Crown Distributors, Inc.

CROWN DISTRIBUTORS, INC. 01 Crown Distributors, Inc. and Teamsters Local Union No. 25, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 1-CA-9246 and 1-RC-12851 May 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 30, 1974, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed briefs in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 1 and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. eight-to-eight tie vote, with one challenged ballot. An order consolidating the complaint and representation cases was issued on October 10, and the Company's unsupported objections in the representation case were withdrawn at the trial. The challenged ballot was cast by beer salesman Joseph M. Manning, who was discharged 2 days after a union meeting was held at his home . The primary issue in the complaint case is, and the outcome of the election depends upon, whether the Company, the Respondent, discrimina- tonly discharged Manning because of his union activity, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Massachusetts corporation, is engaged in the wholesale distribution of beer and related products at its place of business in Allston, Massachusetts, where it annually receives beer valued in excess of $50 ,000 directly from outside the State . The Company admits, and I find, that it is engaged in commerce within the meaning of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Crown Distributors, Inc., Allston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. t As the record adequately presents the positions of the parties, Respondent's request for oral argument is hereby denied. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were tried at Boston, Massachusetts, on November 6-7 and 26-29, 1973.1 The charge was filed by the Union on August 1, and the complaint was issued on September 14. The petition in the representation case was filed on July 25, and the election (directed by the Regional Director and conducted on September 26) resulted in an r All dates are in 1973 unless otherwise stated II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Company became the Schlitz beer distributor in the Boston area on March 1 , 1970. One of its top salesmen from then until his discharge was Joseph Manning, whose earnings grew from $18,000 in 1971 to $25,000 in 1972, and whose earnings in 1973 (based on increased commission checks before his discharge) were expected to reach $30,000. On Wednesday, July 25, while President Vincent Cacace was in Canada on a 1-week vacation, Sales Manager James Power suddenly-without warning-discharged Manning during the middle of the day and ordered him off his route. The Company had no replacement for him, and left his route without a regular salesman for the remainder of the summer (the peak season for the sale of beer). On the Monday evening prior to this sudden discharge on Wednesday, Manning held a union organizing meeting at his home. The Company denied any knowledge of Manning's union activity. President Cacace testified that he had decided the previous Friday, July 20, before going on vacation, to have Manning discharged, and had instructed Sales Manager Power to "let Joe go" before Cacace returned . Cacace further testified, at the beginning of the trial, that Manning was already discharged by the time Cacace first telephoned the Company from Canada that week. However, after the Company's telephone bill was 210 NLRB No. 160 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produced, Cacace admitted that on Tuesday, July 24, before Mammng's discharge, he placed a number of calls from Canada, and talked not only to Power but also to Vice President Bill Freid and Treasurer Marvin Gordon. (Both Freid and Gordon are shareholders in Whitehall Company, which owns 80 percent and Cacace 20 percent of the Company's stock.) The General Counsel contends that the Company's asserted reasons for discharging Manning, "one of the top commissioned salesmen in earnings of those employed," are absurd and that "this abrupt discharge of Manning who was conspicuously supporting the Union just at the beginning of the Union's organizational drive, leads one to reach the inescapable conclusion that the discharge was caused by Manning's union support." The Union, citing Manning's "outstanding sales record" and President Cacace's being "forced to retract his earlier testimony" when faced with the Company's telephone records, argues that the "only logical inference . . . is that Cacace initially attempted to cover up the truth concerning his contacts with [the Company] in order to hide the fact that he was informed on July 24 . . . about the meeting at Manning's house, and after conferring with co-owners Freid and Gordon, ordered Power . . . to discharge Manning." The Company contends that it had "numerous" reasons for discharging Manning, and concludes in its brief that "What we have in the present case is a situation where an employee was not following instructions, was not covering his accounts and as a result was falsifying his records... . The writer suggests Manning well knew he was in trouble and tried to get others to join with him for what he thought would be protection. He called a union meeting and before he turned the cards into the N.L.R.B. he was discharged for cause." The Company admitted its umon animus: President Cacace, who campaigned against the Union, testifying, "I would certainly fight, try to have a nonunion house, yes." The entire case involves the discharge of this single employee. However, his challenged ballot will determine the outcome of the otherwise tied election, and the length of the proceeding (6 days of trial and 1,039 pages of transcript) is delaying resolution of that representation matter. B. Circumstances of the Discharge 1. Manning's union activity Earlier in the year, some of the Company's salesmen began talking about the need of a union. (The Company had divided 10 previous routes into 12, adding two salesmen ; had discharged a probationary salesman; and had hired as a salesman a relative of President Cacace.) On April 27, Manning and probationary salesman Kevin McCormack spoke to an antiunion salesman, John Canty, about the need of a umon. Three days later, on April 30, the Company discharged McCormack. (As elicited by the company counsel, General Counsel witness McCormack testified that he felt he was unjustly discharged. However, that issue is not before me in this proceeding.) Manning continued to talk to other salesmen about the need of a union. Although there is no direct evidence that the Company was aware of his union activity at the time, the Company took an action late in May which indicated that it at least suspected Manning. It hired a private investigator to engage in secret surveillance of Manning on his route during the week of May 21. (This was the first and only time before Manning's July 25 summary discharge that the Company hired such an investigation.) When asked by company counsel whether Manning was actively engaged in "union business at that time," Manning credibly answered, "It was getting stronger, yes." (The purported purpose of this secret field investigation is discussed later in connection with the Company's defen- ses.) Several weeks later, the salesmen became concerned about the influx of Schlitz beer at a cut rate from a competing distributor in Springfield, and Manning con- tacted the Union. Upon receiving some union application cards, Manning called a meeting at his home on Monday evening, July 23. Eight of the twelve route salesmen attended. Manning talked in favor of union representation and passed out the union cards, which were signed and returned for Manning to give to the Union. Two of the twelve salesmen, David Pickering and Roman Orski, were quite reluctant to sign, but finally did. 2. Sudden discharge The Company gave no indication that it was considering the discharge of Manning. The Company had held a swimming pool party at Manning's home on July 14, and at the sales meeting on Friday morning, July 20, Sales Manager Power complimented Manning for the good time. Everybody, including President Cacace, applauded. Plans were made to have another pool party at Manning's home on September 14, a date when Power said "everybody would be off vacation and . . . weather would be still warm." There was still no indication of any company intention of discharging Manning on Monday morning, July 23 (the day of the union meeting at Manning's home that evening). Manning continued on his route, and Sales Supervisor Richard Johnson replaced Larry Keegan, who was on vacation that week. The next morning, Vice President Freid (whom President Cacace described as "a fellow that works over at Whitehall principally, and he is associated in the business with us in a non-active" role) was already in the office when Manning arrived at 7:30. Manning greeted him, "Good morning, Bill," but Freid made no response-not "even a hello .. . Usually it is