Stroh Brewery Co.

National Labor Relations Board - Board Decisions

Aug 31, 1988

290 N.L.R.B. 1025 (N.L.R.B. 1988)

STROH BREWERY CO
Stroh Brewery Company and Helen L . Cannady.
Case 11-CA-12412
August 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 15, 1988, Administrative Law Judge
William N Cates issued the attached decision The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions
and a supporting brief The General Counsel and
the Respondent also filed answering briefs
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge 's rulings, findings,' and conclusions and to
adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Stroh Brew-
ery Company, Winston- Salem, North Carolina, its
officers, agents, successors , and assigns, shall take
the action set forth in the Order
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wail Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
George Carson, II, Esq, for the General Counsel
Guy F Driver Jr, Esq and C Daniel Barrett (Womble,
Carlyle, Sandridge & Rice), of Winston-Salem, North
Carolina, for the Company
DECISION
STATEMENT OF THE CASE
WILLIAM N CATES, Administrative Law Judge This
case was tried before me in Winston -Salem, North Caro-
lina, on 17 December 19871 pursuant to the 6 August
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 11 of the Board The complaint is based on a
charge filed on 22 June by Helen L Cannady, an indi-
vidual (Cannady or Charging Party), against Stroh
Brewery Company (Company or Stroh)
In the complaint the General Counsel alleges the Com-
pany violated Section 8(a)(1) of the Act on 12 March
when Donald L Steele , the manager of industrial rela-
tions at its Winston-Salem, North Carolina plant, in-
1 All dates are in 1987 unless otherwise indicated
1025
structed employees to cease cooperating with the investi-
gation by Teamsters Local 391 (Union) of a grievance
unless Steele was present The General Counsel alleges
the Company violated Section 8(a)(3) and (1) of the Act
by discharging Helen L Cannady and Tammy T Ware
on 1 April because Cannady assisted the Union and be-
cause the Company suspected Ware had also assisted the
Union
By its answer the Company admits certain factual mat-
ters but denies violating the Act
On the entire record , including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
I JURISDICTION
The Company is an Arizona corporation with a brew-
ery located in Winston -Salem, North Carolina, where it
brews beer commercially During the past 12 months the
Company received at its Winston-Salem plant goods and
raw materials valued in excess of $50,000 direct from
points located outside North Carolina The Company
admits, and I find, it is an employer within the meaning
of Section 2(2), (6), and (7) of the Act
II LABOR ORGANIZATION INVOLVED
The Company admits, and I find , that Chauffeurs,
Teamsters and Helpers Local Union No 391, a/w the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act On 1 November, the Teamsters International
Union was readmitted to the AFL-CIO Keystone
Bakery, 287 NLRB 17 (1987)
III THE ALLEGED UNFAIR LABOR PRACTICES
A Setting
Teamsters Local 391 represents the production and
maintenance employees at the Company's Winston-Salem
brewery For some 20 years Local 391 has been a party
to collective-bargaining agreements (CBA) covering the
bargaining unit Initially the CBAs were with Schlitz
Brewing Company , the Company 's predecessor and, in
the last several years , the CBAs have been with the
Company herein
Helen L Cannady and Tammy T Ware were regular
part-time employees who worked for Stroh as tour
guides at the Winston -Salem brewery The duties of tour
guides include conducting visitors on tours of Stroh's
brewery, entertaining guests in the Company's hospitality
room (the Strohaus), and working in the Company's gift
shop Tour guides work under the supervision of Hospi-
tality Manager Kay J Purcell Purcell reports to Donald
L Steele, manager of industrial relations at Winston-
Salem The tour guides are not included in the bargain-
ing unit represented by Teamsters 391, and they are not
represented by any union As of the hearing , the Compa-
ny employed nine tour guides That appears to be one
290 NLRB No 124
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more than the number named on the mid-March shift
schedule for the tour guides (G.C. Exh. 7).
During the time relevant here, the Company contract-
ed with Globe Security to provide security guards to
control the ingress and egress at the brewery from a
guardhouse at the plant entrance. Tourists or other visi-
tors seeking a tour of the brewery are admitted to the
facility through a gate controlled by the security guards.
Before November 1986, the Company conducted tours
beginning at 9 a.m. and concluding with the 4 p.m. tour.
