Turner Beverage Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 160 (N.L.R.B. 1986)

160 TURNER BEVERAGE CO.
Turner Beverage Company, Inc. and Joe Branum
and Mary Don Jones Branum . Cases 10-CA-
20999 and 10-CA-21123
31 March 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24 December 1985 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion . The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu
1951) We have carefully examined the record and find no basis for re-
versing the findings
Mary L. Bulls, Esq., for the General Counsel.
Michael L. Lowry, Esq. (Ford & Harrison), of Atlanta,
Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILLIP P. McLEOD, Administrative Law Judge. I
heard this case on 3 and 4 October 1985 in Huntsville,
Alabama. The case originated from charges filed by Joe
Branum in Case 10-CA-20999 on 31 May 1985 and by
Mary Don Jones Branum in Case 10-CA-21123 on 31
July 1985, against Turner Beverage Company, Inc. (Re-
spondent).
On 12 July 1985 a complaint and notice of hearing
issued in Case 10-CA-20999. On 18 September 1985 an
order consolidating cases, amended consolidated com-
plaint, and notice of hearing issued, setting 3 October as
the hearing date. The consolidated complaint alleges,
inter alia, that Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, by threatening
employees that it was futile for them to select a union as
their collective-bargaining representative and by dis-
charging employees Joe Branum and Mary Don Jones
Branum because of Joe Branum 's activities on behalf of
or support for, a union.
In its answer to the complaint , Respondent admitted
certain allegations, including the filing and serving of the
charges ; its status as an employer within the meaning of
the Act; the status of Chauffeurs and Sales Drivers Local
Union No. 402, affiliated with the International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America as a labor organization within the
meaning of the Act; and the status of various individuals
as supervisors and agents of Respondent within the
meaning of Section 2(11) of the Act. Respondent denied
having engaged in any conduct which would constitute
an unfair labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses , and to introduce evidence . Following the
close of the trial, all parties filed timely briefs with me
which have been duly considered.
On the entire record in this case and from my observa-
tion of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
Turner Beverage Company, Inc. is and has been at all
times material, an Alabama corporation with an office
and place of business located in Huntsville, Alabama,
where it is engaged in the warehousing, sale, and distri-
bution of malt beverages, primarily beer. During the past
calendar year, which period is representative of all times
material, Respondent purchased and received at its
Huntsville, Alabama facility products valued in excess of
$50,000 directly from outside the State of Alabama.
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Chauffeurs and Sales Drivers Local Union No. 402, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is,
and has been at all times material , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent is a franchised wholesale distributor of
Anheuser-Busch and Stroh products in the Huntsville,
Alabama vicinity. Respondent has two divisions, the An-
heuser-Busch division and the Stroh division. Respond-
ent's president is Gordon S. (Buddy) Turner. The execu-
tive vice president is Charles Sarver. Since he was hired
in October 1984, Kevin Carter has occupied the position
of general manager. Reporting to Carter are Terry
Amidon, manager of the Anheuser-Busch division; David
Zimmerman, manager of the Stroh division; and Ellis
Walden, warehouse supervisor. Respondent employs
about 50 to 60 people, including route managers, office
279 NLRB No. 24
TURNER BEVERAGE CO
clerical employees, driver salesmen, helpers, and ware-
house personnel.
All malt products have a specified shelf life. It is the
responsibility of the wholesaler, pursuant to its franchise
agreement with the brewery, to ensure that out-of-date
products do not remain in the retailer's place of business
for sale.
Respondent's relationship with Anheuser-Busch is de-
scribed in detail and at length in a "Wholesaler Equity
Agreement." In this franchise agreement , the sale of out-
of-date products by Respondent to a retailer is consid-
ered a fraudulent transaction which can result in immedi-
ate termination of the franchise by Anheuser- Busch. Re-
spondent's failure to ensure that out-of-date products are
removed from a retailer's store can also lead to a "defi-
ciency termination" of the franchise if the problem is not
corrected. If Respondent is deficient in removing out-of-
date products from a retailer's store, Respondent is first
given a period of time to resolve the problem. If the de-
ficiency continues, the franchise can be terminated.
Joe Branum began working for Respondent in August
1962 as a bookkeeper. After about 6 months, Branum
became a driver/salesman . Branum continued to hold
this position until his discharge on 29 March 1985. At
the time Branum was discharged, he had been working
in the Anheuser-Busch division for 8 years. He was one
of eight Anheuser-Busch driver/salesmen employed by
Respondent under the immediate supervision of Ware-
house Supervisor Ellis Walden.
Mary Don Jones Branum began to work for Respond-
ent in August 1981. She worked as an assistant book-
keeper and performed other clerical duties as assigned.
Joe Branum and Mary Don Jones Branum met during
their employment by Respondent. They began living to-
gether in December 1981. Respondent was aware of the
Branums' relationship. Mary Don Jones Branum wqs in-
formed at some point that there was no policy against
such a relationship, and it should not interfere with her
work. Joe and Mary Branum were married on 14 June
1985.
