Nehi-Royal Crown Corp.

NEHI ROYAL CROWN CORP. Nehi-Royal Crown Corporation and Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO and James W. Simmons. Case 13-CA-7875 and 13-CA-8510 August 15, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On February 27, 1969, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel then filed cross-exceptions and a supporting brief. 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, cross-exceptions and briefs, and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. The Trial Examiner found that Respondent's discharge of employee James W. Simmons in June 1968 violated Section 8(a)(3) of the Act. He also found that Respondent committed certain 8(a)(1) violations in August and October 1968. Therefore, the Trial Examiner concluded that the conduct of Respondent also violated the terms of a settlement agreement entered into in Case 13-CA-7875 in August 1967 and he found certain violations based in the facts surrounding that settlement. We do not agree. The Discharge of Simmons The events involved in Simmons' discharge are more fully set forth in the attached Trial Examiner's Decision. For purposes of our Decision herein, a brief factual summary will suffice. On June 22, 1968, the annual picnic for Respondent's employees was held. Among the events at the picnic was a softball game between 93 Respondent' s north and south side salesmen. The competition was quite intense as the participants had wagered $ 10 per person on the outcome of the game. Throughout the course of the ball game , Thomas Cooksley, a north side employee , had been making offensive remarks. Several of these remarks were directed at Simmons , a south side employee. At one point, Cooksley, who had been pitching, was removed from the game by Respondent' s supervisors because his behavior was disrupting the game's progress. However, Cooksley remained along the sidelines near first base , the position that Simmons was playing, and continued to direct comments at Simmons and others. Ultimately, Simmons informed Cooksley that he was not going to tolerate further commentary and, upon the conclusion of the inning then in progress, Simmons proceeded to strike Cooksley, knocking him unconscious. Subsequently , Simmons was discharged. As noted above, the Trial Examiner found that Simmons' discharge violated 8(a)(3). That finding was based upon the following factors, which the Trial Examiner considered to be of material significance. The incident between Simmons and Cooksley, which took place at the annual company picnic, was characterized by the Trial Examiner as having occurred on "nonworktime , off premises, and . . . not in connection with his [Simmons' ] job duties." The Trial Examiner continued that although Respondent had a rule which prohibited fighting, that rule applied only to fighting on company premises . Thus, he concluded that Simmons could not have been discharged for violating Respondent's rule against fighting. The Trial Examiner then coupled the foregoing determination with the observation that, because Cooksley had not been disciplined for using offensive language , Simmons' discharge revealed disparate treatment which, in turn, he viewed as evidence of Respondent's discriminatory intent. The sum total of these determinations influenced the Trial Examiner to examine the factual allegations involved in the settlement agreement in Case 13-CA-7875. The facts involved in that case indicated, inter alia, that Simmons' played an active role in the Charging Union' s organizational campaign and that Respondent had exhibited union animus. ' Thus, the Trial Examiner concluded that Simmons was discharged because of his previous activities on behalf of the Charging Union. We are of the opinion that the record fails to establish that Respondent discharged Simmons for any reason other than his conduct at the company picnic. The picnic itself was an established annual event of which Respondent was the primary organizer and a prominent sponsor . Whether or not 'In view of our Decision herein reinstating the settlement agreement in Case 13-CA-7875, we do believe it necessary to discuss in detail the factual allegations surrounding that proceeding. 178 NLRB No. 19 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's rule prohibiting fighting was applicable to the company picnic is not the primary criterion by which we determine the validity of Simmons' discharge. The record clearly indicates Cooksley presented no physical threat to Simmons at the time he was struck. Simmons acted neither in real nor imagined self-defense. In fact, the actual blow, which resulted in serious physical harm to Cooksley, does not appear to have been delivered in response to a particular comment by Cooksley. Rather, Simmons was motivated solely by a calculated decision to silence Cooksley's stream of commentary. Under these circumstances, prohibition by specific rule of the physical force used by Simmons is not an essential ingredient in establishing that Respondent's motive for the discharge was a lawful one. Nor do we believe that Respondent's failure to take disciplinary action against Cooksley indicates disparate treatment or warrants a finding that Simmons was terminated for unlawful reasons. We note that the Charging Party had abandoned its organizational efforts over a year before the incident between Simmons and Cooksley and, after the settlement agreement was entered into, the relationship between Simmons and Respondent appeared to have been quite harmonious until the events resulting in his discharge. In these circumstances and in view of our findings below, we see no basis for inferring that Respondent acted because of Simmons' previous union activities. Accordingly, we conclude that the General Counsel has not sustained his burden of proving that Respondent's discharge of Simmons was motivated by unlawful considerations or was related to any prior union activity. Thus we shall dismiss the 8(a)(3) allegation of the complaint. Other Post-Settlement Violations Found by the Trial Examiner As more fully set forth in the attached Trial Examiner's Decision, the Trial Examiner found that Respondent violated Section 8(a)(1) of the Act by coercively interrogating employee John Dusek, threatening him with discharge, and creating the impression that his union activities were under surveillance. The events that led to the above conclusions occurred in October 1968. Dusek is employed as a driver-salesman and is represented by the Teamsters Union, as are the vast majority of Respondent's approximately 500 employees. On October 7, 1968, he encountered a problem while making a delivery to one of Respondent's customers. In the midst of unloading, Dusek was compelled by the customer to move his truck so that one of the customer's trucks could unload immediately. This incident upset Dusek and the next evening he voiced his complaints at a union (Teamsters) meeting. On October 9, Respondent was informed through the customer involved that Dusek had persuaded the Coca-Cola and Pepsi drivers not to make deliveries until the unloading problem was resolved. The customer was quite perturbed and told Respondent that it did not want problems with the Coca-Cola, Pepsi, or Royal Crown (Respondent's) drivers. Thereafter, Dusek was summoned to discuss the incident related above. At the ensuing meeting one of Respondent's sales managers expressed concern that Dusek's confrontation and subsequent actions might result in a loss of business. Dusek then defended his actions, whereupon Respondent's president told him that he was paying Dusek's salary and that, therefore, the amount of time it took to make a delivery should not be Dusek's concern. Dusek persisted and the sales manager then suggested that if Dusek was unhappy with his job he should quit. In addition, the sales manager offered Dusek extra vacation pay and a letter of recommendation. He concluded by telling Dusek that if he liked his job he should stay out of trouble. We can find nothing improper in Respondent's meeting with Dusek. The record reveals that Respondent's concern was not with Dusek's attendance or actions at a union meeting. Rather, Respondent's concern was directed towards the legitimate business interest of protecting its sales level and preserving customer relations. On the facts of this case, we cannot concur with the Trial Examiner's conclusion that Respondent's irritation with Dusek resulted from his raising a grievance at a union meeting. Therefore, we do not view the sales manager's statements to Dusek as constituting an unlawful threat of discharge, and we can find no evidence on which to conclude that Respondent's conduct toward Dusek created the impression that his union activities were under surveillance or was motivated by antiunion considerations. On the contrary, the record discloses that Respondent has enjoyed an established bargaining relationship in the driver-salesnten's unit with the Teamsters Union for over 25 years, and there is nothing to indicate that Respondent sought to undermine its status. Accordingly, we find that Respondent's conduct toward Dusek did not violate Section 8(a)(1) of the Act. The Trial Examiner credited driver-salesman O'Donnell's version of a dispute with his supervisor on August 16, 1968. According to O'Donnell, the supervisor told him that he was "sick and tired of you [O'Donnell] bringing the union [Teamsters] in every time we have a grievance." Even though, as found by the Trial Examiner, the supervisor's remark may have violated Section 8(a)(1), it is the only such incident herein, and we find that it would not serve any useful purpose of the Act to issue a remedial order for such an isolated incident in the circumstances of this case.' 'Stop & Shop. Inc, 161 NLRB 75, enfd. 377 F 2d 59 (C.A 1). NEHI ROYAL CROWN CORP. Inasmuch as we have not found any postsettlement violations of the Act, we shall reinstate the settlement agreement in Case 13-CA-7875 without passing upon the conduct that occurred prior thereto.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint in Case 13-CA-8510 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the settlement agreement in Case 13-CA-7875 be, and it hereby is, reinstated. 