Starting in November 1986, and during the relevant time
in 1987, hours for the tours, which were 30 minutes
each, began at 11 a.m. and concluded with the tour de-
parting at 4:30 p.m: At the conclusion of a tour, the tour
guides escort the visitors to the Strohaus and serve them
a maximum of three beers each. The tourists also may
visit the gift shop at that time.
Stroh publicizes the tours and the tour hours. Its ef-
forts in this respect range from a prominent display on a
large billboard by major highways in the area, to tourist
brochures, to a posting of the hours on the door of the
Strohaus. The Company spends a substantial amount of
money in this respect, with the cost of the billboards
alone being some $1200 a month. The Company's pur-
pose in having the tours, and in publicizing the hours of
the tours, is to foster goodwill and promote its product.
B. Contentions
The General Counsel contends the Company fired
Cannady because she was cooperating with the Union as
a potential witness concerning a grievance over the dis-
charge of Aubrey Martin, a member of the production
and maintenance bargaining unit. Cannady was terminat-
ed, the General Counsel argues, because the Company
"would not tolerate involvement by non-unit employees
in its bargaining relationship." Ware was terminated be-
cause she was linked to Cannady in the facts the Compa-
ny supposedly relied on, and for the additional reason
that the Company, by Industrial Relations Manager
Steele, observed Ware conversing with union representa-
tives in a hallway at the plant. The union representatives,
Business Agent Douglas D. Norris Jr. and chief steward
Mike Jones, along with Aubrey Martin, were holding a
caucus outside a conference room where the Company
and the Union had been discussing the grievance regard-
ing Martin's discharge. Steele emerged from the confer-
ence room on his way to another office and, according
to Ware, observed her talking to the union group. As ex-
pressed in the complaint, the General Counsel alleges
that the Company discharged Ware because it suspected
Ware had assisted the Union. There is no direct evidence
of such a suspicion, and Steele, who testified he does not
recall seeing Ware in the hallway, denies giving any
weight to her alleged presence in his recommendation
that she be discharged. For its part, the Company con-
tends it discharged Cannady and Ware because they, in
an apparent effort to assure they would not have to
work beyond 4:30 p.m., told security guards to cancel
the 4:30 p.m. tour. Purcell gathered the facts and report-
ed them to Steele who recommended to his superior at
the corporate office in Detroit that the two be dis-
charged. Steele's recommendation was approved, and on
Monday, 30 March, Steele gave Cannady and Ware until
Wednesday, 1 April, to resign or be terminated. When
neither resigned, the Company discharged both.
C. Material Facts
1. The allegation of interference, restraint, and
coercion
Complaint paragraph 8, in conjunction with the con-
clusionary paragraphs, alleges that the Company violated
Section 8(a)(1) of the Act on 12 March when Industrial
Relations Manager Steele "Instructed its employees to
cease cooperating in the Union's investigation of a griev-
ance unless a representative of the Company were
present during said investigation." The General Coun-
sel's supporting evidence is based on the testimony of
Helen Cannady.
The Company's policy is to give eligible employees
who desire it a free case of beer each week. Eligible em-
ployees obtain the free beer at the Strohaus. As part of
their duties, the tour guides, after determining from the
eligibility list that the employee is certified to receive the
free beer, dispense the free beer to the eligible employ-
ees. On 12 March Aubrey Martin entered the Strohaus,
told Cannady his clock number, and asked whether he
was eligible to receive his free case of beer. Cannady
checked the eligibility list, saw that Martin was listed as
eligible, and tendered a free case of beer to him.
The Company apparently had recently terminated
Martin. Not long after Martin left the Strohaus with the
free case of beer Cannady had given to him, Supervisor
Don Johnson entered and spoke with Cannady about
Martin not being eligible to receive a free case of beer.
Cannady advised Johnson she already had given Martin
the beer because his name had not been deleted from the
eligibility list. Johnson left. The Company terminated
Martin a second time over the beer incident and a griev-
ance was filed over this termination. (Presumably a
grievance also had been filed over the first termination.)
A grievance meeting (the initial one, apparently) was
held about 19 March concerning Martin's free beer dis-
charge.2 Martin described Cannady's procedure in giving
him the free beer. Following the meeting, Business
Agent Norris called Cannady and asked whether she was
willing to give a statement concerning her dispensing the
free beer to Martin. Cannady said yes. Moments later,
Manager of Industrial Relations Steele telephoned Can-
nady and instructed her not to speak with anyone con-
cerning Martin's case unless Steele was present. Cannady
explained she already had spoken to someone about the
case. Steele said that was fine but in the future not to do
so unless he was present. Cannady said okay.
