Pearl Beer Distributing Co. of Jefferson County, Inc.

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporate reorganization, we find in agreement with the Employer and the IAM that the experimental flight-test employees are not an ac- cretion to or properly includible in the UAW's Long Beach, Cali- fornia, production and maintenance unit. Accordingly, we deny the motion for clarification. [The Board denied the motion of the United Automobile , Aircraft & Agricultural Implement Workers of America (AFL-CIO) to clarify the certification in Case No. 21-R-2025.] Pearl Beer Distributing Company of Jefferson County, Incorpo- rated and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL- CIO Pearl Beer Distributing Company of Jefferson County , Incorpo- rated and Beer Drivers Local 253, AFL-CIO, International Union of United Brewery, Flour, Cereal, Soft Drink and Dis- tillery Workers of America, AFL-CIO. Cases Nos. 23-CA-1460 and 23-CA-1510. July 11, 1963 DECISION AND ORDER On May 3, 1963 , Trial Examiner Robert E. Mullin issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report . Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 143 NLRB No. 65. PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 597 INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Rela- tions Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard before Trial Examiner Robert E. Mullin, in Beaumont, Texas, on Febru- ary 6 and 7, 1963, pursuant to due notice to all parties. The complaint issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor prac- tices proscribed by Section 8 (a) (1) and (3) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but denied that it was engaged in commerce within the meaning of the Act or that it had committed any unfair labor practices. At the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to argue orally. The parties waived oral argument. Subsequent to the hearing, able briefs were submitted by both the General Counsel and the Respondent. These have been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Texas corporation with its principal office and warehouse in Beaumont, Texas, where it is engaged in the operation of a beer wholesaling distributorship. During the 12 months prior to the issuance of the complaint, a representative period, it sold and distributed products the gross value of which ex- ceeded $500,000. At all times material herein the Respondent has been a member of a multiemployer bargaining group whose members participate in multiemployer bargaining negotiations. This latter group, at all times material herein, has con- ducted bargaining negotiations on behalf of its employer-members. During the 12- month period referred to above, one or more of the members of the said multi- employer bargaining group purchased in excess of $50,000 worth of beer which product originated and was shipped from points outside the State of Texas directly to said member or members. The foregoing findings are based on the concessions which the Respondent made in its answer. On the other hand, the Respondent denied that it is engaged in commerce within the meaning of the Act. Although the Respondent, by itself, does not appear to meet the Board's standards for the assertion of jurisdiction, the contrary is true of those members of the multi- employer bargaining group which had out-of-State purchases in excess of $50,000 annually. Siemons Mailing Service, 122 NLRB 81, 84. Moreover, in Westside Market Owners Association, et al., 126 NLRB 167, 170, the Board held that it would assert jurisdiction over a multiemployer association , or the individual mem- bers, if the total annual volume of gross business of all the members met the neces- sary amount set for the Board's minimum jurisdictional standard, and legal jurisdic- tion existed over one or more members of the association. Belleville Employing Printers, 122 NLRB 350, 352. Both of these standards are met in the present in- stance. As found above, in its answer the Respondent conceded that it participated in the multiemployer negotiations of the aforesaid bargaining group. In Siemons, the Board held that it would adhere to its past practice of "considering all members of multiemployer associations who participate in . multiemployer bargaining negotiations as single employers for jurisdictional purposes." Idem.; see also N.L.R.B. v. Sightseeing Guides and Lecturers Union Local 20076 of Greater New York, AFL-CIO (ABT Sightseeing Tours, Inc., 310 F. 2d 40, 42 (C.A. 2) ). On the basis of the foregoing, it is my conclusion and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Beer Drivers Local 253, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, herein called Local 253, and International Union of United Brewery, Flour, Cereal , Soft Drink and Distillery Workers of America, AFL-CIO, herein called Brewery Workers, are labor organiza- tions within the meaning of the Act. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES During the summer and fall of 1962 the Respondent had approximately 26 em- ployees. According to Hunter Miller, president and general manager, this number included nine driver-salesmen and four warehouse employees, as well as administrative and clerical employees and sales personnel. For many years the driver-salesmen have been represented by an independent union known as "Beer Salesmen of the Sabine District" (herein called Independent). Miller testified that the Respondent has had contractual relations with Independent for about 15 years, although at the time of the hearing, no contract was in effect. According to the Respondent's president, the last contract, which covered a term of 3 years, expired on December 31, 1962, and has not been renewed pending the outcome of a representation matter.' Prior to July 1962, the Respondent's warehouse employees were unorganized. Early that month James Chandler contacted several of them, and secured authoriza- tion cards on behalf of the Brewery Workers. When information as to this organiza- tional movement reached M. J. Hyatt, foreman of the warehouse, he made it clear to the employees under him that he strongly disapproved. Albert Sells, one of the warehouse employees, testified that in mid-July he asked Hyatt "his opinion of what I should do concerning the union conflict they had at the Company . . And he told me if I wanted him to tell me, it would be better to keep my nose out of it completely and don't become involved." 2 Other witnesses testified that a short while later Foreman Hyatt went much further than merely to offer his opinion as to what the employees should do. Thus, Otis Granger testified that about July 18, while all of the warehouse employees were present, Hyatt stated, "You know you all made a mistake by joining the AFL-CIO Union. You are not co- operating with the Company, neither with the truckdrivers . . . . I am going over to suggest to Mr. Miller about ten dollars be cut off your pay." According to Granger, later that same day and as they were about to conclude the shift, Hyatt reminded them of his earlier statement and told them, "Be careful how you spend your money. You know you are going to have ten dollars cut out of your check." Granger and another warehouse employee, Wilbert Vaughn, testified that during the course of that same day Hyatt warned them that if they stayed in the "AFL-CIO Union" the Company "could easily find a reason for firing us. If we dropped a case of beer or busted it . . . they would make us cut grass, clean up around the place, and make it so hard on us we would have to quit " 3 The Respondent's warehouse employees wore uniforms, for some of which the Employer paid 4 Granger testified that on July 18, Hyatt told him and the other employees in the warehouse that "if we remained in the Union we were going to get our uniforms taken away from us; we would have to pay for them," that the employees would lose sick leave and vacations and that the Company "would cut every man in the AFL-CIO." The initial charge in Case No. 23-CA-1460 was filed by Chandler on July 23, 1962. Preparatory to filing the charge the representative of the Brewery Workers secured statements from several of the employees, including Granger. The latter testified that prior to this time, Hyatt had occasionally loaned him money. Accord- ing to Granger, however, after he signed the statement, Hyatt refused to lend him any money, and, in declining, told him "You know why, because you signed a statement against me." During this period the foreman also told this same em- ployee that "every day he has to spend in court he would see [the employees] got two days off without pay." 5 Clifton Rideaux, another warehouse employee, testified that he likewise heard Hyatt make the latter remark. Early in October the Independent began a campaign to enlist the support of the warehouse employees. About October 3, Hyatt and one of the truckdrivers, Sam Fertita, told the warehouse employees that they had heard that Chandler, the representative of the Brewery Workers, had withdrawn his request for an election on their behalf and that Chandler would have nothing further to do with them.6 Im- 1 Namely, Sabine District Wholesale Beer Distributors Association, Inc., Case No. 23-CA-1930 2 This testimony was credible and it was not denied by Hyatt s The quotation Is from the testimony of Granger 4 Miller testified that the Respondent paid for the uniforms of only those employees who had been working for 6 months or more The quotation is from the credible, undenied testimony of Granger Hyatt concedod that he had made such a threat to the employees as to what they might anticipate in the event the union problem compelled him to make any court appearances 6 This finding is based on the credible testimony of Albert Sells It was undenied by Myatt PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 599 mediately thereafter the four warehouse employees, Albert Sells, Wilbert Vaughn, Oris Granger, and Clifton Rideaux, asked Miller if they could meet with him. When the general manager agreed to do so, they told him of the report which Hyatt had given them about the Brewery Workers and asked him for his advice. Miller testified that the employees told him on this occasion that they wanted to know if he could help them get out of the AFL-CIO and into the Independent. According to Miller, he told them that there was nothing he could do to help or hinder them