'Teamsters General Local 200 ( Bachman Furniture Co), 172 NLRB No 119, Conroe Creosoting Co. 149 NLRB 1174 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on October 23, 24, 25, 29, 30, and 31, 1968, at Chicago, Illinois. The charge in Case 13-CA-7875 was filed on May 8, 1968. The charge in Case 13-CA-8510 was filed on June 27, 1968. The order consolidating cases, complaint and notice of hearing in this matter was issued on September 16, 1968 The issues in this case concern whether the Respondent has engaged in certain acts of interference, restraint, and coercion violative of Section 8(a)(1) of the Act, whether the Respondent discriminatorily discharged James W. Simmons on or about June 25, 1968, and whether certain conduct of Respondent after August 18, 1967, violated the terms of a settlement agreement in Case 13-CA-7875 All parties were afforded full opportunity to participate in the proceeding. The General Counsel and Respondent have filed briefs in this matter which have been considered Upon the entire record in the case and from my observation of witnesses, I hereby make the following.' FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE EMPLOYER INVOLVED The facts pertaining to the business of the Employer are based upon the pleadings and the admissions therein. Nehi-Royal Crown Corporation is, and has been at all times material to this proceeding, a; corporation duly organized under, and existing by virtue of, the laws of the State of Delaware, and has maintained its principal office and place of business in Chicago, Illinois. Nehi-Royal Crown Corporation, at all times material to this proceeding, has been engaged in the manufacture and distribution of carbonated beverages, and during the past calendar year sold finished products in excess of $100,000 directly to customers located outside the State of Illinois. 'All credibility resolutions made herein are based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole. 95 During the same period of time, Nehi-Royal Crown Corporation purchased raw materials in excess of $100,000 from points outside the State of Illinois, which were shipped directly to its plant in Chicago, Illinois. As conceded by the Respondent, it is concluded and found from the foregoing facts that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED Based upon the pleadings and admissions therein, it is found and concluded that Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ili. THE UNFAIR LABOR PRACTICES A. Preliminary Issues Based upon the pleadings and admissions and record testimony therein, it is concluded and found that the following-named persons occupied positions with Respondent Employer set opposite their respective names and have been and are now supervisors or agents of Respondent Employer, acting on its behalf, within the meaning of Section 2(11) and (13) of the Act. Myron Weil, President Frank Passarelli, Sales Manager Dennis Davoren, Sales Manager Charles Palumbo, Supervisor John Swistowicz, Supervisor B. Settlement Issue The Respondent sets forth that the 8(a)(1) conduct occurring after the settlement was directed toward employees not involved in the same bargaining unit of employees as the ones with reference to the presettlement conduct. The Respondent contends, therefore, that such conduct should not be considered as a basis for setting the settlement agreement aside and for considering the merit question of the presettlement conduct. I consider such contentions without merit. The question of rights protected by the Act is not of such narrow and technical construction. This case involves issues relating to conduct prior to August 18, 1967, the date of a settlement agreement in Case 13-CA-7875, and issues relating to conduct after the date of said settlement agreement. As I find later in this Decision that Respondent engaged in conduct violative of Section 8(a)(1) of the Act after August 18, 1967, I find it proper to consider the conduct occurring prior to August 18, 1967, not only as background but with respect to the question of conduct violative of the Act. Such events are, therefore, set forth in substantially a chronological fashion for ease in understanding. C. Presettlement Conduct (1967) 1. Preliminary events' Three employees of the Respondent, Simmons, Walker, and Paris, contacted and met with Union Representative 'Based upon a composite of the credited testimony of Simmons , Walker, 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jim Ryan' in the latter part of March 1967 at the Silverspoon Restaurant in the Marynook Shopping Center in Chicago, Illinois. At this meeting there ensued a discussion of organizing the Respondent's salesmen. Ryan told the employees in effect that if they were interested in unionization that they would have to get cards signed by employees stating that they wanted a union Ryan gave the said employees 20 cards for such use. The foregoing contact with the Union by the said employees occurred during the week, around Thursday. On the following Saturday the employees attended a company sales meeting. After the meeting the employees were discussing the question of the possibility of one salesman-one truck as compared to the current preselling arrangement. After the meeting a few of the employees told others to meet with them at a restaurant. Thereafter some of the employees went to the restaurant, discussed having a union, and some 13 of the employees signed union cards. On Saturday evening Simmons was away from home. When he returned home, he was told by his wife that he had received a telephone call from Dennis Davoren in Puerto Rico. On Sunday, Simmons received a telephone call from Davoren from Puerto Rico. 2. Concerning complaint allegations VI(a) and (b)' On about April 2,1967, as indicated, Davoren, who was in Puerto Rico, telephoned Simmons. What occurred is revealed by the following credited excerpts from Simmons' testimony. A. Yes. He called Sunday afternoon about 3.00 o'clock Sunday afternoon. Q. Did you talk to him? A. Yes, I did. Q. All right. Tell us that conversation. A. I picked up the phone. "Person to person call. Are you Mr. James Simmons?" "Yes, I am." "Go ahead." Then he said, "Hello." I said, "Hello." I asked him, "How are you doing?" He told me, "Cut the bull shit. What's going on in Chicago?" and Paris, and a consideration of the logical consistency of the evidence. 'Of Local 62, Liquor and Wine Salesmen's Union. 'The complaint allegations and the answer place in issue events of April 2, 1967 The testimony of all witnesses and the evidence as to dates of events were somewhat imprecise It is clear, however, that this event occurred toward the last of March or first of April 1967. Considering the manner of litigation , the exact date is immaterial To some extent I am convinced that both Simmons and Davoren , the witnesses to the events, testified in a manner to bolster the stories they desired Of the two, however, I found Simmons to be more convincing in his demeanor as a frank, forthright, and truthful witness than Davoren . In making this determination I have considered the fact that as to several items in Simmons' testimony that the same were not reflected in a prior deposition or statement It is noted that with respect to knowledge of unionization obtained by Davoren and Passarelli in Puerto Rico that the testimony of Davoren and Passarelli was in conflict. It is clear from Davoren's testimony that he and Passarelli received a telephone call about the employees' union activities . I discredit the testimony of Passarelli and Davoren in their denial of such knowledge . Considering the demeanor of the witnesses and the logical consistency of the evidence , I credit Simmons' testimony and discredit Davoren 's and Passarelli's testimony inconsistent therewith I said, "Well, what do you mean what's going on?" He said, "You know damn well what I mean. What's going on?" And I went further to say, "I still don't know what you are talking about." He said, "I know you were at a restaurant this afternoon with a bunch of guys to sign cards for some kind of a union." And I still said I didn't know anything about it. He said, "I want you to call Mr. Weil, tell him everybody who signed a card." I told him then, I said, "I signed a card, but I am not going to tell you who else signed a card." And he told me no in so many words Well, I won't say "so many." I will say his exact words. He said, "If you don't like it at Royal Crown, why don't you look for another job?" Q. All right.Do.you recall - A. I told him I liked my job, but if he wanted me to, I'd call Joseph Lyng up, have him come over and get my route books. Q. What happened then? A. That's all that was said as to that He said, "I will talk to you later." And that ended the conversation. Considering the foregoing, I conclude and find, as alleged in complaint paragraph V I(a), that the Respondent, by Davoren, on April 2, 1967, engaged in the conduct of threatening an employee with loss of his job because he had engaged in union activities. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. The General Counsel also alleged in complaint paragraph VI(b) that the Respondent, by Davoren, on April 2, 1967, gave an employee the impression that the Respondent was engaged in surveillance. The only evidence which touches this issue is the aforementioned telephone conversation between Davoren and Simmons. Considering the totality of the evidence, I conclude and find that the Respondent did not give employee Simmons the impression that the Respondent was engaged in -surveillance. Thus, Simmons knew that union activity had just commenced several days earlier, knew that the several employees getting together at the restaurant was not a formal or lengthy preplanned meeting, and knew that the restaurant was a public area. From Davoren's remarks, Simmons had reason to believe that the Respondent had learned of the restaurant gathering by means other than preplanned surveillance.' Accordingly, I conclude and find that the General Counsel has not established, as alleged, a violation of Section 8(a)(1) of the Act.' 3. Filing of representation petition; Davoren's talk with employees Because of the chronology of events, I find it proper to officially notice from the Board's official records that a representation petition in Case 13-RC-11137- Nehi-Royal Crown Corporation was - filed by Local No. 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, on April 7, 1967. 'Meade Manufacturing Company. 164 NLRB No 120. 