Kimbrough, as further described by Hunt when
the General Counsel called him as an adverse witness. I have
found the overage beer ground to be a fraudulent fabrication.
From that finding, I infer that Respondent’s real motive was
the unlawful one of wanting to eliminate Kimbrough because
he was unwilling to support the decertification movement.
Thus, the General Counsel established a prima facie case of
unlawful discharge as to Kimbrough.
Considering all the evidence, I credit Supervisor Spears’
uncontradicted testimony that on 29 August he observed
Kimbrough and his helper drinking beer at Dalton’s while
they were on duty. For this drinking episode, including a
warning on 2 August by Acting Supervisor Platt, Respondent
fired Kimbrough.
Has Respondent shown that it would have fired
Kimbrough for the drinking at Dalton’s even if Kimbrough
had signed the decertification petition and submitted a union
membership resignation letter? I think not. Respondent vio-
lated its own new rule 2 by the beer party it lavished on
drivers the afternoon of 13 August at SDC’s hospitality
room. Moreover, Respondent never saw fit to clarify the gar-
bled and nonsensical rule 2. In light of these facts, plus Re-
spondent’s past history (before 1 June 1984) of supervisors
and managers consuming beer with Kimbrough at customer
stops on his route, Respondent’s evidence falls short of over-
coming the General Counsel’s prima facie case.
To the extent Respondent, during its case-in-chief, intro-
duced additional evidence regarding overage beer, I find that
as unpersuasive as the other.
Accordingly, I shall order Respondent to offer Kimbrough
reinstatement and to make him whole.
f. Fred Holliday
(1) General facts
Employed by SDC for nearly 17 years, from 11 November
1967 to 10 September 1984, Fred Holliday was a driver-
salesman on route 7 when he left Respondent’s employment.
While at SDC, Holliday was on dues checkoff, and he served
on the Union’s 1984 negotiating committee (8:1576–1577;
9:1598, 1601).
The ultimate question is whether Fred Holliday quit or
whether SDC fired him. At the hearing counsel for the Gen-
eral Counsel took the position that Holliday’s termination
was a plain discharge and that the General Counsel was not
contending it was a constructive discharge (9:1633). Not
mentioning plain discharge in their brief, counsel for the
General Counsel argue that the circumstances reflect a con-
structive discharge (Br. at 104–105).
Earlier I found that in a meeting about 24 August Hayes
unlawfully threatened four employees, Fred Holliday in par-
ticular, by telling them that owner Georges said there was no
more union, no need for any union stewards, and that hence-
forth Fred Holliday and the others should be seeking employ-
ment elsewhere. Hayes labeled Holliday as the ringleader.
In a separate meeting which followed with Holliday, Gray
confirmed that owner Basil Georges was upset about Fred
Holliday’s acting as a leader of the blacks. As I found,
Georges equated Fred Holliday’s concerted action among the
blacks in support of dischargee Louis Riley (and, as a sec-
ondary consequence, activity in mutual support of them-
selves), with the type of function a union steward would per-
form. Considered together, the remarks of Hayes and Gray
reflect hostility by Basil Georges toward anyone assuming
any role suggesting union leadership. Indeed, the message
from Georges was clear—if Fred Holliday, and the others as
well, wanted a union or desired to carry on the concerted
‘‘preaching’’ of a union steward, then go find a job where
there is a union. The ultimate message is an implied threat
of discharge if they fail to heed the warning.
A. J. Montalbano was Holliday’s supervisor. During Au-
gust–September 1984, Holliday testified, Montalbano was off
work because of illness. Before his illness, Montalbano peri-
odically would check rotation of the beer at stores on Fred
Holliday’s route (9:1598–1599). Sometime in the fall, per-
haps late September 1984, Montalbano died from his cancer
illness (3:426–427; 9:1600; 15:2690).
During Montalbano’s absence from terminal cancer, other
supervisors substituted for him, Holliday testified (9:1599).
William Jordan was one of the supervisors who helped share
the responsibility of filling in for Montalbano (15:2691). At
Hunt’s request, Jordan assisted Ross Miller in substituting for
Montalbano on route 7 (Fred Holliday) the first week of Sep-
tember (15:2691–2695, 2702).143 Actually, Jordan checked
the route just 1 day with Miller that week (15:2707). Leaving
around 9:30 to 10 a.m., they drove in Miller’s car (15:2702).
Jordan testified that on this one day (not specifically dated
by Jordan) he and Miller went to check on a complaint from
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
144 I credit Chau Nguyen, manager of a Circle K on the route, that about
this time Jordan in fact came in, said he was checking for old beer, and pur-
chased a six-pack plus two or three cans (10:1968, 1978).
145 Powers’ dates suggest that Montalbano was off work over a year before
he died.
146 Because of loan repayments, the checks were for $1 each (8:1587;
9:1620).
Spec’s Liquor. Jordan could not remember the nature of the
complaint (15:2692). From Spec’s he and Miller checked the
rotation of beer in at least 10 stores on Fred Holliday’s route
7, finding about a six-pack and a couple of cans of overage
beer which they purchased. As he was assisting Miller, Jor-
dan did not report the old beer, and he does not know wheth-
er Miller did (15:2693–2696, 2702).
According to Jordan, he and Miller were working behind
Fred Holliday, that is, reaching stores Holliday had just serv-
iced. Jordan would identify himself, leave his card, and ask
permission to fill the cooler. He would not say why he was
there,144 and he did not tell the owner that he was checking
on Fred Holliday (15:2703–2705). Ross Miller did not ad-
dress the subject of his and Jordan’s coverage of route 7 on
the matters described by Jordan.
Fred Holliday testified that on Friday, 7 September, he
learned from the customers that Miller and Jordan were
checking his route because they were working ahead of him,
including some stores where he was not scheduled to deliver
until the next day, and leaving their cards. This struck
Holliday as a conniving effort by SDC to find something
wrong on his route (8:1583; 9:1609–1611).
After learning of this, Holliday, that 7 September, tele-
phoned Executive Vice President Hayes and asked why SDC
was engaging in the underhanded tactic of sending Super-
visors Miller and Jordan to check his route for old beer. Ask-
ing who the hell told Holliday that, Hayes, without waiting
for an answer, immediately hung up the telephone (8:1584;
9:1609, 1611). Hayes did not cover this in his testimony.
When Holliday reported for work the early morning of
Monday, 10 September, dispatcher Jim Schicker asked
Holliday whether he was going to pull his route. Immediately
Holliday thought he was going to be fired. Holliday an-
swered that so far as he knew he was planning on delivering
the route. Schicker told Holliday that Hayes wanted to see
him in his office (8:1584–1585, 9:1513).
Holliday reported to Hayes as instructed. Hayes began by
saying he was writing down everything Holliday said. He
told Holliday that SDC had the right to do whatever it pleas-
es when it pleases, and that he considered Holliday’s tele-
phone call the previous Friday, 7 September, to be a threat.
Holliday said that all he wanted was SDC’s cooperation.
Hayes suggested that Holliday read the rules and regulations
and know them as well as he did the contract and everything
would be fine. Holliday answered that he did know the rules
and regulations. Then go back to your job and go to work,
Hayes replied (8:1585–1586; 9:1615–1616).
Employed with SDC since February 1984, Dennis Powers
was a merchandiser until his promotion to route supervisor
1 October 1985 (not 1984) (following the death of
Montalbano (15:2710, 2728–2729).145 In September 1984
Powers served as acting supervisor over Montalbano’s routes,
including Fred Holliday’s route 7 (15:27111, 2728–2729).
Powers testified that the early morning of Monday, 10
September, dispatcher Schicker told him that Fred Holliday
said he was not going to pull route 7. Powers went to the
salesroom, found Holliday, and asked him about it. Accord-
ing to Powers, Holliday first said he was not going to work.
As the helper, Jim Ornalik, was on vacation, Powers asked
Holliday if he would pull the route that day. Holliday said
he would pull the route that day but he was going to quit
after that. Powers reported these developments to Hunt who,
in turn, contacted Hayes. They asked Powers to doublecheck
on whether Holliday was going to quit (15:2712–2714,
2747).
Proceeding to the route, Powers found Fred Holliday at
Spec’s Liquor Warehouse and asked if Holliday was sure he
was quitting that day, for if he was, Powers needed to con-
tact helper Ornalik who knew the route. Holliday said he was
quitting, that he could not take the pressure any longer, that
Supervisors Ross Miller and William Jordan had been on his
route checking, and that this was his last day. Powers said
he knew nothing about Miller and Jordan checking his route.
They shook hands, Powers said it had been good working
with him, he wished Holliday luck, and said he would see
him later. Powers expressed no regrets that Holliday was
quitting because ‘‘I hardly knew the man.’’ (15:2714–2715,
2749, 2752–2753.) Powers returned to the office, or tele-
phoned Hunt, and reported that this was Holliday’s last day
because he was quitting (15:2715, 2754).
Fred Holliday testified that on 10 September Powers ap-
proached him at the first stop, Spec’s Liquor Warehouse,
said he was sorry for what had happened that day, that
Holliday was his best driver because his was the cleanest
route Powers had. They discussed what had been said that
morning in Hayes’ office. He asked if Holliday was going
to quit, and Holliday answered that he had not really planned
on it, but because of the pressure he was under he would let
Powers know at the end of the week (8:1586; 9:1614–1618).
Holliday denies that earlier that morning he told Powers
he was not going to pull the route, and denies mentioning
Ross and Jordan by name to Powers at Spec’s Liquor Ware-
house, although he testified it did come up that someone had
been out checking on his route (9:1614, 1617–1618).
For his part, Powers testified that he was not aware of
what had transpired that morning between Holliday and his
supervisors, he denies saying he regretted what had happened
in the office between Holliday and Hunt, denies any aware-
ness that Holliday had telephoned SDC seeking an expla-
nation of why Miller and Jordan were checking his route,
and testified that he knew none of that until Holliday in-
formed him that morning at Spec’s Warehouse (15:2747–
2748).
Although he did find route 7 to be clean (that is, no over-
age beer), Powers testified that he did not tell Holliday that
he had one of the cleanest routes (15:2751–2752).
On returning to the plant on Monday, 10 September, after
completing his route, Holliday was called into Hunt’s office.
Present were Hunt, Hayes, and Fred Holliday; Remarking
that they heard Holliday was going to resign, Hayes said
they had his checks prepared. As he said this, Hayes handed
Holliday his two final paychecks.146 Hayes said they would
be glad to help Holliday find a job (8:1587; 9:1618–1619).
Holliday admits that all he said was ‘‘Okay’’ (8:1587;
9:1619). He did not object because he felt he was going to
be fired anyway and he had no power to resist (8:1588). To
993SOUTHWEST DISTRIBUTING CO.
147 Recall that there had been no change in his pay, job classification, or
other usual working conditions. The changes were in the form of a threat that
he should seek work elsewhere and possible oversupervision on 10 September
designed to find a pretext for discharge.
Holliday the two checks were proof that he was fired
(9:1619). He felt he had no choice but to accept the checks
and leave. Moreover, Chief Steward Lofton earlier had told
Holliday that he was sixth on the list to be fired (8:1588).
Before 10 September, Holliday testified, several others had
been fired for having old beer on their routes (9:1621).
Holliday testified that he never told any supervisor or man-
ager that he was going to resign (8:1588). As of 10 Sep-
tember no one told him he had violated any rule (9:1621–
1622). Indeed, he concedes that about 2 weeks earlier Powers
rode with him on the route and stated that he found no old
beer (8:1589–1590).
Hunt denies that he dispatched anyone specifically to look
for old beer on Fred Holliday’s route. Indeed, Hunt testified,
Holliday was doing a fine job, had done nothing to be dis-
charged for, but simply resigned (1:90–92). At the hearing,
neither Hunt nor Hayes described the 10 September con-
ference where Hayes gave Holliday his final two checks.
At his 7 November unemployment compensation hearing
before the Texas Employment Commission (TEC), Holliday
testified that Hayes and Hunt told him that he was dis-
charged for being a leader. When asked what kind of leader,
Holliday answered ‘‘union activities.’’ (G.C. Exh. 63–6) Be-
fore me, Holliday could not recall being asked at the TEC
whether he was given a reason for his discharge, nor could
he remember saying at the TEC that Hayes and Hunt told
him the reason for his discharge was because he was a union
leader (9:1624–1625).
