Lapeka, Inc.,

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lapeka, Inc., and Truck Drivers & Helpers Local Union No. 696, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Case 17-CA-4262 January 7, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 21, 1970, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision attached hereto. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support of its exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board adopts as Its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Lapeka, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order.' i In footnote 19 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VosE, Trial Examiner: This case, heard at Topeka, Kansas, on June 30 and July 1, 1970, pursuant to a charge filed the preceding April 9 and a complaint issued on May 20,1 presents questions whether the Respondent discharged Allan Johnson on April 3, 1970, in violation of Section 8(a)(3) and (1) of the Act, and whether the Respondent by withdrawing certain privileges engaged in 1 All dates herein are in 1970, unless otherwise indicated 2 The General Counsel's unopposed motion to correct the record interference, restraint, and coercion, in violation of Section 8(a)(1) of the Act. Upon the entire record2 and my observation of the witnesses, and upon due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS 1. THE RESPONDENT'S BUSINESS The Respondent, a Kansas corporation having its principal office and place of business located at Topeka, Kansas, is engaged in the wholesale distribution of Coors beer and related products from warehouses maintained and operated by it in the cities of Topeka and Lawrence, Kansas. In the course and conduct of its business, goods or services valued in excess of $50,000 yearly are purchased by the Respondent from sources outside of Kansas. Upon these undenied allegations of the complaint, I find that the Respondent is engaged in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers & Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion in Violation of Section 8(a)(1) of the Act 1. Background; the organizatiorf of the Union; the Union's victory in the election Early in January 1970 Allan Johnson, one of the Respondent's driver-salesmen at its Topeka warehouse, consulted James Glenn, assistant business representative for the Union, for advice about organizing the Respon- dent's employees. Following Glenn's suggestion, Johnson arranged to have a group of his fellow employees at Topeka meet with Glenn at the union hall. At a second meeting in January, cards authorizing the Union to act as bargaining representative were circulated among the employees; these were later signed and turned over to the Union. A third union meeting was held early in February. This meeting was attended by some of the Lawrence employees, as well as the Topeka employees. On January 30, the Union filed with the Board's Kansas City Regional Office a petition for certification as the bargaining representative of the employees of the Respon- dent's Topeka and Lawrence warehouses (Case 17-RC-6303). The Respondent entered into a stipulation for certification upon consent election, which was approved by the Regional Director on February 18. The election was scheduled for March 10. In the 10-day period preceding the election the Respon- contained in his brief is hereby granted 187 NLRB No. 109 LAPEKA, INC. dent carried on an intensive "vote no" campaign in a series of bulletins and handbills which were distributed among the employees. In the February 28 bulletin the Respondent charged the Union with making worthless promises. In its March 2 bulletin, the Respondent stressed the loss of jobs resulting from the closing of plants caused by union-called strikes. In a bulletin distributed the next day, the Respondent again emphasized the lack of job security in organized plants, citing the loss of jobs by 24 employees who were replaced during a strike at the company which manufactured the cans for Coors beer. The Respondent's March 4 bulletin accused the Teamsters Union of walking out on the employees in two plants after failing to reach agreement with the employers and warned the employees to be wary of being left "holding the bag." The March 5 bulletin concluded with the following plea: To maintain your own individuality-to keep the Union out of your pocket-to keep yourself out of Union troubles-we urge you to VOTE "NO" Two handbills appealing to the employees to "VOTE NO" were also distributed during the Respondent's preelection campaign. The election was held on March 10 and the tally of ballots showed that of the 11 ballots cast , 7 were in favor of the Union, 3 were voted no, and there was 1 challenged ballot. 2. The Respondent's withdrawal of certain employee benefits or changes in employee practices after the election a. Coffee drinking It had been the Respondent's practice at both warehouses to have coffee available for the employees while the driver- salesmen were getting ready to leave on their routes. The Respondent paid for the coffee and it was customarily prepared by Walter Wettengel, the Respondent's ware- houseman. On the morning after the election Wettengel arrived at the warehouse about 6 a.m. As he started making the coffee Don Maurer, the Respondent's sales manager, said something to him indicating that he was not to make coffee.3 Wettengel did not make coffee the following day either. On the afternoon of the second day after the election, Eldon Danenhauer, the Respondent's president and owner, directed Wettengel to make coffee on the following morning. The General Counsel contends that the Respondent's temporary discontinuance of the coffee drinking practice commencing on the morning after the Union won the election was in retaliation for the employees having voted for union representation and that this action constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. The Respondent offers no plausible explanation for its changing the longstanding practice at this time. In view of this fact and in view of the