'The incident was not alleged as being conduct of illegal interrogation As indicated, the manner of presentation of this case reveals that it would be improper to consider such event as litigated if not alleged In any event, findings elsewhere reveal conduct of illegal interrogation in violation of Sec. 8(a)(1) of the Act. NEHI ROYAL CROWN CORP. Some 4 or 5 days after the event litigated as occurring on April 2, 1967, set forth in this Decision beforehand, Davoren returned from Puerto Rico to Chicago. At some point of time thereafter Davoren appeared at one of the southside advance salesmen's meetings.' What occurred at that time is revealed by the following credited excerpts of Simmons' testimony. Q. Do you recall what happened-the next thing that happened after this conversation that you had with Mr. Davoren? A. Well, when Mr. Davoren got home, which would be probably the following- I forget when we had the next meeting. He called on Sunday. I think it was the following Wednesday or Thursday he got back from Puerto Rico. He stayed there a few days and he got back- Q. All right. Did you have any conversations with any other persons from management or from Nehi prior to the time Mr. Davoren got back? A. No, sir, I did not Q. All right. Did you talk to Mr. Davoren then afterwards? A. Yes, sir, I did. He came into a sales meeting and in his hand he carried an actual-a filing for an election which he received the day that he came back, from the cards that we had signed and turned into the union. Q. And did he talk to you? A. He talked to us as a whole, everybody, and he told us that he couldn't understand our grievances, what was wrong, why we would want a union, conditions around there were pretty good. And we just said that we were a little bit unhappy. Q. Was this at a meeting? A. This was at a meeting. Q. Go ahead. A. Then we asked Mr. Davoren if he and the supervisors would leave the room, which they did, and we further discussed this amongst the salesmen. Q. And what was your discussion at that time? A. About the union. Q. All right. And - wlelli,what was said? A. Well, we dust said, "Now, you signed the cards. You have a right for the election. Don't worry. Don't be afraid." And that was about it. 4. Concerning complaint allegations VI(c) through (p) The complaint in allegations VI(c) through (p) alleged (1) violative conduct of Davoren on or about April 6, 8, 13, 16, and 18, 1967, (2) violative conduct of Passarelli on or about April 13, 15, 18, 19, and on or about May 3, 1967, and (3) violative conduct of Palumbo on or about April 18, 1967. The General Counsel's opposition to a motion of Respondent to strike revealed the following: "To apprise Respondent of the place where the alleged violations set forth in paragraph VI(a) through (q) took place, Counsel for the General Counsel states that Respondent's place of business was the situs of the alleged violations in paragraphs VI(c) through (q) and the alleged violations in paragraph VI(a) and (b) were committed during a phone conversation between Dennis Davoren and an employee." The witnesses' testimony as to all of the events was generalized as to approximate dates. The complaint allegations contained many allegations that were similar excepting as to dates alleged. As a result the 'The Respondent regularly held two such meetings weekly 97 parties were requested to submit detailed briefs so as to clearly point out the issues and contentions. Briefs were submitted and have been construed to such effect Considering the record, the briefs, and all the foregoing, I note the following- The issues litigated concerned (1) interrogation of an employee by Passarelli before a joint meeting on a Saturday in April 1967, (2) the conduct of Passarelli at a joint meeting of north- and south-side advance salesmen on a Saturday in April 1967, (3) the conduct of Davoren as related to several employees after an advance salesmen's meeting at some date after the events of (1) above, (4) the conduct of Palumbo directed toward employee Walker, and (5) the conduct of Passarelli with respect to the withdrawal of an employee's union membership card. As indicated herein the parties entered into the trial of this case after attempts to set the issues. There was much testimony and evidence presented. From the manner of presentation, the setting of the issues, and the relevance of much of the testimony to the question of the alleged discriminatory discharge of Simmons, it cannot properly be said that the existence of some testimony in the record not related to specific alleged 8(a)(1) conduct constitutes a litigation of unalleged 8(a)(1) type issues. I thus note that the testimony relating to a telephone call from Passarelli to Simmons on the night before the "joint meeting of advance salesmen" is relevant to a consideration of the Simmons discharge. It does not refer, however, to an event alleged in the complaint, and as indicated does not constitute a litigated issue as to conduct violative of Section 8(a)(1) of the Act. There was also evidence of several telephone calls from Davoren to Simmons after the "joint meeting" in which Passarelli talked to the north- and south-side salesmen. It is noted that with respect to complaint allegations of contentions the setting of the issues would reveal these telephone conversations not to be in issue. It can be said that these conversations were admissible with reference to the Simmons discharge case. It can also be said, under all the circumstances, that such does not constitute a litigated issue as to conduct violative of Section 8(a)(1) of the Act. As indicated herein, I am convinced that certain facts were not litigated with respect to possible 8(a)(1) type contentions. The parties seem to recognize this. I am sure that the presentation of the case by the parties was made difficult by the time lapse, by witness frailty, as to timing of events or subject matter, and because of other complexities. I would note that where attempts have been made to set the issues, where much evidence is admissible for various reasons, and where much evidence is presented in a generalized fashion, it is hard to believe that a litigant is on notice, within the meaning of due process, that issues other than those specifically alleged are being litigated. In this case the totality of all events, procedural matters, requests for detailed briefs, and the briefs are convincing that such matters were not litigated other than as indicated herein. The evidence reveals that Davoren telephoned Simmons around the last of March or first of April 1967, that Davoren returned to Chicago some 4 or 5 days later, that a petition for representation was filed with the Board on April 7, 1967, that shortly thereafter Davoren spoke to the southside advance salesmen at a meeting, that there were two regular meetings per week for advance salesmen, that one of these meetings was on a Saturday, that the other appeared to be on Tuesday or Wednesday, that the "joint meeting" held by Passarelli clearly was held on a Saturday and occurred after the meeting referred to 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beforehand with Davoren and the southside advance salesmen, and that later Davoren after another meeting with southside advance salesmen spoke to two or three employees separately. Considering the evidence and the logical probabilities therefrom, I fix the time for the Passarelli "joint meeting" with all advance salesmen as being on or about April 15, 1967, as alleged. I fix the time for the Davoren meeting with southside advance salesmen and his followup remark to Simmons and Walker as being after April 15, 1967, and being on April 22, 1967. The manner of litigation reveals that the possible variance of a few days from the April 18, 1967, allegation thereto is not material. In fact, the precise fixing of dates either as set forth in the General Counsel's brief or the Respondent's brief would not affect the results herein. It is clear that these events were litigated fully. The only evidence which indicated that Davoren participated in the "joint meeting" with advance salesmen was the testimony of Walker. Simmons clearly testified to the effect that Davoren did not so participate. I am convinced that Walker has confused events in his testimony, and I discredit his testimony to such effect. The evidence relating to complaint paragraph V(o) with respect to Passarelli and an attempt to get an employee to withdraw a union membership card is either missing or insufficient, if based upon Passarelli's testimony. Considering all of the foregoing, I conclude and find no credited evidence to support complaint allegations VI(c), (d), (e), (f), (g), (j), (k), (1), (o), or (p). It will, therefore, be recommended that such allegations be dismissed. 5. The events of April 15, 1967; interrogation of Parise On April 15, 1967, Passarelli called employee Paris into his office. What occurred is revealed by the following credited excerpts of Paris' testimony. Q. Mr. Paris, some time after that, did you have an occasion to have a conversation with Mr. Passarelli in his office? A. Yes. There was a time when it was on a Saturday' s sales meeting, I believe it was, he called me in. Q. And who else was in his office with you? A. No one. There was no one in the office. He just says, "I'd like to talk to you." That's all. Q. And did you go in and talk to him? A. Yes, I did. Q. And what was said at that time? A. Nothing. He just asked me if I had signed a card Q. And what did you say? A. Yes, I did. Q. And what did he say then? A. Nothing. He seemed to be taken back by it. He didn't say nothing. He said, "I think I will handle the situation myself." And that was the extent of it. Q. And then what did he do? A. He walked out in the office. Q. And where did he go? A. He went out in the drivers' room. Q. (By Mr. Maslanda) Was there a meeting called at any time after that, or gathering - 'The facts are based upon the credited testimony of Paris. A. Yes. Q. - of the salesmen? A. Yes. Q. And how much after this conversation that you had with him? A. About ten minutes later. Considering all of the foregoing, I conclude and find that Passarelli interrogated Paris concerning his union activities and desires in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. 6. The events of April 15, 1967; the joint meeting of all advance salesmen' A few minutes after Paris had left Passarelli's office, Richard Navarro came into the office. Navarro told Passarelli that the employees were talking about joining a union and that Simmons was telling the employees that if they joined the Union that they would get 100 percent of everything they had in the profit sharing plan. Passarelli went out of his office into the "supervisors' room" and found Simmons talking to some of the employees about the profit sharing plan. Passarelli asked Simmons why he was having a meeting without his permission. Simmons told Passarelli that it was not an open meeting but a discussion. Passarelli remarked that as long as Simmons wanted to discuss the profit-sharing plan that they should call everyone in. Passarelli called to other advance salesmen to gather around. Passarelli told the employees in effect that there was "something going on around here about a union." Passarelli told the employees in effect that if they joined the Union that they would lose their profit sharing because they would no longer be considered part of management. Passarelli also told the employees that they would not get 100 percent of what they had in the profit-sharing plan but a percentage according to the number of years they had been in the plan. Passarelli told the employees that there was a chance that if they joined the Union that the Respondent would discontinue their method of preselling because they could not afford it. Passarelli then stated that "there is somebody around here that's got something to say about the union," "Simmons what have you got to say?" Simmons proceeded to read from a pamphlet from the National Labor Relations Board about employee rights 'The facts are based upon a composite of the credited testimony of Simmons, Passarelli, Soltis, Paris, Walker, Freeman, and Weil The testimony of all of these witnesses was presented in fragmented fashion. In addition the depositions of Walker and Simmons reveal that their questioning at the deposition hearing was