Payroll clerk Carrie Jean Skinner testified that Holliday
came to the office one evening, said he had resigned, and
filled out papers relating to his pension plus a letter of res-
ignation to be signed when an employee resigns. Skinner and
the other office clericals, who have known Holliday for
years, hugged him, said they hated to see him go, and
wished him the best (16:2832–2833). None of the forms
Skinner mentioned, particularly the resignation letter, was of-
fered in evidence by Respondent.
Testifying in rebuttal, Holliday asserted that about 9:30 to
10 the morning after he was fired he went to the office to
pay the balance he owed SDC. Before Holliday said any-
thing, the office clerks, on seeing Holliday, said they were
going to miss him and hugged him. He said he would miss
them. About that time owner Georges appeared at the door
to the office, Hayes walked by, and the office clerks ‘‘scat-
tered.’’ (17:3041–3044, 3047–3048) Holliday testified that he
came that morning to see Vice President Ralph Baldwin or
his assistant, Bob Toombs, and he denies having any con-
versation with Skinner about quitting, denies that he told her
or any of the clerks he was quitting, denied that Skinner
mentioned it, denied that he signed anything which said he
quit, and identified the pension fund ‘‘Termination
Notice/Election Form’’ (G.C. Exh. 66) which he did sign
(17:3041–3044, 3046).
Dated 11 September 1984, the pension form shows Fred
C. Holliday’s ‘‘Termination date’’ to be ‘‘9–10–84.’’ Three
signatures are on the form: Holliday’s, that of Office Man-
ager R. L. Toombs, and, as witness, Carrie J. Skinner. If
‘‘Termination date’’ is read in its neutral sense, as I would
read it, nothing on the form asserts that Holliday either re-
signed or was discharged.
I credit Holliday’s version of his visit to SDC’s office on
11 September.
(2) Conclusions
Crediting Holliday, as I do, concerning his version of
events, the question remains: did he quit or was he fired
(constructive or otherwise).
The General Counsel argues that the sequence of events
reflects an unlawful effort by Respondent to intimidate
Holliday by threats and pressure so that either he would quit
or Respondent, on the pretext of finding some old beer or
terming his telephone call to Hayes as a threat, could fire
him. Unlike with Lofton who refused to take the bait about
resigning, the General Counsel argues (Br. at 104), Holliday,
knowing that his days were numbered in light of all events,
including the discharge of others for old beer, felt it would
be futile to protest, and meekly accepted the inevitable.
These circumstances amount to a constructive discharge the
General Counsel argues (Br. at 104–105). The Union de-
scribes Holliday’s departure as a discharge disguised as a
resignation (Br. at 25).
Asserting there is no evidence of any plan to fire Holliday
or to force him to quit, and arguing that it appears Holliday
was either tired of working at SDC or lived in some ‘‘para-
noia filled fantasy’’ in which Respondent was ‘‘out to get
him,’’ Respondent contends that any contention by the Gen-
eral Counsel (disavowed at the hearing) of constructive dis-
charge fails because the test of a constructive discharge is
not met here (Br. at 204–205).
Citing Crystal Princeton Refining, 222 NLRB 1068, 1069
(1976), Respondent observes that the Board’s definition of
constructive discharge includes two elements.
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his work-
ing conditions so difficult or unpleasant as to force him
to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activi-
ties.
Assuming, for the moment, that I would be prepared to
find affirmatively as to the second element, the big problem
facing the General Counsel is whether the sequence of events
(on which I have credited the General Counsel’s evidence)
amounts to working conditions so difficult or unpleasant as
to force Holliday to resign. It is difficult to conclude that
Holliday’s working conditions, even if they were progressing
in the direction of being unpleasant and difficult, had reached
the unbearable point.147
The real problem is that neither concept (discharge or res-
ignation) occurred expressly as in ‘‘You’re fired!’’ or ‘‘I
quit.’’ Which was it? As I view it, the intent of both Re-
spondent and Holliday must be considered. What did they in-
tend by their conduct? I find that Respondent, pouncing on
Holliday’s expression to Powers that he was considering re-
signing, intended to pressure Holliday into accepting resigna-
tion checks, and that Respondent’s purpose for doing so was
to eliminate from its payroll a driver-owner Georges, accord-
ing to Hayes and Gray, considered to be a union steward and
one who should be seeking employment where there was a
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
148 The Board finds that the constructive discharge test is met when an em-
ployer gives a union advocate the Hobson’s choice of continued employment
only if he agrees to abstain from exercising his rights under the Act. CER,
Inc., 269 NLRB 1070, 1074 (1984), enfd. 762 F.2d 482 (5th Cir. 1985). We
do not have that here either expressly or by virtue of conditions so unpleasant
as to force (for unlawful reasons) a resignation.
149 A reference, apparently, to official accident report forms filed with the
State.
150 Excluding, of course, the three alleged discriminatees.
151 I utilize the principal copy of the rules attached to the negotiated collec-
tive-bargaining agreement (G.C. Exh. 18). The secondary copy of the rules (R.
Exh. 7) inadvertently omits safety rule 23, and, therefore, the numbers of those
which follow are different from those in G.C. Exh. 18.
152 The complaint alleges the discharge date to be 28 October 1984, a Sun-
day. Although Holliday testified he was fired on 28 October, he also dated
his discharge as about 4 days after his accident (4:700). Because it is undis-
puted that the accident occurred on Friday, 26 October, and in light of the
4-day span described by Holliday, I find the discharge date to be 30 October.
union. I therefore find that in handing the two checks to
Holliday, Respondent was motivated by unlawful reasons.
I further find that Holliday, apparently intimidated by Ex-
ecutive Vice President Hayes and Sales Manager Hunt,
meekly accepted the resignation checks with an ‘‘Okay’’ be-
cause the circumstances indicated to him a futility to protest.
If the circumstances objectively reflected that it would
have been futile for Holliday to protest, that is, that any pro-
test would have met with discharge either then or later on
a pretext, then the situation would be ripe for finding a dis-
charge. But there is no showing that if Holliday had pro-
tested Respondent would have fired him by insisting that he
had in fact resigned. Indeed, the indication is that Respond-
ent, as in Lofton’s case, was throwing out a bait which could
be withdrawn if need be. In short, there is no showing of im-
mediate futility, and I find that there was no actual discharge.
As for futility because of what Respondent might do in the
future, that merges into the concept of constructive dis-
charge. As of 10 September, I find that Fred Holliday’s
working conditions had not reached the stage where they
could be called unduly difficult or unpleasant.148 Thus, there
was no constructive discharge, and I shall dismiss complaint
paragraph 26 as to Fred Holliday.
3. The discharges for failure to report
vehicular accidents
a. Introduction
As mentioned earlier, three drivers were fired, on the fol-
lowing dates, for failing to report vehicular accidents: John
A. Holliday—30 October 1984; Edward Hartman—21 No-
vember 1984; and Ira C. Strange—28 November 1984.
President John P. Fauntleroy’s 1 July 1981 ‘‘General Pol-
icy’’ rules covered this subject by rule 4. Under paragraph
(a) of that rule, on any accident appearing to result in dam-
age of $50 or more to either vehicle, ‘‘call police imme-
diately.’’ Under rule 4(d), the driver was to submit an acci-
dent report ‘‘to the office’’ immediately on arriving back at
the warehouse.
As described by Howard Lofton, Respondent’s past prac-
tice was consistent with old rule 4. Lofton testified that in
SDC’s past practice regarding accidents, drivers would tele-
phone the office as soon as possible and report the accident
to Ralph Baldwin. Later, Office Manager Bob Toombs suc-
ceeded Baldwin in that responsibility, and reports then were
telephoned to Tombs. If neither Baldwin nor Toombs was
available, the driver notified some supervisor or manager.
The blue forms149 were filled out thereafter (11:2151, 2167–
2169).
Former Vice President Crouse testified that as a route su-
pervisor around early 1982 he had occasion to issue a written
warning to driver James Ornalik who failed to report a minor
accident. Crouse discovered the minor damage to the lower
panel by one of the doors. Sales Manager Les Mattinson re-
duced it to an oral warning (2:250, 272).
Crouse testified that he did not know of an employee ever
being fired by SDC for failing to report damage to a vehicle
(2:270–271). Craine testified similarly regarding his tenure
with SDC (13:2337–2338). The parties stipulated that SDC
has no record of any employee being disciplined between 1
August 1982 and 1 March 1985 for failure to report an acci-
dent (12:2179–2181).150
Next, we come to the new rules—the ones implemented
1 June 1984.151 They provide, on pain of discharge at first
offense:
10. All accidents involving company vehicles must
be reported from the scene of the accident to the proper
law enforcement official and also to the supervisor on
duty.
11. Written reports of all accidents must be made
immediately upon returning to the company premises.
Holliday’s 26 October accident involves damage to the
bumper of another SDC vehicle on the company compound.
The bumper had to be replaced at a cost, including labor, of
$179 (G.C. Exh. 23).
On 20 November, as Hartman drove his vehicle between
two others on a narrow street, his side mirror hit and broke
the side mirror of a parked truck.
Strange was discharged over an alleged delay in reporting
a dent in his truck which he discovered on Friday, 23 No-
vember.
Sales Manager Hunt testified that, for any vehicle acci-
dent, the driver must make an oral report immediately to his
supervisor, or to Hunt, or to anyone in management (1:100–
101).
b. John A. Holliday
(1) General facts
SDC hired John A. Holliday in July 1977 (4:686), and
fired him on Tuesday, 30 October 1984).152
Holliday was a member of the Union on dues checkoff
(4:689–690; R. Exh. 64). Although Holliday never held any
elected or appointed position in the Union (4:766–767), he
did not sign a membership revocation letter (G.C. Exhs. 15,
16), and he rejected then driver (and alleged agent) Ross
Miller’s request in early June that he sign the decertification
petition Miller was circulating (4:712–714, 731, 771–773,
784). As we recall from Crouse’s testimony, Holliday’s fail-
ure to sign these documents was duly noted by Craine in dis-
cussions with Crouse and by Craine and Gray in the mid-
summer scoreboard meetings of Respondent’s management
nucleus (2:309; 3:440, 529–532).
Crouse identified John Holliday as one of those on Hayes’
spring 1984 hit list for reasons apparently unconnected to his
union membership (2:347, 358; 3:487). As we know, Crouse
995SOUTHWEST DISTRIBUTING CO.
153 On an earlier occasion, date unspecified, when his helper drove into a
7-Eleven store and broke a light, Holliday reported the accident to Toombs
(4:703).
154 Although the complaint lists Andrew Thompson as a supervisor, and
Holliday thought that was his supervisor’s name (4:687–689), it appears that
the supervisor is named Andrew Thomas. Whether Thomas or Thompson, the
supervisor did not testify.
155 President Craine identified a brief accident report, dated 26 October,
signed by Supervisors Brian Wilson and Andrew Thomas (7:1282–1283; G.C.
Exh. 23). Wilson apparently supervised Brown.
156 The General Counsel does not allege in her complaint that the 1-day sus-
pension was unlawful.
testified that he was unaware of any correlation between
Hayes’ hit list and Craine’s scorecard (2:351). Finally,
Holliday was not one of those specifically named in early
August by Craine as ‘‘troublemakers’’ to be eliminated
(2:316).
Holliday’s vehicle accident of Friday, 26 October, came
about in this way. As Holliday drove out of Respondent’s
truck shed he turned to his right. Unfortunately, the external
mirror on Holliday’s passenger side was bent back so that
Holliday was unable to see to his right rear by use of the
mirror. Holliday misjudged his turn and hooked the front
bumper of the truck to his right. Although Holliday’s truck
sustained no damage, the bumper on the truck of his neigh-
bor (driver James Brown) was pulled out several inches
(4:702, 764–766; R. Exh. 12). As previously mentioned, the
bumper on Brown’s truck was later replaced at a cost, in-
cluding labor, of $179.