timing of 3 According to Maurer, all he said to Wettengel as he was commencing to make the coffee was "let's go ahead and get the trucks loaded." Whatever words were used by Maurer, it is evident that Wettengel 751 the Respondent's action, as well as the Respondent's detrimental changes in other practices at about the same time, discussed below, and its discharge of one of its most experienced driver-salesmen less than a month later because it suspected that he was the instigator of, or active in, the union movement, I conclude that the Respondent's discontinuance of its practice of furnishing coffee to the men in the morning was intended to, and necessarily did, impress on the employees its objections to their decision to have union representation. Such conduct violated Section 8(a)(l) of the Act. b. Keys to the warehouse It had been the practice of the Respondent's predecessor prior to the time the Respondent took over the distributor- ship in March 1968, which the Respondent continued during the following 2 years, to issue keys to the warehouses to all warehousemen and driver-salesmen. Commencing on the day after the Union won the election the Respondent started picking up the warehouse keys from the driver- salesmen. In addition, the Respondent required the return from Driver-Salesman Hennessee, who had the duty of making night deposits at the bank, of his night deposit key. At the time the Respondent took this action against the employees, it gave. them no explanation therefor. However, at sales meetings at both warehouses about a week after the election, the Respondent's representatives stated that the action was taken to lessen their responsibility in the event of thefts from the warehouses. While some of the driver-salesmen were not seriously inconvenienced by having to give up their warehouse key, others, particularly the Lawrence driver- salesmen, were. The Lawrence warehouseman did not remain continuously at the warehouse and not infrequently the driver-salesmen returned to the warehouse at times when the warehouseman was absent and the warehouse was locked. They had to wait as long as 2 hours for the warehouseman to return and their work was held up accordingly. This would happen about twice a week. At the Topeka warehouse the driver-salesmen were handicapped mainly on the occasional Saturdays on which they had to work and when they arrived at the warehouse early and the warehouseman was not there. Driver-Salesman Hennessee was delayed in making company deposits at the bank after his night deposit key was taken away from him because each time he had to locate the elevator man and have him open the night deposit box for him. About a month later, after receiving complaints from the Lawrence driver-salesmen, the Respondent relented and returned their warehouse keys to them. President Danenhauer testified that he had been contemplating taking this action regarding the keys ever since he took over the business, that he finally decided the weekend before the election to make the move, and that on the day of the election he issued instructions to Sales Manager Maurer at Topeka and Warehouse Manager Monson at Lawrence to retrieve the keys. In view of the length of time Danenhauer had been considering this interpreted them as instructions to discontinue making coffee and that Maurer acquiesced in this interpretion. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD move-2 years since he acquired the business and 9 months since the completion of the Lawrence warehouse-and the timing of the action-the next day after the Union won the election-I have considerable difficulty in believing that it was just a coincidence that the action was taken commencing on the day after the Union won the election. That the Respondent's decision was not altogether sound from a business standpoint is indicated by its action in returning the keys to the Lawrence driver-salesmen after about a month. Under all the circumstances I do not credit Danenhauer's testimony in effect that the decision to pick up the keys was reached before the results of the election were known. Rather I conclude that the Respondent's action was precipitated by the Union's victory in the election and was intended, and necessarily had the effect of, demonstrating to the employees its strong disapproval of their decision to have union representation. The Respon- dent's action in this regard, like its discontinuance of the coffee drinking privilege, interfered with, restrained, and coerced its employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the Act. c. Beer drinking Ever since the Respondent took over the distributorship it had had areas in the warehouses where it allowed the employees to drink beer in moderate quantities after work at company expense, either from kegs of draft beer or from unsaleable dented cans which were kept there. At the first sales meetings after the Union won the election, held on March 17 at Topeka and March 18 at Lawrence, the Respondent announced that the employees would no longer be permitted to drink beer in the warehouses. Danenhauer explained that he had received "a lot of complaints" from the wives of the driver-salesmen about the men getting home late and "in bad shape" and that the new rule would permit the drivers to get home earlier and spend more time with their families.4 About a month later, at sales meetings, the Respcndent's representatives an- nounced that the restriction on beer drinking in the warehouses was being lifted, that beer would be available for the men in moderation, after they had checked in, had their pallets restacked so as to be ready for loading in the morning, and were out of uniform. President Danenhauer's attempted justification for discontinuing the beer drinking privilege in the warehouses on the grounds of the many complaints he had received from the wives of drivers is not too persuasive in the view of the fact that, when pressed to be more specific, Danenhauer could recall only one complaint (from Mrs. Wettengel, the warehouseman's wife) and "passing comments" from