similarly handled The main thrust of Simmons' testimony was to the effect that Passarelli referred to the loss of profit sharing and preselling and that later a discussion of the percentage of profit sharing the employees would get if profit sharing were terminated. The main thrust of Passarelli's testimony was to the effect that the discussion was concerning the percentage of profit sharing the employees would get if profit sharing were terminated . The thrust of the testimony of Soltis, Paris, and Walker was with reference to the loss of profit sharing I am convinced that all of the witnesses were attempting to truthfully testify as to what they thought the thrust of the events were. A careful consideration of the total testimony of all the witnesses reveals that there is not substantial conflict as to what happened . Thus, Passarelli's testimony related to a question by Dugo and Passarelli's answer thereto reveals that the impact of his remark was to the effect that if you join the Union you are out of the profit-sharing plan and only get a percentage of what was in the plan. Thus, Walker's and Passarelli 's testimony reveals that the remarks about preselling were related to the cost of operation Accordingly, the facts are found as set out, and to the extent that any witnesses' testimony is inconsistent therewith, it is discredited NEHI ROYAL CROWN CORP. not to be threatened with loss of job, loss of security in job, or loss of profit sharing and related items about the right to unionize. What occurred then is revealed by the following excerpts from his credited testimony: I went from there, told Mr. Passarelli, "If they turned around and took profit sharing away from us, stop it because of getting into the union, this, I know they could do because we no longer would be considered management. But if they stop our profit sharing, they must pay us 100 percent in that profit sharing because we didn't terminate. They would be the ones who terminated it. We didn't quit or get fired." That's all I had to say. Passarelli and some of the employees discussed the Respondent's preselling policy. Unlike other similar type companies in the area, the Respondent used a preselling salesman plan. Thus, one saleman would presell for the deliveries to be made by several trucks. Other companies used salesmen per truck for sales at time of delivery. It appears the gist of the discussion was as to respective competitive cost. Toward the end of the meeting Passarelli indicated that he would check with the Respondent's attorney about the details of what would happen if the employees were terminated from participation in the profit-sharing plan. Considering all of the foregoing, I conclude and find that the Respondent, by Passarelli, on April 15, 1967, engaged in conduct which threatened employees with loss of earnings if they continued to engage in union activities. The conclusions and findings are essentially based upon Passarelli's conduct and statements with reference to profit sharing. Thus the employees as employees were participants in a profit-sharing plan. Their right to engage in union activity was protected from a decrease in benefits because of such activity. There was nothing in Passarelli's remarks to indicate that the Respondent intended to equalize or substitute similar benefits for the benefits to be taken away. Accordingly, I conclude and find that Passarelli's conduct, as indicated, constituted conduct violative of Section 8(a)(1) of the Act. 7. The events of April 22, 1967; Davoren's advance salesmen's meeting'° Preliminary Considerations The General Counsel contends that as to the events set forth herein as occurring on or around April 22, 1967, that Davoren threatened employees with loss of earnings if they continued their union activities. There was an advance salesmen's meeting for the southside, on or about April 22, 1967. Simmons' testimony about this meeting does not reveal violative conduct, as alleged, on the part of Davoren. Walker appears to have been a General Counsel witness presented in support of the foregoing contended event or a similar event concerning Davoren. I have considered the nature of his questioning and testimony as a whole and have compared such testimony with his pretrial deposition statement. Upon such consideration I conclude and find "It is clear that this event happened after the events of April 15, 1967. The complaint allegation par. VI(o) alleges the date of April 18, 1967. Simmons' testimony was to the effect of the Saturday after the April 15, 1967, events. I fix the date as of April 22, 1967. The date is not material, however, since it is clear the event was litigated and occurred on or about April 18 or 22, 1967. 99 that his testimony is insufficient to support a finding of violation herein. Apparently the General Counsel is in agreement since, in answer for a request for a detailed brief, there is no reference to Walker's testimony as relating to this event. Events of April 22, 1967 After the advance salesmen's meeting for the southside, on or about April 22, 1967, Davoren asked Simmons and Walker to remain to see him. Simmons testified with reference to this event as revealed by the following excerpts from his testimony. Q. (By Mr. Maslanka) Do you recall anything else? A. Just what he brought up a real-I mean this, I don't- I won't use it as a threat, I will just say what he said. The company couldn't afford it and if the union went in, they would have to take pre-selling off the street. Simmons' pretrial deposition reveals an inconsistency with the foregoing. In his deposition the following is revealed. Q. I think you did mention it, it might have been in different words, but do you recall Daveron [sic] at a meeting saying that pre-salesmen-that's what you are called, right? A. Right. Q. Thatpre-salesmen- the [sic] the company would take the pre-salesmen off the street if the union came in? A. Those were not his words. Q. All right. A. He said if expenses got too great that something, as in any business, has to go. We would either go back to the way Pepsi Colawa&-;;but this had no direct bearing on pre-salesmen coming off the street if the union went in. Q. How did he say - A. In other words, our price is below our competition, Pepsi Cola and Coca-Cola, and one of the reasons for this is pre-selling, because a salesman can go out on the street, and I can run two trucks in an area and, say, do five thousand cases a week. The cost is only two trucks and two helpers, the expense of two truck drivers. But Pepsi and Coca-Cola, they would have to run five trucks in that area to get that many cases. Where I do all the selling, merchandising, anything like that, it can keep it low. But this gives us the opportunity to stay below our competition. The questioning of Davoren concerning statements about "preselling" was not directed to the event testified to by Simmons. Davoren testified to the effect that at a meeting he answered a question about "preselling" as is revealed by the following excerpts from his testimony. A. They're - no. No, not that. But the question came up,would they would we drop-the question came up by several of the men: "If we had a union, would that eliminate advance selling and go back to like all of the other companies have, Pepsi and Coke and 7-Up?" They don't have advance selling, and would they go back- the question was asked, would it go back just like it was? Q. Do you recall who asked that question? A. Oh, several. Several. It seemed to be a big, topic. Q. Do you remember their names? A. I wouldn't be able to tell you exactly. It could have been Meyers, it could have been Wells, it could 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been Simmons, it could have been Freeman. It could have been anyone. Q. All right. Was there anything else discussed at this meeting? A. No. As I say, they wanted to know if we would drop it. Q. Drop advance selling? A. Drop advance selling. Q. All right. What- A. And I said that if it got too expensive, sure, we would. Just like we would drop a promotion if it got too expensive, and for no other reason. Q. Did you make a statement that if a union came into the plant, you would drop advance selling? A. No, sir. Q. Did you make any statement to that effect? A. No, sir. As I view the evidence, Davoren's testimony was not directed to the event testified to by Simmons and has little value in determining the issue alleged herein. However, Simmons' testimony when considered in light of the inconsistency therewith to his pretrial deposition also lacks persuasive probative value and is not reliable to establish that Davoren made the remarks of a violative nature. Accordingly, I conclude and find that the General Counsel has not established, as alleged, that the Respondent, by Davoren, on or about April 18 or 22, 1967, threatened employees with loss of earnings if they continued their union activities. 8. The events of April 18, 1967; Palumboi i Sometime prior to the election held on May 9, 1967, apparently on April 18, 1967, Supervisor Palumbo went on Walker's route with Walker. While on the route Walker and Palumbo discussed the question of the Union and the employees' involvement. Palumbo told Walker that the Union would never get in, and that the northside and the supervisors would vote against the Union. Walker disputed the fact that supervisors could vote, but Palumbo said that they would be allowed to vote. Palumbo told Walker in this conversation that the Respondent was a small family-owned Company, that most employees were relatives, that Walker had a good job, that Walker was doing better on this job than he had on his last job, and that Walker should be careful. Considering all of the foregoing, I conclude and find that Palumbo in effect threatened Walker with reprisal if he engaged in union activity. Such conduct is violative of Section 8(a)(l) of the Act. "The facts are based upon Walker's credited testimony. I noted that Respondent's brief refers to the fact that the event occurred on a route and not at the plant as indicated in pretrial pleadings. However, statements of counsel directed to the Trial Examiner at the hearing and the evidence reveal this matter to have been litigated as occurring on the route It must further be noted that the General Counsel's pleadings on this matter essentially were of legal conclusions. Nor does General Counsel' s statement at the hearing spell out his contention of the thrust of the evidence General Counsel's brief sets forth contention only as to facts adduced The Respondent's brief was to the point that the issue was as to a threat of reprisal (watch his step) Considering the pleadings , the record, and the briefs, I am convinced that due process is only accorded if the issue litigated is limited to the question of threat of reprisal. "The facts are based upon a composite of the credited aspects of the testimony of Simmons , Walker, and Davoren. 