in a matter of this kind, but that he would assist them in any way that was legal, honorable, and ethical. Sells testified that during the course of the meeting, Miller told them that the conflict between the Brewery Workers and the Independent could be tied up in the courts for several years and that he would like to see all the employees in one union.? Shortly after the meeting in Miller's office, Vaughn and Granger signed cards in the Independent. Sells, however, refused to do so when he was solicited. Prior to the end of the shift that same day, Hyatt approached Sells and, according to Sells' testimony which Hyatt did not deny, the following conversation ensued: [Hyatt said] Al, what in the is wrong with you? I asked him what did he mean . He told me I was all fired up that morning, talking with Mr. Miller about joining the Independent Union, and now that all the men were there I did'nt want to sign the papers . I told him I hadn't had time to think about it. He told me it was getting close to the slack season and pretty soon he would have to let me go , and since I was the latest addition to the warehouse crew, more than likely it would be me. . . I told him I didn't care if it did mean giving up my job, I would not sign the card . he told me it wasn't meant to be a threat but he would like for me to think about what he had said. There was testimony about another incident which occurred during this same period when Miller donated a sum of money for coffee and sandwiches for the men .a The warehouse employees testified that in announcing the gift Hyatt suggested that it was a reward for deserting the Brewery Workers. Thus, Wilbert Vaughn testified that on this occasion Hyatt explained that they were getting the coffee money "Maybe because you all went back to the Independent Union." Oris Granger testi- fied that one morning a short time later and after he and others had attended a meeting sponsored by the Brewery Workers, the coffee truck arrived and he declined to order any. At that point, according to the employee, Hyatt asked, "Why, your conscience bothering you?" According to Granger, when he denied any problems of conscience in this regard, Hyatt stated, "Yeah, I know you went to the meeting last night ... because I've got a guy over there-he calls me and told me about it ...." Granger's testimony was corroborated by Vaughn. Although Hyatt testified that he spent the coffee money without discrimination , he did not deny the comments at- tributed to him by the employees which have been set forth above. On October 12, 1962, Local 253 filed the initial charge in Case No. 23-CA-1510. About November 8, Hyatt was away from the warehouse for some while. Clifton Rideaux testified, and his testimony in this respect was not denied, that before Fore- man Hyatt left, "He told me he had to go down and talk to the Labor Board man; when he got back things wasn't going to be the same." That evening when Hyatt returned, the warehouse employees were put to work washing windows and cutting the grass around the building before they could unload any of the trucks which arrived. Since they were paid a weekly rather than an hourly wage, and were required to stay at the warehouse until all the trucks were unloaded, that particular evening they were on duty until about 8 p.m. Albert Sells testified that in a con- versation that evening with Rideaux, his coworker, they discussed the amount of extra work they were doing and he proposed that they contact Chandler, the Brewery Workers representative, about their treatment. Rideaux, however, disagreed and commented that he felt they had already signed too many statements. At this point, according to Sells, the two employees discontinued their conversation when they observed that Hyatt was standing nearby. Clifton Rideaux testified that on the following morning he came to work with an injured hand and about 8:30 or 9 a.m., Hyatt came to him and asked whether his 7 Miller testified that he could not remember having made any statement about the union conflict being the matter of extended litigation . The latter portion of Sells' testi- mony as to the general manager's preference for one union instead of two was not denied 8 Miller testified that during the World Series of 1962 he had , on one occasion , won the baseball pool which the employees had started , and that he turned the entire amount of his winnings, a total of $18, over to the warehouse foreman to provide coffee and sand- wiches for the men as long as the money lasted. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand had recovered enough so that he could move cases of beer. According to Rideaux, when he answered the foreman in the affirmative, Hyatt told him that he was "going to cut Albert [Sells] loose . . . he thought Al was the brains of the AFL-CIO." 9 Later that morning, Sells was terminated. The hearing in this case began on February 6, 1963. Oris Granger testified that Wilbert Vaughn apprised Hyatt of the fact that he and the other warehouse em- ployees had been subpenaed to testify at the hearing. According to Granger, while he was at work on February 5, a man approached him and inquired as to the pros- pects of employment in the warehouse. Granger testified that he referred the in- Aividual to Hyatt who was standing nearby. Thereafter, according to Granger, while he and his coworkers, Rideaux and Anderson, were present, Hyatt told the jobseeker, "We don't need anybody right now but you better give me your name and .address because we might run these boys off tomorrow." Granger's testimony as to this incident was credible and it was not denied or contradicted by the foreman when he was on the stand. At the hearing, Hyatt frankly conceded that he had told the employees that each of them would lose a day's work for every day they caused him to spend in court because of their organizational activities. Foreman Hyatt, however, generally denied that he had ever threatened the employees with a cut in wages or the deprivation of benefits, or that he had warned them not to join the AFL-CIO. On the other hand, when asked the following questions he gave the answers which appear below: Q. Mr. Hyatt, did you ever state to any of the warehousemen what you thought about any union ... ? A. Oh, I probably did. Q. You discussed the merits of the Union? A. Well, I told them, frankly, I didn't think too much of any of them. In a prehearing affidavit which Hyatt attested on November 9, 1962, he averred that he had "never discussed the merits of any union with the warehousemen who work for me." In an earlier statement, however, which Hyatt attested on August 21, 1962, he conceded that he had had a number of discussions on this subject with the men. Thus, in the latter affidavit, Hyatt averred: [On] various occasions employees of the warehouse at the Company would come to me asking my opinion of unions and on the Brewery Workers, AFL- CIO Union. At these times I would tell them just how I felt in my opinion. I had told them for instance if it were my business and I owned it-I would eliminate paid vacations, no uniforms and other benefits, rather than have some outsider tell me how to run my business. During the course of his testimony at the hearing, Hyatt also stated that after an occasion in 1962 when Miller had gone to the Labor Board office in Houston "I haven't opened my mouth to the boys about anything." As noted earlier, a number of the statements set out above which the employees attributed to Hyatt were never denied or contradicted by him when on the stand. As a result, it is my conclusion, on the basis of the foregoing, as well as his demeanor as a witness, that during the months after the Brewery Workers initiated their campaign, Foreman Hyatt was very outspoken in his opposition to this movement among the employees. It is my further conclusion that the testimony of Sells, Granger, Rideaux, and Vaughn as to specific conversations with Hyatt is the more credible than the general denials of the latter that he had ever made such statements as they attributed to him. At the hearing and in its brief, the Respondent contended that insofar as Hyatt had made any statements in derogation of the employees' rights under the Act, the statements were unauthorized and the Company should not be held responsible for them. There was no evidence, however, that the management had ever made any effort to communicate this disavowal to the employees. Conse- quently, it is my conclusion that the Respondent must be held liable for the actions and conduct of Foreman Hyatt as found above. A. The termination of Albert Sells The General Counsel contends that Sells was discriminatorily dismissed on No- vember 9, 1962. The Respondent denies this allegation and asserts that Sells was terminated solely because lack of business required that one warehouse worker be laid off and, that Sells was selected because he was a temporary employee with less seniority than any other worker. 9 Rideaux's testimony as to this conversation was credible and it was not denied by Hyatt. PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 601 Sells was originally hired in June 1962, as a temporary employee to take the place of an employee named Anderson who was off duty because of an injury. When the latter returned to work after about a week, Sells was laid off for 2 days. When Sells returned to the Company to secure his paycheck, Hyatt told him that if he wanted further employment with the Company he could return on the follow- ing Monday and go to work. Sells testified, and his testimony in this regard was not contradicted, that about a month later Hyatt promised him that he would speak to Mr. Miller about putting him on as a regular employee on a permanent basis. The other warehouse employees had a license from the State Beverage Control Board to deliver beer. According to Sells, on numerous occasions throughout the summer, Hyatt told him that the Company would have to get his license for him. Notwithstanding the fact that Sells did not have such a license, in a few instances, he was ordered to deliver beer to customers.10 As found above, when the Brewery Workers first began their camapign, Sells asked Hyatt his opinion of the matter and the foreman advised him to keep his "nose out of it completely and don't become involved." Notwithstanding this advice from his supervisor, on July 19, Sells signed an authorization