driver-salesmen's wives, of which he mentioned only one, 4 The Respondent announced at the same time that the driver-salesmen would no longer be permitted to drink beer on the premises of their customers as they were making their deliveries It appears that the customers occasionally offered beer to the driver-salesmen while they were making stops at the various establishments which they served. President Danenhauer testified that while it was always contrary to company policy for driver-salesmen to drink while on their routes, he was aware that the policy had not previously been enforced and that he intended that the policy be fully adhered to in the future I do not intend to consider this aspect of the case further Even were I to find the Respondent's action in this regard to be an unfair labor practice, it would not be appropriate, in and in view of the further fact that after about a month he permitted the beer drinking to be resumed. Under all the circumstances I do not credit Danenhauer's testimony that the change in the beer drinking rules at the warehouses had nothing to do either with the election or the union activities of the men. Rather I conclude that the Respondent's suspension of the employees' beer drinking privilege was a further open manifestation of its opposition to the employees' choice of the Union in the election. Such action also violated Section 8(a)(I) of the Act. B. The Discharge of Allan Johnson in Violation of Section 8(a)(3) and (1) of the Act 1. Johnson's work record Johnson, an experienced driver-salesman for brewery products, was hired by the Respondent on September 6, 1968. At the time of Johnson's discharge, three, at most, of the Respondent's nine driver-salesmen at Topeka and Lawrence had been in the Respondent's employ longer than Johnson.5 All but one of the driver-salesmen hired after Johnson had worked for the Respondent less than a year and some of them only a few months. Despite his longer period of employment Johnson had never had an accident during his entire period of employment until the minor accident which occurred on April 1 and which allegedly was a contributing factor in his discharge on April 3. In this accident, as the Respondent's sales manager, Maurer, testified, the total damage amounted to $10 to $12. Most of the Respondent's other drivers had considerably worse accident records than did Johnson. Stephen Foland had had two accidents in the year that he had been in the Respondent's employ. In one of these he did $100 worth of damage to the other truck. William Kennedy had had three accidents in the 9 months that he had been in the Respondent's employ; Nottingham had had two accidents in about 2 years; Hennessee had had one accident in 6 months; and Yager had had five accidents in about a year. Yager's accidents caused several hundred dollars worth of damage. President Danenhauer admitted that Johnson was punctual in reporting for work and that in his consistency of attendance he was better than the other drivers. The Respondent gave Johnson a $12 a week pay increase in February 1970 because of his increased sales in 1969. Danenhauer's testimony indicates that Johnson had the fourth highest sales of the Respondent's nine drivers at Topeka and Lawrence.6 However, volume of sales does not necessarily accurately reflect a driver-salesman's ability to produce, as Danenhauer testified. It depends on the route and Johnson's route was less desirable, at least in the eyes my opinion, for me to order the Respondent to allow the drivers to resume their old beer drinking practices while on their routes The prohibition of such practices by truckdrivers seems so eminently reasonable and so necessary for the protection of an employer in the beer-distributing business, that there seems little room for disagreement on this point. 5 The record disclosed the names of nine driver-salesmen and the approximate dates of hire of eight of them. Only two of the eight driver- salesmen as to whom dates of hire are given were hired before Johnson. 6 When asked which drivers were making more money than Johnson, Danenhauer named Bob Grzesk, Melvin Martin, and Gene Smith LAPEKA, INC. 753 of Driver-Salesman Martin, one of the three high producers, than Martin's. Martin turned down Johnson's route when it was offered to him by the Respondent after Johnson's discharge. Danenhauer testified that he had never received any complaints from customers concerning the manner in which Johnson performed his work prior to the incident on April 1. Danenhauer further testified that he had never previously had any serious problems with Johnson's work performance and no problems concerning which he found it necessary to speak to Johnson individually. From all of the foregoing I conclude that Johnson was on the whole an above-average driver- salesman. 2. Johnson's union activities; the Respondent's knowledge thereof As found above, Johnson made the original contact with the union business representative concerning the organiza- tion of the Respondent's employees. Johnson arranged for the first organizational meeting and invited his fellow drivers at Topeka to attend. Johnson attended all three union meetings and invited warehouseman Wettengel to attend the second meeting. At the third union meeting in February, which was attended by some of the Lawrence employees, Johnson participated in the discussion in favor of the Union. William Kennedy, a Lawrence driver- salesman who did not join the Union and acted as the Respondent's observer at the election, testified that in the course of a conversation with Danenhauer at a sales meeting after the third union meeting he "probably did" mention the fact that the Topeka employees attended the meeting and that, in response to a question from Kennedy, "Al [Johnson) might have explained this one point to me." 7 Both Danenhauer and Maurer denied knowledge of Johnson's union activities before his discharge. The record as a whole, in my opinion, indicates to the contrary. A statement given by Ann Stewart, the Respondent's "secretary, receptionist, bookkeeper