9. The events of July 14, 196712 Shortly before July 14, 1967, employees Simmons, Paris, and Walker notified Davoren that they had subpenas to appear for depositions on July 14, 1967, concerning charges filed with the National Labor Relations Board." Later Davoren saw the employees, either individually or together. The employees expressed some reluctance on having to goto the deposition hearing. 14 It is not clear whether such reluctance was limited to having to go during worktime or was to having to go at all. Davoren told the employees that he would check with the company attorney about the matter. Apparently after a telephone call to such attorney, Davoren told the employees that they would have to go to said hearing and that he would have the attorney go with them. Davoren also told the employees to take care of some details concerning work arrangements while they were gone. Davoren told the employees he wanted to see them when they returned from the deposition hearing. The employees went to the deposition hearing on July 14, 1967, and gave depositions. The company attorney did not go to the deposition hearing. After returning from the deposition hearing, Simmons, Walker, and Paris met with Davoren and one of the, Respondent's owners, Mr. Henry Schimberg. Davoren asked the employees how the deposition hearing went. Davoren then asked the employees, "What did they ask you?" The employees told Davoren of questions asked them at the deposition hearing. Davoren asked the employees, "How does it look?" The employees told Davoren that it looked all right. I do not consider Davoren's predeposition conduct with reference to this event to have significance. However, it is clear that Davoren's and Schimberg's meeting with the employees after the deposition hearing and the accompanying questions directed to the employees by Davoren constituted violative conduct within the meaning of Section 8(a)(1) of the Act. It is clear that such conduct would inhibit the employees' right to engage in union activity and to participate in conduct protective of such rights. Accordingly, I conclude and find that the Respondent, by Davoren, as alleged, on July 14, 1967, engaged in conduct violative of Section 8(a)(1) of the Act. D. Postsettlement Conduct (1968) 1. The discharge of Simmons On June 25, 1968, the Respondent discharged James Simmons. The General Counsel contends that the facts reveal that the Respondent discharged Simmons because of his union activities and because he had participated with respect to the filing of charges and the giving of testimony in an unfair labor practice case in violation of Section 8(a)(1) and (4) of the Act. The Respondent contends that Simmons was discharged for cause and/or that the evidence does not establish that Simmons was discharged for discriminatory reasons within the meaning ,of the Act. The facts relating to the issue of Simmons' discharge may be summarized as follows: "Considering the record as a whole and the nature of the testimonial presentation, I find the evidence as to what occurred regarding this event prior to the depositions is not of sufficient probative clarity as to make a finding other than as indicated "I take license to describe the scheduled taking of depositions as a deposition hearing. NEHI ROYAL CROWN CORP 101 a Simmons was one of a small number of employees who initially contacted the Union in March 1967 The evidence is overwhelming that thereafter Simmons was an active and leading union adherent during the months preceding the representation election held on May 9, 1967 Simmons' oral participation in the April 15, 1967, "joint-meeting" of north- and south-side salesmen, in which Passarelli participated clearly revealed to the Respondent his interest in and active support of the Union Simmons acted as one of two union observers at the May 9, 1967, NLRB representation election Thereafter, clearly known to the Respondent, Simmons appeared as a witness at a deposition hearing on July 14, 1967, with respect to unfair labor practice charges against the Respondent b The evidence is overwhelming that the Respondent knew of Simmons' union activity and his involvement in April, May, June, and July 1967 c " A couple of weeks before the election (held on May 9, 1967), Supervisors Joe Lyng, John Swistowicz, and Kenny Grieder were standing near the door to Davoren's office 16 Davoren, who was in his office about 4 or 5 feet away, remarked to the three supervisors that "he won't be here long " It is clear from the circumstances that Davoren was referring to Simmons About a week before the election, Supervisor Palumbo told Supervisor Grieder that he had been instructed to go on Simmons' route and see what he could find wrong 17 Shortly thereafter, on several occasions, Grieder saw Palumbo at places located in the route area serviced by Simmons is Approximately I week after the May 9, 1967, NLRB representation election Supervisors Palumbo, Lyng, and Grieder were standing near Passarelli's office when Simmons passed Passarelli, who was nearby, remarked, "The facts are based upon the credited testimony of Grieder Grieder was a Respondent s supervisor at the time of the events in question At the time of the hearing Grieder was no longer employed by the Respondent Grieder indicated in his testimony that he left the Company because he felt the supervisors were entitled to raises and he did not like to drive the distances that he had to drive Grieder impressed me by his demeanor as a frank forthright and truthful witness whose only interest was to tell the facts as he knew them Grieder testified to the effect that Supervisors Lyng and Swistowicz were present when Davoren made his remarks Grieder testified to the effect that Palumbo and Lyng were present when Passarelli made his remarks The General Counsel used Lyng who was still a supervisor at the time of the hearing with respect to certain issues but not as to this issue The Respondent did not call Lyng as its own witness in the presentation of its case The Respondent used Palumbo and Swistowicz as witnesses but not as to this issue I attach no significance to the General Counsels not using Lyng as a witness to this issue While ordinarily I might attach significance to Respondents failure to use Lyng Palumbo and Swistowicz aswitnesses to this issue I do not do so The presentation of this case by the General Counsel and the Respondent was done in such a manner that I find it unrealistic to attach such significance I am convinced that Grieder was the most reliable and credible witness of those who testified to this issue I credit Grieder s testimony and discredit Davoren s and Passarelh s denial thereof "As indicated I found Grieder to be a truthful and credible witness The questioning of Grieder and the conduct of both the General Counsel and Respondent s counsel in their trial objections and responses thereto were of such a nature that I am convinced that Grieder became confused in his testimony on direct examination as to the timing of this event I find as he testified to on cross examination that the event occurred at the time set forth in the facts herein "I credit Grieder s testimony to this effect I discredit Palumbo s denial thereof Of the two witnesses Grieder was more impressive by his demeanor as a frank , forthright truthful and honest witness As I evaluate the evidence it is insufficient to reveal that in fact Palumbo went on Simmons route for the purpose of finding something wrong "He won't be here long I will see to that " d Subsequent to Davoren's questioning of Simmons and others on July 14, 1967, about what transpired at the July 14, 1967, deposition hearing, the Respondent entered into a settlement agreement in Case 13-CA-7875 which was approved on August 18, 1967 The terms of the settlement agreement provided for compliance with the terms of the agreement and the posting of a remedial notice The terms of the agreement indicated that the notice would be posted for 60 days and the term of posting apparently ended around October 18, 1967 There is no evidence that Simmons engaged in union or concerted activity during this time Nor is there evidence to indicate that he committed any act in relation to his work which would create the remotest possibility for reprimand or other similar action by the Respondent Similarly, there is no evidence to indicate that the Respondent engaged in any antiunion or other conduct violative of the Act during this period of time Also, from that point forward in time, there is no evidence to indicate that Simmons engaged in union or protected concerted activity until the date of his discharge Similarly, there is no evidence that Simmons committed any act in relation to his work which would create the remotest possibility for reprimand or other similar action by Respondent until the June 22, 1968, picnic incident Nor does the evidence indicate any antiunion or other conduct violative of the Act during this time up to the June 25, 1968, discharge of Simmons e There was much evidence submitted by the General Counsel and Respondent concerning rules, rules relating to fighting, and past action relating to fights The General Counsel's witnesses testified to the total effect that the Respondent had certain rules which from time to time had been read or adverted to, or which had been posted, that the rules they had seen were on separate sheets of letter size paper or on yellow legal size paper, that the rules in the form presented at the hearing by the Respondent were never seen by them, and that they had never heard of a Respondent rule against fighting The Respondent's witnesses in general testified to the effect that the Respondent had had a rule against fighting for several years, that in early 1968 such rule and other rules had been put together in the form submitted at the hearing, and that when such was done it had been done so that copies thereof could be given to all employees The Respondent's witnesses testified to the effect that the rule against fighting was the one set forth in this compiled set of rules Davoren, one of the Respondent's top supervisors, when first examined, testified that he had seen this set of rules only shortly before the hearing in this case in October 1968 Many of Respondent's witnesses testified that this last compiled set of rules had been read to employees several times in early 1968 and in June or July 1968 Most of the witnesses, except Harley, could not recall whether they had read the fight rules themselves nor could they identify who read the "fight" rules Harley, Respondent's witness and a supervisor, testified in effect that he had read the rules and the fight rules to employees in early 1968 Harley, however, testified that the "fight" rule that he had read was not the rule as set forth in the rules the Respondent now contends were in effect, that the rule he read simply said employees fighting would be subject to dismissal Subsequent to the discharge of Simmons and during the investigation of this case by the Region, the Respondent submitted on its stationery dated July 1, 1968, references to two incidents of fights, the Respondent' s