card and thereafter he actively solicited his coworkers to support that Union. Late in September or early in October he was appointed a trustee of Local 253. Early in October, when Hyatt and one of the truckdrivers told the warehouse employees that at a meeting of the Independent Union the drivers heard the Brewery Workers and Chandler would no longer represent the warehousemen, Sells and his coworkers sought a meeting with Miller. Earlier I have found that at this meeting, held on October 3, the employees in the warehouse discussed with Miller the alternatives which they had if they wanted to withdraw from the Brewery Workers and join the Independent. Sells also testi- fied that shortly after this meeting Miller gave him two copies of an application form for permanent employment and asked that he fill out the form immediately. The General Counsel contends that at this point the Respondent planned to take Sells on as a permanent employee and would have done so had he not remained faithful to the Brewery Workers. This is denied by the Respondent. The facts as to this issue will now be considered. During the course of the meeting between the employees and Miller on October 3, it is undisputed that the Respondent's president asked the men whether any of them had a high school diploma, that Sells stated that he was a high school graduate, and that Miller then proposed that he might be able to help Sells continue his educa- tion at Lamar Tech." According to Miller, the only purpose in asking that Sells, a young man, fill out the application forms was to secure background information to determine whether the Respondent could help the employee continue his educa- tion. Further, according to Miller, when Sells turned in the completed application he learned, for the first time, that the employee had a wife and children so that it was obviously impossible to help with any further schooling since all other em- ployees whom the Company had assisted were unmarried. Miller was an intelligent and, in many respects, a very frank witness. On the other hand, I cannot believe that his only purpose in asking Sells to fill out the permanent application form was to secure such elementary information as to whether the man was married and had children. Such data could have been ob- tained by asking the man a single question at the original meeting. Moreover, it does not seem reasonable to presume that Miller would have been interested in assisting Sells to attend college if, as the Respondent now argues, Sells was then only a temporary employee whom it proposed to lay off within a few weeks when business declined. The meeting had been initiated by the employees from the warehouse crew who had heard from Hyatt that they were being abandoned by the Brewery Workers. The employees present could assume that only the Independent Union remained and in his discussion with the warehouse workers at this time Miller stated his desire that all of the employees be in one union. Earlier herein, I have found that after Miller met with the men, Vaughn and Granger, two of the em- ployees present at the meeting deserted the Brewery Workers and signed cards in the Independent. Sells, when solicited to follow the same course, refused. Later, on the evening of October 3, Foreman Hyatt admonished Sells for adopting this attitude after having been "all fired up that morning, talking with Mr. Miller about joining the Independent Union . . As found earlier herein, Hyatt concluded the conversation by telling the employee that, although he did not mean it as a 10 This finding is based on Sells' undenied, uncontradicted testimony. Miller conceded that it was possible that Sells had delivered "some beer." U Lamar State College of Technology located in Beaumont, Texas. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat, he wanted Sells to know that with the approach of the slack season he might have to lay him off since Sells was the last addition to the warehouse crew. Sells remained adamant, however, and stated that he would not sign a card in the Inde- pendent even if it meant relinquishing his job. In the light of the foregoing, I find that, contrary to Miller's testimony, the Re- spondent's objective in suggesting that the employee fill out the application form in question was not to get background information on a temporary worker who would shortly be off the payroll. At the time it appeared to the Respondent that Sells and his coworkers were about to leave the Brewery Workers. It is my conclusion that, when giving the employees these forms, Miller planned to convert Sells' status to that of a permanent member of the warehouse crew and thereafter assist him in furthering his college education. After the meeting, however, Sells' apparent en- thusiasm for joining the Independent waned. When Wyatt learned of this develop- ment he expressed his strong displeasure and saw fit to point out that Sells was a likely candidate for layoff. The employee was not dissuaded by this obvious threat and told Hyatt that he would not sign a card in the Independent even if it meant that he might lose his job. Not long thereafter the Brewery Workers filed additional charges against the Respondent. On