Holliday stopped and conversed with Brown. Observing
that there was no damage to his own truck, Holliday sug-
gested that Brown take his truck to SDC’s garage and report
the accident. Holliday said he would call in from his route
to make his own report. Brown agreed (4:702, 746–748).
Holliday concedes that from the point of the collision to the
office was about 50–100 yards (4:748).
Rather than stepping over to the office and reporting the
collision, Holliday proceeded to his route. Around 10 to
10:30 a.m., at his normal time to call in, Holliday telephoned
SDC and asked for Office Manager Bob Toombs,153 but the
dispatcher or receptionist said Toombs was not there and that
Steve Hudson, assistant controller, wanted to talk with him.
Apparently Hudson was not present either at this moment
(4:703, 749–753, 788).
When Holliday made his usual afternoon call around 2 or
2:30 p.m. he spoke with Hudson who asked if Holliday had
hit the (Brown’s) truck. Yes, replied Holliday. Was
Holliday’s truck damaged, Hudson inquired. No, answered
Holliday. That was all he heard about the matter, Holliday
testified, until a few days later (4:704–705, 750–751).
On Tuesday morning, 30 October, Supervisor Andrew
Thomas instructed Holliday not to leave on his route because
‘‘they’’ wanted to talk with him.154 Moments later Ross Mil-
ler, a supervisor since 1 September, came and the group went
to Sales Manager Hunt’s office. Present were Miller, Thom-
as, John Holliday, Hunt, and Executive Vice President Hayes
(4:705–706).
Hunt asked if Holliday knew he had hit the (Brown’s)
truck. Yes, said Holliday. To Hunt’s question of whether
Holliday’s truck was damaged, Holliday answered no. When
Hunt inquired whether Holliday knew that he was supposed
to report the accident, Holliday replied that he had reported
it to Toombs. Hunt said that Holliday was not supposed to
report it to Toombs, but to Holliday’s supervisor. Holliday
replied that he did not know that (4:706).
Hunt stated that there were bulletins and rules posted on
the wall instructing drivers about this. Holliday said he had
not seen it and was ignorant of that part. ‘‘No, you’re not
that or we might’ve overlooked it,’’ responded Hunt. Hitting
a truck without reporting it brings about dismissal, said Hunt,
who added, ‘‘I’m sorry, John, but we’re going to have to let
you go. Now, whenever you need any assistance in getting
another job, just give us a call.’’ (4:707)
Holliday testified that there are hundreds of rules posted
at SDC. He does not recall that Hunt or his supervisor took
him and other employees over and showed them the rules.
He testified that he had never seen the set of new rules in
evidence as Respondent Exhibit 7, although he has read
some of the posted rules (4:755–756).
Hunt testified that John Holliday was fired for departing
on his route without reporting his accident (1:99, 101). Dur-
ing their testimony, neither Hunt, Hayes, nor Miller de-
scribed Holliday’s discharge interview, and Supervisor
Thomas did not testify.155
James Bailey testified that after John Holliday was fired,
James Brown, a member of the Union, succeeded to
Holliday’s route (12:2236–2238). Although Brown had been
on dues checkoff (R. Exh. 64), he signed a union member-
ship revocation letter (G.C. Exhs. 15–19, 16–4), and he
signed in place 34 on the decertification petition (G.C. Exh.
2).
(2) Conclusions
The General Counsel and the Union see John Holliday’s
discharge as the result of his failure to support the decerti-
fication movement. This, coupled with mention of his name
as a nonsigner, as a member of the hit list, the disparity
shown by the lack of prior or past event discipline for other
accidents, plus the minor nature of the accident which oc-
curred on SDC’s premises, persuade them that Holliday’s
discharge was unlawful. I accord no weight to the disparity
argument because there is no evidence that there were other
accidents, and an alleged failure to report them, after 1 June
1984 besides the three in issue here.
There is an abundance of evidence that Respondent fre-
quently reminded its drivers of SDC’s rotation policy and
their duties regarding beer approaching overage. In contrast,
there is no evidence that Respondent specifically instructed
its drivers that the new (as of 1 June) policy required them
to report accidents to their supervisors. Indeed, Holliday
complied with general rule 10, and a literal interpretation of
safety rules 10 and 11 would read them as applying to acci-
dents occurring away from SDC’s premises.
Respondent, of course, is free to interpret its rules as it
wishes—so long as that interpretation is not unlawfully moti-
vated. And that is the question: Was Respondent unlawfully
motivated here? It could be argued that if Respondent had
been out to ‘‘get’’ John Holliday it could have done so when
it, as Holliday described, gave him a 1-day suspension in
mid-October for having some old beer on his route.156 How-
ever, it appears that Holliday had previously told Supervisor
Thomas about that old beer and that Thomas said he would
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
157 The Union suggests that Respondent ceased using old beer as an excuse
to fire the union holdouts when the instant charges were filed and served in
mid-September (Br. at 26).
158 At this point Hartman testified that he knew the mirrors had ‘‘touched’’
but he was unaware of any damage. It is unclear that such testimony was part
of the answer he gave to Hayes (7:1233–1234). Hunt testified that on the
morning of 21 November he confronted Hartman about the matter and Hart-
man said he was unaware he had damaged the other vehicle (1:109). It is un-
clear whether Hunt meant that conversation was part of the discharge inter-
view or a separate conversation.
take care of it. Instead, Thomas suspended Holliday for 1
day over the old beer Holliday had reported (4:694–699).157
I find that Respondent was unlawfully motivated in dis-
charging John A. Holliday. Even though Holliday might be
charged with the responsibility for knowing the correct rules,
the fact is that SDC made it a point to train employees re-
garding the rotation policy—but not, so far as the record
shows—the new (and potentially confusing) policy regarding
reporting of accidents.
Holliday can be faulted for not walking over to the office
to report the accident. Still, he did call in and report. Re-
spondent strains to reach an interpretation of the rules by
which to justify discharging Holliday because he failed to re-
port the accident to his supervisor before he left the prem-
ises. Had Respondent warned Holliday, or even suspended
him for 2 or 3 days, it is possible the General Counsel would
not have contested the matter.
The discharge is overkill which suggests an unlawful mo-
tive. Finally, I simply do not believe Hunt on this or any
issue. Having found that Respondent was unlawfully moti-
vated in firing John A. Holliday, I further find that it would
not have discharged him had he abandoned the Union and
supported the decertification movement. Accordingly, I shall
order Respondent to offer John A. Holliday reinstatement
and to make him whole.
c. Edward Hartman
(1) General facts
Edward Hartman worked at SDC from 1972 until Execu-
tive Vice President Hayes fired him the early morning of 21
November 1984 for not reporting an accident Hartman was
involved in the day before (7:1228, 1230).
Hartman was a member of the Union and had been on
dues checkoff (7:1228–1229, 1236; R. Exh. 64), but he had
never held a position in the Union, never filed a grievance,
and no supervisor ever discussed the Union with him
(7:1248). Although Hartman never signed the decertification
petition (7:1229; G.C. Exh. 2), no one asked him to do so
(7:1260). Indeed, because of a job-related injury sustained 29
May, Hartman was off work from his injury until 24 Sep-
tember (7:1229–1230). During that time off he returned to
the plant only once and that, at the Union’s request, was to
vote in the RD election on 30 July (7:1259–1260).
A couple of months after he returned to work, Hartman
was involved in a slight collision about a block and a half
from SDC’s compound (7:1231). As he approached the plant
on a side street he observed that two trucks of a nearby ply-
wood company were parked on either side of the street leav-
ing a narrow passage. Nevertheless, Hartman observed that
another truck was able to pass safely between the two parked
trucks. Hartman, accompanied by helper Richard Luna, then
proceeded to drive between the two parked trucks (7:1231–
1232, 1245).
As Hartman proceeded at about 3 miles per hour between
the parked trucks, the side view mirror on the passenger’s
side of his vehicle struck the side mirror on the driver’s side
of the truck parked to Hartman’s right. The contact rotated
Hartman’s mirror clockwise, or inward, so that it reflected
Hartman in the driver’s seat rather than the street on Hart-
man’s right (7:1232, 1245, 1254).
Without stopping his vehicle, Hartman told Luna to
straighten their mirror. After Luna did so, Hartman looked
into the side mirror and, seeing no damage to the other vehi-
cle, proceeded to the plant for a reload (7:1232, 1246, 1255).
As he looked back in this fashion, Hartman observed a help-
er or someone seated on the passenger side of the parked
truck. Hartman denies hearing anyone yelling at him
(7:1256–1257). Hartman never stopped during his passage
between the two parked trucks even though he knew the two
mirrors had hit (7:1246, 1254). The time was about 1 p.m.
(7:1237).
Within 3 or 4 minutes Hartman had parked at the ware-
house for a reload (7:1239). About 30 minutes later Hayes
approached Hartman and Luna at the warehouse. Hayes
asked Hartman if he knew he had broken a mirror on the
other truck. No, answered Hartman.158 Hayes then said,
‘‘Well, Richard here [referring to helper Richard Luna] had
told me about it, told me that you had hit the mirror. Go on
back out on your route.’’ (7:1234) Hartman concedes that he
did not submit any written accident report. On the other
hand, Hayes did not tell him to do so (7:1234). Hartman ob-
served a truck from the plywood company on SDC’s prem-
ises. He checked the mirror and saw that the glass was miss-
ing (7:1256).
About 7 the next morning, 21 November, Hartman was
called into Hayes’ office. Present were Hayes, Hunt, Super-
visor Emanuel Flores, and Hartman. Hayes began by saying,
‘‘Ed, I’m going to read you the company rules about not re-
porting an accident.’’ He then ‘‘read the rules to me,’’ Hart-
man testified, and concluded by telling Hartman, ‘‘This calls
for immediate dismissal.’’ With that Hayes handed Hartman
his paycheck (7:1234–1235).
Hayes asked if Hartman had seen the rule, and Hartman
replied no. They are posted on the bulletin board, responded
Hayes. To this Hartman said the bulletin board was so clut-
tered with papers that ‘‘you can’t tell what’s up there.’’
Hayes said Hartman did not report the accident. Hartman re-
plied that he thought their discussion the day before sufficed.
Makes no difference, Hayes stated, ‘‘It’s dismissal.’’
(7:1235) The interview lasted about 2 minutes (7:1247).
Hayes did not cover Hartman’s discharge during his own
testimony, and Flores did not testify. Hunt testified that the
sole reason Respondent fired Hartman was his failure to re-
port the accident (1:108).
Hartman testified that he was present at the ratification
meeting on 31 May when the entire collective-bargaining
agreement was read, although he does not recall whether any
work rules were read. He further testified that he was off
work when any rules were posted, that he never saw them,
that he never heard any talk about the work rules from super-
visors or other drivers, that the bulletin board was cluttered
with all kinds of papers, including cartoons, but he is sure
997SOUTHWEST DISTRIBUTING CO.
SDC has work rules. He just never saw them or heard what
they contained (7:1236, 1250–1253).
According to Hartman, although he filed an unemployment
claim with the TEC following his discharge, he did not at-
tend the hearing on his appeal because he could not draw un-
employment plus worker’s compensation (7:1257–1258).
Hartman did not explain why he filed a claim with the TEC
at all if it conflicted with his worker’s compensation, nor did
he explain how he was eligible to receive worker’s com-
pensation after he had returned to work.
(2) Conclusions
Assuming that Hartman’s conversation with Hayes satis-
fied general rule 10 and safety rule 10, it is clear that Hart-
man did not comply with safety rule 11 which calls for a
written report of all accidents (not simply accidents with
damage) to be made immediately on returning to the prem-
ises
To the extent Hartman meant that he heard no talk about
company rules in general after he returned to work on 24
September, I do not credit him. I do credit him to the extent
he means that no one focused on the accident reporting rules.
Still, the law does not impose on an employer the standard
of fairness. Even if Respondent acted unfairly and over-
reaching toward Hartman, that is immaterial—unless the
facts and inferences indicate that in actuality Respondent
seized the opportunity to eliminate one more nonsigner of the
decertification petition.