actions 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereto, and reference to a rule to the effect that fighting would not be tolerated on the premise. There was evidence as to certain fight incidents among employees and the fact that Respondent had discharged such employees for fighting." With respect to the evidence relating to employees discharged for fighting, such evidence would be consistent with a finding of no rule at all against fighting but normal exercise of judgment, with a finding that there was a rule against fighting on the premises, or with a finding of the rule contended by the Respondent as being in effect. All of the employees discharged for fighting were involved in fights on the job excepting for one knifing incident involving an employee riding with other employees on the way home. It is clear that, even if the last incident were not covered by a rule, the Respondent, absent discriminatory reasons, could have discharged the employee involved. I am convinced that the weight of the evidence requires a conclusion that Respondent did not have in effect on June 25, 1968, the rule against fighting which it contends was in effect. This contended rule was as follows: Disobedience- Fights All sales personnel who intend to incite or to create a disturbance by action, verbally or by fights shall be subject to discharge. Any employee striking another person shall be discharged immediately. If one person or persons enter into the fight, the person or persons striking the blows shall be subject to discharge. Abusive or threating [sic] language, profanity to a customer, or the employees supervisors shall be reason for discharge. I find it hard to believe that the Respondent would have compiled the rules (in the form contended in January 1968 for distribution to employees) and not have distributed such copies to the employees shortly thereafter. It is clear that copies of the rules had not been shown or distributed to employees prior to June 25, 1968. I further find it hard to believe that Davoren would have testified at one point in his testimony that he had seen the set of rules submitted only shortly before the October 1968 hearing in this matter. I am convinced that Harley testified truthfully when he said that the rule he read in early 1968 was not the rule in the contended set of rules. The language in Respondent's July 1, 1968, reference to fights and rules indicate that the fight rule was designed for on-the-premises problems. Considering all of the foregoing, I am convinced, conclude, and find that the Respondent's rule relating to fighting is not the one presented in this hearing in document form. The weight of the evidence, however, convinces me that the Respondent did in fact have a simple rule to the effect that employees who engaged in fighting on the premises or at work would be subject to discharge. I am convinced that this rule was read to some employees by Harley. The evidence is not convincing, however, that this rule was read often or emphasized. I am convinced that the General Counsel's witnesses' denial of having heard of a rule against fighting is because it was not read to all employees and was not greatly emphasized in reading. Further, I am convinced from the positions each held that it would have been passed off as not being likely to occur with respect to himself. There was also evidence, and I find such evidence credible and so credit, that Respondent had rules against "The General Counsel' s brief refers to the failure of Respondent to discharge an employee Womach for fighting. The evidence thereto was hearsay in nature, was objected to, and was stricken "shortages" and against use of profanity toward supervisors. With respect to the rule against shortages, the evidence reveals that there was an employee with `shortages" who had not been discharged. I credit Passarelli's testimonial explanation that the employee was not discharged because of a desire to recoup the shortages. The evidence as to the rule on "shortages" and the failure to discharge the employee for shortages, therefore, has no persuasive value with respect to the issue in this case f 20 Prior to June 1968 there had been for some years an annual picnic for personnel of the Nehi-Royal Crown Corporation. Prior to June 1968 management personnel started the impetus for the annual picnic in 1968. Thus it may be said that the planning and preliminary details for the June 1968 picnic for personnel of Nehi-Royal Crown Corporation was done by management. Management caused a permit to be secured for use of the Dan Ryan Woods and made arrangements for food. It may be said that management provided the impetus but that the impetus was in somewhat of a suggestive manner with employees having a degree of approval. Thus employees contributed $15 each for the costs of the picnic. Management contributed certain prizes for the picnic. These prizes had been awarded the Respondent as prizes in a contest sponsored by American Can Company in relationship to the sale or usage of American Can Company products. These prizes had been given to Passarelli, for the Respondent, by the American Can Company without instructions or restrictions on his usage or disposition thereof. It appears that Passarelli's decision to distribute such prizes at the annual picnic was in recognition of the employees' work in connection with such contest. In any event Passarelli did decide and did distribute such prizes at the June 22, 1968, annual picnic. It may be said that the background of facts of the annual picnic would lead to a conclusion that the annual picnic was a practice that the employees could rely on continuing . On the other hand there are no facts to suggest that the employees were compelled to participate in such fringe "benefit" of employment. "The facts are based upon a composite of the credited testimony of all witnesses who testified with respect to the picnic and fight As to the testimony with respect to what Cooksley said and to the fight, there is conflict The testimony of all witnesses reveal that Cooksley's conduct created a problem. Freeman, Clawson, O'Donnell, Paris, and Simmons all testified to Cooksley' s using extremely profane and offensive language at the picnic and directing such language toward Simmons . Soltis' testimony as to the incidents was generalized and has little value in determining the facts Noti testified to Cooksley's use of profanity but not to the precise words attributed to Cooksley by Freeman and the others . Krolak testified to the extent that he heard Cooksley use profanity but not the words attributed to Cooksley by Freeman and the others Harley testified to what he heard, but his questioning as to detail leaves the question open as to whether words may have been used that he did not hear. Cooksley as a witness was unimpressive, and I am not convinced that he actually could recall much that occurred. Weil's testimony indicated that he was at the picnic for such a short time that much could have gone on that he did not know about Davoren and Passarelli, in their testimony to this event, appeared reluctant to go into detail and were somewhat evasive Graebner as a witness did not appear to be strong or forthright As is obvious, at a picnic there is much activity and a witness may hear only part of what goes on . Considering the demeanor of the witnesses and the logical consistency of all of the evidence, I am convinced that Freeman, Clawson, O'Donnell, Paris, and Simmons were frank , honest, and truthful witnesses to the events and credit their testimony as to what Cooksley said. I discredit the testimony of Passarelli, Davoren, Cooksley, and Graebner, which appears contradictory thereof, because of demeanor and logical consistency of the evidence I discredit the testimony of Harley and Krolak to the extent that it may be argued to contradict the facts found on the basis of unreliability as in relation to specific words used. NEHI ROYAL CROWN CORP. 103 At this picnic, in addition to food, soft drinks, beer, and sundry games, there was a softball game between the north- and south- side salesmen . The participants in this game had made a bet of $10 each on the outcome of the game. Attending this picnic were management personnel, supervisors, employees, and wives and children of the foregoing. As indicated, there was beer available for those at the picnic and some of the employees drank beer during the picnic. One employee named Doss apparently drank too much beer and as a result lost control of proper discretion in the language he used. Harley, around the fifth inning, took Doss away from the picnic to his home. Employee Cooksley also drank too much beer and as a result lost control of proper discretion in the language he used. Cooksley's language became more offensive as the softball game progressed and especially after the fifth inning. Respondent's supervisors took him out of the softball game but allowed him to stay near the first base position on the sidelines. Cooksley referred to Supervisor Passarelli in an offensive way but Passarelli passed the remark off. As indicated at this picnic Cooksley, an employee from the "north side," used language in the presence of fellow employees and wives and children of employees which clearly reached a very offensive stage. Much of his language of offensive quality was directed toward Simmons, an employee from the "south side " The verbal abuse that Cooksley showered upon Simmons occurred during the playing of the softball game and continued for a number of innings." Finally, Simmons indicated to Cooksley that he had stood all that he could stand and that he was going to smack him when the third out came. Cooksley, who was near Simmons who was playing first base, replied in continued offensive language that he would be there. After the third out ensued , Simmons proceeded to hit and to knock Cooksley unconscious. Passarelli, Davoren, and others proceeded to calm things down. In remarks made at the time both Passarelli and Davoren indicated to Simmons that he should not have done what he did and that it would mean his job. Cooksley and Simmons apologized to each other for their conduct. g. On Monday, June 24, 1968, Simmons went to work as usual Simmons attended the morning sales meeting and thereafter went out on his route. That night Davoren telephoned Simmons at home. Davoren in effect told Simmons that they were in trouble as a result of the Saturday incident and that he should come in and see him the next morning. h. On Tuesday, June 25, 1968, Simmons went in to see Davoren and saw him in a Mr. Schultz' office. Davoren told Simmons that in his position he had to do a lot of things he did not like to do, that what he was about to tell Simmons he did not like to tell him, but that he had no alternative but to fire him. Simmons pleaded with Davoren for his job.22 Davoren told Simmons that he could not do anything about the matter, that Weil made the final decision. Simmons asked Davoren if it would do any good for him to see Well. Davoren