Falstaff Beer Distributors of Greater Miami

National Labor Relations Board - Board DecisionsJun 15, 1965

152 N.L.R.B. 1570 (N.L.R.B. 1965)

1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement . If we do not reopen our Sinking Spring plant , we will bargain with said Union, upon request, about the reinstatement of the employees in such unit at our other plants. The appropriate bargaining unit is: All production and maintenance employees, employed at our Sinking Spring plant on February 19, 1964, excluding homeworkers, guards, and supervisors as defined in the-Act. WE WILL NOT discourage membership of our employees in the above-named or any other labor organization by discontinuing operations or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL offer all employees who were deprived of employment as a result of the shutdown of our Sinking Spring plant immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. If our Sinking Spring plant is not reopened, we will offer such reinstatement at our other plants, together with the necessary traveling and moving expenses. WE WILL make all said employees whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor orga- nizations , to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. VALLEY FORGE FLAG COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612, if they have any questions concerning this notice or com- pliance with its provisions. Falstaff Beer Distributors of Greater Miami and Carroll M. Everett. Case No. 12-CA-3025. June 15, 1965 DECISION AND ORDER On March 15,1965, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged 152 NLRB No. 162. FALSTAFF BEER DISTRIBUTORS OF GREATER MIAMI 1571 in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to the latter allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Falstaff Beer Distributors of Greater Miami, Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Trial Examiner's credibility resolutions are based, in part , upon the demeanor of the witnesses, and are not contrary to the clear preponderance of all the relevant evidence. Standard Diy Wall Products, Inc, 91 NLRB 544, enfd . 188 F. 2d 362 (CA. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on September 4, 1964, by Carroll M. Everett, an individual, the General Counsel of the National Labor Relations Board, by the Regional Direc- tor for Region 12 (Tampa, Florida), issued his complaint, dated October 9, 1964, against Falstaff Beer Distributors of Greater Miami,1 herein called Respondent or Falstaff. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges, in substance, that: (1) On or before April 10, 1964, Respond- ent failed and refused to consider for employment and/or hire Carroll M. Everett ,because he was a known union adherent and Respondent desired to remain unorga- nized, (2) on or about April 10, 1464, Respondent's general manager engaged in specified acts of interference, restraint, and coercion; and (3) by the foregoing con- duct Respondent violated Section 8(a)(1) and (3) of the Act. In its duly filed answer, as amended at the hearing, Respondent denied generally all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at Miami, Florida, on December 7 through 10, 1964. All parties were represented at and participated in the hearing, and were given full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to file briefs. On January 14, 1965, the General Counsel and the Respondent filed briefs which I have fully considered. For the reasons hereinafter indicated, I find that Respondent has violated Section 8(a)(1) of the Act but has not violated Sec- tion 8(a) (3) of the Act. 'The caption of the complaint also included Henry E Mangels Co, Case No 12-CA- 3007. However, before the close of the hearing, I granted, without objection, the Gen- eral Counsel 's motion to withdraw the complaint insofar as it related to the Mangels Co. In view of the fact that a settlement agreement had been executed in that case. 1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, Falstaff Beer Distributors of Greater Miami, a Florida partnership licensed to do business in the State of Florida, maintains an office and principal place of business in Miami, Florida, where it is engaged in the distribution and wholesale sale of beer. During the 12-month period preceding the issuance of the complaint, Respondent received at its place of business in Miami, Florida, goods and products valued in excess of $50,000 from suppliers located outside the State of Florida. Upon the above admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent stipulated. and I find that International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The following facts are either admitted or undisputed: Carroll Everett was employed as a beer route driver-salesman by Henry E Mangels Co., Miami, Florida, herein called Mangels, from 1954 until February 21, 1964. Prior to his termination, he was one of the two union organizers at Mangels After his termination, an election was held at Mangels and the Union lost. John Schweigart, the general manager of Respondent, which was engaged in the same business as Mangels, had previously worked as a supervisor for Mangels for about 4 or 5 years, was aware of Everett's work performance and abilities as a driver- salesman, and regarded him as a capable and satisfactory employee. After his ter- mination by Mangels, Everett applied for a driver-salesman's job with Respondent and in this connection spoke to General Manager Schweigart several times in Feb- ruary and March. On each occasion, Schweigart advised Everett that there were no openings. After Everett had first contacted Schweigart about a job, Schweigart telephoned Howard Christman, the general manager of Mangels whose nick- name is Chris, primarily to inquire about Everett's honesty, and was informed by Christman that so far as he knew Everett was basically honest. On or before April 10, 1964, Everett was informed by some of Respondent's drivers that Respondent had an opening for a driver-salesman. On Friday morning, April 10, 1964, Ever- ett went to see Schweigart about this vacancy which Schweigart acknowledged existed. The result of the interview was that Schweigart agreed to hire Everett and have him start work the following Monday provided that Everett would first pass the physical and polygraph tests required of all applicants. Everett agreed