As for the damage to the mirror on the plywood com-
pany’s vehicle, I find it very likely that both Hartman and
Luna were aware that their truck broke the mirror of the
other truck. I find it likely because the metal back of Hart-
man’s mirror would have struck the glass portion of the other
mirror right by their truck cab as they passed. I do not credit
Hartman’s claim that he was unaware of any damage.
The General Counsel observes (Br. at 117) that Hartman
was one of the names on Hayes’ hit list (2:347, Crouse).
Once again, however, Hayes and Crouse discussed that list
a couple of months before the decertification movement
began. Moreover, Hartman’s name is not shown in the record
as one of those mentioned in the scoreboard meetings of the
management nucleus in the weeks before the RD election
(3:440, 530). He was not one of the group Craine told the
managers not to bother trying to sway (2:286, 311–312), he
was not named as one of the hardcore three of Lofton, Rice,
and Tharp (3:535), nor was he named by Craine in early Au-
gust as one of the troublemakers to be eliminated (2:316).
Perhaps Respondent did not give sufficient weight to the
fact that Hartman, off work all summer until 24 September,
had not received proper training on Respondent’s new rules.
Perhaps Hayes, on 20 November, should have told Hartman
to file a written report, and perhaps it was unfair to fire him
the next morning for not filing that report when Hayes him-
self did not consider it important enough the day before to
tell him to file one in writing. May an inference be drawn
that Respondent concluded from the fact Hartman came to
vote that he voted for the Union, and that such conclusion
explains any unfairness Respondent displayed by zapping
him after accepting an oral report? I am afraid the object of
the General Counsel’s reach exceeds her grasp.
Under all the circumstances it appears that the General
Counsel has not carried her burden respecting Edward Hart-
man. Accordingly, I shall dismiss complaint paragraph 26 as
to Edward Hartman.
d. Ira C. Strange
(1) General facts
Ira C. Strange worked 14 years for Respondent. Hired by
SDC in November 1970, Strange was fired by Respondent
on 28 November 1984 (6:1075). Hunt testified that Strange
was fired for not reporting an accident to his truck. Hunt
modified this to say that although Strange did file a written
report, he did not do so for 3 or 4 days after the accident
(1:110).
In fact, as I find , Strange did not himself have an accident
in his truck. Warehouse personnel park the trucks, and it ap-
pears that a warehouse employee bumped the truck against
a post, or some other object, and the force of the bump cre-
ated a dent in a slot in the truck body at the rear of the truck
where the loading plate of the dolly slides (6:1079, 1156).
The gas tank also was nicked (6:1164; R. Exh. 21).
At the first stop the morning of Friday, 23 November,
Strange removed the dolly from the back of the truck
prepatory to servicing the store, a Kroger’s. When the dolly
was removed, Strange was able to see the dent (6:1078–
1079, 1097, 1111). Strange attempted to reach Assistant Con-
troller Steve Hudson in the office, but Hudson was out and
so was Strange’s supervisor (6:1080, 1131). Strange called
the garage and learned that no one had reported an accident
over the Thanksgiving holiday of 22 November (6:1132–
1133).
Mark Horner was Strange’s supervisor (6:1075; 15:2574).
That morning Horner went to the Kroger’s store to help
Strange erect a display. It is unclear whether he was there
when Strange arrived, or whether Horner arrived shortly after
Strange (6:1081, 1082, 1131, 1138, 1144). In any event,
Strange testified that he showed the dent to Horner, told him
that it was not there when he returned the truck the afternoon
of Wednesday, 21 November (the day before the Thanks-
giving holiday), and said that he did not discover it until just
them. According to Strange, Horner remarked that it must
have happened in the warehouse over the holiday (6:1081–
1082).
Horner denies that Strange reported an accident to him and
denies that Strange told Horner the truck had been damaged
in the warehouse (15:2575, 2581). Notwithstanding the na-
ture of the question addressed to Horner, I construe his testi-
mony to be a denial that the Kroger’s store conversation oc-
curred.
Hunt testified that 2 or 3 days after the damage Supervisor
Ross Miller asked him if the damage had been reported.
Hunt said no. Miller, according to Hunt, told Hunt that he
had asked Strange about it and Strange said he had not re-
ported it but would write it up then (1:110).
Miller testified that one of the mechanics asked him if the
driver of the truck had reported the damage, and that after
this Strange told Miller the truck was damaged (5:965, 968).
If the dent was repaired, the record contains no evidence as
to the cost to repair the vehicle.
Strange did not work Monday, 26 November. On 27 No-
vember Strange tendered a written report on the damage to
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
159 I do not credit Strange’s testimony that he prepared the report on Friday,
23 November and attempted to file it but it was so late no one was there to
take it.
160 There is no explanation in the record why Buchanan was present rather
than Supervisor Horner. Horner simply testified that he was not present
(15:2586).
161 The ‘‘that morning’’ apparently is a reference to the morning of Friday,
23 November 1984.
162 Strange’s testimony here suggests that he telescoped the different days
and events (6:1086, 1112). Eventually, however, he testified that he offered
no explanation for not reporting the matter before leaving the premises
(6:1113). Of course, he had not discovered it as of that time, but he apparently
said little in his own defense. Missing from Strange’s account is any assertion
that he described to Hunt the conversation he supposedly had with Supervisor
Horner at a Kroger’s store the morning of 23 November.
163 Strange testified that the meeting occurred on 3 December (6:1089,
1183), but Hayes, in a file memo, dates the occasion as 6 December (G.C.
Exh. 23).
164 This is an apparent response to Hunt’s contention that Strange should
have reported the dent before he left the truck shed that 23 November. Al-
though Strange’s helper, not Strange, inspected the truck the morning of 23
November (6:1130), Strange’s point is that even if he had walked around the
vehicle making a visual inspection he would not have seen the dent because
it was covered by the dolly.
165 Craine touched only briefly on Strange’s appeal saying that Strange re-
quested consideration based on his length of service. Craine’s brief testimony
is generally consistent with that of Strange on this point (2:216–218).
Ross Miller before leaving for work on Tuesday morning, 27
November (6:1083–1084; R. Exh. 21).159
At the bottom of the report appears a handwritten note by
someone, unidentified, other than Strange (6:1164):
This report written on 11/27/84. Why didn’t he write it
up on the 23rd after checking in?
On Wednesday morning, 28 November, Strange was fired.
Present in Hunt’s office were Hunt, Supervisor Ross Miller,
and Daryl Buchanan (employed in an unidentified capacity
with a different division of SDC), and Strange (6:1085).160
Hunt said he had to terminate Strange because he had not
reported the accident before leaving ‘‘that’’ morning.161
Strange said he had made the report and given it to Ross
Miller.162 Hunt apparently turned and asked Miller about it.
Strange does not give us Miller’s response (presumably Mil-
ler replied that the written report was not submitted unti1 27
November), but Hunt eventually told Strange he still would
have to terminate him, and that Strange should come in the
next day to pick up his check (6:1086–1087, 1112–1113).
When Strange came in the next day to get his check, he
also visited Executive Vice President Hayes. In the conversa-
tion it was decided that Strange would call back later when
Craine was in and request a conference with Craine con-
cerning Strange’s discharge (6:1087–1088, 1209–1210).
Strange did so and such a meeting was thereafter scheduled.
In the first week of December,163 Strange met with Craine.
Hayes also attended and took notes (6:1089, 1183, 1208).
Strange told Craine that the dent apparently happened in the
warehouse before he took the truck out on his route the
morning of Friday, 23 November, that he did not have any
accident with the vehicle, and that he tried calling in the
morning of 23 November (6:1089, 1183–1184). Hayes’
memo records Strange as making these same points. The
memo also shows that Strange stated that he could not have
seen the dented area until he removed the dolly,164 and adds
that Strange also told Craine he was off work 26 November
and filed a written report on 27 November (G.C. Exh. 23).
At no point does Strange testify, or Hayes’ memo reflect,
that he told Craine of a conversation with Supervisor Horner
at the Kroger’s store the morning of Friday, 23 November.
I am not persuaded that the Kroger’s store conversation oc-
curred.
Craine said he would review the case and for Strange to
call him in a few days. On 10 December Strange called him.
Craine told Strange he would have to go along with manage-
ment’s decision (6:1089–1090).165 Strange’s appeal had
failed.
Turning back now to look at Strange’s union activities, the
record reveals a ‘‘mixed bag.’’ Although he was a member
of the Union, he held no elected or appointed union position
(6:1093–1094). Indeed, Strange even signed the decertifica-
tion petition (6:1096, 1105–1106, G.C. Exh. 2). He did not
sign a union membership resignation letter, however (G.C.
Exhs. 15, 16), and Skinner’s 3 August list of those on dues
checkoff includes his name (R. Exh. 64).
At the scoreboard meetings, Crouse testified, Strange was
considered solidly procompany (2:311). Crouse also testified
that on the day of the RD election Supervisor John Roschal
came to him outside the salesroom and reported that he had
observed Ira Strange going back and forth between the hospi-
tality room, where the employees were voting, and the north
side of the compound where several union representatives
were standing at the street. Crouse said it appeared that
Strange had put one past them. Roschal commented that all
this time he thought Strange was on ‘‘our’’ side when in fact
he had been working for the Union. Roschal stated that he
already had notified Gray, Craine, and Bambace and that
they had ‘‘freaked out.’’ (2:314–315, 403–404)
Strange, however, denies that he went ‘‘back and forth’’
that day, and testified, instead, that he had coffee that morn-
ing with some union representatives and union supporters at
a nearby Pig Stand restaurant some three or four blocks from
the plant before going to vote (6:1104, 1115). Strange, who
did not work that day, did not address whether at any point,
while the polls were open, he went to the north side of the
compound and conversed with the Union’s representatives.
Supervisor Roschal testified that on election day he ob-
served Strange talking, at different times, to different per-
sons, including Union stewards and representatives from
Teamsters Local 1111 plus one of the Union’s International
representatives. Roschal denied discussing these observations
with Crouse, he specifically denied telling Crouse that he
thought Strange was on ‘‘our’’ side but that it appeared he
was working for the Union, and he testified that he very sel-
dom engaged in small talk with Crouse and had no idea
whether Strange led people to believe he was for SDC re-
garding the decertification (14:2533–2534, 2539–2541).
During their own testimony, neither Gray, Craine, or
Bambace addressed the subject of whether on election day
Roschal made a report to them concerning Ira Strange.
Crouse, as I have found earlier, testified in a sincere man-
ner. Although Roschal denies making the report and the re-
marks Crouse attributes to him, Roschal confirms the very
facts underlying the report Crouse described. I credit Crouse
and his testimony on this subject.
Notwithstanding the surprise of SDC’s officials that
Strange had fooled them regarding his true sentiments re-
garding the Union, Strange admits that he subsequently re-
quested—and received—help from Respondent concerning
999SOUTHWEST DISTRIBUTING CO.
166 Respondent argues that its ‘‘generous and benevolent assistance to
Strange’’ on his DWI charge rebuts any allegation that it harbored animus
against Strange or subsequently discriminated against him (6:1121; Br. at 196).
That is to say, had it held him in disfavor for any union sentiments it hardly
would have so generously assisted him on his DWI charge. Indeed, Respond-
ent argues that had it wanted to get rid of Strange, it could have sat back and
let the Texas authorities take away his license to drive (Br. at 196–197). In
their briefs, the General Counsel and the Union do not address Respondent’s
assistance to Strange on his DWI charge.
167 There is no complaint allegation concerning this remark which Strange
attributes to Miller.
168 The year 1985 is an obvious error (placing the event after the affidavit)
and should read 1984.
169 Before me Strange testified that Kyles also was present (6:1194). Kyles
did not testify.
170 The description essentially supports Strange’s version regarding such a
conversation, which Miller places in September, except that Miller denies the
portion about reference to union talk.
171 Strictly speaking, it is the Union’s evidence here, for the issue did not
arise until the Union’s redirect examination of Strange.
172 The General Counsel and the Union do not treat this incident in their
briefs.
his arrest on a charge of driving while intoxicated (DWI).