told Simmons that it might do some good but that he would have to wait until the next day to see Weil. "The language used by Cooksley was so offensive that it is not set forth herein Suffice it to say that it was such that one should not blame Simmons for his reaction thereto. "Exactly what was said was not testified to. Simmons went out and helped the supervisors, who were running his route, to run the route for the rest of the day. The next day, June 26, 1968, Simmons saw Davoren prior to seeing Weil. Davoren told Simmons that he was going to have to be away on business but to see him later also. Simmons then went in to see Weil in Weil's office. Simmons spoke to Weil and asked for a few days' suspension instead of a discharge. Simmons referred to past incidents as to other employees where layoffs had been used. During the conversation Weil mentioned twice that the discharge of Simmons had nothing to do with what Simmons had been involved in last year (1967). Simmons replied that he had not brought that matter up. Weil told Simmons in effect that the decision to discharge him was final.:" i. In summary, with respect to the contentions and conclusions, the following is set forth. The complaint alleged in effect that the discharge of Simmons on June 25, 1968, was because of union activity and because he had filed charges or given testimony under the Act. The complaint places in issue conduct violative of Section 8(a)(3) and (4) of the Act. In my opinion the evidence is speculative as to whether the Respondent was thinking in terms of Simmons' deposition appearance at the time of his discharge. The General Counsel apparently agrees because his contention in his brief is directed specifically to a discharge because Simmons engaged in union activity. The General Counsel contends in effect that the totality of the evidence reveals that Simmons was discharged on June 25, 1968, because of his past union activities. The General Counsel argues that the evidence of Simmons' union activities, the Respondent's knowledge of such activities, the Respondent's acts violative of Section 8(a)(1), the Respondent's expressed hostility toward Simmons made in connection with his union activities, and the disparate treatment of Simmons with respect to the picnic fight incident reveal conduct violative of Section 8(a)(3) of the Act. Certain of the General Counsel's factual contentions, not referred to above, have already been disposed of. The Respondent contends that Simmons was discharged for cause, was discharged for violation of a contended rule against fighting, and that Simmons was not discriminatorily discharged. Considering all of the facts set forth herein, I find merit in the General Counsel's contentions and lack of merit in Respondent's contentions. The facts do not support a discharge for cause defense. The incident for which Simmons was discharged occurred on nonworktime, off premises, and certainly was not in connection with his job duties. Nor do the facts support a finding that Simmons was discharged for violating a rule against fighting. The credited facts reveal that the Respondent's rule against fighting was with reference to employees on the premises or on the job. It is clear that the rule was not applicable to the June 22, 1968, picnic incident. Furthermore, at the picnic neither Davoren nor Passarelli referred to the rule in talking to Simmons, nor did Davoren or Weil refer to the rule in talking to Simmons later with respect to his discharge. Even were I to accept the Respondent's contended rule against fighting, the overall evidence would reveal the intent of the rule to apply only to employees on the premises or on the job. It is thus clear that Simmons was not discharged for "The facts are based upon Simmons' credited testimony. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of a rule. I am convinced from a consideration of all of the facts that the Respondent discharged Simmons on a pretextuous basis because of fighting, later decided to use a rule as a pretextuous reason, realized its rule was not applicable, and devised a new rule that would appear applicable. The facts simply reveal that the Respondent discharged Simmons allegedly because of fighting. The question is Respondent's motivation in such discharge. The evidence clearly reveals that Simmons was a leading spokesman for the Union in March, April, May, June, and July 1967, that Respondent knew of this, that Respondent was opposed to unionization and interfered with its employees' rights in violation of Section 8(a)(1) of the Act, and that Respondent expressed hostility about Simmons because of his activities and revealed a desire to get rid of him. Intervening facts between such activities and June 22, 1968, reveal no opportunity for Respondent to have an alleged basis to get rid of Simmons. Respondent's acts in August and October 1968 reveal continued opposition to employees' rights under the Act. The Respondent's treatment of Simmons by discharging him as compared to no action against Cooksley reveals disparate treatment and is evidence of discriminatory intent. Cooksley's extremely provocative and vulgar language certainly warranted equal, if not harsher, disciplinary action. One of Respondent's testimonial contentions was that because of mixed employee groups it felt it had to be rigid in its rule for discharge because of fighting This contention does not hold up in view of the disparate treatment of Simmons and Cooksley. Considering all of the facts and the foregoing, I conclude and find that the evidence establishes that the Respondent was discriminatorily motivated in the discharge of Simmons on June 25, 1968. Accordingly, I conclude and find that the Respondent by such conduct violated Section 8(a)(3) and (1) of the Act.2° 2. Other postsettlement conduct a. The events of August 16, 1968 On or about August 16, 1968, employee Eugene O'Donnell, a driver-salesman, had a conversation with Supervisor John Swistowicz.26 What occurred is revealed by the following credited excerpts from O'Donnell's testimony.26 Q. And do you recall about how long ago this conversation took place? A. I would say around August 15th or 16th, in around there. A. I brought back three stops I was unable- I was unable to finish them on the route. * * * * * A. Accounts that I was supposed to do that day. I brought back - A. I walked in and I told him, I said, "John, I got three stops." And Mr. Spiotto started, said, "You can't handle the route " And various things. And John Swiss says, "That's right, you can't handle the route. Give us your stops. You know what the rules are." I told Mr. Swiss, I said, "John, I do know what the rules are. These -- there is a question whether these are my stops or not." I says, "I will run these stops." I says, "I will take the commission on all pop put in these stops in the last six months." Mr. Swiss said, "You are going to run these stops or you ain't going to work." We went out in the drivers' room, got out there, took two steps and says, "O'Donnell, I am sick and tired of you bringing the union in every time we have a grievance " I said, "John, I am going to run these stops, but I want the commission on them for the last six months." Q Do you recall anything else being said at that time? A. He said he is going to find out about this, and that was it. He dropped it. Considering the foregoing, I conclude and find that the Respondent, by Supervisor Swistowicz, coercively interfered with O'Donnell in the exercise of Section 7 rights. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. b. The events of October 9, 196827 On October 7, 1968, Dusek, a driver-salesman for the Respondent, encountered a problem while making deliveries to a Mayflower store in the Chicago area. At the time Dusek was making his delivery there were drivers present from other companies (Coca-Cola and Pepsi Cola). The Mayflower receiving clerk told Dusek and the other drivers to move their trucks immediately because a Mayflower truck was coming in. Dusek told the receiving clerk that he had to finish his delivery. The clerk responded, "You get your truck out of here now." On October 8, 1968, Dusek attended a union meeting (Teamsters). At this meeting there were other Respondent drivers as well as drivers from other companies. The foregoing Mayflower incident was discussed with Dusek taking an active part therein. The union president was requested to and stated that he would take care of the problem. Prior to the foregoing incident, Dusek had had similar problems at Mayflower. About 9 to 12 months before October 1968, Dusek had reported such problems to his supervisor, Chuck Fanson. Fanson had indicated that there was nothing that could be done about the problem although he spoke sympathetically about the problem to Dusek. On an occasion prior to this Dusek and other Respondent's drivers had been at a union meeting in which Dusek had voiced a grievance on behalf of a driver named Ceroti. Later, Passarelli had called Dusek into his "Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059. "Referred to in the complaint and testimony as John Swiss. "Swistowicz as a witness did not appear to have a reliable memory of the event. To the extent that it differed from O' Donnell's version it is discredited because of unreliability "The facts are based upon a composite of the credited testimony of Dusek, Weil, and Passarelli and the logical consistency of the evidence. Well's testimony on direct largely corroborates Dusek ' s. I discredit Passarelli' s and Weil's testimony inconsistent with the facts found. I discredit Weil's and Passerelli' s testimony to the extent the Respondent did not know of the union meeting before this event. NEHI ROYAL CROWN CORP. 105 office and said, "Come here, Crusader," had asked Dusek why he took it on himself to stick up for Ceroti, had asked Dusek who did he think he was questioning the union president, and had told Dusek that he should not interfere because Ceroti was a southside driver and that he should not be misled by those "guys." On October 9, 1968, Passarelli received a telephone call from Graebner, the salesman who handled Dusek's route. Graebner told Passarelli that the Respondent had a problem at the Mayflower Food Store, that they could lose all or part of the business. Graebner related that the Mayflower grocery manager had told him that Dusek had talked the Pepsi Cola and Coca-Cola drivers into not making deliveries to the store unless the situation was cleared up. The problem as indicated was about such drivers having to move their trucks so that other trucks could be moved in their place for unloading. Passarelli called the Mayflower grocery manager. The Mayflower grocery manager stated that he was quite upset, that if Dusek had come to him that he might have been able to do something about the matter, and that he did not want problems with the Coca-Cola, Pepsi, or Royal Crown (Respondent) drivers. Passarelli thereafter related to Weil the effect of his conversation with Graebner and the Mayflower