A week later, on 26 March, Norris and Chief Steward
Mike Jones came and spoke to Cannady while she was
dispensing free beer to employees. Cannady told Norris
and Jones of Steele's instructions. Norris said he would
z It was on this occasion that the union group stepped into the hallway
for a caucus. As Ware was walking by, one of those in the group stopped
her for a conversation. While Ware was standing with the union group,
Steele emerged from the conference room and walked to the main office.
I credit Ware that as Steele emerged he saw her and smiled.
STROH BREWERY CO 1027
arrange this with Steele Norris then contacted Steele
who offered to stipulate to Cannady 's testimony at
Aubrey Martin 's grievance meeting Norris testified that
at the grievance meeting Steele did so stipulate More-
over, Steele conceded at the meeting that Cannady had
done nothing improper in dispensing the free beer to
Martin
Cannady agreed to assist the Union regarding its proc-
essing of the free beer discharge of Aubrey Martin As-
sistance offered by nonunit employees to unit employees
on a grievance matter is protected activity Heritage
Manor Center, 269 NLRB 408 fn 2, 414 ( 1984) Steele's
unrestricted instruction to Cannady necessarily imposed
a limitation on her statutory right to confer with and
assist Martin and the Union independent of the presence
of a management representative By Steele's instruction
to Cannady, the Company violated Section 8(a)(1) of the
Act, as alleged Heritage Manor Center, supra
2 The discharge of Cannady and Ware
a Contentions and background evidence
Stroh contends Cannady and Ware began telling the
security guards to turn away tourists arriving after 4
p in The record is not clear on the point , but the evi-
dence suggests the practice began possibly as early as
February before Michael E McSwain , in early March,
left his security guard position with Globe Security and
joined the Winston-Salem Police Department Although
there is no direct evidence establishing the purpose
behind the purported conduct of Cannady and Ware, the
Company argues they initiated the practice so they could
leave work at 4 30 p in rather than having to work until
5 p in or later
Generally there were about three tour guides on duty
in the afternoons , with more present if there were special
group tours or parties Cannady testified that when there
was no tour at 4 30 p m the tour guides left at 4 30 p in
When she escorted a 4 30 p in tour she generally would
sign out between 5 p in and 5 15 p in The Company's
records reflect that as late as 16 March Cannady escort-
ed a 4 30 p in tour (G C Exh 4) The guides rotated
their tours Because tours would not be taken at the
normal times if no tourist was there to escort , the tour
guides would not know until around 4 p in who would
take any 4 30 p in tour When the tour guides worked to
5 p in or later , they were paid for whatever time they
worked
So far as the record reflects, the Company 's first
knowledge that security guards were turning away tour-
ists after 4 p in , and that Cannady and Ware were re-
sponsible for the practice, came on 20 March based on a
conversation with security guard Shan L Taylor Stroh
investigated and terminated Cannady and Ware Stroh
contends that Cannady 's proper performance of her job
in dispensing the free case of beer to Aubrey Martin on
12 Match, and Ware 's purported presence with the union
representatives in the hallway on 19 March , had nothing
to do with their subsequent termination
As mentioned earlier, the General Counsel contends
Stroh seized on security guard Taylor's report as a pre-
text to demonstrate to its nonunion employees they were
not to cooperate with the Union or become involved in
the bargaining relationship between Stroh and the Union
Chronologically, the first background event is de-
scribed by Margaret W Wiggins, one of the tour guides
Wiggins could not specify the date , but testified it was
after January 1987 , and during cold weather Because the
incident occurred while Ware was employed , it appar-
ently took place in either February or March Wiggins
testified that on this occasion she and Ware were in the
Strohaus gift shop Ware answered a telephone call and
Wiggins heard her tell the caller "Eleven to four " When
Ware hung up, Wiggins told her , "Tammy, it's 4 30 You
know better than that " In a kidding fashion, Wiggins
added, "Are you trying to get into trouble or some-
thing" Ware's response, if any, is not reported Ware
testified she does not recall the incident , but she does not
affirmatively deny it There is no evidence Wiggins re-
ported the incident to Stroh 's management or, specifical-
ly, to her immediate superior , Hospitality Manager Pur-
cell
Wiggins also testified she began to suspect the security
guards were canceling some 4 30 p in tours when "earli-
er this year" (again , apparently in either February or