B. Joe Branum's Union Activity
Joe Branum testified that during February 1985 he
started talking to other driver/salesmen and helpers
about the possibility of getting a union to represent em-
ployees. Branum testified he spoke to several employees
in the breakroom and in the warehouse area. On cross-
examination, Branum was confronted with the affidavit
which he gave to a Board agent during the investigation
of his charge. In that affidavit, Branum states that he
began talking about the possibility of a union with other
employees approximately a year and a half prior to his
discharge. After this, Branum's testimony tended to vac-
illate somewhat on the issue of when he first began talk-
ing about a union with other employees. I conclude that
for the period of a year to a year and a half prior to his
discharge, Branum spoke to fellow employees at various
times about the possibility of being represented by a
union. This appears to have been very casual conversa-
tion, however, for Branum admits that at the time he
was discharged on 29 March 1985, he still had not con-
tacted any particular union Moreover, except as specifi-
161
cally described below, there is no evidence that Re-
spondent knew of these casual conversations.
Branum testified that he mentioned the need for a
union on two separate occasions in front of Anheuser-
Busch Division Manager Terry Amidon. According to
Branum , both these occasions occurred in early March
1985. Concerning the first conversation, Branum testified
that he, employee Steve Day, and Amidon were in the
breakroom one day, and Branum was complaining about
having to do extra work without getting extra pay. As
Branum stood up to go for coffee, Branum stated, "What
we need is a good union." Branum admits that Amidon
did not say anything in response to his comment.
Amidon denied ever having heard any prounion state-
ment by Branum until the day of his discharge.' Em-
ployee Steve Day corroborated Branum 's testimony
about the breakroom conversation and, in particular,
about Amidon's presence. Day's recollection of the inci-
dent substantially comported with Branum 's version.
Day, however, was very confused about the timing of
this conversation. On direct examination , Day placed the
timing in March 1985. On cross-examination , Day testi-
fied that he was "just about positive" this conversation
occurred before Carter became general manager in Octo-
ber 1984. Finally, Day insisted that the conversation oc-
curred during 1985 because the "union stuff didn't get
started until this year." I place less importance on the
timing of this conversation than either the General
Counsel or Respondent. I credit Branum and Day that
the conversation occurred as described. From it, I con-
clude simply that at some point before Branum's dis-
charge, Respondent was aware that Branum harbored
prounion sentiments.
Branum testified that on another occasion, he went
into the computer room after completing his daily route.
Employees Joan Day and Mary Don Jones Branum were
working in the computer room. Mary Branum informed
Joe Branum that employees were going to start working
on Saturday. Joe Branum replied, "Damn, what we need
is a good union around here." Joe Branum testified that
as he turned around after making that comment, he ob-
served Amidon leaving the room. Mary Branum cor-
roborates the testimony of Joe Branum . Amidon denied
the incident. Respondent argues that Amidon's testimony
was candid while the testimony of Mary Branum should
be discredited because of her relationship with Joe
Branum . Although I had some doubt about certain por-
tions of Mary Branum 's testimony, I found this portion
of her testimony to be wholly straightforward and credi-
ble. Amidon, however, did not impress me as telling the
truth about not having overheard Joe Branum make
prounion statements while employed by Respondent. I
credit Joe Branum and Mary Branum that, on this occa-
sion, Joe Branum did express a prounion sentiment, and
' Respondent argues at some length that because of the construction of
the breakroom, the warehouse manager, whose office is next to the
breakroom, could not have heard Branum's comment The General
Counsel does not argue that the warehouse manager did hear Branum's
comment, and I find no evidence which would support such a conclu-
sion Although the warehouse manager might be able to look into the
breakroom through a glass window, there is no evidence that one can
hear through this partition
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this was overheard by Amidon. Accordingly, I con-
clude that prior to Joe Branum's discharge by Respond-
ent, Respondent was aware that Joe Branum harbored
prounion sentiments. What part, if any, this played in Joe
Branum's discharge is discussed in greater detail below.
C. Carter's New Overage Beer Policy and its
Consequences
Gordon Turner decided to hire Kevin Carter in Octo-
ber 1984 to attempt to straighten out various problems
which Turner was having in running the business . Before
Carter was hired by Respondent, he was a district man-
ager for the Stroh Brewery, and Turner believed that
Carter had the experience necessary to help him correct
these various problems. In December 1984, after being
general manager for about 2 months, Carter informed
employees of various changes he was instituting. One of
these changes was a new overage product policy which
provided for progressive disciplinary action. This policy
became effective 1 January 1985. Pursuant to this new
policy, driver/salesmen were required to pay for any
overage product which they brought back to Respond-
ent's warehouse. Driver/salesmen were to be charged for
beer returned at the wholesale cost of $11.85 per case.
What Carter's intentions were are unclear , but what
effect his new policy had was disastrous for Respondent.