grocery manager. Thereafter on October 9, 1968, Dusek found a note on his spindle at work which set forth that he was not to leave on Thursday a.m. (October 10, 1968) without seeing Passarelli. On October 10, 1968, Dusek saw Passarelli who told him that President Weil wanted to see him and Union Steward Mrowek. Shortly thereafter there was a meeting in Weil's office with Dusek, Weil, Passarelli, and Mrowek in attendance. Weil started the meeting by asking what had happened at Mayflower. Dusek told him that nothing had happened. Passarelli stated that the Company was having trouble with Mayflower because the drivers had gotten together concerning having to move their trucks for trucks Mayflower felt more important. Passarelli stated that he had heard through his salesmen that Mayflower was contemplating cutting down on Respondent's business. Passarelli asked if Dusek had gone around talking to the other drivers and gotten together with the other drivers and talked to the Union about having the Union straighten the matter out. Union Steward Mrowek stated in effect that the Mayflower incident must have been what the Coca-Cola driver had referred to at the union meeting. Dusek said at that point, "Yeah, and I backed up the Coca-Cola driver too. You don't know what we have to go through backing up our trucks and pulling out for a produce truck, meat truck or dairy truck." What then occurred is revealed by the following credited excerpts from Passarelli's credited testimony. A I mean Mr. Weil says, "I am paying you to make the delivery, so what is the difference if we wait a little longer?" He said - gave his opinion why he shouldn't. He could make more stops, et cetera, et cetera. So I turned around then and I said , something to the effect, "Why don't you quit?" I said, "You have had so many problems with me in the last four or five years," I said, "Why don't you just quit. I will give you a couple extra weeks' vacation pay. I will give you a letter of recommendation." I never bum rapped a guy once he left my company. I never bum rapped or refused the man a letter. He says, "I like my job." I said, "If you like your job, why the hell don't you do a good job and stay out of trouble?" Under a different factual situation the Respondent might defend on the basis of motivation because of legitimate business interests. The instant case, however, does not support such defense. The facts herein clearly support a finding that Respondent was irritated because Dusek had carried his grievance to the Union, interrogated Dusek about his activities at the union meeting, revealed knowledge of such union meeting, and strongly suggested that Dusek quit. It is true that the conversations took place in the presence of a union steward. Considering the nature of the threat, however, little weight is given this fact. As I see the total conversation, it reveals that it was done in a coercive manner. Thus it is clear that the interrogation of Dusek as to his concerted and union activities was done in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. It is also clear that the revelation of knowledge as to the union meeting was done in such a manner as to create an impression of surveillance as to union activities. And it is also clear that the strongly suggested "quit" was tantamount to a threat to discharge Dusek because of his union activities. Such conduct, as indicated, is violative of Section 8(a)(1) of the Act. I so conclude and find. c. The events of August 1968 =" The General Counsel alleges in complaint paragraph VI(v) that "[d]uring the months of August, September and October, 1968, Frank Passarelli coerced, interfered with, and threatened to discharge employees because they were engaging in protected concerted and/or union activities." From time to time for at least about 4 years, some of the employees of Respondent went to Tureks Tavern, located close to the plant. The occasions were not preplanned meetings. On such occasions, after work, such employees discussed the events of the day. Thus, there was discussion of their working conditions such as loading problems, and waiting in line . From time to time some of the Respondent's employees also frequented other taverns close to the plant. As would appear obvious, some of the employees who frequented these taverns drank alcoholic beverages. Some of the employees played pool for money and some of the employees played cards. During the 4-year period preceding August 1968 the Respondent by one means or another had reason to believe that some of its employees were drinking at said taverns and not going home within a reasonable time after work. When some of the employees' wives telephoned Respondent and inquired as to where their husbands were, the Respondent believed them to be in the nearby taverns. Some employees showed up to work in a condition (from drinking) that Respondent did not desire in its employees. The Respondent also had reason to believe that some of its employees were gambling in the referred to taverns. During the same 4-year period the Respondent had reason to believe that some of its employees were stealing from the Respondent and its customers. The Respondent also had reason to believe that some of the plans for such believed stealing and some of its drivers' shortages arose "The facts are based upon the credited testimony of Dusek, Noti, Davoren, and Passarelli 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in discussions by some employees in the taverns and flowed from activities in the taverns During the 4-year period preceding August 1968, Respondent's supervisors, from time to time, advised employees not to frequent the said taverns At various times the Union representing Respondent's drivers told the Respondent that the Respondent had no right to tell the employees to stay out of said taverns Sometime in August 1968 Passarelli left a note for Dusek as follows It has come to my attention that you are patronizing taverns in or around the plant I would advise you to stop this practice or you may be in trouble You can take this advice or leave it, but only you will suffer the consequences Frank The General Counsel apparently contends that the facts of employees' discussing (at the taverns) working conditions and problems, coupled with the foregoing note, and Passarelli's remark to Dusek about being a "crusader" concerning the voicing of a grievance about Ceroti at a union meeting add up to a finding that the note constituted a threat to discharge employees because of protected concerted and/or union activities Considering all of the facts, I find that the General Counsel's evidence does not rise beyond the stage of suspicious speculation I am convinced and conclude and find that the evidence is insufficient to support a finding of violation as alleged IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent violated Section 8(a)(3) and (1) of the Act by the discriminatory discharge of James W Simmons, it is recommended that Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimination by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the said offer of reinstatement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F W Woolworth Company 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co 138 NLRB 716 As the unfair labor practices committed by the Respondent were of a character which go to the very heart of the Act, it is recommended that the Respondent cease and desist therefrom and cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act CONCLUSIONS OF LAW I Nehi-Royal Crown Corporation is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By interfering with, restraining, and coercing employees in the exercise of their 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 By discriminating in regard to the hire and tenure of employment of employees thereby discouraging membership in or activities on behalf of a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in or activities on behalf of Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, or in any other labor organization of its employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of any of its employees (b) Interrogating employees concerning their or other employees' union affiliations or protected activities in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act (c) Threatening its employees with discharge, loss of earnings, loss of jobs, or other reprisals because of their activity on behalf of any labor organization (d) Creating the impression of surveillance of its employees' union activities by informing them of their knowledge of such activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer to James W Simmons immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges (b) Make whole James W Simmons for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement in the manner set forth in the NEHI ROYAL CROWN CORP. 107 section entitled "The Remedy." (c) 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, and all other records relevant or necessary to the determination of the amounts of backpay due and to the reinstatement and related rights provided under the terms of this Recommended Order. (d) Post at its premises in Chicago, Illinois, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by 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. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.3° IT IS FURTHER RECOMMENDED that , excepting for the allegations relating to conduct found violative of the Act, the other allegations of violative conduct be dismissed. "in the event that 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 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 Respondent has taken to comply herewith." 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 Relations Act, as amended, we hereby notify our employees that: WE WILL offer James W. Simmons 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 pay he may have suffered by reason of the discrimination against him. WE WILL NOT discourage membership in or activities on behalf of Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, or in any other labor organization of our employees by discharging or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment of any employee. WE WILL NOT interrogate our employees concerning their or other employees' union affiliation or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with: discharge, loss of earnings, loss of fobs. or other reprisals because of their activities on behalf of any labor organization. WE WILL NOT create the impression of surveillance of our employees' union activities by informing them of our knowledge of such activities in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. All our employees are free to become or remain or to refrain from becoming or remaining members of Liquor and Wine Salesmen's Union Local 62, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO, or any other labor organization. NEHI-ROYAL CROWN CORPORATION (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7570.