March) some tourists informed her that the week before
a security guard had informed them , at 4 p in, that there
would be no more tours that day Again, there is no evi-
dence Wiggins reported this information to Purcell or to
anyone else in management
One guard testified he did turn away tours during this
timeframe Security Sergeant Danny R Holt testified he
turned away tourists between 4 p in and 4 30 p in on
more than three occasions According to Holt , he began
turning away all such tourists after he returned to work
following a 1-day illness and security guard Michael E
McSwain told him they were to stop the tours at 4 p in 8
Holt worked Monday through Friday from 3 p in to 11
p in Holt generally testified he treated McSwain's in-
struction as a standing order which he thereafter fol-
lowed Nevertheless , Holt could not recall when
McSwain told him this , he admits that as a sergeant he
outranked McSwain , a guard , and he could not explain
how the Company's tour records reflected the 4 30 p in
tour was conducted on 16 and 17 March and earlier on
19 and 26 February Asked whether he took McSwain's
instruction as applying only to a single day , Holt initially
testified he did not remember , but additionally testified
he carried out the instruction more than three times and
until Steele came to the guardhouse (presumably after
the discharge of Cannady and Ware) and told the securi-
ty guards the 4 30 p in tour remained in effect as adver-
tised Holt also testified that on an unspecified number of
occasions, after McSwain told him, in essence, there
were to be no more 4 30 p in tours, female voices he
could not identify called him and told him to turn away
tours after 4 p in
Called by the General Counsel as a rebuttal witness,
McSwain (who had resigned from the police department
a Notwithstanding Holt's reference to "at" 4 p in , the balance of the
evidence indicates that the question here revolves around tourists arriv-
ing too late to take the 4 p in tour but in time for the last tour at 4 30
p in Holt was called as a witness by Stroh
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at some point before the hearing) testified he could not
recall telling Holt anything about a tour being discontin-
ued, or discontinued even for 1 day. McSwain's hours
were 4 p.m. to midnight.
b. The material events
Tour guide Wiggins testified that on Friday, 20
March, she received a call from a male security guard at
3:56 p.m. asking whether Stroh would have a 4 p.m.
tour Wiggins replied not only a 4 o'clock tour but also a
4:30 tour. She additionally informed him, "We always
have them Monday through Friday from 11 o'clock and
the last one is 4:30." "Okay," the guard said, and hung
up. In the Strohaus after the tour, Wiggins reported the
matter to Hospitality Manager Purcell. Wiggins also re-
ported that tourists were being turned away from tours.
Purcell asked Wiggins to call the guardhouse and ascer-
tain whether there was a new security guard on duty.
Purr-ell's version, essentially the same, is that she over-
heard a tourist complaining to Wiggins that tourists
behind them were turned away by the guard and told
there was no 4:30 p.m. tour. Wiggins then came and re-
peated the remarks to Purcell. Assuming there must be a
new security guard, Purcell instructed Wiggins to call
the guardhouse and make sure the guards were aware
that the tour hours were 11 a.m. to 4:30 p.m.
Wiggins called and spoke with guard Shari Taylor
who said there was no new security guard. Wiggins ex-
plained that tourists were complaining of being turned
away, and asked if Taylor knew anything about the
matter. Taylor said someone had told the security guards
not to admit any tourists after 4 p.m. Wiggins asked
who, and Taylor replied she had rather not say because
she did not want to get anyone into trouble. Wiggins
said, "Shari, you are in trouble. I am in trouble. We all
will be if you don't tell me who it is." "Helen and
Tammy," answered Taylor. Wiggins immediately report-
ed this information to Purcell.
By this time of the day the office was closed, so it was
early Monday morning, 23 March, before Purcell was
able to inform Industrial Relations Manager Steele. He
directed Purcell to question Cannady and Ware about
the matter. Purcell did so the following day, 24 March,
and each denied the charge. Purcell reported the denials
to Steele.
On Thursday, 26 March, Steele interviewed security
guards Taylor and Holt who confirmed that Cannady
and Ware had told them to turn away tourists after 4
p.m. Although Holt could not identify the tour guides by
name, Taylor could do so, Steele testified, and Taylor
told him she recognized their voices. Steele asked the
guards to write statements in their own hand, and each
did. The statements are in evidence. Taylor's reads:
On 2 to 3 occasions I was told to cut tours off at
4:00 p.m. by Helen Kennedy [Cannady] or Tammy.
