Beverage Management, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1976

223 N.L.R.B. 911 (N.L.R.B. 1976)

SEVEN-UP BOTTLING COMPANY 911
Seven-Up Bottling Company of Detroit , Division of
Beverage Management, Inc. and Richard Fournier.
Case 7-CA-12123
April 14, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On December 22, 1975, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief together with limit-
ed cross-exceptions to the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge's
conclusions that the preponderance of credible evi-
dence presented in this case establishes that
Fournier's successful inquiry into his right to receive
premium pay was a motivating factor in Supervisor
Gross' decision to discharge him and that Gross' pur-
ported reasons for that action do not withstand care-
ful scrutiny. In addition to the evidence set forth by
the Administrative Law Judge, we have further con-
sidered and given appropriate weight to the following
additional record evidence as supporting his conclu-
sion : (1) employee Shoemaker's testimony that in a
conversation he had with Gross, subsequent to
Fournier's discharge, Gross stated "that he didn't
think it was right for a man that wasn't even in the
union yet, to be going to the union complaining
about not receiving holiday pay"; (2) Supervisor
Kass' admission that the responsibility for the al-
leged deficiencies in Fournier's work was probably
better attributed to Fournier's coworker, Borg;' (3)
evidence of the disparity between the personnel ac-
tion undertaken in Fournier's case and those involv-
ing other employees, including Borg, who received a
reprimand for his part in the same conduct and was
subsequently promoted by Respondent, (4) evidence
that the reprimand to Borg was given to him on June
9, rather than on May 27, as Gross testified, and (5)
evidence demonstrating that Gross, who initiated the
discharge action, actually had two occasions on
March 28, the date he claimed to have made the de-
cision to discharge Fournier, to discuss the decision
with Kass. His failure to do so until June 2 lends
further support to the Administrative Law Judge's
conclusion that Gross, contrary to his asserted ver-
sion, did not decide to terminate Fournier until im-
mediately after the pay incident. On the basis of this
additional evidence and that set forth by the Admin-
istrative Law Judge, we adopt his finding that the
Respondent discharged Fournier in violation of Sec-
tion 8(a)(1) of the Act 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Seven-Up
Bottling Company of Detroit, Division of Beverage
Management, Inc., Redford, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order as so modified:
1. In paragraph 1(a) of said recommended Order,
delete the phrase "protected or concerted" and sub-
stitute, therefor, the phrase "protected, concerted."
2. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
1 Borg was hired by Respondent in November 1973, not, as indicated by
the Administrative Law Judge , November 1974. At the time of Fournier's
discharge , Borg had , therefore , some 18 months' experience.
2 Because of its lack of impact on the result we reach , we need not consid-
er whether Respondent also violated Sec. 8 (a)(3) of the Act. The Adminis-
trative Law Judge's Conclusion of Law, insofar as it finds a violation of that
section , is amended accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we were found to have vio-
lated certain provisions of the National Labor Rela-
tions Act , the National Labor Relations Board has
ordered us to post this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their pro-
tected , concerted activities in enforcing the pro-
visions of the union contract.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights protected by Section 7 of
the National Labor Relations Act.
223 NLRB No. 136
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer reinstatement to Richard Four-
nier to his former position or, if it no longer ex-
ists , to substantially equivalent employment,
without prejudice to his seniority or other rights
and privileges, and make him whole for any loss
he may have suffered as a result of our discrimi-
nation against him.
SEVEN-UP BOTTLING COMPANY OF DETROIT,
DIVISION OF BEVERAGE MANAGEMENT, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge: This
case was heard in Detroit, Michigan, on October 2, 3, and
6, 1975.' The charge was filed by the individual (Fournier)
on June 23 and the complaint was issued on August 12.
The issue is whether the Company discriminatorily dis-
charged Fournier, a probationary employee not yet a
union member , because of his inquiries about and success-
ful enforcement of an overtime pay clause in the collective-
bargaining agreement , in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended.
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 and the Company,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a Delaware corporation, is engaged in
the bottling, sale, and distribution of soft drinks at its plant
in Redford, Michigan , where it annually ships products
valued in excess of $50,000 directly to customers located
outside the State . The Company submits, and I find , that it
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. Charging Party's General Employment History
Fournier was hired by the Company on April 28 and was
discharged on June 6 . His job was checking, loading , deliv-
ering, and placing operative vending machines. His proba-
tionary period was to be 90 days . His bargaining unit was
represented by Local No. 1088 , International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Although the contract contained a 30-day securi-
ty clause, it further recognized the right of the Company to
discharge or replace probationary employees for up to 90
days. On the date of his discharge, Fournier had unex-
' All dates are in 1975 unless otherwise stated.
plainedly not yet joined the Union? The contract also con-
tained a clause requiring time and one-half for all Saturday
work. This clause applied to all employees in the unit al-
though it had been an unchallenged policy of the Company
not to pay time and one-half to probationary employees.