As Respondent admits in its brief, "Carter's new policy
had the effect of exacerbating the problem .. . ."
Branum and other driver/salesmen began moving beer
from slow-moving retail accounts to other accounts
where it would more likely get sold. Because of the pen-
alty of having to pay for overage beer returned to the
warehouse, the driver/salesmen simply avoided bringing
back overage beer. Consequently, during January and
February 1985, a significant amount of overage beer ac-
cumulated in retail stores.
D. The Problem Unfolds
During February 1985 Bob Fountain, district manager
for Anheuser-Busch, Inc., discovered out-of-date beer in
one of the stores serviced by driver/salesman Don Little.
Fountain complained to Carter. Carter examined Little's
personnel file and discovered that Little had been disci-
plined on three prior occasions. Carter terminated Little.
On 18 February 1985, Fountain and Bob Walsdorf, di-
vision manager of Anheuser-Busch, Inc., came to Hunts-
ville for a meeting with Gordon Turner, Kevin Carter,
and David Zimmerman. Fountain and Walsdorf remind-
ed Respondent that if the problem of out-of-date beer
continued, it could jeopardize Respondent's franchise.
Carter informed Fountain and Walsdorf that Respondent
had terminated Little and that it had decided to termi-
nate Don Carter, the route supervisor who was responsi-
ble for Little.
On 21 February 1985, General Manager Kevin Carter
terminated Route Supervisor Don Carter.
E. The March Crisis
Following the meeting between Anheuser-Busch, Inc.
representatives Fountain and Walsdorf with representa-
tives of Respondent on 18 February, General Manager
Carter apparently took no immediate action to attempt to
withdraw out-of-date beer from the general market
place. On 6 March, approximately 3 weeks later, Re-
spondent held its next regularly scheduled sales meeting.
Fountain, who had returned to review Respondent's 5-
year plan and to follow up on the problem of out-of-date
beer, attended this meeting. At this meeting, General
Manager Carter announced (for the first time) that all
out-of-date beer had to be removed from the retail
market immediately . Management teams were organized
to assist the driver/salesmen in clearing retail accounts of
out-of-date beer . These management teams were assigned
the task of going to retail facilities, spray painting the
tops of out-of-date beer to render it unsaleable, and set-
ting it aside so that salesmen could pick it up when they
serviced the account during their regular schedule.
Wednesday, 6 March, was not a normal workday during
which driver/salesmen called on retail accounts. Conse-
quently , driver/salesmen and the management teams
were directed to use that day to cover as many accounts
as possible.
Later in the day, Fountain left Respondent's premises.
Approximately 15 to 20 minutes after leaving, Fountain
telephoned Carter to say that he had been notified of an
anonymous telephone call made to the Anheuser-Busch
brewery in St. Louis which indicated that Respondent
had sold out-of-date products to Super Discount Bever-
age. Super Discount Beverage is a retail outlet owned by
Respondent's Stroh division manager, David Zimmer-
man. Fountain reported the caller had stated that em-
ployee Don Little had been terminated for having out-of-
date beer in the market place and that that same beer
had been picked up by Respondent and sold to Super
Discount Beverage. Fountain reported he had been given
specific quantities, invoice numbers, and prices.
Whether at Fountain's insistence or Carter's sugges-
tion, Fountain, Carter, and Zimmerman went immediate-
ly to Super Discount Beverage. After searching the
store, the specific product in question could not be
found. However, out-of-date beer was discovered. This
beer was removed by Carter. As they were leaving
Super Discount Beverage, Fountain commented to
Carter that he believed Respondent had been the victim
of a disgruntled employee. Carter admits that he immedi-
ately suspected Joe Branum and Mary Branum of having
been involved in the anonymous call because Joe
Branum would have access to inside information about
Respondent's sales through Mary Branum, who operated
a computer terminal dealing with Anheuser-Busch sales.
After leaving Carter and Zimmerman the second time,
Fountain later telephoned Respondent's facility and
spoke to Zimmerman. Fountain informed Zimmerman
that during the visit to Super Discount Beverage, he had
had some question about some of the Anheuser-Busch
product in stock, but he was not sure if it was out of
date because he could not read the code properly. Foun-
tain told Zimmerman that he had returned to Super Dis-
count Beverage to check the beer and had determined
that it was indeed out of date. Fountain told Zimmerman
that Respondent should come and get the product. Ap-
proximately 10 minutes later, Fountain again telephoned
TURNER BEVERAGE CO.
Zimmerman . Fountain was somewhat upset because no
one had come immediately to pick up the out-of-date
beer. Carter and Zimmerman went to Super Discount
Beverage . In the meantime , Fountain set the out-of-date
product in the doorway of the store and was spraying
the tops of the beer with paint to render it unsaleable.
When Carter and Zimmerman arrived, Carter became
upset with what Fountain was doing, and the two had a
minor argument . The unsaleable beer was then removed
by Carter and Zimmerman.