(I don't know her last name.) This message I feel
was only given to me because another guard, Mi-
chael McSwam, had not arrived at work yet other-
wise the[y] would [have] told him to cut off the
tours. Each time they called they would always ask
for him Michael has since quit this job. I did not
know that we were not supposed to cut the tours at
4:00 p.m. I assumed as did everyone else this came
from Kay Purcell although I was never actually
told by Kay.
The statement Holt submitted to Steele reads:
I was out one day, and when I came back to work I
was told that visiting tours would stop at 4 o'clock
p.m. I ask[ed] Mike about it and he said it took 30
mins to make a tour. And that if they took a tour at
4:30 it would be after 5 o'clock before the employ-
ees could leave the Brown Bottle Room [Strohaus].
Mike told me that the women in the Brown Bottle
Room told him. Then around 2 or 3 times they
called at guard house and said not to seen [send]
any more tours up after 4 o'clock p.m. I have also
called up there to fine [find] out and they said no
more after 4 o'clock.
Steele testified that during his interview of Taylor and
Holt it was mentioned that tourists had been turned
away, although no estimate of the number of such tour-
ists was given. According to Steele, Holt said he had
continued to turn away tourists after he was first told.
Steele concedes he specifically asked about Friday, 20
March.4 Holt testified he did not think Steele asked if he
had turned anyone away. And, according to Holt, he did
not tell Steele he had turned away tourists on more than
three occasions. As mentioned, Steele testified Holt said
he kept turning away tourists after 4 p.m. In contrast,
Steele understood that Taylor did not view the calls as a
standing order to cut all tours after 4 p.m., and Taylor
confirms in her testimony that such was her understand-
ing.
Taylor testified she told Steele essentially what is in
her statement before she wrote it. At the hearing, Taylor
testified she recognized the voices of Cannady and Ware
from previous business conversations with them, al-
though she only knew Ware by her given name, and that
Cannady called once and Ware once telling her to send
no more tours after 4 p.m. When Cannady called, Taylor
testified, she identified herself as "Helen," but Ware did
not identify herself. The tour guide roster for the week
of 16 March reveals only one Helen and one Tammy
among the eight names (first names only) listed. Taylor
testified she never turned a tourist away. On receiving
the two calls from Cannady and Ware, and perhaps
others relayed to her by Holt, Taylor would report the
instruction to the guard who relieved her. Taylor nor-
mally worked until 4 p.m. and generally was relieved by
McSwain who worked the 4 p.m. to midnight shift.
McSwain (who left in early March) testified he could not
recall any such instruction from Taylor or anyone else.
Nevertheless, McSwain admits Taylor once informed
him either Cannady or Ware had called for him but left
no message . McSwain also concedes he knew Cannady
and Ware socially, that he "grew up" with Cannady, and
* As Respondent's records reflect for the week of 16 March, Ware did
not work at all on 20 March and Cannady left ql at 10 45 a in
STROH BREWERY CO 1029
that he had dated one of them The record does not re-
flect whether it was Cannady or Ware whom he dated
As I described earlier, on Thursday, 26 March, Can-
nady was dispensing beer to employees in the Strohaus
when Union Representative Norris and Chief Steward
Jones came by That is when Cannady informed Norris
she could not discuss the Aubrey Martin grievance with
the Union unless Steele was present Norris said that
would be no problem and that he would contact Steele
The following day, 27 March , Steele came to the Stro-
haus and asked Cannady , "Who did you talk with yester-
day" Thinking Steele meant had she talked with some-
one about the facts relating to the Aubrey Martin griev-
ance, Cannady answered , "No one " "You didn't talk
with anyone yesterday" Steele asked "No," replied
Cannady "Okay," Steele said, "have a very good week-
end," and he left Steele had no further conversation
with Cannady until Monday , 30 March
At some point following his interview of the two secu-
rity guards , Steele contacted his superior at Respondent's
Detroit headquarters, reported the details of the investi-
gation, and recommended discharge Steele's recommen-
dation was approved , apparently by Joseph Franzem,
vice president, corporate services
On 30 March Cannady and Ware were summoned to
Steele's office Present were Steele, Purcell, Cannady,
and Ware Steele said he had information the two had
turned tourists away , and he specifically mentioned
Friday, 20 March Cannady and Ware not only denied
the allegation , but Ware observed she had not worked at
all on 20 March and Cannady pointed out that she had
left before noon that Friday Steele admits their protest
was his first awareness that Cannady and Ware were not
at work at the relevant time the afternoon of Friday, 20
March When Cannady and Ware called their absence to
his attention , Steele, Cannady testified , said, "That's
beside the point You still called the guards and you told
them to cut off the tours from coming in " At the hear-