a very happy office in the morning." Soon thereafter, Sales Manager Power-without the customary prior notice-took Sales Supervisor Johnson from the vacation relief assignment and instructed Johnson to go with Manning on his route that day. There is no direct evidence that either of the two reluctant cardsigners, or any other participant in the union meeting at Manning's home the night before, had notified Power upon leaving the meeting. However, there was no explanation for the sudden, unannounced change in assignment for Sales Supervisor Johnson early that morning, or for Vice President Freid's presence at that hour of the morning. Furthermore, salesman Pickering (one of the two reluctant CROWN DISTRIBUTORS, INC. 883 cardsigners) admitted when called as a company witness that he had expressed hesitancy at signing a card at the Monday night meeting because "I felt we were a little hasty," and testified that he did not get home until 1:30 that Tuesday morning-claiming that he "stopped and had a few beers on the way home." He denied telling his good friend, Power, about Manning's union activity. (Pickering did not impress me as being a trustworthy witness.) The following morning, Wednesday, July 25, Sales Manager Power called Manning into Power's private office. Power returned $ 1,000 which Manning had lent him earlier in the year from savings which he told Power he had from the operation of a bowling alley. He asked why Power was returning the money, and Power said, "I've had it long enough." Power said nothing about discharging Manning. Feeling "flush" with the returned money, Manning invited Power to lunch, and Power accepted. Sales Manager Power arrived with Sales Supervisor Johnson for the lunch, and announced to Manning (as Manning credibly testified): "As part of management, I hereby am telling you that you are no longer working for Crown Distributors, so turn in your cash and your route book." Manning said that Power had to be kidding, and asked why . Power answered, "conflict of interest [referring to the bowling alley] and not doing your job for the last couple of months." Manning asked if Bill Freid fired him and Power stated no, it was Cacace. Manning responded, "I'm a big boy now, Jim , there's got to be another reason than what you're giving me." Power (who "kept his head down the whole time," although "Jim is a stand-up guy and normally he'd look anybody in the eye") said he felt sorry about it and said he would give Manning 2 weeks of severance pay, vacation pay, and a good recommendation for another job. Power refused to allow Manning to finish his route that day. (Johnson did not testify. According to Power, "I indicated to Mr . Manning that he was parting company with Crown Distributors as of that moment [for] two basic reasons. One, that over the past several months ... Cacace and myself . . . termed his work as unsatisfac- tory and that he had an outside interest . . . taking time away from his main job, as far as we were concerned," devoting time to his bowling alley. (Emphasis supplied.) Power claimed he added , "Joe, you certainly didn't help yourself out at the sales meeting last Friday when you got into a heated discussion with Mr. Cacace.") The Compa- ny's defenses are discussed later. 3. No replacement The unplanned, summary nature of the discharge is manifested by the fact that the Company did not have a replacement available, and operated without a regular salesman on Manning's route for the next 2 months, during the busy summer season. It was not until about October 1 that the Company hired a salesman to replace Manning, and this new salesman was assigned only 136 of Manning's 166 accounts-only those in Cambridge . At the time of trial (which concluded on November 29), the Company still had not assigned a regular salesman to service the remaining 28 accounts in Charlestown, 1 account in Roslindale, and 1 in Dorchester. Different sales supervisors were required to neglect some of their normal duties in order to service certain accounts . Other accounts received no service, and had to call in their own orders. 4. Attempt to conceal When called by the General Counsel as an adverse witness at the beginning of the trial , President Cacace claimed that on Friday, July 20, before he went to Canada on vacation for a week, he instructed Sales Manager Power to discharge Manning : "I told Mr. Power to let Joe go and that I didn't want him there when I got back." Thus, according to Cacace , Power's July 25 discharge of Manning was merely carrying out a decision made 5 days earlier. However, when questioned by the union counsel, President Cacace gave such incorrect testimony that it reflects adversely upon his credibility, and his claim that the discharge decision had already been made. When asked if he contacted the Company during his 1-week absence, he testified, "I believe I called them ... Maybe twice," but "I'm not even sure that I called a second time. . . . I think Wednesday was the first time I called," from a restaurant in Niagara Falls. He testified that he then spoke to his secretary . When asked if he spoke to anyone else, he stated that he also talked with Sales Manager Power : "I asked him how the firing went and he said . . . he had done it." Thus, according to Cacace, he not only had decided to discharge Manning before leaving on his vacation, but he did not talk to anybody at the Company until the discharge was carried out. When the counsel began asking about how President Cacace had placed the call or calls from Canada, Cacace gave answers which left the impression that there would be nothing on the Company's telephone bill reflecting the calls. He testified, "I'm not sure whether I called from a restaurant or whether I called from my room, and I wouldn't have reversed the charges . . . If I called from my room, then it was a room charge . If I called from the restaurant, I would have had the change." (Emphasis supplied.) He positively testified, "No," when asked if he would have kept some sort of record of the telephone calls. When asked how he would segregate his business from his personal calls, he testified, "I may put it down on a piece of paper until I make out my expense report for the week. I have a memo book here, and in an instance like that, whatever it might have cost me I would have put down and worked it into the expense account for the week." He testified, "I might not" when asked if he "would keep some sort of record, if only for reimbursement purposes that would enable us to determine when you made this phone call." He added, "It might not be right down to the penny on the expense account, but I would make a mental note or it could be a paper note. . . . I would work that into a business reimbursable expense when I got back , one way or another. . . . I might not have it down as a telephone call . . . it might appear as a meal expense or a bar expense ... In other words, I would get it back but I wouldn't show that I made a telephone call during a vacation period " (Emphasis supplied.) The union counsel asked if Cacace would produce his expense voucher for that week and also the Company's telephone bill. The company counsel responded: 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. MURPHY: He can ask me, Your Honor, but I certainly would not ask Mr. Cacace. I see no relevancy at all ... It could be anyone calling from Niagara Falls, and if it shows one call or five calls, it proves absolutely nothing... . Upon my request, the Company did produce its telephone bill, which revealed that President Cacace had placed six telephone calls from Niagara Falls on Tuesday, July 24 (the day before Manning's discharge), and that the telephone charges had been reversed, contrary to Cacace's positive testimony. Thereafter, Cacace retracted much of his prior testimony, and admitted talking to Power on Tuesday before Manning was discharged. He also admit- ted talking to Vice President Freid and Treasurer Gordon on that Tuesday about the Springfield distributor situation. (The salesmen's concern about the cutrate competition provided by the Springfield distributor had precipitated Manning's contacting the Union.) Yet, Cacace still denied that he discussed, or was aware of, Manning's union activity. From his demeanor on the stand, President Cacace did not impress me as being a candid witness. Moreover, I consider it most unlikely that it was a mere lapse of memory, as he claimed, when he gave the earlier testimony-that he made only one or two calls to the Company that whole week, that Manning had already been discharged when he first called, that he would not have reversed the telephone charges, etc. I find that he was fabricating testimony in an effort to conceal what had happened. I also find that Sales Manager Power was less than candid when he testified about when the discharge decision was made. He did not deny that on Friday, July 20, he assigned working Supervisor Johnson to act as a relief for vacationing