By the end of the workday on Wednesday, 6 March,
Carter had gotten reports from various of the manage-
ment teams which had gone out to remove out-of-date
beer that there was a considerable quantity of such beer
in the market place. Branum testified that he picked up
about 15 to 20 cases of out-of-date beer on that portion
of his route which he was able to cover on 6 March.
On the next morning , Thursday, 7 March, Carter held
another meeting with driver/salesmen before they began
their regular routes for that day. Management personnel
also attended the meeting . Carter berated the
driver/salesmen for allowing such a large quantity of
out-of-date beer to accumulate. He pointed out to the
driver/salesmen the potential franchise problem which
had developed. Carter then informed the driver/salesmen
to forget the existing policy of having to pay for out-of-
date beer which they returned. Carter instructed the em-
ployees to go out and bring in the old beer immediately.
Carter told the driver/salesmen there would be no
charge for the beer and there would be no disciplinary
action taken for returning out-of-date beer. All witnesses
who testified concerning this meeting agree that Carter
then told the driver/salesmen that the one thing he did
not want to have happen, and would not tolerate hap-
pening, was for a member of management to come in
behind a driver/salesman and find that they had not
picked up out-of-date beer at a particular account. Carter
told the employees that if that happened, "that's your
job."
After the meeting on 7 March, Gordon Turner and
Kevin Carter flew to Macon, Georgia, to observe an An-
heuser-Busch warehouse facility belonging to a different
wholesaler. While there, Carter received a telephone call
from a secretary at Respondent's facility, informing him
that Fountain had returned to Huntsville and was de-
manding access to certain sales records. Turner and
Carter chartered a plane and flew back to Huntsville im-
mediately. When they arrived at Respondent's facility
they met with Fountain, who informed Respondent that
Anheuser-Busch, Inc., had cause to believe that Re-
spondent was guilty of selling out-of-date beer to a retail-
er. Turner and Carter assured Fountain that they had not
sold out-of-date beer, but that they would cooperate
with any investigation Anheuser-Busch , Inc. was con-
ducting.2
2 For about 3 weeks during March, Fountain conducted an ongoing
investigation of Super Discount Beverage, owned by Zimmerman Al-
though the out-of-date product reported to have been sold to Super Dis-
count Beverage in the anonymous telephone call to Anheuser -Busch, Inc
was not found , a subsequent report issued by Anheuser-Busch , Inc re-
vealed numerous irregularities and unexplainable transactions between
Respondent and Super Discount Beverage
163
Later that same day, Carter, Zimmerman, and Amidon
had a meeting in which it was decided that beginning the
next day, Friday, 8 March, Zimmerman and Amidon
would follow behind Branum to see whether there was
out-of-date beer which he was not picking up. Zimmer-
man and Amidon testified that on Thursday they had
spot-checked various routes and discovered out-of-date
beer which Branum had not picked up. Respondent
argues that this was the reason why the decision was
made to follow Branum beginning on Friday. I do not
credit this testimony. The reason I do not credit this tes-
timony is best exemplified by that of Terry Amidon on
direct-examination. Amidon testified as follows (emphasis
added):
Q. [By Respondent's counsel] Subsequent to that
meeting , the second meeting , did you go out into
the market place?
A. [By Amidon] Yes, I did.
Q. And did you find old beer on the routes?
A. Yes, we did. We found a lot.
Q. And did you find any on Mr. Branum 's route?
A. Yes, we did. We found a lot on his route also.
Q. And on that day were you working behind
the salesmen or ahead of the salesmen?
A. We were working behind the salesmen.
Q. What did you do in connection with that
report? Or with that finding? Excuse me.
A. When we came back in I told Kevin Carter
what we had found.
Q. What did you tell him?
A. I told him we had found an awful lot of beer
on this route.
Q. On whose route?
A. On Joe Branum 's route.
Q. Did you find any old beer on any routes,
salesmen 's routes, whom you were working behind?
A. No.
On the one hand, Amidon testified that they found "a
lot" of old beer on the various routes. It is absolutely
clear that Amidon is not talking only about Branum's
route because Amidon testified, "We found a lot on his
route also." Nevertheless, Amidon asserted only a few
moments later that no out-of-date beer was found on
other salesmen's routes. I do not believe for a moment
that Branum 's was the only route on which Zimmerman
and Amidon found that old beer had not been picked up,
or that this was the reason why Zimmerman and
Amidon decided to follow behind Branum and check his
route. Rather, every indication points to the fact that Re-
spondent decided to follow Branum because it suspected
him of having made the anonymous report to Anheuser-
Busch, Inc. As I have already indicated, Carter admits
that on the previous day, 6 March, he immediately sus-
pected Branum when he learned of the anonymous call.
On the afternoon of 7 March, Fountain confronted
Turner and Carter and told them that Anheuser-Busch,
Inc. had cause to believe that Respondent was guilty of
selling out-of-date beer. The situation had become in-
tensely critical for Respondent. Every indication points
to the conclusion it was then and there that Respondent
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided to try to find a reason to get rid of Branum, and
I conclude it was for this reason that Respondent decid-
ed to have Amidon and Zimmerman begin following
Branum the next day.