November 8, Hyatt left the warehouse with the announcement that he had to report to the Labor Board and that when he got back things would not be the same. Upon his return, Hyatt put the men to work on additional duties that kept them at the warehouse considerably past their normal hours. The next morning Hyatt told employee Rideaux that Sells was "the brains of the AFL-CIO" and that he was "going to cut Albert [Sells] loose." Shortly thereafter that day Sells was terminated Miller testified that at Hyatt's suggestion, on the morning of November 9, Sells was called into his office. According to the Respondent's president, when Sells reported, he was told, in the presence of Hyatt and Assistant General Manager James L. Floyd, that because the peak of the beer season was over and Sells was the most recently hired employee, he would have to be the first one laid off.12 Sells was then given his final paycheck as well as an additional week's pay. About November 13, Sells returned to the Respondent's office to ask that he be contacted if any openings arose. The secretary in the office promised to contact him in the event he was needed. Subsequent to Sells' termination, Granger was injured and a replacement was hired temporarily until Granger recovered and was able to return to work. Sells, however, was never contacted and never recalled The Respondent contends that Sells was laid off only because a decline in business required that it cut back its warehouse crew. On the other hand, both Miller and Hyatt testified that the "season" in their business extended from March to Labor Day. Hyatt testified that after Labor Day the Respondent needs only one-half the warehouse crew that it employs during the summer. From their own testimony it would appear that if Sells were being dropped because the end of the beer season had arrived he would have been laid off in September Moreover, the Respondent offered no evidence as to any change subsequent to Labor Day that caused it to keep Sells on the payroll for 2 additional months. From the evidence set forth above it is my conclusion that Sells was considered an intelligent and valued employee in October who, when it appeared that he was interested in joining the Independent, was considered for a place on the permanent payroll and for further help in connec- tion with his college education. Thereafter, however, when Sells declined to with- draw from the Brewery Workers and join the Independent, Foreman Hyatt reproached him for his vacillation and pointedly referred to the prospect of a layoff in the near future. Even this did not cause Sells to change his ways and a short while later, on November 8, newly filed charges by the Brewery Workers compelled Hyatt to sub- mit to further interrogation by the Labor Board. On November 9, the next day, the foreman described Sells as the "brains of the AFL-CIO" whom he would have to "cut loose." That morning Sells was terminated, and never recalled notwithstand- ing the fact that the Respondent subsequently hired a replacement for Granger. On the basis of the foregoing evidence, it is my conclusion that Sells was discharged because of his persistent adherence to the Brewery Workers and not because of a decline in beer sales, as the Respondent contends. Accordingly, I find that by this action the Respondent violated Section 8(a)(3) and (1) of the Act. In the context of the discriminatory termination of Sells, it is my further con- clusion, and I find, that the Respondent also violated Section 8(a) (1) by the follow- ing conduct of Foreman Hyatt: 12 Although the Respondent contends that it followed strict seniority in laying off Sells, it is significant that its contract with the Independent Union had no seniority provision. PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 603 (a) About July 18, 1962, Hyatt's threat, uttered to the warehouse employees, that if they remained with the Brewery Workers he would suggest to General Manager Miller that their pay be cut by $10, and Hyatt's prediction, made at the same time, that the Respondent would eliminate free uniforms , that the employees would lose sick leave and vacations , that the Company "would cut every man in the AFL-CIO," and that if the men stayed with the Brewery Workers the Respondent "could easily find a reason for firing [the warehouse employees]." 13 (b) Hyatt's declaration to the employees , late in July, after they had submitted statements in support of an unfair labor practice charge, that "every day he has to spend in courts he would see [the employees] got 2 days off without pay." (c) Hyatt's interrogation of Sells on October 3 as to why the latter had not signed a card in the Independent Union , and the threat of an impending layoff which Hyatt voiced to the employee in that same conversation. (d) Hyatt's discriminatorily assigning additional duty to the warehouse employ- ees on or about November 8 when he returned from a meeting with a representative of the Labor Board.14 (e) Hyatt's statement to employee Clifton Rideaux on November 9, that he was "going to cut [Sells] loose" because he thought "Al was the brains of the AFL-CIO." N.L.R.B. v. Armstrong Tire and Rubber Company , Tire Test Fleet Branch, 228 F. 2d 159, 161 (C.A. 5). (f) Hyatt's comment on February 5, 1963 , the eve of the hearing, to an applicant for employment at the warehouse , and in the presence of the employees then on the payroll, that the job seeker leave his name and address "because we might run these boys off tomorrow." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, appearing in connection with the operations of the Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases as provided in the Recom- mended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons set forth in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Having found that the Respondent unlawfully terminated Albert Sells on Novem- ber 9, 1962, I recommend that it offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of discharge to the date of the Respondent's offer of reinstatement, with backpay and interest thereon computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and Brewery Workers and Local 253 are labor organizations all within the meaning of the Act. 13 The Respondent contends that since none of these threats were carried out, the com- ments attributed to Hyatt by the employees should not be held a violation of the Act. There is no merit to this contention. 14 The additional duty involved, namely, washing windows and cutting the grass around the warehouse, was not unusual and it was, in fact, the type of work which the employees might normally be assigned. On the other hand, prior to Hyatt's departure from the ware- house that day he had prophesied that when he came back "things wasn't going to be the same " As if in fulfillment of that prediction, on his return he gave the men these tasks and delayed their normal work of unloading the beer trucks so that all of them were com- pelled to remain on duty for several additional hours that evening 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of Albert Sells, thereby discouraging membership in the Brewery Workers and Local 253, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent , Pearl Beer Distributing Company of Jefferson County, Incorporated, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees by dis- criminating in regard to their hire, tenure, or any other terms or conditions of their employment. (b) Directly, or by implication, threatening employees with the withdrawal of existing privileges, or other economic reprisals , to discourage union membership or activity. (c) Interrogating employees concerning union affiliation or activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization , to form labor organizations , to join or assist International Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, and Beer Drivers Local 253, AFL-CIO, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, or any other labor organization , to bargain collec- tively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to re- frain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Albert Sells immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered in the manner set forth in the section of this Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Post at its warehouse in Beaumont , Texas, copies of the attached notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respondent's author- ized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.16 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" '"In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing. within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " LIBERTY ELECTRONICS CORP., ETC. 605 APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, and Beer Drivers Local 253, AFL-CIO, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, or any other labor organization, by discharging any of our em- ployees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT directly, or by implication , threaten employees with the with- drawal of existing privileges or with other forms of reprisals , because of their union membership or activities. WE WILL NOT interrogate employees concerning union affiliation or activities in a manner constituting interference , restraint, or coercion in violation of Sec- tion 8 (a) (1) of the Act. WE WILL offer to Albert Sells immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with , restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named unions, or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. PEARL BEER DISTRIBUTING COMPANY OF JEFFERSON COUNTY, INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston, Texas, 77002, Telephone No. Capitol 8-0611, Extension 271, if they have any questions concerning this notice or compliance with its provisions. Liberty Electronics Corp.; Flight Electronic Supply Corp.; Ogelsby Corp., d/b/a Liberty Electronics Corp.; McCool Cor- poration, d/b/a Flight Electronic Supply Corp .; and Wyle Laboratories and Warehouse, Processing & Distribution Work- ers' Union, Local 26, International Longshoremen's and Ware- housemen's Union. Case No. 21-CA-45923. July 11, 1963 SUPPLEMENTAL DECISION AND AMENDED ORDER On September 27, 1962, the Board issued a Decision and Order 1 finding that Liberty Electronics Corp, and Flight Electronic Supply 1 138 NLRB 1074. 143 NLRB No. 64.