The matter came about in this way. Three or four days be-
fore the 30 July election, Strange, while off duty and in his
personal car, was arrested on a DWI charge (6:1180–1181).
Strange attended the free beer party SDC gave the day in
August when the election results were finalized. At that cele-
bration party, Strange approached Attorney Bambace, told
him about the DWI charge, and asked if Bambace could help
him. Bambace said he would talk to Hayes and the matter
would be taken care of (6:1118–1119, 1212, 1221). There-
after, Hayes sent Strange to Attorney Bob Hunt who rep-
resented Strange in the court proceeding (6:1122). In addition
to the DWI charge, Strange had received at least one more
ticket, and that was for running a stop sign (6:1122–1123).
Although Strange denies he had a prior DWI conviction,
he concedes that his commercial driver’s license was sus-
pended for a week in the 1970s (6:1212, 1219). Depending
on the Texas law and the enforcement policy current at the
time, a second conviction (if there was a first one) for DWI
could have been a very serious matter, and another suspen-
sion of his driver’s license was probably not the maximum
penalty he faced if in fact his first suspension was for DWI.
Although Strange apparently was found guilty on the July
1984 DWI charge (the stop sign ticket was dismissed), Attor-
ney Hunt succeeded in obtaining a probated 2-year sentence
plus a fine of $250 to $300 (6:1123–1124). Strange testified
that he does not know who paid Hunt’s fee for representing
him, but he does know that he did not pay Attorney Hunt
(6:1124). I find that SDC paid Hunt’s fee as a favor to
Strange.166
Despite Respondent’s assistance to Strange on his DWI
charge, recall that it was in this same timeframe that Craine,
in a conversation with Crouse in Craine’s office, named
Strange as one of the troublemakers whom Respondent, now
that the election results were final, could proceed to get rid
of. Crouse was surprised that Craine named Strange along
with Lofton, Rice, and Tharp (2:316). I find that Craine
added Strange to his list of troublemakers because Respond-
ent observed Strange consorting with union representatives
the day of the RD election.
In my earlier discussion of Fred Holliday’s case I summa-
rized the late August incident when Fred Holliday and three
other black employees, including Ira Strange, were called
into Hayes’ office. Although Fred Holliday’s ‘‘preaching’’
and the threat conveyed by Hayes on behalf of owner
Georges were the focal points of that meeting, the fact is that
Strange was one of the group called in and threatened along
with the others for participating in protected concerted activ-
ity (discussing the justness of the discharge of a fellow black
employee).
The next incident to consider occurred, by Strange’s ac-
count, in early November and involved Strange, Herbert
Kyles (Strange’s brother-in-law), and Supervisor Ross Miller
in a conversation held in the check-in room where the drivers
assemble in the mornings. In 1983 Kyles apparently worked
some for SDC from its ‘‘extra board’’ of drivers (6:1218).
In early November 1984, after Kyles already had worked a
couple of days as a substitute (from the extra board, appar-
ently), Strange, in Kyles’ presence, asked Miller if Kyles
could work the extra board. Miller said yes but he (Miller)
did not want to hear any more talk about a union.167 Strange
said okay (6:1191–1194, 1214–1219). Strange testified that
he had never previously had a conversation with Miller in
which the subject of a union was mentioned (6:1217).
At page 6 of his pretrial affidavit of 26 March 1985 (U.
Exh. 5), Strange’s description of the incident reads (quotation
marks added):
Around November 1, 1985,168 I was in the check-in
room about 7:00 a.m. Ross Miller and I were
present.169 Miller had let my brother-in-law, Herbert
Kyles, work as a substitute for about a week. Miller
walked up to me and said, ‘‘I’ll let your brother-in-law
work the extra board. I don’t want to hear anything
about a union any more.’’ I didn’t say anything.
Supervisor Ross Miller, called by the General Counsel,
testified before Strange. Respondent did not call Miller dur-
ing its own case-in-chief. Thus, Miller never was asked about
the conversation Strange described regarding Herbert Kyles.
At pages 2–3 of his pretrial affidavit of 23 April 1985 Miller
gives a rather detailed description of this matter (U. Exh.
3.170 However, as Miller’s pretrial statement was received
only in relation to another subject (5:963–969), I attach no
weight to his pretrial account of the matter.
Although Strange’s account stands uncontradicted by Mil-
ler, I do not credit Strange’s version; There is no evidence
that either Strange or Kyles had been making any comments
in support of a union. Although I could credit Strange with-
out Kyles corroborating his version, where Strange’s account
does not fit well with the other facts, Kyles’ testimony could
well carry the day. In short, I make no finding that Super-
visor Miller did not remark about no more union talk; I sim-
ply find that the General Counsel’s limited evidence falls
short of persuading that Miller did so remark.171
The final incident to be considered involves the testimony
of driver Benjamin ‘‘Buddy’’ Hilligiest.172 Driver Hilligiest
testified that after work some of Respondent’s drivers would
frequent Kun Ming’s, a drive-in grocery and ice house not
far from SDC’s premises, to sip a product of the brewer’s
art. According to Hilligiest, in late March 1985 he had a con-
versation with Louis Riley and Ira Strange at Kun Ming’s.
Riley asked Hilligiest to go to the Labor Board and give a
statement, and when the case was settled and they got their
money from SDC, they would give Hilligiest some of the
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
173 Hilligiest had been Riley’s helper. He succeeded to the driver position
on the route when Riley was fired (16:2888, 2900–2901).
174 Jackson explained that at SDC the terms chief steward and shop steward
are used interchangeably (8:1507–1508).
175 Complaint par. 18.
money. Strange agreed, saying they would all chip in
(16:2888, 2889, 2893, 2897). No specific amount of money
was mentioned, and Hilligiest was not asked to offer any
false information (16:2893, 2897–2898).173
Hilligiest eventually gave an affidavit to the Labor Board.
He testified that he told the truth in that statement (16:2893,
2900–2901). In a subsequent statement which he gave on 25
November 1985 (G.C. Exh. 65), Hilligiest describes Riley as
making the offer of money when just the two of them were
present, and that Strange, a couple of weeks later in the pres-
ence of Riley, gave Hilligiest the card of one of counsel for
the General Counsel so Hilligiest could call the government
lawyer. At no place in his supplemental affidavit does
Hilligiest describe Strange as making a money offer, or being
present when Riley made one. Nevertheless, Hilligiest testi-
fied, Strange did (16:2893, 2897).
As a rebuttal witness, Strange denied that he offered
Hilligiest any money, and he denied hearing Riley offer
Hilligiest any money to testify (17:3070). A rebuttal witness
on other points, Riley was not asked about the matter of a
money offer by himself alone or in the presence of Strange.
I credit Strange in his denial of a money offer to Hilligiest
for the latter to give a (true) statement to NLRB Region 23.
Hilligiest did not impress me as a reliable witness.
(2) Conclusions
The issue as to Strange is close, and there are indications
both ways. SDC had to strain mightily regarding the occa-
sion of Strange’s discharge. Respondent seems to have gone
out of its way to penalize Strange for failing to report a dent
he could not have seen even if he had inspected his vehicle
before leaving Respondent’s compound the morning of Fri-
day, 23 November. He could not see the dent, apparently a
rather small one, until he removed the dolly. On that basis,
in light of the overall evidence of the entire case, plus the
lack of credibility of Hunt in particular, I infer that there was
another—and unlawful—motive.
Finally, I find that the reason Craine did not reverse
Hunt’s action was that Craine considered Strange a trouble-
maker to be eliminated because he had fooled Respondent re-
garding his union sentiments.
Respondent did arrange for free assistance to Strange on
his DWI charge, and that is a significant indication against
a violation. The fact is, however, I do not believe Respond-
ent’s witnesses. As I find that a prima facie case was estab-
lished which Respondent did not rebut, I shall order Re-
spondent to offer Ira C. Strange reinstatement and to make
him whole.
4. The discharges of Richard D. Jackson and Rodney
I. Lyons for failing to make delivery stops
a. Introduction
Driver Richard D. Jackson was fired on 3 July 1985 by
Sales Manager Hunt on the basis, Hunt testified, that he
failed to deliver at some stops on 1 and 2 July (1:103–104,
138).
Hunt fired helper Rodney I. Lyons along with Jackson for
missing the same stops plus, apparently, The Galleon bar on
Friday, 28 June (1:114–116). Lyons had been helping on
Jackson’s route for less than a full week, with his first day
on the route being Wednesday, 26 June 1985 (8:1477).
At the time of his discharge, Jackson, hired in 1959, had
worked at SDC for 26-1/2 years (1:145; 8:1506, 1559). Chief
steward from 1971 to 1978,174 it appears that his only offi-
cial union function the last year or more of his employment
was to administer a disability fund which acquired its funds
by payroll deduction (8:1507, 1518). Jackson would advise
payroll clerk Carrie Jean Skinner when and to whom dis-
bursements were to be made (8:1518, 1540–1541). Following
certification SDC continued to handle the clerical deductions
and disbursements, but SDC also assisted, to some extent,
administering the fund at that time (8:1545, 1568).
In early to mid-June 1984 Jackson declined the separate
requests of Kirk Nelson (8:1508–1509, 1538) and Ross Mil-
ler (8:1509–1511, 1539) that he sign the decertification peti-
tion. Jackson never signed it (8:1511; G.C. Exh. 2). Neither
did he sign one of the union membership revocation letters
(G.C. Exhs. 15, 16).
About mid-June President Emeritus Gray approached Jack-
son at the coffee bar of the salesroom and said he heard that
Jackson had been criticizing SDC and owner Georges. No,
Jackson replied, but he had said he was upset over the recent
pay cut for the drivers. Jackson added that even as in polit-
ical elections, the people support whoever is elected, and that
he supports SDC and Budweiser, union or nonunion. Gray
said all right and left (8:1513, 1566). Although Jackson and
Gray had been friends for over 26 years, their previous con-
versations were not of this kind, and mainly related to family
(8:1559–1560, 1567). There is no complaint allegation con-
cerning this, and Gray did not address the subject during his
testimony. I credit Jackson.
Shortly after Gray questioned Jackson, owner Georges
came to Jackson in the salesroom and said he understood and
appreciated Jackson’s position. Jackson said he was backing
Georges and Budweiser 100 percent. Georges said that was
all he wanted to know, thanked Jackson, and returned to his
office (8:1560–1561).
In the salesroom in the week following the election, Jack-
son testified, Sales Manager Clayton Hunt, followed by Su-
pervisor Mel Cook the next day, and Supervisor Bill Spears
on the third day, asked him how he had voted in the elec-
tion.175 Jackson said he voted for the Union. Hunt turned and
walked away as did Cook and Spears when he told each of
them the same (8:1514–1516). Hunt denies the allegation
(17:2986), as do Cook (15:2668–2669), and Spears
(15:2654).
I credit Jackson who testified on this more persuasively
than Hunt, Cook, or Spears, and I find that, as alleged, Re-
spondent violated Section 8(a)(1) of the Act by interrogating
an employee on one of the most basic rights of the Act.
Even though Jackson answered the questions, and even
though his support of the Union was admittedly well known
(8:1543–1544), Respondent violated the Act by asking an
employee how he voted in a Board-conducted election.
In April 1985 payroll clerk Carrie Jean Skinner gave Jack-
son some new forms to be signed authorizing SDC to deduct
$2 biweekly from the pay of each employee for payment into
1001SOUTHWEST DISTRIBUTING CO.
176 Jackson named Sales Manager Hunt and Supervisors Ross Miller, Bill
Jordan, and Mel Cook (8:1519). None denied this testimony when each of
them subsequently took the witness stand. (Miller testified earlier than Jack-
son, and Miller was not recalled during the Respondent’s case-in-chief.)
177 The last name on the petition is that of Lyons (G.C. Exh. 2).
178 Whatever specific statement or rumor prompted Lyons to go to Hayes
is not described in the record.
179 Complaint par. 24(a). Par. 24(b) alleges that Hunt then followed up by
asking where Lyons stood concerning this matter.
180 Respondent’s counsel stated that he did not think any of the rules rel-
evant to this proceeding had been changed (1:50).