to this condition and arrangements were immediately made to have Everett take these tests that day. After taking these tests, Everett returned that afternoon to the Respondent where, in Schweigart's absence, he was informed by Schweigart's assist- ant, Carl Palomba, that the polygraph service had informed Palomba by telephone that Everett had failed to pass the polygraph test. Palomba advised Everett to see Schweigart upon the latter's return the next day The following morning, Schweigart telephoned the polygraph service examiner, who explained how Everett had failed the polygraph test and who recommended against his employment Thereafter, Schweigart informed Everett that he had failed to pass the polygraph test and that he could not hire him for that reason. The General Counsel contends that the evidence supports the allegations in the complaint that: (1) During the hiring interview of April 10, 1964, Schweigart made statements to Everett which constituted independent violations of Section 8(a)(1) of the Act, and (2) Schweigart's failure and refusal to hire Everett was truly motivated by his known union membership and activities at Mangels and that his alleged failure to pass the polygraph test was merely asserted as a pretext to cloak the discriminatory motivation, all in violation of Section 8(a)(3) of the Act. The Respondent contends that (1) The preponderance of the credible evidence does not establish any violations, and (2) even accepting the testimony of Everett, the General Counsel's sole witness, the record still does not warrant a finding that the failure to hire Everett was discriminatorily motivated in violation of Section 8(a)(3) of the Act. FALSTAFF BEER DISTRIBUTORS OF GREATER MIAMI 1573 A. The General Counsel's case Carroll Everett was the only witness called by the General Counsel. He testified as follows: When he went into Schweigart's office on Friday morning, April 10, 1964, they "exchanged pleasantries" and Schweigart introduced him to his sales manager, Palomba. Schweigart told him of the opening of a route on which they were going to plan to put Everett. Palomba then left the room and Schweigart asked Everett to close the door. Everett closed the door and sat across the desk from Schweigart. Schweigart then said, "I guess you are wondering why I haven't called you." Everett replied in the affirmative, adding that he had heard there was an opening now. Schweigart then stated, "Well, the reason I haven't is because when I called Chris[tman] to find out what happened that you were let go over there, well, Chris[tman] told me that you were one of the worst union men over there " Schweigart then continued as follows, "of course, we have no union here, and so I felt that I couldn't use you, but if you promise man to man to refrain from union work here, union activities here, then I will let you take a physical and a polygraph test and put you to work." Everett thereupon promised to refrain from any union activities, and explained that he had never belonged to the Union and "wasn't real strong on union activities" but felt that at that time at Mangels they needed some- thing to protect the men and the wages they were getting. Pursuant to arrangements made by Respondent, Everett took the physical and polygraph tests that day. He then returned to Respondent, and filled out an appli- cation given to him by one of the employees because neither Palomba nor Schweigart were present. When Palomba returned, Everett asked how he had "made out." At that point Palomba had a telephone conversation with the polygraph service, and then told Everett that he had been informed that the needle had jumped on the questions of whether Everett had ever taken any moneys from his previous employ- ers. Everett ti ied to explain that it "wasn't so" and that he "hadn't taken any monies." Palomba then suggested that Everett contact Schweigart the next day because he would not be back the remainder of that day. The next morning Everett telephoned Schweigart, who stated that it was true that Everett "was a bad risk according to the lie detector people" and that Everett had said he would "take another position if it came in offering more money"; Schweigart even named the company which Everett had listed on his test as a place where he had filled out an application in searching for a job. Everett explained to Schweigart, "that is what we all work for is money and if I got an offer for more money I'd be foolish not to take it." Schweigart also stated that he had not yet received the written report from the polygraph service and suggested that Everett contact him again on Monday because by then he "should have the written report and would know more about it." On Monday, he went in to see Schweigart who told Everett that "the reports have been true," that Everett was "turned down" by the "polygraph people," that he was a "bad risk," and that "due to the report he wouldn't be able to hire" him. Schweigart also added that he would like to put Everett on, despite the report, but that if he did "the men from Texas would be on his neck " Everett explained that he had never taken anything and could not understand why he had been turned down. On cross-examination, Everett admitted that Palomba may have been the one who mentioned that he was a bad risk because he would accept another job, and Schweigart the one who mentioned about the needle jumping on the questions about taking moneys. He further testified that while he did not remember just who made which statements, he was certain that these statements were made by one or the other. B. The Respondent's case Respondent called as witnesses its general manager and his assistant, Schweigart and Palomba, and the general manager of Mangels, Christman; it also introduced into evidence the written report submitted by the polygraph service on Everett and the remarks and recommendations submitted by the polygraph service in all cases since January 18, 1963, when the Respondent first started using this service. General Manager Schweigart testified as follows on direct examination: After Everett had first contacted him about a job at the beginning of March 1964, he (Schweigart) telephoned Howard Christman, the general manager at Mangels, and asked why Christman had terminated Everett. Christman replied that he was cutting down on routes and retrenching and