salesman Keegan, beginning on Monday, July 23; that Johnson replaced Keegan on Monday; that suddenly, without the customary prior notice, Power reassigned Johnson to work with Manning on Tuesday (following the Monday evening union meeting in Man- ning's home); and that he summarily discharge Manning, without prior warning, before lunch on Wednesday, ordering him to quit work immediately. However, Power claimed that he had delayed carrying out Cacace's purported prevacation instructions to discharged Manning because he needed some time to raise the money to repay Manning's interest-free loan. When asked why Manning was not discharged in Power's private office on Wednesday morning, when Manning repaid the loan before leaving on his day's route, Power claimed, "I didn't want to embarrass him in front of any office help or any employees and I figured that as long as he was going to meet me for lunch, that would be the time and place to do it, away from the office." While so testifying, he impressed me as attempting to fabricate a plausible excuse, rather than giving a candid answer. Sales Manager Power testified that Cacace first called him that week at home on Tuesday evening, when Cacace "wanted to know how I made out on the firing of Mr. Manning " He claimed that Cacace was "deeply surprised" by the $1,000 loan, causing the delay, and instructed him to make sure he discharged Manning the next day: "I'll be in touch with you some way or the other" to determine that it was done. (According to Cacace, he had given Power until the following Friday to have Manning discharged, by purportedly instructing Power on July 20 "to let Joe go and that I didn't want him there when I got back" the week later.) After weighing the conflicting testimony and all the circumstances, and having observed the demeanor of President Cacace and Sales Manager Power on the stand, I discredit their testimony that the discharge decision was made on July 20, before the July 23 union meeting in Manning's home. I infer from all the circumstances that one of the participants in the Monday evening meeting at Manning's home contacted Power after the meeting; that Power in turn contacted Vice President Freid who then went to the office early that Tuesday morning; that Power and Freid made the abrupt decision to take Sales Supervisor Johnson from the vacation relief assignment and to assign him to work with Manning on Tuesday; and that the decision to discharge Manning was made when or after vacationing Cacace talked by long distance telephone to Power, Freid, and Treasurer Gordon on Tuesday evening. I also infer that Power did not discharge Manning in his private office on Wednesday morning, not because of fear of embarrassing Manning, but because the discharge decision had not been definitely cleared with Whitehall Company until later in the morning. C. Manning as a Salesman 1. His record at the Company The General Counsel presented convincing evidence that Manning was one of the Company's best salesmen. Manning had 20 years of experience in the beer industry in the area. He was one of the first salesmen hired when the Company opened the distributorship, and he was one of the Company's top five salesmen in volume of sales. In the first 6 months of 1973, his sales amounted to $1,346,297, which was fourth from the highest, $1,480,733. (The sales records, which the Company produced upon request, show that 3 of the remaining I 1 salesmen had sales ranging from $625,000 to $861,000, and that 2 new salesmen, for the 3- month period from April through June, had sales of less than $337,000.) Manning credibly testified that, "I was very efficient in my bookkeeping. I kept a good record of everything. I was brewery trained . . . and I had a good system," which President Cacace had recommended that other salesmen follow. Manning and another salesman had won a brewery-run contest in a sales promotional earlier in the year. He was repeatedly complimented in sales meetings for high sales in malt liquor contests. (Although his sales were also high in the June and July promotion of the new nonpremium Old Milwaukee beer, and "I did my share of getting my floor displays up and the bookings on window signs," he opened only one draught account of that nonpremium beer in July, and none in June.) Sales Manager Power (contrary to discredited denials) "on occasion brought it up at sales meeting that I was a good collector," and stated that some of "the pros" like Manning "didn't have to have any lessons in collecting CROWN DISTRIBUTORS, INC. 885 money" (during the 60 days before the accounts became delinquent). Power, as well as Sales Supervisor Henry Van Dyke, had recommended at sales meetings that other salesmen follow Manning's system of marking newly delivered beer to assure that the drivers properly rotated it. Manning was also complimented for having "the most tonnage for delivery on Monday," a day when the Company urged higher deliveries to even out the work of the drivers . Power admitted that he complimented Man- ning at sales meetings, perhaps for something Manning did outstanding during the week, or for an "acceptable" sales presentation Manning went outside his normal duties on a number of occasions Once when 15 of his orders were not processed, he assisted a driver, when "I was completely dressed up," and delivered 600 cases of beer. Many times on Friday, he would assist in delivering beer when customers "didn't order enough , or there was a foul-up on an order," to build "good customer relations . You didn't want your customer to run out of beer." In March, he went with two other salesmen and "cleaned up the fellow's cellar," removing the empty barrels and cases, and delivering him beer (the work of drivers). He also went outside his route in helping another salesman deliver beer, and "There were times that I worked with Mr. Power, and we took stuff out of accounts " To be a good salesman, he would sometimes work "well into the evening," servicing his accounts. A former merchandising man credibly testified that Manning worked with him one Friday early in the year, installing Schlitz scintillating signs at customers on Manning's route until 7:45 or 8 p.m 2. Customers' praise There is no evidence of any complaints received by the Company from Manning's customers regarding his service. To the contrary, the General Counsel presented as witnesses 11 of his customers who stated their high regard for his service . Witness Igo (a large customer buying 1,000 cases a week) rated Manning as "excellent" for his consistency "Usually I gave him the order, and if he didn't get the order from me, he'd come back." Igo also explained, "He's on top of my exact sales all the time .. . he's the only salesman that would ever refer to where I was at a given date, as opposed to a year ago. . At the time that he needed [to] collect money, he always ended up with some . More than I'd like to give him, lots of times." Another large customer (a package store manager buying about 700 cases a week, at $4 to $4.50 a case) testified that Manning's service was the "very best," and that among 15 or 20 salesmen calling upon him, Manning was "Probably the best salesman I have ." Manning "made his calls every week, same day, same time," and helped expedite deliver- ies. (After Manning's discharge , he usually had to call in his own orders, and he complained to the Company that he was not getting deliveries on the right day.) Plumb (another large customer selling about 600 cases a week), who had known Manning before as a Pabst salesman , testified that Manning was always "very punctual and conscientious," and "always made his calls." (Since Manning's discharge, he has seen somebody from the Company only twice, and has to call in his own orders.) Norton (owner of another package store, selling 375 to 500 cases a week) testified, "I thought Mr . Manning was probably the finest salesman in the industry." Manning would take stock of the inventory, would know what to order , and "I never ran out of Schlitz." Manning rotated the beer, and kept the signs and displays clean. "Basically, I would have very little to do with Schlitz because Mr. Manning would take care of the entire thing for me. . . . I did not allow other salesmen to do what I allowed him to do," taking inventory and doing the ordering. "If I wasn't there on a Tuesday and Mr. Manning would miss me, he would somehow get back to me," as a courtesy, to "tell me what he had put in for an order." During warm weather, Manning "might come in [a second time ] and see if we wanted extra beer for the week end." (After Manning's discharge, he began doing the ordering himself and "I'd either be low on one product, out of it or be too heavy on one product." Regarding the new salesman who came later, "I don't want to knock anyone, but I don't know how experienced the salesman is that I have right now for them. He seems to be a very nice fellow, but I'd rather use my judgment as to what's going to come