181 No copy of the new handbook was identified or offered in evidence.
the ‘‘Southwest Distributing Company Employees Benefit
Fund’’ (8:1519; G.C. Exh. 60). Between 12 and 23 April
1985 Jackson, frequently in the presence of supervisors,176
obtained signed forms from a total of 55 employees (8:1535;
G.C. Exh. 60). Hearing a rumor that someone was trying to
start a union, Jackson became frightened that SDC would
conclude from Jackson’s form-signing activity that it was
Jackson who was trying to reorganize the union forces. Be-
cause of his fright, Jackson never submitted the 55 signed
forms to Skinner. He even thought that Skinner may have
tried to set him up by giving him the forms, for in the past
he (apparently from the Union) had furnished the forms
(8:1519–1520, 1544, 1547–1548).
Previously I found that in early June 1985 Supervisor Mel
Cook confided to Jackson that Jackson and Bailey were next
on the ‘‘list’’ to go.
Lyons worked nearly 14 years for SDC, from 16 August
1971 to his 3 July 1985 discharge (8:1393). From January
to September 1984 Lyons was a driver. In September Hunt
told Lyons that because certain routes were not selling
enough beer he would have to choose between driving with-
out a helper or taking a helper’s job on another route. Lyons
chose the latter (8:1473–1477). Lyons broke a finger on 18
December and was off work until 7 January 1985 (8:1473).
Lyons’ actual classification beginning in January 1985 ap-
pears to be that of ‘‘swing man’’ (8:1475–1477). A person
in the swing position substitutes as a driver or helper as
needed (8:1475; 16:2859, 2882). Executive Vice President
Hayes describes Lyons as a very experienced driver
(16:2860).
As previously discussed, Lyons was subjected to intense
pressure by Executive Vice President Hayes, plus additional
pressure from Vice President Crouse, to support the decerti-
fication movement. Lyons signed the decertification peti-
tion177 in order to keep his job (8:1402), and, at Hayes’ per-
sistence, he signed a union membership revocation letter be-
cause Hayes said he thought it would help save Lyons’ job
(8:1410, 1416; G.C. Exh. 15–44). Lyons testified that he did
not engage in any union activities after he signed the revoca-
tion letter (8:1493).
In April 1985, Lyons testified, he went to Hayes in the
latter’s office and said he was being wrongly accused of try-
ing to start a union.178 Hayes called in Hunt and told him
what Lyons had just said. Hayes added that he knew Lyons
had signed a revocation, but he did not know how Lyons had
voted. Hunt said he had heard this (rumor) and was going
to ask Lyons where he stood on that question.179 Lyons said
he was for SDC, that he was there to work, that he had noth-
ing to do with the Union, that he had resigned from the
Union in an effort to keep his job, yet he felt he was being
treated worse than some of those who had continued to sup-
port the Union (8:1411–1412, 1497–1498).
Neither Hayes nor Hunt addressed Lyons’ description of
this April 1985 conversation in his own testimony. In cred-
iting Lyons, I find that Respondent violated the Act as al-
leged by Hunt’s statement and his implied question of
whether Lyons was in fact trying to assist in reorganizing the
union forces. I note that Hunt’s statement and implied ques-
tion occurred in the context of Hayes expressing some doubt
as to Lyons’ loyalty notwithstanding his revocation letter—
because Hayes did not know how Lyons had marked his bal-
lot in the secrecy of the voting booth!
b. SDC’s work rules
SDC’s ‘‘old’’ rule pertaining to missed stops is found in
rule 26 of the 1 July 1981 edition of Respondent’s rules (U.
Exh. 4):
All assigned licensed retail accounts in each day’s sales
tickets will be called on by route salesmen. Failure to
do [so] will be cause for discharge.
Respondent moderated the second sentence significantly in
the general work rules implemented 1 June 1984, for general
rule 28 provides (G.C. Exh. 18 at 30):
All assigned licensed retail accounts in each day’s sale
tickets will be called on by route salesmen. No account
will be skipped if possible to make the account.
The penalty provided for a first offense violation of new rule
28 is a written warning. Discharge is not until the second of-
fense. Although the rules give SDC discretion to levy a less-
er penalty, there is no provision for imposing a greater form
of discipline (G.C. Exh. 18 at 37–38).
There are brief references in the record to an employee
handbook SDC published in November 1984 (G.C. Exh. 11).
In the last several pages of the handbook SDC copies the
rules (unnumbered in the handbook) implemented 1 June, al-
though it divides them under headings determined by the se-
verity of the penalty. The language of rule 28 appears undis-
turbed at page 20 under the penalty of a written warning for
first offense, discharge for second offense. Hunt testified that
so far as he knows the handbook rules were in effect when
he fired Jackson and Lyons on 3 July 1985 (1:125). The par-
ties stipulated that the rules were in effect November through
31 December 1984 on the understanding that some of the
rules had been changed (1:50–51, 125–126).180 Hunt testified
that a different book had been distributed at some point
(1:126).181
In light of Hunt’s testimony that the rules were in effect
so far as he knew when Jackson and Lyons were fired, and
because there is no showing in the record that the rules in
question were changed, I find that the language of rule 28,
pertaining to missed stops, was in effect on 3 July 1985.
While summarizing rules and penalties, I should note
Hunt’s testimony that to his knowledge Jackson had received
no prior written warnings for missed stops (1:105). Hunt
concedes that he is sure that every driver has overlooked a
stop, the customer usually calls in to report it, and the driver
is not fired (1:105–106). The parties stipulated that from Au-
gust 1982 (the beginning of Craine’s tenure as president) to
3 July 1985, no employee was discharged for missing stops
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
182 There is some indication that Respondent did not intend the stipulation
to mean that no driver was ever informally orally cautioned, counseled,
warned, addressed, or whatever, concerning missed stops (12:2180). There is
no suggestion that informal oral cautions are of concern to the General Coun-
sel. I do not interpret the stipulation as covering any such informal oral discus-
sions.
183 Supervisor Mark Horner also testified that a helper is not held respon-
sible for stops the driver misses (15:2598).
184 Although The Galleon is a bar apparently frequented by homosexuals,
Powers concedes that route 21 covers most such bars in Houston (15:2716).
185 Lyons apparently worked diligently that 28 June, for he delivered over
1100 cases of beer—300 to 400 cases more than a typical day. He had to go
back to the warehouse and reload at least twice that day (8:1481). It was a
long day, with Lyons beginning at 6:50 a.m. and not finishing until nearly 15
hours later at 9:30 or 9:40 that night (8:1480).
186 The number of 232 Stop-N-Go stores is from Hunt (1-140)
187 Jackson normally sold (delivered) about 600 to 700 cases a day (8:1527,
1552). He was hampered in part because SDC recently had substituted a 12-
bay truck for the 16-bay truck he formerly had been assigned (8:1526). The
warehouse is a mile or two from Jackson’s route. and it takes 30 to 45 minutes
to go back for a reload (8:1554).
188 Most of the bottles were delivered on their initial trip (8:1502–1504).
on his route (1:151). More than that, for the same period, the
parties stipulated, Respondent has no record of an employee
having even been disciplined for missing stops on his route
(12:2179–2181).182
One final note before we take up the stops Jackson and
Lyons missed. Dennis Powers was the supervisor for Jack-
son’s route. Powers admits that the helper (Lyons in the in-
stance before us) is not normally held responsible for stops
the driver misses, and that Lyons was not responsible for the
stops Jackson missed here (15:2735).183 Thus, Powers testi-
fied on cross-examination (15:2735):
Q. (By Ms. Gant) So, the only thing Mr. Lyons did
wrong was missing The Galleon; is that right?
A. Right.
As we shall see, Lyons supposedly missed The Galleon,
a bar, on Friday, 28 June 1985, when he substituted as driver
for the route in Jackson’s absence that day.
c. The missed stops
Jackson’s route was No. 21 (12:2277; 15:2176). Wednes-
day, 26 June 1985, was Lyons’ first day to assist Jackson as
a helper (8:1477). Although Lyons had worked on route 21
before, he had not done so since 1977—8 years earlier
(8:1477, 1490). On Thursday, 27 June, Jackson was injured,
did not complete the route, and did not work the following
day, June (8:1522). Although he was unfamiliar with the
route, Lyons, at the request of Supervisor Ross Miller, pulled
route 21 on Friday, 28 June, assisted by a new employee
(8:1478–1479). Lyons did not work on Monday, 1 July, but
Jackson did, assisted by a new employee (8:1482, 1523–
1524). Lyons was back at work on Tuesday, 2 July, and as-
sisted Jackson in delivering his route.
Supervisor Dennis Powers testified that Lyons failed to de-
liver to The Galleon on Friday, 28 June, even though, ac-
cording to Powers, he reminded Lyons to be sure and make
delivery there because it was Gay Pride Week in Houston
(15:2716).184 Lyons denied that Powers gave any such in-
struction (8:1480; 17:3049). I credit Lyons. Powers did not
impress me as being a forthright witness.
There is little question that Lyons missed The Galleon on
Friday, 28 June. Much of the evidence is concerned with
whether the bar ran short of Budweiser beer as a result.185
One question is whether Respondent received a call from
The Galleon, as Powers testified (15:2716–2721, R. Exh. 57),
complaining that the bar had not been serviced on 28 June
and that it had been out of Budweiser the entire weekend.
According to Powers he spoke with a ‘‘Bill’’ by telephone
(15:2716, 2720, 2734). Barry Leach, The Galleon’s assistant
manager who works the day shift, testified that although no
delivery was made on 28 June, The Galleon did not run out
of Budweiser that weekend. Although he does not work
nights, Leach testified that there was beer there in the morn-
ings (3:545–546, 554–556). Barry Leach was not recalled by
the General Counsel to testify concerning whether there is a
‘‘Bill’’ who works at The Galleon.
The real issue here, of course, is whether even if SDC did
receive a call from The Galleon on Monday, 1 July at 12:17
p.m. (presumably during Barry Leach’s shift there), Respond-
ent fired Lyons for that reason, or whether it seized on the
event as a pretext to rid itself of Lyons because of union-
related considerations.
At the early morning sales meeting on Monday, 1 July,
Sales Manager Hunt instructed the drivers, as Jackson con-
cedes, that the 232 Stop-N-Go stores in Houston serviced by
SDC would be having a sale on ABI products and that the
stores should be serviced, including displays built by the
driver, and helpers, because news advertisements by Stop-N-
Go would appear on Wednesday, 3 July (8:1525, 1553–1554,
1557).186 Two weeks earlier Hunt had announced a similar
promotion by Stop-N-Go and he gave similar instructions
then (1:103, 139; 8:1558–1559, 1566).
The week of 1 July was a 4-day week because of the holi-
day on 4 July (8:1483, Lyons). Supervisor Powers testified
that it was a busy week for SDC (15:2732, 2739). Jackson
described it as the hardest 4-day week of the year (8:1573).
It means longer hours than normal in order to crowd the
work of 5 days into 4 days (8:1483). Hunt testified that Jack-
son’s normal working day would be 10–12 hours, and that
there would be enough hours for him to service his accounts
that week (1:144).
Powers testified that SDC can (legally, apparently) sell
beer until midnight, and that drivers are expected to work
until then if necessary (15:2743–2744). As observed by Jack-
son, however, the problem is that different stores receive
beer only during certain hours, with the Stop-N-Go and Ten-
neco stores not taking any beer after 3 p.m., and the Safeway
stores ceasing at noon (8:1565).
In the course of delivering over 1100 cases of beer on
Monday, 1 July, Jackson had to go back to the warehouse
and reload twice (8:1531).187 He worked about 15 hours that
day (8:1527). On that Monday Jackson missed a Safeway
stop and a Tenneco store because he did not have enough
beer on the truck at the time, but he delivered them the fol-
lowing day, 2 July (3:1530).
Tuesdays are what is termed ‘‘bottle day,’’ and Jackson
(8:1528) and Powers (15:2740) agree that handling bottles
involves extra work. This is because the empty bottles have
to be loaded onto the truck and returned to the warehouse
(8:1528; 15:2740).
