Turner Beverage Co., Inc.

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