mg, Steele reinforced this position by describing the ab-
sence of Cannady and Ware on 20 March as "immaten-
al" because , in his view , they, by the practice they had
set in motion, were responsible for the action of the se-
curity guard in turning away visitors the afternoon of
Friday, 20 March
At the interview on 30 March, as Steele testified, Can-
nady and Ware denied they had ever called the guard-
house to turn away tourists At the hearing , Cannady
and Ware each testified she had never directed the
guards to turn away tourists from taking the 4 30 p in
tour
Continuing at the 30 March meeting, Steele told Can-
nady and Ware he had no reason to disbelieve the securi-
ty guards because they had nothing to gain In contrast,
Cannady and Ware did have something to gain in that
they would be leaving work earlier Based on these facts,
Steele said , and to avoid any stigma of discharge, Can-
nady and Ware could have to 1 April to resign or be dis-
charged About an hour after the meeting , Cannady
called Purcell and said she would take neither option
Ware reported for work on 1 April, but Purcell told her
she had been terminated Ware was given a written ter-
mination notice and escorted off the premises A termina-
tion notice was mailed to Cannady The notices state
that each was "Terminated for cause" on 1 April 1987
Steele testified Cannady and Ware were discharged
solely "for instructing the guards to turn tours away and
the guards honored those instructions," and that he fired
them for this based on the statements of the two security
guards plus the earlier report Purcell had made to him
Steele concedes that Wiggins and other tour guides were
not interviewed until after the discharge of Cannady and
Ware In short, as he testified , Steele chose to believe the
security guards, Taylor and Holt, over Cannady and
Ware
c Discussion
As I have summarized , Industrial Relations Manager
Steele testified the relationship of Cannady and Ware to
the Aubrey Martin grievance had nothing to do with
their discharge , and that the sole reason Cannady and
Ware were discharged was "for instructing the guards to
turn tours away and the guards honored those mstruc-
tions " Steele testified with an unfavorable demeanor and
I do not credit him I find that Steele learned Cannady
had spoken to Union Representative Norris and Chief
Steward Jones on 26 March Concerned that Cannady
discussed the facts of the Aubrey Martin grievance with
them, Steele confronted Cannady the following day with
a question almost accusatory in nature When Cannady
replied she had talked with no one , Steele, I find, con-
cluded she was lying and that her lying was for the pur-
pose of avoiding having to disclose that she had dis-
cussed the facts of the Aubrey Martin grievance with
Norris and Jones At that point, I find, Steele made the
decision to recommend Cannady be discharged As
argued by the General Counsel , moreover, I find Steele
was determined to prevent the nonunion employees from
becoming involved in the bargaining relationship with
unit employees, especially if the involvement appeared to
be as supporters for the Union 's position
I find that a motivating reason for Cannady's dis-
charge was her protected activities I further find that
Steele discharged Ware because he suspected, from ob-
serving her conferring in the hallway with the union rep-
resentatives and Aubrey Martin, that she also was sup-
porting the Union I further find that a motivating reason
for Ware's discharge was Steele's suspicion that Ware
was engaging in protected conduct Thus, the General
Counsel has established prima facie that the discharge of
Cannady and Ware was unlawful
Once the General Counsel has established a prima
facie violation of the Act in motivation cases, the burden
shifts to the Respondent to demonstrate it would have
imposed the discipline even absent the disciplined em-
ployee's protected conduct Did Stroh carry that burden
here? The Company points to the information furnished
by the security guards and the importance of the promo-
tional and goodwill purpose of the tours The General
Counsel's counterargument is rather ambiguous
The General Counsel argues that security guard
Taylor placed responsibility on Cannady and Ware in
"an attempt to divert responsibility from herself and
other guards " Thus, the argument runs, Taylor accused
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cannady and Ware because, as Wiggins told her, some-
one was going to be "in trouble." The General Counsel
contends there is a discrepancy between the versions of
Wiggins and Purcell concerning whether someone was in
fact turned away on 20 March, and counsel for the Gen-
eral Counsel points to the ambiguous nature of Taylor's
written statement of receiving two to three calls from
Cannady "or" Ware as opposed to her version at the
hearing that each called her once. The General Counsel
also argues that as Taylor disclaimed any standing order
to turn away tourists after 4 p.m., her credibility suffers
in light of the fact neither Cannady nor Ware was at
work the afternoon of 20 March to give a current in-
struction. However, it was a male security guard (Holt,
possibly) who spoke with Wiggins shortly before 4 p.m.
on 20 March.