accountant" and office girl8 to counsel for the General Counsel casts light on Danenhauer's knowledge of Johnson's role as the instigator of the union movement. There is a very serious conflict in the testimony as to when this knowledge was acquired, however. Danenhauer admitted that Stewart had told him in effect "I think Al [Johnson} was the instigator or leader of the Union." Danenhauer was certain, however, that this statement had been made during the week after Johnson's discharge. Stewart's testimony on the matter of the timing of the statement was confused and inconsistent When first r Although Kennedy was very cautious in his testimony and professed not to be sure that he had mentioned Johnson to Danenhauer, I am convinced that had Kennedy not had some recollection of Johnson's speaking on this occasion he would not have brought up Johnson's name at all, for Kennedy appeared to be fully alert to the kind of testimony which would hurt or help the Respondent's case and to be reluctant to give any testimony which would hurt the Respondent's case 9 This is Danenhauer's testimony 9 While Stewart was not asked to and did not sign this statement, she testified that before giving the statement she swore to tell the truth and that she had initialled corrections and deletions in the document Stewart's initials appear five times next to changes in the crucial paragraph I find that Stewart thereby adopted this paragraph as her own is In one of these conversations, with Driver-Salesman Stephen Yager, after Johnson's discharge, Stewart, after expressing the opinion "that the examined about this subject matter Stewart testified that she made one statement to Danenhauer about Johnson after he was fired to the effect that she "thought that Al was the instigator, the ring leader of the union activities." Stewart was then shown a statement which she had given counsel for the General Counsel 6 days earlier in which she had sworn that this conversation occurred "sometime before the election."9 Then Stewart was asked "Do you recall whether at the time you made this statement it was true?" Stewart answered, "Under oath, yes, sir, at that time " At this point counsel for the General Counsel interrupted to offer the statement in evidence. Upon further questioning about the time of this conversation Stewart pleaded inability to recall saying "I don't know if it was before, after, dunng, I don't know." I believe that Stewart was genuinely confused at this point. In resolving the confused and conflicting testimony concerning this incident I have taken the following facts into consideration. Stewart admitted that since January she had overheard driver-salesmen make comments to the effect that Johnson was the instigator of the union movement. Stewart has the office next door to Darien- hatter's and there is a connecting door between. Stewart is in and out of Danenhauer's office 10 to 20 times a day when he is in his office. As stated above, the election was held on March 10 with the Union winning seven to three. At the time of Johnson's discharge on April 3, the Union was no longer the controversial issue it had been before the election. The Respondent's objections were pending before the Regional Director and the determination of bargaining agent was up to the Regional Director and the Board. It seems less likely that Stewart would have made such a comment about Johnson at this time, after things had quieted down, than earlier, when the subject of the Union was being actively discussed. Furthermore, undenied testimony concerning statements made by Stewart after the election in the presence of driver- salesmen indicates that Stewart was sympathetic to Johnson and did not approve of the Respondent's treatment of him.iO In view of this fact I think it unlikely that she would have made such a statement at any time when she was aware of any possibility of such a comment getting Johnson into trouble. This suggests that the statement was made early in the union campaign, before Stewart became aware of Danenhauer's hostility to the Union. As to the possibility of Stewart's having made the comment to Danenhauer about Johnson after Johnson's discharge and after Business Representative Glenn had firing of Al Johnson was a test and somebody had to go who ever made a mistake first," stated that she "didn't think it was right that Al (Johnson ] should be fired" The second statement was made in the course of a conversation with Driver-Salesman Melvin Martin after the election and before Johnson's discharge This conversation occurred after Johnson had failed to note his number on a check as a result of which Stewart did not know to which driver-salesman to credit the check When Stewart asked Danenhauer to whom to credit the check, he said Johnson , and added, "Well, just let it go, because that will be another reason to let him go in the end" In the conversation with Martin, Stewart related Danenhauer's statement quoted above to Martin, explaining that Danenhauer had said this "Just a little while before," and she added that "she didn't think it was right" Stewart was not called as a witness after Martin testified Danenhauer failed to recall any such incident. I find that Stewart had the conversation with Martin, as testified to by him. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought Johnson's reinstatement, this would have put her in the position of criticizing Danenhauer's action with respect to Johnson, for by that time it must have been evident to any alert person-and Stewart impressed me as being very alert-that Johnson's discharge was going to lead to a problem with the Union.ii While Stewart was sympathetic to Johnson, her overwhelming loyalty was to Danenhauer and I am convinced she would not have permitted her sympathy for Johnson to cause her to put her in the position of appearing to criticize Danenhauer. For all of the foregoing reasons I find, in accordance with Stewart's statement to counsel for the General Counsel, which she stated was true at one point in her testimony, that Stewart made the comment to Danenhauer about Johnson being instigator of the union movement early in the union drive. In any event, regardless of whether Danenhauer was informed and believed that Johnson was the original instigator of the union movement, in view of Johnson's support of the Union from the very beginning, the rapidity with which news of such activities ordinarily spreads in a small plant, as is evidenced here by Stewart's overhearing conversations about Johnson's union activities, the infor- mation reported to Danenhauer by Driver-Salesman Kennedy about Johnson's favoring the Union a; the third union meeting, and the outcome of the election, seven to three in favor of the Union, I conclude that Danenhauer at least suspected at the time of Johnson's discharge that he was a union supporter. 3. Johnson's discharge on April 3 and the events preceding it About 10:30 a.m. on April 1 Johnson made his weekly visit to Hartzell's Grocery, a relatively small family-run grocery store. Johnson went into the warehouse which is a separate building behind the store and checked the supply of Coors beer. There were 4 cases of 15-ounce cans and 6 cases of 12-ounce cans in stock. Deeming this a sufficient supply, Johnson left the warehouse after a brief discussion with the warehouseman. It was raining and snowing at the time. Johnson did not check the beer cooler or the warm shelf in the store. According to Johnson, the warehouseman ordinarily kept the cooler filled and would inform Johnson when the cooler needed filling.12 However, Johnson acknowledged that he was responsible for not only keeping the warehouse supplied, but the store as well, and that he was also responsible for checking the rotation of the stock to make sure that the oldest beer was placed in front or on top so that it was sold first. When Johnson reached his truck he found that his normal exit forward was blocked by another truck and so 11 Danenhauer received a copy of the Union's charge on Friday of the week in which he testified that Stewart made the statement to him 12 Hartzell's warehouseman , Woodrow Baker, testified that although he did not take care of beer inside the store, he did "try to see that the boys put some in when they run out " It would appear that with Johnson making only one stop a week at Hartzell's, there would be times in between stops when the beer stock in the store would have to be replenished from the warehouse I conclude that Johnson had an informal understanding with store personnel concerning keeping the store stocked i3 This findings is based on Johnson's credited testimony Mike Kelly, although still in Hartzell's employ at the time of the hearing, was not called as a witness Warehouseman Baker testified that he was 40 to 50 feet from the truck and that Kelly was 15 to 20 feet from the truck when the accident he attempted to back up. As he did so, his front bumper hooked the right-hand door from the grocery's garbage storage bin and knocked it completely off. One hinge was torn loose in the process. Mike Kelly, a young warehouse- man's helper employed by Hartzell's, told Johnson, "Don't worry about it and motioned Johnson on.13 Johnson backed on out and left the premises without speaking to anyone in the grocery store about the accident. Johnson did not report the accident to the Respondent's warehouse either. When Johnson called the warehouse two stops later Wettengel, the Respondent's warehouseman, answered the telephone. He asked Johnson what had happened at Hartzell's. This was about 45 minutes after the accident occurred. After Johnson related to Wettengel what had happened, Wettengel asked what was required to repair the bin, and Johnson replied, "a few nails." Wettengel said that he would either go out and fix it or would send somebody else out to do so. In the meantime Mrs. Hartzell had called President Danenhauer and reported that his driver had knocked the door off the garbage bin and had not come in and spoken to her about it. Danenhauer told her that he would come right out. Danenhauer immediately went to Hartzell's Grocery. According to Danenhauer, Mrs. Hartzell was "still quite excited about it" and "couldn't understand why nobody had come in and contacted her." Danenhauer said, "We're going to take care of it for you, Mrs. Hartzell, if we see it's our fault." Danenhauer went out and inspected the damaged garbage bin. As he did so, Warehouseman Baker stated that it was his driver who was responsible for the damage. Danenhauer assured Baker, "I'll make sure we get somebody out here to put the door back on today." Danenhauer then went back in the store and checked both the cooler and the warm shelf. He found only two six-packs of 15-ounce cans in the cooler and no 12-ounce cans there. Upon checking the warm shelf in the store, Danenhauer found one or two six-packs of 12-ounce cans and five or six six-packs of 15-ounce cans. One six-pack of the latter, dated about the middle of January, which was old beer by the Respondent's standards and should have been removed after it was 60 days old, was found in the middle of a stack of six-packs. This indicated faulty rotation of the cans on the warm shelf. When Johnson returned to Respondent's warehouse that afternoon after completing his route, Warehouseman Wettengel 14 indicated to Johnson that filing a report was unnecessary, saying that "Mr. Danenhauer knows." Johnson did not file an accident report that afternoon although he was aware that the prompt filing of accident occurred According to Baker, Kelly neither spoke to Johnson nor motioned him on . I found Baker to be a garrulous witness who was very prone to exaggerate For example, Baker testified that Johnson knocked off both doors of the garbage bin, upset the cans, and spilled the garbage But as all the other witnesses agree, only one door was torn off, and there was no complaint about the cans being upset Johnson credibly testified that no garbage was strewn about For some reason I cannot fathom, Baker appeared to have a grudge against Johnson and sought to make Johnson's conduct on this