On Friday and Saturday, 8 and 9 March, Amidon and
Zimmerman checked the accounts which Branum serv-
iced on 7 and 8 March, respectively. On Sunday, 10
March, Amidon went alone and inspected more of Bran-
um's accounts. Amidon kept notes of out-of-date beer
found at accounts serviced by Branum during this 3-day
investigation. Amidon gave these notes to General Man-
ager Carter the following week.
On Monday, 11 March 1985, Carter met with Gordon
Turner and Charles Sarver. The three discussed Bran-
um's relationship with Mary Don Jones and their suspi-
cions that Branum and Jones had worked in concert to
provide information to the brewery in the anonymous
call. The three also concluded that enough evidence had
been gathered from Zimmerman's and Amidon's investi-
gation of Branum's accounts to discharge Branum. The
three concluded,, however, that the timing was not right
to discharge either Branum or Jones because of the con-
tinuing brewery investigation. Consequently, a decision
was made to delay the timing of those discharges.
On the following day, 12 March, Carter instituted a
new disciplinary policy concerning out-of-date beer. Pur-
suant to this new product, route salesmen would no
longer be charged for overage product returned to the
warehouse. If a route manager should find overage prod-
uct in one of the accounts, then the salesman would be
charged for the product and would receive a written
reprimand. A second written reprimand would result in
termination.
On Thursday, 14 March, Fountain requested various
sales information from Respondent which Carter consid-
ered to be sensitive . Before Carter would release the in-
formation to Fountain, he first spoke to Walsdorf, the
Anheuser-Busch, Inc. division manager, and determined
that the brewery was indeed insisting on this informa-
tion. Walsdorf confirmed Fountain's demand. On that
same day, Gordon Turner received a telephone call from
Anheuser-Busch, Inc., insisting that he attend a meeting
at the brewery's regional office in Atlanta on the follow-
ing day, 15 March.
On 15 March, Turner first met with Fountain and
Walsdorf. Together they went over various business
records of Respondent. Turner testified it was clear to
him that Anheuser-Busch, Inc. was trying to prove that
Respondent knowingly sold out-of-date beer to a retailer.
After this meeting, Turner went with Fountain and
Walsdorf to a second meeting with Jim Hunter, the re-
gional manager for Anheuser-Busch, Inc. After consider-
able discussion, Hunter told Turner in effect to go back
to Huntsville, clean up the problem, and that Anheuser-
Busch, Inc. would consider the matter ended. Turner
told Hunter of his decision to fire Branum.
On the following Saturday, 16 March, a second anony-
mous telephone call was made to Anheuser-Busch, Inc.
concerning Respondent. The caller informed Anheuser-
Busch, Inc. that Respondent's employees were upset
with General Manager Carter, his operating procedures,
and the way he ran the business . The caller also stated
that morale was basically nonexistent and that something
should be done about Carter. Lastly, the caller issued
some vague physical threat to Carter. Fountain informed
Carter about the substance of this call. Carter in turn dis-
cussed with Turner and Sarver the fact that he thought
Joe Branum and Mary Don Jones were also responsible
for this second call.
On 28 March, Turner, Sarver, and Carter met with
Respondent 's legal counsel to discuss terminating Mary
Don Jones and Joe Branum. Counsel recommended dis-
charging both individuals. Sarver pointed out that a
close friendship existed between Mary Don Jones and
Gordon Turner's sister. Sarver recommended that in
order to avoid family problems, the time was not right to
discharge Jones. A decision was made to retain Jones for
the time being, but to discharge Branum immediately.
On 29 March, Branum was discharged at the conclu-
sion of his normal workday. Amidon told Branum that
Branum was being discharged as a result of the out-of-
date beer which he and Zimmerman found on Branum's
route during their 3-day investigation on 9, 10, and 11
March. Branum protested that this out-of-date beer had
been found during a "grace period" during which no dis-
cipline was going to be imposed for having overage beer.
Either Carter or Amidon told Branum that there was no
such grace period or that it did not apply to overage
beer found by a supervisor after the driver/salesmen vis-
ited an account.3 During the discharge interview, Carter
read dates and the names of retailers from a sheet of
paper which was the paper on which Amidon made
notes during his investigation of Branum. Branum asked
Carter for a copy of these notes. Carter apparently de-
clined to do so. Amidon and Carter testified that as
Branum left this meeting, Branum said, "Within 2
months you'll have a union in here." Carter and Amidon
both testified that they never heard Branum say anything
about a union prior to Branum's statement on 29 March
after he had been discharged. I do not credit Amidon.
As I have found above, Branum made comments on at
least two occasions which were overheard by Amidon.