in.") Mrs. Ciampi (a small customer, with a woman barten- der) testified that Manning's services "were probably the best we ever had . We are two females there and it's difficult to do the ordering . And Joe used to come in every Friday and go downstairs and count what he had and put in an order for us. We never had to do anything when he was there." On the week before a Monday holiday, he would come in on Thursday : "it would delay our order a day if he didn't." (Since Manning's discharge, "We received no service at all. We had to call for several weeks .. . . And we met our new salesman once . And after that, I believe it wasn't until I called in and asked Schlitz, and I don't see much of him at all.") Cox (the manager of a barroom and restaurant) testified that Manning gave "very good service," that Manning had "permission to go down and check our stock downstairs," and, if Manning could not see Cox or the owner , "he had permission to put the order in. Joe . . . would contact us afterwards and tell us how much he put in for." Before a Monday holiday, he would come in on Thursday (a day early) "to see if I needed anything for the Saturday or Friday to carry me over until my order came in on Tuesday." In addition, "when Joe had a sale [promotion ] on he'd come in and really try talking us into taking more than we needed, in some cases and sometimes we did." (Cox complained that after Manning left, they had difficulty getting orders on time.) Feeney (manager of another restaurant and bar) testified that when he learned that Manning had gone, he telephoned the "sales manager or someone" and "I told him that I didn't know what the problem with Joe was, but as far as I was concerned , he was probably the best salesman I had call on me." Feeney testified that Manning called on him regularly "and then if there was a hot week end or something," Manning would come in on Monday or Tuesday "to see if I was there , and . . say `How did the week end go, do you need extra beer?' " (Monday was his regular delivery day.) Manning would "comment about how I was doing in comparison" with earlier Schlitz sales, and also with sales of Budweiser , "which had been our 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leading brand. I got so I was involved with Joe and said, `Jesus, Joe, you've finally broken even with Bud' and then a few weeks later, 'Joe, you're running 10 cases ahead of Bud.' I was like batting for Joe, and he developed this rapport with me." Manning supplied him some round globes and other point-of-sale material, and obtained him an outside sign by persuading him to install Schlitz draught beer, convincing him that despite the higher price, "there was money to be made in Schlitz with its name and reputation." Manning brought in a sample Schlitz mug, and promised him more, but Manning was then dis- charged. (Feeney testified that after the discharge, he ordered his own beer. He got no more of the mugs or point-of-sale material. He sold the draught beer at regular prices and never reordered.) Von Schoppe (a head bartender) testified that Manning gave him excellent service, and "rates up at the top" of the 14 salesmen calling on him. Concerning the state law requiring payment for beer within 60 days (or be placed on the cash-only list), he testified that Manning was good about collections. For example, Manning would come in and say, "this is the 17th" of the month, "you know, there's a check due the 23rd." He would then make sure the manager was aware the Schlitz bill was about due. (After Manning's discharge, and until about a month or two before trial, he would have to place his orders over the telephone.) Martucci (who managed a night club which was on Manning's Thursday route) testified that Manning regularly came on Mondays and Thursdays, and sometimes a third time during the week, and the service was "fine." (After Manning's discharge, the service was so poor that he replaced the Schlitz draught beer-about 40 half kegs a week-with a competing brand, and no longer sells Schlitz.) Witness Cinton (a military account) testified that Manning was the best salesman he had. Although he usually called in his own orders when beer was needed, because of limited storage space, and would give Manning an order only about 20 percent of the time, Manning would "come around to see if I needed anything . . . he was there faithfully all the time . . . if I didn't see him, the next day when I came in the guys would say, 'hey, your beer man was here looking for you.' " The salesman for Budweiser, the other main brand, would come "maybe once every two or three months." (Since Manning's discharge, "there's been a man out there twice and I've had one phone call from one of the girls in the order department" and "That's all I've heard from them.") Baldi (another military account) testified that he regularly saw Manning "about 3 out of 4 weeks during the month," although his office would usually have called in the order before Manning arrived. He testified that Manning "was a very pleasant man to deal with . . . he would come in and make his calls, make it as pleasant as possible, and go about his work." Manning would push the sale of Schlitz' malt liquor, "but I've always made the excuse ... we didn't have the room for it" because of his interest in selling only large-sale items. (I discredit the testimony by Baldi s assistant, company witness Mascia, that Baldi did not want the orders called in, and "We were [calling the orders in) because the salesman weren't coming around." Mascia finally admitted on cross-examination that he probably did tell Manning, "I don't have to see you; I call my orders in." I find that Manning called on this military account regularly, as he did the others, although the military accounts normally called in their orders.) Thus, these witnesses demonstrated why Manning was a top producer in sales. Their credited testimony showed that he was working hard, devoting time to his accounts, often calling on them more frequently than scheduled , aggres- sively promoting sales , effectively making collections, and both pleasing and winning the confidence of the custom- ers. In the context of such a performance record, his testimony that he was "shook up and confused" (from the discharge experience and litigation) is understandable. D. The Company's Defenses 1. Its witnesses At the trial and in its brief, the Company contended that it had "numerous" reasons for discharging Manning. In support of this contention, the Company presented two primary witnesses : President Cacace and Sales Manager Power, both of whom were less than candid, as found above, upon testifying about when the discharge decision was made . Although Manning regularly submitted many sales records which would have supported or belied various company accusations against him , the Company produced only a very few, selected ones. The Company presented only four other defense witness- es, and one rebuttal witness . One was its credit manager, who gave testimony mainly about the salesmen 's delin- quent accounts . However, the Company failed to take a positive position on whether the amount of Manning's bankrupt and other delinquent accounts was a reason for his discharge. Another defense witness was a grocer supply manager who testified about a mutual agreement 12 or 13 years earlier between that employer and Manning to end their relationship, calling it a discharge-though failing to mention that Manning was paid for the remaining 2 months of his ]-year written contract. A third witness, Mascia, was an employee of a military account. Manning had testified that this employee would say, "Who needs you? You can't do nothing for me anyhow," and that "He was the type of a guy that wanted something. I'll be honest with you. He had his hand out all the time." This employee testified that no, "I have no authorization to tell" Manning that, and denied that Manning called upon him regularly. As discussed elsewhere, I find that Manning did call upon this employee or his superior regularly. The fourth defense witness conducted a secret surveillance of Manning in May. The rebuttal witness, salesman Pickering , denied telling his good friend, Sales Manager Power, about Manning's union activity. Thus, as proof of its defenses, the Company relied almost entirely on the testimony of two officials who impressed me as being less than trustworthy, and who gave discredit- ed testimony about the timing of the discharge decision. 