On that Tuesday 2 July, Jackson and Lyons worked from
7 a.m. to 8 p.m., or 13 hours, and even though it was bottle
day,188 they still managed to deliver over 1000 cases
1003SOUTHWEST DISTRIBUTING CO.
189 Powers testified that the following day Jackson told him the order send-
ing him to Safeway caused him to have to reload (15:2741). This apparently
was because when Powers arrived at about 1 p.m. Jackson and Lyons were
still handling bottles (8:1552, 1556).
190 Hunt testified that Jackson’s skipping the three Stop-N-Go stores was the
reason Hunt fired him (1:145).
191 Jackson testified that he was still delivering beer to accounts undelivered
last Thursday when he was injured and unable to complete his route (8:1530).
And, Jackson testified, under long-established policy at SDC, call-ins (ac-
counts reporting out of beer) were to be serviced first (8:1524).
192 Paul Daigle is identified elsewhere as a driver on route 15 in 1984
(12:2228, 2276; U. Exh. 29). I assume that Mure was a helper. Daigle had
been on union dues checkoff since March 1972 and Mure since January 1981
(R. Exh. 64). Both signed the decertification petition at, respectively, places
47 and 16 (G.C. Exh. 2), and both signed union membership revocation letters
(G.C. Exhs. 15 and 16). Neither Powers, who subsequently testified, nor Hunt,
who testified on the last day, addressed the reference to Daigle and Mure.
193 The line about ‘‘dogging it’’ was not delivered with the ring of truth.
Moreover, it seems to be an afterthought forced into the remark in an unnatu-
ral fit. Lyons testified that he said nothing at the interview (18:1485). Had he
been accused of ‘‘dogging it’’ he may well have responded. In any event, I
find that Hunt did not say it.
194 Lyons was not at work at the 1 July sales meeting, and he testified that
Jackson never told him that Hunt wanted the Stop-N-Go stores serviced by
Tuesday evening (8:1486).
195 As the record reflects at several points, supervisors help drivers build
displays or even build them unassisted by the drivers. Supervisors Ross Miller
(5:890) and Chris Garcia (14:2351), for example, testified to this effect.
196 Jackson testified that Powers began as a stocker filling cold boxes on
weekends, and later became full time. Thereafter, Jackson recommended that
Hayes hire him as a salesman (8:1548). Jackson testified that he has never had
trouble with any other supervisor (8:1551).
197 Bailey is an outstanding employee who, in the recent past, had received
top honors for a sales route. Hunt knew of no written warning Jackson had
received, and testified that, to his knowledge, Jackson had not slacked off in
his work over the years (1:105, 145). While that is not expressly the equiva-
lent of saying Jackson performs well, I find that his work performance—with
over 26 years of service—in the recent past has been at least acceptable. There
is no record evidence to the contrary.
(8:1527). Jackson and Lyons had five Stop-N-Go stores to
make that Tuesday. They missed three of the five (1:115;
8:1482–1483, 1526, 1558, 1566).
Powers testified that on Tuesday, 2 July, Safeway called
complaining of being skipped the day before (15:2725,
2739). Powers went to find Jackson on the route to tell him
to deliver the Safeway store (15:2725, 2740). On finding
Jackson, Powers told him to make the Safeway ‘‘Now.’’
(8:1553; 15:2740, 2742)189
As the record reflects, there has been some friction be-
tween Powers and Jackson. On 5 December 1984 Powers
‘‘cussed out’’ Jackson and helper Ray Loy on the parking lot
of a Kroger’s store regarding work matters, and Jackson pro-
tested this to Hunt who said he would talk to Powers. A cou-
ple of days later Hunt said he had talked to Powers about
it and asked Jackson to work with Powers. Hunt said Powers
was a little hot-headed and offered to move Powers to super-
vise another route if there was any more trouble (8:1549–
1551). Powers was hired as a merchandiser in February 1984
(15:2710). He substituted as an acting supervisor at times
(such as during the events at hand) and did not become a
regular supervisor until October 1985 (15:2710–2711, 2715,
2729–2730).
On Wednesday at 7 a.m., 3 July, Jackson and Lyons were
called into Sales Manager Hunt’s office where Hunt fired
them. Present were Hunt, Powers, Jackson, and Lyons
(8:1484, 1531; 15:2726–2727). Holding up a copy of Stop-
N-Go’s newspaper advertisement, Hunt asked why Jackson
had missed the three Stop-N-Go stores.190 Because, Jackson
replied, he had been making call-ins from accounts out of
beer,191 that he was unable to get to the three Stop-N-Go
stores because he and Lyons kept running out of beer, and
that he had planned to deliver to them that very morning
(8:1485, 1532–1533; 15:2727).
Hunt responded, ‘‘Goddamn, Dick, that’s not good
enough. You just jeopardized 200 accounts for this company
because you didn’t want to go by Stop-N-Go.’’ Hunt said he
had told the drivers to make them on Mondays and Tuesdays
and had been harping on that for a week, that Paul Daigle
and Ron Mure had missed some Stop-N-Go stores the week
before, and that he was going to talk to them about that.192
Hunt asked Powers if he had reminded Jackson (to service
the Stop-N-Go store) and Powers said yes. ‘‘Well, I’m not
going to put up with that kind of crap around here,’’ Hunt
stated (8:1528–1529; 15:2727).
Turning to Lyons Hunt asked him about The Galleon.
Lyons said he had forgotten to deliver there. ‘‘Well,’’ re-
sponded Hunt, ‘‘You’ve been around here long enough, Rod-
ney, to know better. You’ve been dogging it around here
long enough. So, as far as I’m concerned both of y’all are
no longer employed here.’’ (15:2728)193
Jackson asked Hunt to give them another chance. Hunt
said no, that he had wanted the stops made by Tuesday.194
He told them to turn in their keys, and said that their checks
would be ready Friday. Again Jackson asked for another
chance, but again Hunt said no (8:1485, 1533).
Jackson reminded Hunt that he had taken no action against
Powers when he cussed out Jackson and helper Ray Loy on
the parking lot at Kroger’s. ‘‘No, but I talked to him,’’ Hunt
replied. Jackson said that ever since then Powers has not as-
sisted in building displays or anything else.195 Hunt asserted
that Jackson has been after Dennis ever since he has been
(an acting supervisor). ‘‘No, you’re wrong. I’m the one that
recommended him for the job to Bobby Hayes.196 Jackson
asked Hunt to give them another chance, but Hunt said no.
The interview ended (8:1533–1534).
Hunt testified that so far as he knew Jackson had not start-
ed slacking off over the years (1:145). President Craine testi-
fied that he reviewed the discharges of Jackson and Lyons
and that, in fact, one of the Stop-N-Go managers (whose
name, Craine could not recall) had called him reporting his
store had been missed (2:211). Craine, it appears, approved
the discharges of Jackson and Lyons.
d. Discussion and conclusions
Respondent contends there is no prima facie case regard-
ing either Jackson or Lyons. I find that there is.
Barely a month before Respondent fired Jackson and
Lyons a supervisor confided to Jackson that Jackson and Bai-
ley were next on the ‘‘list’’ to be terminated. As both were
very long-term employees (they were hired in 1959) who did
good work,197 it is clear that they were so named for reasons
other than their work performance. Respondent contends that
this evidence self-destructs because Bailey was not fired (Br.
at 207). But a sophisticated employer may bide its time, and
there is no requirement that an employer fire all union sup-
porters before the discharge of one may be found unlawful.
Pointing to the fact that Jackson, on 26 July 1985, filed
a charge with the Equal Employment Opportunity Commis-
sion alleging that Respondent fired him because of his age,
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
198 Jackson testified that Lyons also filed a charge with the EEOC. Whether
the ground was age, race, or both, Jackson did not specify (8:1561). Lyons,
who is black, appeared to me to be about 55 years of age. Jackson is white.
199 General rules 11 and 13 (G.C. Exh. 18 at 27), also reproduced in Re-
spondent’s November 1984 rules (G.C. Exh. 11 at 20).
200 The competence I have addressed. Based on the conversation Jackson
had with Georges in June 1984, and in the absence of evidence to the contrary,
I infer that Jackson has always served SDC loyally.
201 In view of the stipulations, it is clear that Lyons had no prior written
warning for missing a stop.
52, in violation of the law (8:1561–1563; R Exh. 25),198 Re-
spondent argues that the basis for the EEOC and NLRB
charges are ‘‘mutually exclusive.’’ (Br. at 206 fn. 157.) Be-
cause an employer may have more than one motivation, in-
cluding more than one unlawful reason, for discharging an
employee, the EEOC and NLRB charges are not mutually
exclusive or mutually contradictory. Midwest Motel Manage-
ment Corp., 261 NLRB 719, 726 (1982).
However, the strongest factors indicating that Respondent
was unlawfully motivated are these. First, Respondent ig-
nored the written rules it implemented on 1 June 1984 and
republished a few months later in November. Those rules
clearly call for a written warning for a first offense such as
we have here. Moreover, the significance of Respondent’s
disregard of its written rules is magnified by the fact that at
least during Craine’s tenure (August 1982) Respondent had
no record of even one driver ever having been disciplined,
much less fired, for missing stops. No doubt the reason is
because, as the record shows, missing stops is not at all un-
common. Thus, the disparity of application is total.
The issue is not whether SDC is bound by its own written
rules, for it is not. But the disregard of those written rules,
particularly in the circumstances here, is a strong indication
of an unlawful motive.
The facts of our case show that Jackson was not delib-
erately defying orders to service the stores he missed. The
strongest criticism which can be applied against him is that
he perhaps made some judgmental errors when choosing be-
tween different options he had on his route. However, even
if I were to find (which I would not) that Jackson’s failure
amounted to insubordination, that too, under Respondent’s
written rules,199 would call for a written warning only for a
first offense.
Second, Respondent departed from its past practice in
order to get rid of Jackson and Lyons. Hunt told Jackson and
Lyons during the discharge conference that Paul Daigle and
Ron Mure had missed Stop-N-Go stores the previous week—
yet he was only going to ‘‘talk’’ to them. Moreover, former
Vice President Crouse described an incident in May 1985
when one or more of Hunt’s drivers missed about seven Ten-
neco stores during a similar promotion. Hunt told Crouse
(then working in Conroe north of Houston) by telephone that
he did not know why the stops were missed (2:264–265). As
we know from the stipulations, no discipline issued to the
drivers.
Third, Respondent ignored owner Bill Georges’ own guar-
antee of fairness in dealing with the employees. Thus, in his
speech to employees on 27 July 1984, just 3 days before the
RD election, Georges told the employees (G.C. Exh. 34 at
6):
I will guarantee fairness and [I] base that upon my
past record and performance. [Emphasis in original.]
And elsewhere (at 8) in the speech Georges told SDC’s
employees:
I hope to be afforded the opportunity to deal with each
of you on a personal basis with respect to your jobs and
your benefits and not through the union which does not
sweat and toil and worry alongside us to keep this busi-
ness thriving. If you give me that opportunity as stated
in yesterday’s letter: ‘‘I’d be a fool if I didn’t make
sure everything was run fairly here in order to keep
your vote of confidence and keep the union out.’’
That’s only good business. [Emphasis added.]
By ignoring its written rules, and departing from its past
practice, in order to discharge an employee with no written
warnings, Respondent certainly disregarded its own ‘‘good
business’’ standard of dealing ‘‘fairly’’ with its employees.
Fourth, Respondent violated owner Georges’ ‘‘good busi-
ness’’ standard in discharging Jackson without first giving
him the second chance he requested. The issue is not wheth-
er the Act imposes a standard of ‘‘fairness’’ or ‘‘good busi-
ness,’’ for it does not. But when an employer discharges an
employee who has served him loyally and competently for
over 26 years,200 particularly where that employee has had
no prior written warnings, and in the face of his practically
begging for a second chance, I can, and do, find that a dif-
ferent motive from the one stated was the real reason for the
discharge. Further, I infer that the true motive was the un-
lawful one of eliminating Jackson from the payroll because
of his union sentiments.
As owner Georges expressed in his speech of 27 July
1984, he wanted to operate SDC without a union. The time
of July 1985 was ripe for another union election campaign.