occasion appear as reprehensible as possible I do not credit Baker's testimony that Kelly neither spoke to Johnson nor motioned him on 14 Wettengel is not a supervisor within the meaning of Section 2(11) of the Act LAPEKA, INC. 755 reports was one of the responsibilities of his job. Danenhauer arrived back at the warehouse at 4 p.m. that day, but he did not speak to Johnson about the accident, nor did Danenhauer leave any message for Johnson in his message box. Sales Manager Maurer was in Lawrence most of the day on April 1. When he called in to the warehouse between 4 and 5 p.m., Danenhauer informed him that Johnson had had an accident at Hartzell's Grocery that day and asked Maurer to conduct an investigation as soon as he could. Maurer went out to Hartzell's Grocery the next morning and spoke to Warehouseman Baker and his helper, Kelly, who had witnessed the accident. Maurer then made a "routine investigation" of the stock, in the course of which he checked the cooler and the warm shelf in the store and the stock in the warehouse. That afternoon Maurer went back to the store and talked to Mrs. Hartzell. According to Maurer, Mrs. Hartzell, whom he characterized as an "excitable" person, was still upset and could not understand why Johnson had not come in and spoken to her about the accident. In addition she was not satisfied with the repair job that had been done on the garbage box. In a report prepared early Thursday afternoon, April 2, Maurer related Mrs. Hartzell's reaction to the accident and also the results of his inquiries of the two witnesses to the accident Regarding the latter, Maurer stated that Ware- houseman's Helper Kelly had said that Johnson "just backed up into the box and then drove away." Warehouse- man Baker's comment was to the same effect. With respect to the quantity of beer on hand and its rotation Maurer stated in his report as follows: WAREHOUSE [Dated] 4 cs T.C. 3--11 [15 oz.) 6 cs 12 oz. 3--9 (5) STORE COOLER 1 cs T.C. 2--4 1--6 pk in back [15oz.] 3--11 3--pk in front* STORE---WARM STORAGE 5-6-pks T.C. 2--4 4--6 pk on top & [15 oz.] bottom 1--14 11--6 pk middle* Maurer noted in the report that the rotation was "bad" in all those areas and that there were no 12-ounce cans available in the store . 15 Maurer concluded his report as follows I feel the incident was handled very poorly on A] Johnson's part , and not in keeping with Lapeka Inc. policy or business philosophy. I recommend strong action be taken on the Co. part based on the following: 1. Poor judgement prior to, during, and after the accident. 2. Failure to immediately report the accident to Lapeka, Inc. 3. An inexcuseable situation involving our customer and our product. 4. Failure to fulfill basic job requirements in this instance. 5. Apparent display of poor attitude towards Co., customer, and over-all job requirements. On Friday morning, April 3, Danenhauer asked Johnson to fill out an accident report covering the Hartzell grocery incident and gave him a form on which to fill it out. It was the form apparently furnished by the Respondent's insurance carrier to give notice of loss to the carrier. Johnson filled out the form. Danenhauer, after looking it over, accepted the form. Nothing was said to Johnson by Danenhauer on this occasion indicating that Danenhauer took a very serious view of Johnson's conduct on the occasion of his accident. This same morning, Friday, April 3, at 8 a.m., Maurer turned over to Danenhauer his report on Johnson's accident at Hartzell's Grocery. Johnson went out on his route as usual Friday morning, April 3. This was the first day of a new workweek under the Respondent's pay system. After returning at the end of his day's work, checking in his money, and changing to his street clothes, Maurer summoned Johnson to the office. There Danenhauer opened the discussion by saying that he had been out to Hartzell's Grocery and that Mrs. Hartzell, in Johnson's words, "was awfully upset." The discussion continued as follows, as the following excerpt of Danen- hauer's testimony discloses: I said, "there was no report given to Mrs. Hartzell that an accident had been caused by our driver, which was you, and I would like to know why." ... He said, "I don't have a reason. I'll go out and apologize to Mrs. Hartzell if it will help." ... Then I said, "How come you did not notify the office before Mrs. Hartzell called in?" I said, "We did not receive a report actually until this morning," which was, of course, April 3rd when I asked him for the report. Mr. Johnson said he didn't think it was that big of a thing. I said, "As far as the accident goes, no, there is not enough value and damage done, but the way it was handled was certainly improper," and Mr. Johnson said, "I understand." ... Then I asked Mr. Johnson about stocking the two coolers, it was not handled in the Lapeka, Inc., manner, and Mr. Johnson didn't say anything to that. . . . I said I found rotation bad and one pack of tall cans on the warm shelf of old beer, and I said, "What reasons for you have for that?" He didn't say anything. . . . Then I believe Mr. Maurer asked him, he said, "Al, if Lapeka is going to grow we have to do these things and do them right, and we have to have consistency." I believe Al spoke up that he had done a good job in other markets. . . . I said, "Al, in view of these facts we have given you, in not reporting the 15 This apparently was a change from the day before because Danenhauer testified that he found one or two six-packs of 12-ounce cans on the warm shelf when he visited the store immediately after the accident. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accident on the account to the office immediately, and out of stock in the cooler and old beer found in the account, I will have to fire you." ... He didn't say anything for quite a while. He did get rather red then he left the office, I believe. He did say "Well , gentlemen, we work hard for a man and try to do a good job and have one incident and get the ax." Johnson called Business Representative Glenn that same evening and informed him of his discharge. Glenn accompanied Johnson to the warehouse the following Monday morning. Glenn asked Danenhauer his reasons for discharging Johnson. Danenhauer said that Johnson had had an accident on Wednesday , that when he had gone out to call on the customer about the accident he had found stale beer and other instances of Johnson's failure to service the customer properly, and that the accumulation of incidents warranted the discharge. Glenn urged that the damage was very small, said that such accidents among drivers were quite common, and suggested that a reprimand or a week's suspension would be more appropriate punishment . When Glenn asked Danenhauer to reinstate Johnson Danenhauer said that he was going to stand by his decision. 4. The Respondent's contentions ; conclusions The Respondent contends that Johnson was discharged because of his multiple rule violations on April 1 ; namely, his failure to report the damage to the garbage bin promptly to both the customer and the Respondent's warehouse, his failure to stock the customer's cooler and warm shelf, the failure to rotate the stock , and his failure to exchange fresh beer for a six-pack of old beer "found on the warm shelf." However, Danenhauer testified that he was "sure it would be true of every driver-salesman that worked as long as Mr. Johnson worked" that old beer could at times be found on the premises of their customers . Maurer testified that he had found old beer at other stores also besides Hartzell's Grocery. The presence of old beer on the customer's premises, of course, means that the dnver-salesman has not been rotating the stock properly. As to Johnson's failure to check the stock in the store, which Johnson in effect acknowledged was one of his responsibilities, Johnson admittedly "goofed." But Danenhauer admitted that this was the first time that he was aware of that Johnson had failed properly to service a customer. Regarding Johnson's failure promptly to report the accident to the customer and to the Respondent's warehouse, it is understandable, even though the accident only caused minor damage to the customer's garbage bin, $10 to $12 worth , that the Respondent would have been seriously disturbed by Johnson's failure to go into the store and apologize to Mrs. Hartzell for the accident and to offer to have the damage repaired. Such failures of communica- tion could possibly result in the loss of a customer. But notwithstanding such conduct on Johnson's part is it likely that the Respondent would have meted out the drastic punishment of discharge to an above-average driver- salesman on the occasion of his first offense if he had not been suspected of being the instigator of, or at least actively supporting, the union movement . Or rather was this a pretext seized on by the Respondent to justify getting rid of Johnson? In resolving this question it should be borne in mind that satisfactory driver-salesmen are not easy to obtain. Danenhauer discharged one driver-salesman in 1968 for drinking on the job and hitting a parked car . He discharged another driver-salesman in March 1969 for missing some customers entirely and not servicing others properly, and another in September 1969 for cheating and stealing from customers. To keep his business staffed Danenhauer hired in 1969 and the first few months of 1970 at least six men whom he either started out as, or developed into, driver- salesmen . The Respondent's total complement of driver- salesmen at the time of Johnson 's discharge was only nine. Johnson, as found above, was an above-average driver- salesman in regard to his work habits and his production, and his accident record was much better than most of the Respondent's driver -salesmen. The manner in which the Respondent handled Johnson's discharge suggests that the Respondent was trying to build a case against Johnson. It would have been more understandable had Danenhauer acted promptly upon learning what the Respondent now claims was inexcusable treatment of a customer and gross violations of its rules concerning the servicing of customers . Although Danen- hauer learned within an hour or two after Johnson's accident the essential facts on which it now relies as justifying Johnson's discharge, he said nothing to Johnson indicating the seriousness with which he viewed Johnson's conduct until the discharge interview 2-1/2 days later. Instead Danenhauer permitted Johnson to work Thursday, April 2, the last day of the workweek, and permitted him to complete the first day of the following workweek, Friday, April 3. In the meantime, Danenhauer had Maurer investigate the matter . Maurer did so and prepared a report discussing Johnson 's deficiencies and derelictions in detail and containing numerous arguments why "strong action" should be taken against Johnson. On the face of this report, which was an unusual one in the Respondent's experience, it appears to have been prepared with a view for presentation later if ever the Respondent should have to justify Johnson's discharge Danenhauer's action in pressing Johnson for an accident report on Friday morning, when Danenhauer had learned all the essential facts which an accident report would contain almost 2 days earlier, suggests that Danenhauer was attempting to build a record against Johnson in this manner also. An employer who has legitimate reasons for discharging an employee normally does not take such pains to make a record justifying his action. When an employer does so, one inference which can be drawn is that the employer is trying to cover up his real or underlying reason for discharging the employee. The record clearly establishes the Respondent's strong opposition to the organization of its employees by the Union. This is evident not only from express statements made by the Respondent in the "vote no" campaign conducted by it before the election but also in the withdrawal of the coffee drinking and beer drinking privileges in retaliation for the employees having voted for the Union in the election. Taking all of the facts of the case into