F. Evidence of Disparate Treatment and/or Unlawful
Motivation
Employee Charles Pope was discharged by Respond-
ent for challenging Zimmerman to a fight. Prior to his
discharge, Pope worked as a driver/salesman in the
Stroh division of Respondent. Pope was still employed
during the March crisis described above. Pope testified
that this crisis, and in particular the intensive effort made
by Respondent to remove out-of-date beer from the
market place applied only to Anheuser-Busch products.
No similar crisis developed regarding Stroh products.
Pope testified that because of training he received when
he was first hired, it was his practice to return out-of-
date Stroh products to Respondent's warehouse. Pope
also testified, however, that during the March crisis he
was sure he had some overage Stroh products in the
8 Carter was, of course , referring to his comments to the
dnver/salesmen in the meeting on 7 March that if supervisors found
overage beer in an account after it had been visited by the
dnver/salesmen , he would be terminated
TURNER BEVERAGE CO.
market place. Pope testified that shortly after Branum's
discharge , he, driver/salesman Frank Malone , and David
Zimmerman had a conversation about out -of-date beer.
According to Pope, he told Zimmerman, "I got out-of-
date beer on the route." Zimmerman replied, "I know."
Malone laughed. According to Pope, Zimmerman then
looked at Malone and said, "Don't be laughing. You're
no angel either." Zimmerman denies the conversation.
Malone did not testify.
Joe Branum testified that during mid-May, he visited
Zimmerman at Super Discount Beverage. According to
Branum , he asked Zimmerman during the conversation if
it looked like employees would go union. Branum testi-
fied that Zimmerman replied, "If the Union comes in, we
will not sign a contract with the Union; we'll man the
trucks ourselves." According to Branum, he then said,
"Yeah, that is what got me , talking union ." Zimmerman
replied, "Yeah, the wrong person heard you."
Zimmerman denied the conversation as described by
Branum. According to Zimmerman, Branum came by his
store on several occasions after Branum was discharged
trying to get Zimmerman to talk about the Union. Zim-
merman testified , "The only thing that was said, you
know, if the Union did come in that we still had to nego-
tiate and we had to agree on a contract. That was the
extent of it." Zimmerman denies that he said Respondent
would not sign a contract, and according to Zimmerman,
there was no discussion about manning the trucks. Simi-
larly, Zimmerman denies telling Branum , or agreeing
with Branum, that Branum's union activity had anything
to do with his discharge. Concerning these conversa-
tions, I credit Zimmerman over Branum. Neither
Branum nor Zimmerman impressed me as being wholly
trustworthy. I am convinced that Branum memorized
certain portions of his testimony. His delivery was me-
chanical and rote. Although I do not necessarily credit
all of Zimmerman's testimony, I am convinced that these
conversations with Branum were an attempt by Branum
to "set up" Zimmerman. It is apparent from Zimmer-
man's testimony that he realized this, and was very cau-
tious in what he said to Branum . I find it unbelievable
that Zimmerman would or did tell Branum under these
circumstances that Respondent would not negotiate with
the Union or that Branum was discharged for union ac-
tivities.
Charles Pope testified that approximately 31 May, he
went to Zimmerman's office after completing his route.
Pope testified Zimmerman asked if he thought the Union
would be voted in during an upcoming scheduled elec-
tion to be conducted by the Board. Pope replied yes,
that he thought employees would vote for the Union.
According to Pope, Zimmerman then stated that Kevin
Carter realized the mistake she had made. Pope replied,
"Yeah, you fired a guy who had been there for 22 years
for having out-of-date beer." Zimmerman stated that was
not the only reason. Pope replied, "Talking union,
right?" According to Pope, Zimmerman nodded his head
in the affirmative.
Zimmerman denied having any conversation with
Pope about Branum's union activity. Respondent argues
that Pope should be discredited because he disliked gen-
eral manager Carter, because he physically threatened
165
Zimmerman during his employment, and because Pope
harbors an inherent bias against Respondent as a result of
his discharge. I see no evidence that Pope expressed any
dislike for General Manager Carter, although it was his
opinion that Carter treated people badly in some ways.
Recognizing someone 's management shortcomings is not
necessarily synonymous with disliking the person. There
is no question that Pope might naturally harbor some re-
sentment against Respondent for being discharged, but I
saw no evidence of that in Pope's demeanor. As a matter
of fact, I was impressed by how openly and candidly
Pope described the incidents which led to his discharge.
In fact, throughout his testimony, Pope's demeanor was
unpretentious, straightforward, and wholly candid. The
same may not be said of Zimmerman. Based on my ob-
servation of their demeanor, I credit Pope over Zimmer-
man, both with regard to this conversation and the earli-
er conversation between Pope and Zimmerman described
above.
G. The Discharge of Mary Don Jones Branum
On the Monday following Joe Branum's discharge,
Carter called Mary Don Jones into his office. According
to Mary Don Jones Branum 's uncontradicted testimony,
Carter told her that Joe Branum's termination would not
affect her job. Carter complimented Jones that she was
doing a good job and that her future was secure with
Respondent.