Whether Respondent desired to continue its purge of leading
union adherents in order to prevent a new election, or to
punish him for his failure to support the decertification, is
not controlling. The fact, as I find, is that Respondent was
motivated to fire Jackson because of his union sentiments
and activities. I further find that Respondent failed to show
that it would have disciplined Jackson in the absence of his
union activities.
I therefore find, as alleged, that Respondent violated Sec-
tion 8(a)(3) of the Act by discharging Richard D. Jackson,
and I shall order it to offer him reinstatement and to make
him whole.
The situation involving Rodney I. Lyons is rather different
from that of Jackson respecting union activities. Lyons did
his best to disengage from the Union in order to keep his
job. Even so, Respondent had doubts regarding his senti-
ments, for when Hunt, in the presence of Hayes, interrogated
Lyons in April 1985, Hayes observed that he did not know
how Lyons had voted in the decertification election.
As the helper is not responsible for the stops on the route,
we know that the only missed stop Lyons was responsible
for was The Galleon. Most of the grounds discussed regard-
ing Jackson apply here, including Respondent’s disregarding
its written rules201 and its departure from past practice.
Moreover, it violated its own ‘‘good business ‘‘standard of
dealing ‘‘fairly’’ by zapping Lyons for missing a single stop
on a day when Lyons was substituting as a driver. Lyons had
1005SOUTHWEST DISTRIBUTING CO.
only recently, 26 June, returned to the route after an absence
of 8 years. Even though he was an experienced employee,
Lyons could make an isolated mistake. In light of the over
1100 cases of beer Lyons delivered that Friday, during the
course of working nearly 15 hours, a single missed stop, by
a person unfamiliar with the route (8:1502), would be classi-
fied as an isolated mistake by any employer not bent on un-
lawful mischief.
Once again, although the Act does not impose a standard
of reasonable dealing, an action unreasonable in the cir-
cumstances can give rise to the inference that the real reason
is an unlawful one.
I also note that Hunt, when called the first day of the hear-
ing as an adverse witness by the General Counsel, sought to
tar Lyons with the same brush he used on Jackson. That is,
he said Lyons was fired for missing the same five Stop-N-
Go stores, plus the Safeway and Tenneco, that Jackson had
missed, as well as The Galleon (1:114–116).
But we know from Supervisors Powers and Horner that
helpers are not normally held responsible for stops the driver
misses, that Lyons was not responsible for the stops Jackson
missed, and that the only error Lyons made was missing The
Galleon (15:2735).
Indeed, so gross was Hunt’s overreaching in his effort to
get rid of Lyons that he overlooked the fact that Lyons was
out sick on Monday, 1 July, when Jackson missed the
Safeway store and the Tenneco store. The conclusion I draw
about Hunt’s motivations in this entire proceeding is that he
would go to any length to please owner Georges and Presi-
dent Craine by discharging union supporters.
It is true that former Vice President Crouse was highly
critical of Lyons’ 1984 work performance. Nevertheless,
there is no showing that in 1985 Lyons’ work performance
was below par. Indeed, in the only record description of his
actual work productivity, that of 28 June 1985 (plus his help
on 2 July), Lyons is shown to be an extremely productive
worker.
Still, there is, a question as to whether Respondent fired
Lyons for lingering doubts as to the sincerity of his apostasy
from the Union. The solution of the riddle must be this. If
Respondent had discharged only union supporter Jackson, yet
retained Lyons who had signed documents supporting the de-
certification movement, the Union could file a charge for
Jackson and argue that SDC had fired the union supporter
but retained the antiunion employee.
As we know from all the record evidence, such reasoning
has certain flaws when viewed with the perfect vision of
hindsight. As of July 1985 the foregoing thought process
was, I find, the reasoning which persuaded Respondent to
fire Lyons along with Jackson. In addition, I find, Respond-
ent fired Lyons because of the lingering doubts it had con-
cerning the sincerity of his effort to be nonunion. I further
find that Respondent failed to show that absent these consid-
erations SDC would have fired Lyons.
In light of these conclusions, I find that, as alleged, Re-
spondent violated Section 8(a)(3) of the Act by discharging
Rodney I. Lyons on 3 July 1985, and I shall order Respond-
ent to offer him reinstatement and to make him whole.
CONCLUSIONS OF LAW
1. SDC is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Teamsters Local Union 1111 is a labor organization
within the meaning of Section 2 (5) of the Act.
3. Respondent SDC violated Section 8(a)(1) of the Act by
the conduct of:
(a) Supervisor John Roschal impliedly threatening em-
ployee Sammy L. Tharp with unspecified reprisals if he
failed to abandon the Union;
(b) Executive Vice President Bobby Hayes soliciting em-
ployee Rodney I. Lyons to sign a decertification petition and
a union membership resignation letter and promising him un-
specified employment benefits if he signed the latter;
(c) Vice President Crouse interrogating employee Rodney
I. Lyons concerning his failure to abandon his union mem-
bership;
(d) Supervisor Bob Gay promising employee Kirby L.
Johle an improved route if the Union lost the decertification
election;
(e) Supervisor Mel Cook, Supervisor Bill Spears, and
Sales Manager Clayton Hunt interrogating employee Richard
D. Jackson as to how he had voted in the decertification
election conducted 30 July 1984;
(f) President James E. Craine impliedly threatening em-
ployee Howard Lofton with unspecified reprisals for causing
‘‘trouble’’ by discussing with employees the possibility of
the Union’s winning a second election:
(g) Executive Vice President Bobby Hayes telling em-
ployee Fred Holliday and other employees (1) that they had
been called in because SDC had learned secret meetings
were being held, and interrogating them about such meetings,
(2) that Fred Holliday was the ringleader of continued em-
ployee support for discharged employee Louis L. Riley, and
(3) that owner Georges had said Fred Holliday was preaching
in the wrong place and that the assembled employees should
seek employment elsewhere because there was no more
union and SDC had no need for shop stewards;
(h) President Emeritus Jack Gray telling employee Fred
Holliday that (1) owner Georges was very upset about
Holliday’s leadership among the black employees, and (2) if
Holliday so strongly favored the Union and being its spokes-
person then he should seek employment elsewhere;
(i) Sales Manager Clayton Hunt interrogating employee
Rodney I. Lyons about his union activities and union senti-
ments; and
(j) Supervisor Mel Cook impliedly threatening employee
Richard D. Jackson with discharge because of his union ac-
tivities by telling Jackson that he and employee James Bailey
were next on the list to be discharged.
4. Respondent SDC did not violate Section 8(a)(1) of the
Act by:
(a) President James E. Craine’s allegedly soliciting Ross
Miller to file a petition to decertify the Union;
(b) Ross Miller’s circulating and filing the petition;
(c) SDC’s promotion of Ross Miller to supervisor on 1
September 1984;
(d) Craine’s allegedly initiating and encouraging employ-
ees to sign dues-checkoff (or union membership) revocations;
(e) Vice Presidents Bobby Hayes’ and Daniel Crouse’s al-
legedly providing additional help to Ross Miller so he would
have time to solicit signatures for the decertification petition
while on working time and in working areas of the plant;
(f) Supervisor Mark Horner’s allegedly informing em-
ployee Sammy Tharp (1) that the reason for his discharge
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
202 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
203 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
was his successful grievance/arbitration resulting in his rein-
statement, or (2) that Supervisor John Roschal had asked
Tharp to sign a statement on company policies as a ‘‘setup’’
for his current discharge.
5. Respondent SDC violated Section 8(a)(3) and (1) of the
Act by discharging these employees:
Name 1984
Raymond L. Rice 29 August
Howard Lofton 30 August
Sammy L. Tharp 30 August
Walter John Kimbrough 11 September
John A. Holliday 28 October
Ira C. Strange 28 November
1985
Rodney I. Lyons 3 July
Richard D. Jackson 3 July
6. Respondent SDC did not violate Section 8(a)(3) of the
Act by discharging Fred Holliday on 10 September 1984 or
Edward Hartman on 21 November 1984.
7. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent must offer the discriminatees named in Con-
clusions of Law 5 immediate and full reinstatement to their
former jobs, or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights and privileges previously enjoyed. Respond-
ent must also make them whole, with interest, for any loss
of earnings and other benefits they may have suffered as a
result of Respondent’s unlawfully discharging them on the
dates shown above in Conclusions of Law 5. Backpay shall
be computed in the manner established in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest calculated as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis P1umbing Co., 138 NLRB 716 (1962).
Moreover, Respondent must expunge from its files any
reference to its unlawful discharges of the eight employees
named above. It must notify each in writing that this has
been done and that evidence of the discharge will not be
used as a basis for further personnel action against him.
The findings I make in dismissing certain allegations of
the complaint moot the General Counsel’s requests that I (1)
set aside the election results and dismiss the petition in Case
23–RD–542 (Br. at 72(a)–(b)), (2) order SDC to abide by the
negotiated collective-bargaining agreement and recognize and
bargain with the Union, and (3) order SDC to reimburse the
Union for all dues it failed to submit following the dues-
checkoff revocations (Br. at 150).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended202
ORDER
Respondent, Southwest Distributing Company, Inc., Hous-
ton, Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Impliedly threatening employees with unspecified re-
prisals if (1) they fail to abandon their support of a union,
(2) if they cause ‘‘trouble’’ by discussing with other employ-
ees the possibility of having another union election, or (3)
if they do not stop their concerted discussion of job-related
matters protected by the Act.
(b) Impliedly threatening employees with discharge be-
cause of their activities in support of a union.
(c) Promising employees improved job opportunities if
they sign a letter resigning their union membership or if they
support efforts to defeat a union.
(d) Interrogating employees concerning (1) their union
sentiments and activities, (2) their concerted activities regard-
ing protected matters, and (3) the nature of their votes in a
Board conducted election.
(e) Discharging its employees because of their union mem-
bership or support and/or because of their other concerted
protected activities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the employees named below immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of this decision.
John A. Holliday Rodney I. Lyons
Richard D. Jackson Raymond L. Rice
Walter John Kimbrough Ira C. Strange
Howard Lofton Sammy L. Tharp
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.
(c) Preserve and, on request, make available to the board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Houston, Texas facility copies of the at-
tached notice marked ‘‘Appendix.’’203 Copies of the notice,
on forms provided by the Regional Director for Region 23,
after being signed by Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
1007SOUTHWEST DISTRIBUTING CO.
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply. For the purpose of determining or securing com-
pliance with this Order, the Board or any of its authorized
representatives may obtain discovery from Respondent, its
officers, agents, successors, or assigns, or any other person
having knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Procedure.
Such discovery shall be conducted under the supervision of
the United States court of appeals enforcing this Order and
may be had on any matter reasonably related to compliance
with this Order, as enforced by the court.
IT IS FURTHER ORDERED that complaint paragraphs 10(a)
through (d), 12(a) and (b), and 23(a) and (b), are dismissed,
and that paragraph 26 is dismissed as to Fred Holliday and
Edward Hartman.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT impliedly threaten you with unspecified re-
prisals if (1) you fail to abandon your support of a union,
(2) if you cause ‘‘trouble’’ by discussing with other employ-
ees the possibility of having another union election, or (3)
if you do not stop your concerted discussion of job related
matters protected by the Act.
WE WILL NOT impliedly threaten you with discharge be-
cause of your activities in support of a union.
WE WILL NOT promise you improved job opportunities if
you sign a letter resigning your union membership or if you
support efforts to defeat a union.
WE WILL NOT interrogate you concerning (1) your union
sentiments and activities, (2) your concerted activities regard-
ing job-related matters protected by the Act, or (3 the nature
of your votes in any election conducted by the National
Labor Relations Board.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Teamsters Local 1111 or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer the employees named below immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges
previously enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from their dis-
charge, less any net interim earnings, plus interest:
John A. Holliday Rodney I. Lyons
Richard D. Jackson Raymond L. Rice
Walter John Kimbrough Ira C. Strange
Howard Lofton Sammy L. Tharp
WE WILL notify each of them in writing that we have re-
moved from our files any reference to his discharge and that
the discharge will not be used against him in any way.
SOUTHWEST DISTRIBUTING COMPANY, INC.