consideration-the LAPEKA, INC. fact that Johnson was an above-average driver-salesman, the difficulty which the Respondent had in maintaining a force of satisfactory driver-salesmen, the fact that the incident at Hartzell's Grocery was Johnson's first offense, the Respondent's painstaking efforts to build a case against Johnson, the fact that the Respondent suspected that Johnson was the instigator of the union movement, and the Respondent's manifest opposition to the organization of its employees by the Union-I conclude that the incident at Hartzell's Grocery was adopted by the Respondent as an excuse to cover up its real reason for discharging Johnson; namely its suspicion that Johnson was the instigator or at least an active supporter of the union movement.16 The Respondent in discharging Johnson violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW I The Respondent's temporary suspension of the employees' coffee and beer drinking privileges in the warehouses and its retrieval of the warehouse and night deposit keys, in retaliation for the employees having voted for union representation, interfered with, restrained, and coerced the Respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 2. The Respondent's discharge of Allan Johnson because of his union activities constituted discrimination in regard to tenure of employment and terms and conditions of employment which discouraged membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, my Recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. In view of the fact that the record shows that the Respondent has lifted its suspension of the coffee and beer drinking privileges in the warehouses, I find that no affirmative order is necessary regarding these unfair labor practices. I have found that the Respondent unlawfully discriminat- ed against Allan Johnson. To remedy this unlawful conduct my Recommended Order will provide that the Respondent offer to Johnson immediate and full reinstatement to his job as a driver-salesman on the route which he formerly served or, if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges. My Recommended Order will further direct that the Respondent make Johnson whole for his losses resulting from the Respondent's discrimination 16 In reaching this conclusion I am not unmindful of the fact that other driver-salesmen, particularly Stephen Yager and Robert Grzesk, may have been as active or more active in the Union in the later stages of the preelection campaign than was Johnson Their conduct apparently did not present Danenhauer with the opportunity which Danenhauer thought Johnson's did In any event, it is well settled that the fact that an employer does not discharge all union supporters does not detract from the validity of the Board's conclusion concerning the discharge of one of the union supporters N L R B v W C Nabors Co, 196 F 2d 272, 276, (C A 5), cert 757 against him by payment to him of the sum of money he would have earned from the date of the discrimination against him until the date on which the Respondent offers him reinstatement, less his net interim earnings. Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided F. W. Woolworth Company,90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and pursuant to Section 10(c) of the Act, there is hereby issued the following: RECOMMENDED ORDER 17 The Respondent, Lapeka, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Retaliating against employees because of their decisions or actions regarding unions by suspending their coffee and beer drinking privileges in the warehouses, depriving them of keys formerly furnished them in connection with their jobs, changing other practices to the detriment of the employees, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Discouraging membership in Truck Drivers & Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization, by discharging or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or condition of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request of any driver-salesman restore to him any keys formerly furnished him in connection with his job. (b) Offer to Allan Johnson immediate and full reinstate- ment to his job as a driver-salesman on the route which he formerly served or, if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his discharge in the manner set forth in the section of this Decision entitled "The Remedy." (c) 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. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, as well as all other records denied 344 US 865 11 In the event no exceptions are filed to this Recommended Order as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 10(c) of the Act and in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (e) Post at its warehouses at Topeka and Lawrence, Kansas, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.19 18 In the event that the Board 's Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge or otherwise discriminate against any employee because of his activities favoring Truck Drivers & Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other union. WE WILL NOT retaliate against employees for favoring the aforesaid or any other union by suspending coffee and beer drinking privileges in the warehouses, by taking away from employees their warehouse and night deposit keys, or by changing any other employ- ment practices to the detriment of the employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form and join unions, to engage in concerted activities for their mutual aid or protection, and to engage in collective bargaining through their represent- ative chosen in accordance with the provisions of the National Labor Relations Act. WE WILL offer immediate reinstatement to Allan Johnson to his former job as route salesman on the route formerly served by him and will pay him backpay. WE WILL, upon request by any driver-salesman, return to him any warehouse or night deposit keys previously furnished him in connection with his job. LAPEKA, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.