2. The defense in general At the time of Manning's discharge, Sales Manager CROWN DISTRIBUTORS, INC. 887 Power accused him of having a "conflict of interest" (operating a bowling alley), and not doing his work for the last 2 months. At the trial, when the General Counsel first called President Cacace as an adverse witness to relate all his reasons for deciding to discharge Manning, Cacace assigned many reasons for his decision. Then when the Company recalled Cacace as a defense witness, he gave still further reasons for the discharge. As the evidence developed, it became clear that Cacace was making unfounded accusations against Manning, and was fabricat- ing whatever might seem plausible, in the hope that some of the accusations would be credited. In its brief, the Company does not give a list of accusations which it asserts were proved Instead, it recites that President Cacace "testified that his reasons were numerous and could be summarized by the fact that [Manning] refused to follow instructions; for example, not following his route sheet in the order set out, not making his Friday calls in a holiday week, not calling on his military accounts, not calling or opening up new accounts and falsifying records (daily report sheets). . . . Mr. Manning also owned a bowling alley which may have been part of his problem. . . Prior to his final decision Cacace was aware that [Manning] had not opened up any draught accounts in the entire month. In June . . . no orders were taken on military accounts by Manning, but yet Manning indicated on his report that he called on them ... . Cacace was also aware that Manning had 12 unsold accounts in January . . . and had 12 unsold accounts the day he was discharged.... On July 20 . . . there was a credit meeting at which Manning . . . entered into a heated discussion with Mr. Cacace." (Emphasis supplied.) The Company's brief concludes that "there is no credible nonhearsay evidence that establishes any knowledge of any union activity on Respondent's part. . . . What we have in the present case is a situation where an employee was not following instructions, was not covering his accounts, and as a result was falsifying his records. Matters were deteriorating with Manning as far back as May . . . and to such an extent the Company hired a detective to follow Manning. Manning's record was reviewed July 20 ... . The writer suggests Manning well knew he was in trouble and tried to get others to join with him for what he thought would be protection. He called a union meeting and before he turned the cards into the N.L.R.B. he was discharged for cause." 3. Basic flaw in the defense Apart from the unfounded accusations against Manning, there is a basic flaw in the Company's defense. In its more than 3 years of business, the Company had had an aggressive sales organization, and had greatly increased its sale of Schlitz products in the Boston area. It had weekly sales meetings and, in Sales Manager Power's words, "We are looking to build a wholesalership. We want to touch all the pieces of the pie. " Yet, 2 days after the union meeting in the home of one of its top salesman, the Company suddenly discharged him without a replacement. His large route was neglected for months, and many "pieces of the pie" were not being touched. President Cacace gave this explanation: A. . . . We called Mr. Manning in on . . . June 7 I didn't tell him that we had a tail [on him in May] ... and we gave him a warning. Now on the basis of the information that was turned up at that time, I could have released him then, O.K. There was enough information to do it, because he had had previous warnings and this here was official, O.K. So at that time, out of the goodness of my heart, I said I'd give him another shot and trying to jolt him into realizing that what I am warning time and time again is for real, so that he would respond. And in my own mind, I said, I knew I was going on vacation in July, and I said, "Well, I'll give him some rope until July and then I'll check [our records] at that time and if he hasn't done it by that time, then that's the end, then it's over with." ... I told Mr. Manning that he was still running . . . I knew definitely that he was running. And I told him that it couldn't go on, O.K. Q. Did you tell him that he was going to be fired if it continued? A. . . . I didn't use that word that he was going to get fired if it continued, but I told him it simply cannot go on ... and the tone of the meeting was such that it certainly was a warning. Q. Did he improve after June 7? A. I gave him time to run . . . and let him have the freedom of doing his thing out there. . . . I didn't check him . . . . [Emphasis supplied.] Thus, even if this testimony were credited (and the repeated warnings were not fabricated), President Cacace was testifying that although he did not specifically threaten Manning with discharge, he planned to give Manning "some rope" and let him "do his thing," without being checked, until July when Cacace was going on vacation. Cacace would then determine from company records if Manning was still "running" (not devoting enough time to his accounts), and if so, "then that's the end." This meant that instead of giving one of his top salesmen some supervision to correct the purported deficiencies, he was allowing Manning to do as he pleased for several weeks, with the intention of discharging him if he did not improve. Even if this is the way a seemingly efficient Company would run its affairs, in deciding whether to discharge a key employee, I find it inconceivable that the Company would plan such a discharge without making arrangements for a replacement. 4. Specific defenses asserted Falsifying Records. It is clear that this defense was an unfounded afterthought. Sales Manager Power did not mention this purported reason when discharging Manning, and President Cacace did not allege it in August, when opposing the payment of unemployment compensation to Manning. (Cacace then contended that Manning was discharged for deliberately refusing, without good reason, to do work as directed.) According to Cacace, he claimed 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was studying Manning's sales records on Thursday and Friday, July 19 and 20, before going on vacation-to determine whether or not to discharge Manning-and found the falsification of military records at that time. Apart from other reasons, I find this implausible, in view of the plans made that Friday morning to hold another swimming pool party at Manning's home later in Septem- ber. I find that the study of Manning's records was made in preparation of trial, not before Cacace went on vacation. At the beginning of the trial, President Cacace testified that the Thursday study, "finishing up on Friday, showed that Mr. Manning was almost never calling on the military accounts in his market, which are a very, very important part of our business . . . and he had falsified some accounts indicating that he had taken orders at the military which actually were orders that had been called in by the military prior to the day that he was going up there, on a Thursday." Later in the trial, Cacace testified that there was "one instance where a couple of orders had been called into the switchboard on a Wednesday and had been put on his Thursday route as though he had made the calls." Later he testified that the study revealed that in June, when one military account ordered every Thursday, and another military account ordered 2 or 3 times on Thursday (Manning's regular call day), and the deliveries had been made on Friday, Manning had not placed the orders although it appeared from his daily route sheets that he was making the military calls. Thus, at most, the Company had only a suspicion that Manning was not making the military calls-from the fact that military accounts were telephoning in their orders on the day before or the same day he was supposed to call. Cacace claimed, "It would just seem to me that if that were his call day, and they were sure that Thursday was his call day that they wouldn't call the order until he got there and save a dime on the telephone." (Emphasis supplied.) The Compa- ny, at no time before the discharge, asked either Manning or any of the military accounts whether Manning was making the calls (as he and other witnesses credibly testified he was), even though the military accounts usually telephoned in their own orders. (I note that the first military account was the 22nd call on Manning's route sheet. Orders placed early in the day were more likely than late orders to be delivered the next day.) Moreover, Manning was entitled to the commissions on the orders which his customers telephoned in, and he was never criticized for showing such orders on his daily route sheet, to have a record of amounts used by the customer. When giving many purported reasons for discharging Manning, President Cacace at least implied that Manning had otherwise falsified his daily report sheet by showing that he had called upon a prospect (unsold account) on July 10, even though the prospect had gone out of business on June 28 Cacace claimed that he became aware of this about July 16, but did not mention it to Manning "because I knew I was going to be making an analysis of his territory the following week." I find this to be another afterthought. Manning (who impressed me as an honest, forthright witness) credibly testified that this was a night club which