On 7 June, the day following the Board-conducted
election among Respondent's driver/salesmen, Jones
went on vacation. Mary Don Jones and Joe Branum
were married on 14 June, and she returned to work on
24 June.
While Mary Don Jones Branum was on vacation
leave, Carter met with Sarver and Turner and decided
that she would be terminated on her return to work.
During her absence, Respondent hired a new employee
and abolished her job. When Mary Don Jones Branum
returned to work on 24 June, Carter called her to his
office and discharged her.
Analysis and Conclusions
The primary argument advanced by the General
Counsel is that Joe Branum was discharged because of
his union activity and/or prounion sentiments. To de-
scribe the credible evidence tending to support this posi-
tion as "weak" would be generous to the General Coun-
sel. In fact, it is almost nonexistent. For the period of a
year to a year and a half prior to his discharge, Branum
spoke to fellow employees at various times about the
possibility of being represented by a union. It is apparent
that these were nothing more than casual conversations,
however, for by the time Branum was discharged on 29
March, he still had not contacted any particular union.
Evidence that Respondent was aware of such conversa-
tions is minimal . The record reflects that on only two
occasions Branum made prounion comments in front of
Respondent's Anheuser-Busch division manager, Terry
Amidon. On neither occasion did Amidon respond in
such a manner that might violate the Act, express animus
by Respondent, or even suggest any real interest on
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amidon's part. In fact, Branum himself admits that on
both occasions , Amidon said nothing. The evidence in
this case simply does not support a conclusion that Bran-
um's prounion sentiments actually played any part in Re-
spondent's decision to discharge either Branum or his
wife, Mary Don Jones Branum . The only credible evi-
dence to which the General Counsel can point to sup-
port his argument is the single nod of his head by Re-
spondent's Stroh division manager, David Zimmerman,
in response to the assertion by employee Charles Pope
that Branum was fired in part because of "talking union."
I have considered this evidence, and particularly when it
is considered in conjunction with all of the other evi-
dence surrounding what I have described as the "March
crisis" regarding out-of-date beer, Zimmerman's nod is
simply not enough to overcome the overwhelming evi-
dence that the Branums were discharged because of their
perceived role as precipitating Anheuser-Busch, Inc.'s in-
volvement in that crisis. Branum was discharged on 29
March. Zimmerman's nod to Pope occurred almost 2
months later, on 31 May. I am convinced that Zimmer-
man's nod to Pope did not in any way represent Re-
spondent's real reason for discharging Branum, but
rather was an attempt by Zimmerman to influence Pope
in the Board election which was scheduled to be con-
ducted only 1 week later on 7 June. This nonvocal state-
ment by Zimmerman to Pope is not alleged in the com-
plaint, and I shall therefore make no finding that it was
unlawful.
Considered as a whole, the record in this case over-
whelmingly demonstrates that Respondent discharged
Branum because it believed Branum was engaged in con-
certed activity with employee Mary Don Jones in
making anonymous telephone calls to Anheuser-Busch,
Inc. which put Respondent in jeopardy of losing its fran-
chise because of alleged improper business practices by
Respondent. In its brief, Respondent admits as much re-
garding its reason for discharging Mary Don Jones
Branum . Respondent states, "Mary Don Jones Branum
was . . . terminated because of the company's suspicion
of her involvement in furnishing confidential information
to the Anheuser-Busch brewery .. . .
This case may be summarized quite simply. Within a
short time after he was hired by Respondent as general
manager, Kevin Carter instituted a new overage beer
policy which required driver/salesmen to pay for over-
age beer which they returned to Respondent's ware-
house. As a result, driver/salesmen simply avoided bring-
ing back overage beer. Overage beer began to accumu-
late in retail stores. Anheuser-Busch District Manager
Bob Fountain discovered such beer on a route covered
by Driver/Salesman Don Little and supervised by Route
Supervisor Don Carter. To appease Fountain and to
show its good faith, Respondent discharged both
Driver/Salesman Little and Route Supervisor Carter.
Someone then made anonymous telephone calls to An-
heuser-Busch, Inc. informing them that while Little had
been terminated for having out-of-date beer in the
market place , that same beer had allegedly been picked
up by Respondent and sold to Super Discount Beverage,
a retail outlet owned by none other than Respondent's
Stroh Division Manager David Zimmerman. Anheuser-
Busch began an investigation. As a result, it became criti-
cal for Respondent to recover as much overage beer as
possible, as quickly as possible, from the market place.
Respondent suspected Branum of having made the anon-
ymous telephone call to Anheuser-Busch, and, as a
result, Respondent decided to follow behind Branum on
his route to try to find a reason to get rid of Branum.
Respondent found that Branum, like other driver/-
salesmen , was not picking up all of the overage beer at
his various stops. Respondent had found the reason it felt
it needed to get rid of Branum . It then waited until the
time was right-that is, until the crisis was past and Re-
spondent was no longer under imminent danger of losing
its franchise with Anheuser-Busch. When the crisis
passed, Branum was discharged.