Fournier's job involved delivering vending machines with
another employee. The two together formed a placement
team. During his employment, Fournier was placed with
one Andy Borg . Borg had worked for the Company as a
deliverer since November, 1974, and was considered expe-
rienced. Fournier was placed with Borg for training and to
gain experience.
B. Company's Alleged Reasons for Discharge
The Company alleges eight incidents or complaints of
poor work performance which resulted in Fournier's dis-
charge, as follows:
1. Falkwood Shores: On April 29 (the second day of em-
ployment), Fournier and Borg delivered a vending ma-
chine to the Falkwood Shores Country Club which was
dirty and inoperative. The Company received a written
complaint from the customer regarding the incident:
2. A & P Supermarket: Nine days after Fournier was
hired (May 7) he and Borg delivered a machine to the
Rochester A & P Supermarket with insufficient shelving.
The machine remained useless until additional shelving
was subsequently delivered to the store.
3. Bass Ranch Marina: On May 9 Fournier and Borg
delivered a vending machine to the Bass Ranch Marina in
Chesterfield Township which was dirty and missing a coin
mechanism, rendering the machine inoperative. The defect
was subsequently discovered by a delivery driver who was
dispatched to fill the machine.
4. Northbrook Golf Course: On May 14 Fournier deliv-
ered a machine to the Northbrook Golf Course. Borg did
not accompany Fournier on this delivery and Fournier's
partner on this day was apparently a temporary helper or a
trainee. The machine was dirty and was missing either a
coin changer or change box, rendering the machine inoper-
ative. The customer, who later complained, was also not
instructed as to the use and operation of the machine.
5. Murphy Chevrolet: Fournier and Borg delivered a ma-
chine to Murphy Chevrolet in Trenton on May 27. An
incorrect key number was recorded on the delivery sheet.
When a driver subsequently arrived to fill the machine, it
could not be opened for lack of the correct and proper key.
This necessitated a later and additional delivery from the
plant.
6. Grosse Pointe Park: 3 On May 28 Fournier, together
with a temporary employee, attempted unsuccessfully to
deliver a machine to Grosse Pointe Park. In the attempt,
Fournier cut his hand and the two men were unable to
2 The contract contained a 30-day union-security clause which did not
specifically exempt probationary employees. Fournier had worked 40 days
as of the date of his discharge.
3 Mr. Gross, Fournier's immediate supervisor, testified that he decided to
recommend Fournier's discharge on May 28. However, there is no evidence
in the record to indicate that the Grosse Pointe Park incident influenced his
decision . The remaining two incidents recited hereafter (Pointe Grocery and
Somerset Country Club) I conclude from the record as a whole occurred
prior to May 28.
SEVEN-UP BOTTLING COMPANY
complete the delivery because of the size of the machine,
where it was to be placed, or their inexperience.
7. Pointe Grocery: Sometime during his employment,
Fournier attempted to deliver a machine to Pointe Grocery
in Adrian. The record does not reflect the date or who
accompanied him. The delivery was unsuccessful because
Fournier concluded that he could not maneuver the ma-
chine into and through the delivery area. The customer had
offered the assistance of four of his employees. Pointe Gro-
cery was approximately 1-1/2 to 2 hours from the plant
and subsequently the same machine was successfully
placed.
8. Somerset Country Club: Also sometime during his em-
ployment Fournier, together with Borg, delivered three ma-
chines to the Somerset Country Club. The machines were
found to be dirty and lacked the proper identification.
C. The Protected Activity
On Friday, May 30, Fournier learned that he would be
required to work the following day (Saturday). He learned
from Gross (his immediate supervisor) that he would re-
ceive straight time pay (as opposed to premium or time-
and-a-half pay) for the Saturday work. Near the end of the
day on Friday he inquired of Union Steward Roddy as to
his entitlement to premium pay on Saturday. Roddy con-
firmed Fournier's belief in the entitlement and the two to-
gether went to Gross' office where a discussion ensued.
The union contract, which was consulted, reflected
Fournier 's entitlement to the premium time but Gross
maintained his position stating he "would fight it." Imme-
diately after the discussion Roddy went to Marketing
Manager Reddick's office where the two (Roddy and Red-
dick, in the presence of Mike Kass, the cold drink supervi-
sor) further discussed the matter and consulted the con-
tract. The end result was Reddick's agreement to pay
Fournier premium time for his Saturday work.