posted a sign, "Closed Temporarily," when it closed on June 28, and that he made a call there on July 10 to see if it was still closed. It is undisputed that Sales Manager Johnson also called on this prospect with him on July 24, for the same reason. On occasion Manning did skip accounts, without being criticized for it. As he credibly testified, he would sometimes pass up prospect calls because he had seen them the week before and "these were accounts that didn't handle any bottled beer and they were tied up" or bought by competing beer companies. He would sometimes also pass up his customers because "I knew they had enough beer. They were slow accounts," buying perhaps five cases a month. "In these particular accounts, I was the fellow that went down and checked the stock, and I used to send it in when they needed it." However, the Company did not contend that it was discharging Manning because of these exceptional occasions, and they did not involve falsifying records. (He generally drew a line through the name on his route sheet when he passed up a call.) "Conflict of Interest. " The Company accused Manning of having a conflict of interest, or spending working time at his bowling alley. (In its brief, it states that Manning "may" have done so.) I find that this is likewise an unfounded accusation. The Company had only a suspi- cion, at best. Sales Manager Power, who assigned this as one of the two reasons for discharging Manning, at one point testified, "We had fact that he was spending time at the bowling alley." (Emphasis supplied.) Upon being examined concerning this, Power testified that the Compa- ny's only evidence "related back to December 7 of the previous year when one of our sales supervisors saw him shortly after, I believe it was, 1:30 or 1:35 on a workday with his car in the vicinity of the bowling alley." Manning was never seen in the bowling alley during working hours, and the Company never questioned Manning about this purported report (which was not substantiated by the sales supervisor). I credit Manning's positive testimony that he never visited the bowling alley during a workday. Power later testified that he himself once saw Manning getting on the expressway at the Allston exit at 1:14 p.m., either going home or toward the bowling alley. However, that same expressway is often used by Manning to save time when going from the western part of his route in Cambridge to the parts of his route in eastern Cambridge and Charles- town. Moreover, the Company had notice at the time of the discharge that Manning used this expressway to go from Cambridge to Charlestown, because in the earlier secret report from the detective (hired when Manning's union activity was "getting stronger"), it was reported that on a Thursday, Manning left a customer (a scheduled Monday stop) in Cambridge at 1:10 p.m. and went at high speeds on the expressway to a customer in Charlestown, arriving at 1:35 p.m. In addition, Power testified that it was a Tuesday when he saw Manning entering the expressway, and I note that Manning's master route sheet for Thursday shows that Manning regularly called on accounts in Dorchester and Roslindale on Tuesday, and that Power admitted on cross-examination that Manning could have been going on Tuesday to eastern Cambridge or Charles- town to make a collection. If the Company had in fact suspected that Manning was going that day to his bowling CROWN DISTRIBUTORS, INC. 889 alley, rather than to customers on his route , it had never asked him. Jumping Around. President Cacace claimed that he stressed upon the salesmen that he wanted the preprinted daily route sheets followed "religiously . . . from the first call to the last call," on the scheduled day, and that Manning failed to do so. However, by so accusing Manning, Cacace was attempting to turn a virtue into a vice . Manning, himself, had prepared the routing on his preprinted sheets, to divide his large route into convenient geographical areas and to please the customers . But there was no prohibition against deviating from the route. Some flexibility was required for making collections, returning when the buyer was out, following the demands of the customers when to make the calls, and giving the type of service (described above by his former customers) in building the route. In order to sell more beer and please a customer, he would sometimes make two or three calls a week, although only one was scheduled . He was never criticized, before his discharge , for seeing accounts on nonscheduled days, as he credibly testified. (After testify- ing on cross-examination that each salesman was supposed to follow the routing on the preprinted sheets "without exception," Cacace did change his testimony to the extent that he stated "there may be an occasional exception," when the regular buyer was not in on the first call, or a collection was necessary .) Moreover, it was necessary to "double up" during the week preceding a Monday holiday. By Thursday of sucti a week, Manning would have called on most of his customers to determine if they needed extra beer on Friday for the long weekend, or to prevent late deliveries after the holidays (Friday was approximately a half day, because of the sales meeting every Friday morning. Manning had only 15 active accounts to service on Friday. Three of the nineteen scheduled calls were "prospects," or unsold accounts, and one had been moved at the customer's request to Thursday. Manning had an average of about 35 or 40 calls on other days.) I discredit, as a fabrication, the testimony by Cacace and Power that the salesmen, before a Monday holiday, were required to make all their Friday calls and as many Monday calls as possible on the short day, Friday, rather than doubling up earlier in oi, week. Heated Discussion President Cacace claimed that one of the things that triggered his decision on July 20 to have Manning discharged was Manning's being "one of the loud objectors to the system that we had . . our credit manager introduce . . . that would eliminate a lot of the mistakes that were occurring and bogging down the credit department." It is true that Manning and others objected, questioning the necessity of such a change. And the General Counsel strongly contends that if this were in fact a reason for the discharge, such a discharge for clearly concerted protected activity would violate Section 8(a)(1) of the Act. However, I find that this was not an actual reason for the discharge-only something seized upon after the Company learned of Manning's leadership in the union organizational effort. The Company had conducted the Friday morning sales meeting on a "democratic" basis, permitting or encouraging open discussion of differences in opinion. Outside and Window Signs. President Cacace testified that one reason for the discharge was that "in the Cambridge area, our outside sign position and our window neon position had, relative to our competition .. . decreased the most in the market." This is clearly a pretext. Manning had repeatedly reported how Budweiser was putting on a major campaign in Cambridge (where Budweiser had a brewery platform, or distributorship) to replace the Schlitz signs with more expensive Budweiser signs, and that he had been unable to get enough signs of the right type to offset the campaign . He readily and satisfactorily carried out instructions regarding what he could do. It is undisputed that Sales Supervisor Henry Van Dyke had complimented the Budweiser salesman "on the fact that I had taken down so many [Schlitz] signs, and he said he only wished that he had more signs to put up." Running. President Cacace testified , "In the beer busi- ness the worst term that anyone can be called as a salesman is an ordertaker or a runner. Mr. Manning was a runner." As discussed below, Cacace accused Manning of this on June 7 (under the circumstances of the secret surveillance), telling him that he was not spending enough time on his accounts, but Manning insisted that this was not right : that he knew his accounts, he had been in that area for 20 years, and he felt he was spending enough time with them. His high sales, and success in pleasing his customers, tend to support his position . Concerning Cacace's testimony that "Merchandising is very impor- tant," getting the customer to buy "through displays, rotation of stock, getting signs up, maintaining sign positions, keeping them clean , getting outside signs up, getting window neons up," Manning credibly testified, "Where I could get my displays in, they were in. When material was available, I got my quota of material, and I had them installed . Anything the Company asked me to do, I made sure I did." (His yellow supplemental sheets, in evidence, show how he placed advertising in the Old Milwaukee promotional.) Other Defenses. I find that the Company's claim that Manning was not calling or opening up new accounts is an afterthought . The evidence shows that Manning was calling on prospects (such as the temporarily closed night club mentioned above). He had opened his quota of seven or eight new accounts in 1972, and succeeded in opening one unsold account in 1973 . He had until the end of the year to accomplish his assigned goal of six. Sales Manager Power and different sales supervisors had joined him in calling on prospects, but they had failed to open any other new accounts. The Company's brief asserts that Manning had opened no draught accounts in the entire month before his discharge . In June, Manning failed to open any draught accounts of the nonpremium Old Milwaukee beer because, as he credibly testified, "Unfortunately, the customers that I called on, they weren't receptive to the Old Milwaukee. I had Old Milwaukee beer in a lot of accounts, and they discontinued it for various reasons." However in July, before his discharge, Manning opened one Old Milwaukee draught account, and also a Schlitz draught account, which was "hard selling"-taking him "almost 3 years of calling on Charlie's Kitchen to get draught beer in there ." (This is 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the draught account which was lost after Manning's discharge because of poor service, as customer Feeney, above, credibly testified.) President Cacace indicated that another reason for the discharge was that when he went with Manning on June 6, they opened only 10 Old Milwaukee package accounts, whereas on the day before, when Cacace went with another salesman on the same promotional, that salesman open 19 such accounts. He admitted on cross-examination, though, that "It's possible, certainly" that he and the other salesman covered more package stores on that day. I find this to be clearly an afterthought as well. President Cacace gave as another reason the fact that during the first 2 weeks in July, when the Company had a contest on selling malt liquor in eight-ounce cans, Manning failed to get any stores to handle that size can. However, the other 11 salesmen were able to place that size can in a total of only 10 or 11 of the 350 package stores selling malt liquor. (Three or four of the salesmen placed none.) Thus, the average placement was less than one per salesman, in a total of about 3 percent of the package stores. Cacace acknowledged that malt liquor "is a small part of our total" volume, and it is undisputed that Manning had repeatedly been complimented for high sales in malt-liquor contests. Yet, Cacace insisted that Manning's failure to open any eight-ounce malt accounts was part of his decision to discharge Manning, claiming, "It was part of the overall, tied in with the Old Milwaukee, tied in with the skipping and the jumping around and not covering. . . . That was not the sole reason. . . . Well, everything is weighted, and it certainly wasn't 50 percent or 25 percent, but a factor." When asked if he discussed this with Manning during that 2-week period, he answered, "No, not at that time." Upon being asked if he ever discussed it with Manning, he conceded, "No, I did not." I find that this is another clear afterthought, and illustrates the length to which Cacace was willing to go to build a case against Manning. 5. Secret surveillance As mentioned above, salesmen Manning and McCor- mack spoke to an antiunion salesman on April 27 about the need of a union; McCormack was discharged on April 30; and Manning continued to talk to other salesmen about the need of a union, although he did not seek out the Union until July. As also indicated, there is no direct evidence that the Company was aware of Manning's early discussions of the need of a union. However, about 3 weeks after McCor- mack's discharge, the Company (for the first time) hired a private detective, to engage in a secret surveillance of Manning on the job. The Company selected the week of May 21, the week before the Memorial Day holiday on Monday, May 28. Thus, it selected a week when Manning would be "doubling up" (calling on most of his customers on Monday through Thursday, to determine if they needed extra beer on Friday for the long weekend, and to prevent late deliveries after the holiday). I discredit President Cacace's initial testimony at the trial that "I'm not sure" if that Monday, May 28, was a holiday, and that "It wouldn't make any difference one way or the other." President Cacace testified that the Company hired the investigator "to verify first hand" that Manning was running and skipping accounts. Cacace claimed that he specified, "All I want to know is what time does [Manning] go into the account. What time did he come out of the account, and was he carrying any point of sale" material. (I note that Cacace must have also mentioned the possibility of Manning spending worktime in his bowling alley, because the investigator's report shows that the investiga- tor went to the bowling alley a total of three times on the first 2 days of the surveillance, Monday and Wednesday, when he lost track of Manning "because of the possibility of the subject not following the route on a daily basis as listed on the manifest supplied to me.") The investigation report shows that the detective made "No contact with subject" on Monday, and found him at only two stops on Wednesday. On Thursday, the detective found Manning first at George's Elite Cafe (which was one of Manning's "prospect" calls which the Company contends in its brief that Manning was not making). He next saw Manning stopping at the Sunset Cafe on Cambridge Street (a Friday call), and at Martin Brothers, also on Cambridge Street (a Thursday call). Thereafter Manning made a Thursday call, a Monday call (to a package store in Cambridge), and then went via the expressway to Charlestown to make a Thursday and a Wednesday call, and next to a package store in Cambridge, after which the detective lost him in heavy traffic. On Friday (the morning of the weekly sales meeting), the detective saw Manning leave the plant at 11:45, make a 2- minute nonbusiness stop, and then make calls at a Monday and a Thursday account before driving home. Manning did not take any advertising material into any of the stops where the detective observed him. At the trial, both President Cacace and Sales Manager Power gave the discredited testimony that during the week preceding such a holiday, a salesman is required to remain on his regular route through Thursday, and then is expected on Friday to make his Friday calls and as many of his Monday calls as possible (i.e., after the Friday morning sales meeting). If this were true, it would mean that many of the Monday calls would not be made until Tuesday, delaying their deliveries after the holiday. But even if this testimony were true (contrary to Manning's credited testimony that he was instructed to "double up" during the preceding week), the Company then had "official" confirmation, from the investigation costing it $448.44, that Manning was not following his scheduled route. The Company also was aware (from some of the few, selected sales records it introduced into evidence) that Manning's Friday route sheet showed sales to various accounts without showing that the calls were made earlier in the week, and his supplemental sheets showed that he had not called on his Monday through Thursday accounts in sequence. In addition, Cacace claimed at the trial that he had repeatedly warned Manning about running, jumping, and skipping around. Yet, despite the fact that the "tail" Cacace put on Manning, "the first time in our history . . . revealed that he did not work on a Friday, [and] that he was jumping all over the place," Cacace did not mention anything to Manning about the Friday work, about "jumping around," or about his bookkeeping, and CROWN DISTRIBUTORS, INC. 891 said nothing to him about the investigation, which the Company kept a secret until Cacace raised it as a defense. (When asked on cross-examination about this Friday before Memorial Day, Manning testified, "I had complet- ed my work. I had done an outstanding job in getting orders, and I felt that my job was done . I made the Friday calls a day in advance.") On Wednesday, June 6 (the second week after the secret surveillance), President Cacace routinely worked with Manning on his route, assisting in promoting the sale of Old Milwaukee beer. Their first call was a Monday stop, to contact the buyer. (Cacace did not criticize this.) They finished at 6:45 p.m. The next day, June 7, Cacace called Manning into the office, with Sales Manager Power and Sales Supervisor Johnson. As Manning credibly testified, Cacace said he was not happy with the outside signs in Manning's territory "in comparison to Budweiser." In the discussion which followed, Manning said, "that's not my fault . . . the Budweiser people are going out and buying down the Schlitz signs because of the fact their distributor- ship is located in Cambridge . . . they are spending X number of dollars to really do a job on me. . . . I brought this up time and time again at the sales meetings . . . if you looked at your charts a year ago, you will find that I had better lights in the area than Budweiser." Cacace went over to the chart and said, "Yes, you did." (Manning had been number one in neon window signs and outside signs by a small margin.) Manning said that since then, "you know we haven't had anything to compete against Budweiser." Cacace made no response to that. Thereafter, Cacace gave Manning a list of seven things needing correcting. One involved a lottery license being placed on a sign over the Schlitz slogan. Manning readily agreed that he should have done something about it (and did, the next day). Other deficiencies involved the need of window neons, booking displays, replacing Budweiser advertising with Schlitz advertising, etc. (A copy of the list was given to Sales Supervisor Johnson, who met with Manning each Tuesday. It is undisputed that Johnson thereafter commended Manning for doing a good job in his area on all seven of the listed assignments. Manning did not keep a copy of the list, and the Company did not produce it. Johnson was not called to testify.) In this June 7 meeting, President Cacace also "said he still felt that I was running, not spending enough time on my accounts." Manning protested, "Vinny, I know my accounts, I don't feel I'm running." Cacace again said Manning was not spending enough time, but Manning responded, "I've been in this area for 20 years and I felt I was spending enough time." Nothing was said about Manning "jumping around," or not following his sched- uled route, 2 weeks earlier. (The only time Manning could recall Cacace ever mentioning "running" before was earlier that year, when Cacace took about 50 accounts from his route, upon dividing the 10 routes into 12. At that time. Cacace said "that would eliminate my running. And I agreed with him 100 percent to the extent that, by running, was my hustling. I noticed myself that my pace did go down, because when you have 55 calls to make in a day and you cut down to 30, naturally you spread your time out and pace yourself a lot more.") Manning credibly testified that there was no warning of discipline or discharge in the June 7 meeting, and that it is false that he had been warned about running three times in 1972 or a total of seven or eight times. Sales Manager Power never mentioned running to him, and nobody said anything to him about running after this meeting. I discredit President Cacace's claim that he had repeatedly warned Manning, and that he gave Manning a warning during the June 7 meeting. Cacace's version of the June 7 meeting was not corroborated by Sales Manager Power or Sales Supervisor Johnson, and I find that it was largely fabricated. Nevertheless, I note that Cacace did not claim when so testifying that he mentioned anything to Manning in that meeting about "doubling up" his calls the week before Memorial Day, or not following his route, or not doing his bookkeeping properly. Thus, President Cacace not only kept the investigator's report a secret, but he failed even to mention to Manning in the June 7 meeting a number of purported deficiencies which the Company now relies upon to justify the Company's sudden discharge of Manning 2 days after the first union meeting. Despite the Company's denials of any knowledge of Manning's union activity at the time, I infer from all the circumstances that the reason the Company ordered the surveillance of Manning in late May was to lay the predicate for a discharge in the event Manning (who was then merely talking about the need of a union) became involved in a union organizing drive. Such a drive did not materialize at that time, and the Company kept the surveillance a secret. E. Concluding Findings 1. Discriminatory discharge It is clear from the foregoing findings that Manning was not a poor or marginal employee being discharged for cause rather than for union activity . Instead, Manning was one of the Company's topselling and best salesmen, whom it discharged, I find, upon learning that he was the leading union organizer, who had held a union meeting at his home and had gotten authorization cards signed there by a majority of the salesmen. Manning had been under suspicion earlier, when the Company ordered the secret surveillance of his route. But he had not proceeded to contact the Union at that time, and the Company did not then even mention to him a number of purported, investigator confirmed deficiencies upon which it now relies as part of the basis for discharging him. I reject the Company's contention that it had no knowledge of Manning's union activity. I find instead, from the strong circumstantial evidence, including the sudden discharge-without warning and without a replace- ment-2 days after the union meeting at his home, that the Company discriminatorily discharged Manning, one of its top salesmen, in violation of Section 8(a)(3) and (1) of the Act. (I find it unnecessary to, and do not, rely on Manning's credited hearsay testimony that salesman Pickering telephoned him on the evening before his 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge and "told me that the Company knows about the whole deal.") 2. Delay The foregoing analysis of the Company's purported "numerous" reasons for the discharge reveals that they included not only Manning's actual deficiencies in per- forming advertising on his route (matters which were promptly and satisfactorily remedied weeks before, after they were called to his attention), but also a wide variety of other purported faults. Some of these, obviously gleaned from his record as afterthoughts, were areas where he failed to excel (such as not selling any eight-ounce cans of malt liquor to package store accounts in a 2-week drive, although a total of only 10 or 11 such placements were made by the 12 salesmen, and even though Manning had repeatedly been complimented for his success in promoting malt liquor in other sizes). Other purported faults were based on mere suspicion, at the best, or were plainly fabricated, such as the claims that he was neglecting his accounts to work in his bowling alley during worktime, and was falsifying his route sheets. Considerable delay has already resulted, suspending the outcome of the election. Expedition of this proceeding is therefore essential. III. REPRESENTATION CASE In the election, directed by the Regional Director on August 23, and held on September 26, the employees in the unit of salesmen and merchandizing men voted eight for and eight against union representation, with one chal- lenged ballot, cast by Manning. Having found that Manning was discriminatonly discharged, I find that he was an eligible voter and overrule the challenge to his ballot. The Company offered no evidence to support its objections (alleging bias on the Board's part and improper electioneering and threats on the part of union agents and/or adherents), and withdrew the objections at the close of its defense. CONCLUSION OF LAW By discharging Joseph M. Manning on July 25 because of his support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, I find it necessary to order the Respondent to offer him full reinstatement to his former, undivided route (in Cambridge and Charlestown, with stops in Dorchester and Roslindale), with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. Upon the foregoing findings of fact and conclusion of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Crown Distributors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. (b) In any like or related 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 necessary to effectuate the policies of the Act: (a) Offer Joseph M. Manning immediate and full reinstatement to his former job, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the "Remedy" section of the Decision of the Administrative Law Judge. (b) 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 records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Allston, Massachusetts, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained 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 ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CROWN DISTRIBUTORS, INC. IT IS FURTHER ORDERED that Case I-RC-12851 be remanded to the Regional Director to open and count the ballot of Joseph M. Manning and to issue a revised talley of ballots and a certification of representative if Teamsters Local Union No. 25 has received a majority of the valid votes cast, or a certification of results of election if it has not. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal Law by discharging an employee for supporting a union: WE WILL offer reinstatement to Joseph M. Manning, with backpay plus 6-percent interest. WE WILL NOT discharge or discriminate against any 893 of you for supporting Teamsters Local 25 or any other union. WE WILL NOT unlawfully interfere with your union activities in any similar manner. Dated By CROWN DISTRIBUTORS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.