Respondent argues that Branum was not discharged
for having overage beer on his route, but rather was dis-
charged because of "insubordination" in refusing to
comply with Respondent's order that he remove overage
beer from his route. This argument is pure fiction. Ap-
parently, it is an attempt by Respondent to overcome the
fairly clear evidence that other driver/salesmen had
overage beer on their routes and were not discharged.
The argument is an attempt by Respondent to camou-
flage the fact that it very clearly engaged in disparate
treatment of Branum. Not only did Respondent's Stroh
Division Manager Zimmerman acknowledge to employ-
ees Pope and Malone that he knew they had overage
beer on their routes, but in its March investigation it was
clear to Respondent that most all driver/salesmen, in-
cluding Anheuser-Busch driver/salesmen , had consider-
able overage beer on their routes which they failed to
return to Respondent's warehouse in spite of General
Manager Carter's order that they do so. Amidon's admis-
sion that other drivers also failed to return overage beer,
even after General Manager Carter's order, is discussed
above. In summary, then, it must be observed that Re-
spondent quite clearly treated Branum in a manner dis-
parate from other dnver/salesmen because Respondent
believed Branum had participated in making the anony-
mous telephone calls to Anheuser-Busch, Inc.
All this having been said, the question remains wheth-
er the conduct for which Joe Branum and Mary Don
Jones Branum were discharged is concerted activity
which is protected by the Act. As its alternate theory,
the General Counsel argues that the conduct for which
they were discharged, making the anonymous telephone
calls to Anheuser-Busch, Inc., is concerted activity
which is protected by the Act, and it should therefore be
found that their discharge was unlawful. The General
Counsel argues at some length why this activity should
be found to be concerted within the meaning of the
Board's recent decision in Meyers Industries, 268 NLRB
493 (1984). Respondent, on the other hand, concedes that
the anonymous telephone calls were the result of con-
certed activity. Such is obviously the case for two rea-
sons. First, the caller had apparently obtained damaging
business information from another source, i.e., a fellow
employee. As an anonymous caller, the individual plac-
ing that call was obviously not calling solely on behalf of
TURNER BEVERAGE CO. 167
himself, but rather in order to effect some change which
would affect all employees equally.
Conceding that Joe Branum and Mary Don Jones
Branum were engaged in concerted activity , Respondent
argues at length that this activity is not protected by the
Act. After considerable deliberation , I find merit to this
argument.
The anonymous telephone calls to Anheuser-Busch,
Inc., which Respondent suspected Branum of making,
and which led to his discharge , had little , if anything, to
do with improving the wages , hours , or working condi-
tions of Respondent 's employees . In the first call, the
caller stated that although employee Don Little had been
discharged for having overage beer on his route, that
same beer had been picked up by Respondent and sold
to Super Discount Beverage , owned by Zimmerman.
Viewed in its simplest form , this call was merely an at-
tempt to retaliate against Respondent-and in particular
against Carter-for discharging Little. There was no
effort made to get Little's job back, nor any attempt to
otherwise improve the working conditions of current
employees. The call was simply an act of retaliation. The
root cause for the anonymous telephone calls lay in gen-
eral discontent with the management role of General
Manager Kevin Carter . The calls did not represent an at-
tempt to improve the working conditions of Respond-
ent's employees, but rather were an attempt to affect the
ultimate direction, philosophy , and managerial policies of
Respondent. This conclusion is evidenced by the sub-
stance of the first anonymous call, but it is made even
more clear by the substance of the second call in which
the caller specifically told Anheuser-Busch, Inc. that Re-
spondent's employees were upset with Carter , his operat-
ing procedures , and the way he ran the business. The
caller stated that something should be done about Carter.
In essence , the call was an attempt to force Carter's re-
moval. Such action by employees, even if concerted, is
not activity which the Act was designed to protect.
Good Samaritan Hospital, 265 NLRB 618 (1982). Accord-
ingly, I find that the activity which Joe Branum and
Mary Don Jones Branum were suspected of having en-
gaged in , and which resulted in their discharges , was not
activity protected by the Act, and their discharges there-
fore do not violate the Act. I will therefore recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Turner Beverage Company, Inc. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Chauffeurs and Sales Drivers Local Union No. 402,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica is, and has been at all times material , a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The activity which Joe Branum and Mary Don
Jones Branum were suspected of having engaged in, and
which resulted in their discharges, was not activity pro-
tected by the Act, and their discharges therefore do not
violate the Act.
4. Respondent did not threaten its employees that it
was futile for them to select the Union as their collec-
tive-bargaining representative , as alleged in the com-
plaint , by telling employees that Respondent would not
sign a collective-bargaining agreement with the Union if
it were successful in its organizational campaign.
RECOMMENDED ORDER4
On the basis of the foregoing findings of fact and con-
clusions of law, it is recommended that the complaint be
dismissed in its entirety.
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses