Crown Distributors, Inc.

National Labor Relations Board - Board Decisions

May 23, 1974

210 N.L.R.B. 881 (N.L.R.B. 1974)

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objections in the representation case were withdrawn at the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.