D. The Actual Discharge
Vending Supervisor Gross testified that he decided to
recommend Fournier's discharge on Wednesday, May 28,
and, after numerous problems and customer complaints
regarding Fournier, culminating in the Murphy Chevrolet
incident of the previous day. Gross' immediate supervisor,
the cold drink supervisor, Kass, was out of town on Wed-
nesday and Thursday, May 28 and 29. The following Mon-
day, June 2, Gross and Kass discussed the proposed termi-
nation," and the decision was then and there made to
terminate or discharge Fournier Friday, June 6, which
event occurred without forewarning of the decision to
Fournier.5
Kass was present at the plant on Friday, May 30. He both participated
and acquiesced in Gross' initial decision not to pay Fournier premium time
and was present when Union Steward Roddy and Marketing Manager Red-
dick discussed the contract and Fournier's premium time. Gross having
testified that he decided on May 28 to recommend Fournier 's discharge,
there is no explanation in the record as to why he waited until the following
Monday to discuss the matter with Kass.
III. EVALUATION OF LAW AND EVIDENCE
913
The Respondent's case here bears scrutinization in the
three following areas:
1. The first three complaints (Falkwood Shores, A & P
Supermarket, and Bass Ranch Marina) involved deliveries
with Borg, an experienced employee. The fourth complaint
(Northbrook Golf Course) involved a temporary helper or
trainee. All of these first four incidents occurred within
only 12 working days after Fournier's employment com-
menced. Borg was at least equally (if not totally) responsi-
ble for the mistakes or errors which were made on the first
three deliveries. The fourth involved Fournier together
with another relatively untrained employee. Responsibility
here is thus minimized. Responsibility is also somewhat
minimized in the fifth incident of May 27 (Murphy Chev-
rolet) when Borg was also with Fournier.
2. I do not credit the testimony of Supervisors Gross
and Kass to the effect that Gross decided to recommend
Fournier's discharge on May 28 and they first discussed
the matter on Monday, June 2. Gross had ample opportu-
nity to discuss the recommendation with Vending Supervi-
sor Kass on Friday, May 30, when they both and together
were privy to Fournier's overtime pay inquiry and the re-
sulting decision. I find it incredible and unbelievable that
Gross did not mention his recommendation to Kass on
May 30, especially considering the slight fury that resulted
from Fournier's inquiry.
3. The timing of the decision and the delay in the dis-
charge further raises a suspicion. Even assuming that the
ultimate decision to actually discharge Fournier was made
on Monday, June 2 (as opposed to the previous Friday and
the day of the pay inquiry), I find it more than curious that
Fournier was not told of the decision until the actual date
of his discharge (Friday, June 6), notwithstanding the be-
nevolence found in the stated reason for allowing Fournier
to work out the week.
Fournier, of course, was not insulated from discharge
because of his pay inquiry. On the other hand, the exis-
tence of some justifiable grounds for his discharge did not
prevent the discharge from being an unfair labor practice if
it was partially motivated by the inquiry. I find this to be
the case here. The Respondent' s case meets all prerequi-
sites for victory with one exception. It fails the "but for"
test. As is obvious, I am considerably influenced here by
what I have determined to be the discredited testimony of
Gross and Kass regarding when they first discussed the
discharge. I realize that they too may have been fearful of
timing in light of Fournier's pay inquiry. However, the cir-
cumstances here are void of even the neutralizing effect of
a prewarning to Fournier of his probable doom . I am also
somewhat influenced by minimal actions taken against
Borg for his participation in the delivery and placement
errors6 I thus conclude and find that Fournier's discharge
was violative of Section 8(a)(3) of the Act.
5 Gross and Kass testified that they delayed the discharge until June 6
because Fournier's wife was pregnant and they thought that Fournier need-
ed the extra week's pay.
6 Borg was "written up" once or given a written reprimand. He was a
union member and had been employed for approximately 6 months.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By discharging Richard Fournier because of his protect-
ed or concerted activity in enforcing a provision of the
union contract regarding overtime pay, the Respondent en-
gaged 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.
THE REMEDY
I shall recommend that the Respondent cease and desist
from its unfair labor practices and that it shall offer rein-
statement to Richard Fournier with backpay computed as
provided in F. W. Woolworth Co., 90 NLRB 289 (1950)
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
and take certain affirmative action in order to effectuate
the policies of the Act.
Upon the foregoing findings of fact , conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
Respondent, Seven-Up Bottling Company of Detroit,
Division of Beverage Management , Inc., Redford , Michi-
gan, its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because of their protected or concerted
activities in enforcing provisions of the union contract.
7 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.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights pro-
tected by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Richard Fournier immediate or full reinstate-
ment to his former position or, in the event his former
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered because of the discrimination against
him, in the manner set forth in the Section herein entitled
"The Remedy."
(b) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all pay-
roll 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
recommended Order.
(c) Post at its place of business in Redford, Michigan,
copies of the attached notice marked "Appendix." 8 Copies
of the notice, on forms provided by the Regional Director
for Region 7, shall be signed by Respondent's authorized
representative, and posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps are to be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify said Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
8In the event that this Order is enforced by a Judgment of a 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."