Steele locked on the important point early. There is no
evidence the security guards had any motive to turn
away tourists. The hours of the guards would be unaf-
fected by a tour from 4:30 to 5 p.m. Whatever additional
work would be involved in granting access to the tour-
ists is not shown to be anything more than negligible.
The General Counsel stops short of arguing that the
guards, on their own, initiated the practice of turning
away tourists after 4 p.m. There just is no plausible
reason in the record to explain why the guards would be
interested in doing that.
By contrast, and as Steele noted, Cannady and Ware
did have a possible incentive-leaving work at 4:30 p.m.
rather than 5 p.m. or later. The tour guides were paid
for any time they worked after 4:30 p.m., and there is no
clearcut evidence Cannady and Ware preferred to leave
at 4:30 p.m. even though they would lose an extra 30
minutes or so of pay. On the other hand, Cannady and
Ware did not testify they needed the extra money and
preferred to work until 5 p.m. or later if possible. On the
state of the record, it must be said that, considering the
possible incentives of the tour guides as compared to that
of the security guards, Steele's choice of accepting the
guard's version is a reasonable one. It seems clear that
someone told the guards to stop at least some of the 4:30
p.m. tours, and the evidence Steele had pointed to Can-
nady and Ware. As they initiated the practice, it is imma-
terial that they made no call on Friday, 20 March.
Indeed, whether any tourists were in fact turned away
on 20 March is immaterial. The important point to con-
sider is the Company learned about the practice on 20
March:
As I find, Steele reasonably believed the guards. Even
so, would the Company still have fired Cannady and
Ware absent their protected conduct? There is no evi-
dence of past examples of discipline of nonunit employ-
ees on this conduct or any other misconduct. The evi-
dence establishes the Company spends a sizable amount
of money advertising the tours as part of its effort to
create goodwill and promote the sales of its product.
And conducting visitor tours is the reason Stroh hires
tour guides. These facts support a finding that Stroh
would have fired Cannady and Ware over their unau-
thorized instructions to the guards regardless of their
protected conduct.
On the other hand, Ware testified without contradic-
tion that Steele told them had they admitted their mis-
conduct the discipline would have been less severe than
discharge. Does that statement of Steele indicate he
would not have fired them had they not engaged in pro-
tected activities? No. If anything, the statement detracts
from an unlawful motivation finding. Under all these cir-
cumstances, I find the Company carried its burden of
demonstrating it would have fired Cannady and Ware
even absent their protected conduct. I therefore shall dis-
miss the complaint as to Helen L. Cannady and Tammy
T. Ware.
CONCLUSIONS OF LAW
1. Stroh Brewery Company is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 391 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Company violated Section 8(a)(1) of the Act on
12 March 1987 when Industrial Relations Manager
Donald L. Steele directed tour guide Helen L. Cannady,
an unrepresented employee, not to cooperate in the
Union's investigation of a grievance of bargaining unit
employee Aubrey Martin unless Steele was present.
4. The Company did not violate Section 8(a)(1) and (3)
of the Act by discharging Helen L. Cannady and
Tammy T. Ware effective 1 April 1987.
5. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Company has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed-5
ORDER
The Respondent, Stroh Brewery Company, Winston-
Salem, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Directing its unrepresented employees not to coop-
erate in the Union's investigation of a grievance of bar-
gaining unit personnel unless a representative of manage-
ment is present.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
5If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
STROH BREWERY CO
(a) Post at its Winston -Salem, North Carolina brewery
copies of the attached notice marked "Appendix "e
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Compa-
ny has taken to comply
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found
6If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1031
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT instruct our unrepresented employees
not to cooperate with Teamsters Local Union No 391
by discussing the Union's investigation of a grievance of
a bargaining unit employee unless a representative of
management is present during the discussion between the
Union and the unrepresented employees
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
STROH BREWERY COMPANY