that Everett was the least productive at that moment. Schweigart also asked if Everett was basically honest, 1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Christman'replied that to the best of his knowledge Everett was. Nothing was said in that conversation about Everett being the worst union man or anything about him being a union man at all. An opening for a driver-salesman finally arose and he talked to Everett about it in his office on April 10. Schweigart told Everett that he would be very glad to have Everett fill the vacancy and that one of the prerequisites would be that Everett would have to take a polygraph and a physical examination. He never told Everett that Christman at Mangels had told Schweigart that Everett was the worst union man; nor did he ever ask Everett to promise not to organize at Respondent or tell Everett that Respondent was not a union company. Everett took the polygraph test that day. The next morning Schweigart tele- phoned and spoke to Marcus of the testing service about Everett's test. Marcus reported that "there were areas of deception, error in the peculation area of Mr. Everett's questioning" and he (Marcus) would recommend against the hiring of Everett. Thereafter, Schweigart told Everett that he had failed to pass the polygraph test and that therefore he could not hire him. Everett replied that "the polygraph machine was wrong and that the people down there were crazy." About 1 week or 10 days later, Schweigart received the written report from the polygraph people. Schweigart was the one who had instituted the use of the polygraph test on January 18, 1963, when Respondent was "having considerable amounts of trouble with thievery." Respondent's normal procedure after interviewing an applicant was to check his references and, if he appeared qualified and desirable, to send him for a physical and a polygraph test. With two exceptions involving warehouse employ- ees, the recommendations of the polygraph report to hire or not to hire have con- sistently been followed. On cross-examination, Schweigart testified that Palomba was also present during the April 10 hiring interview with Everett, but admitted that Palomba was not present during the entire interview. He also admitted that the Respondent is not a union company. He further testified that At the April 10 hiring interview, which lasted about 15 minutes, he first discussed the type of job that was open, the geo- graphical location of the area, the approximate earnings of the territory, and the potential earning with a good man like Everett on it; he stated that Everett could fill out his application later because Schweigart already knew his qualifications from having worked with him previously, at that point he asked Palomba to make an appointment for Everett's physical and polygraph tests; and while Palomba was out of the office for about 5 minutes he remained with Everett and "discussed things about the Henry E Mangels Co." He further testified that Marcus of the polygraph service told him on the telephone that Saturday morning there was "considerable deception in the area of peculation" [emphasis supplied] and that Everett's per- manency potential was questionable. He continued to adhere to this testimony despite his admission that the written report merely refers to "considerable pecula- tion" and makes no mention as to Everett's permanency potential. At one point, he testified that he did not explain to Everett in what respects he had failed to pass the test; at another point he testified that he did not remember whether he discussed with Everett the comment that his permanency potential was questionable. Schweigart testified that the regular practice is to receive an oral report on each applicant for immediate action and the written report is received later as a confirmation. He also admitted that his superior is located in Fort Worth, Texas. Carl Palomba testified as follows on direct examination: After Everett took the polygraph test, Palomba received a telephone call from the "polygraph people" who reported that Everett had evaded questions and that they could not recommend hiring him. Palomba told Everett that he did not pass the polygraph, that he was sorry because they wanted a good man, and that Everett should speak to Schweigart the next day because he was out at that time. Everett was surprised and said something must be wrong with the machine On the cross-examination, be testified that he was present in Schweigart's office during Everett's hiring interview of April 10, that, at Schweigart's request, he left to go to his own office where he made arrangements for Everett to take the physical and polygraph tests, and that when he returned Everett was still in Schweigart's office He further testified that when he returned from lunch that day, Everett was waiting for him; that the "polygraph people" called him pursuant to their instruc- tions; and that the next morning, he told Schweigart that the "polygraph people" had telenhoned the preceding afternoon to report that Everett had evaded ques- tions and that they could not recommend him. FALSTAFF BEER DISTRIBUTORS OF GREATER MIAMI 1575 Howard Christman testified as follows on direct examination: Christman has known Schweigart for about 9 or 10 years and they were excellent friends. After Everett's employment termination by Mangels, he received a tele- phone call in March or April from Schweigart who wanted to know why Everett was terminated and if he had "sticky fingers." Christman replied in the negative, stating that they were having a reduction of routes and Everett was let go because he was "low man in production." At no time during this or any other conversation was there any mention of Everett being a union man or anything to that effect. On cross-examination, Christman testified that Schweigart had at one time worked as his assistant for Mangels, that they were personal friends of long standing and had social engagements together, and that he sees Schweigart frequently at breakfast because they eat at the same restaurant. He admitted that in a deposition taken in the presence of his attorney on November 5, 1964, he stated that: Schweigart had telephoned him in March or April; Schweigart stated that Everett had applied for a job and inquired whether he was honest; Christman replied that to the best of his knowledge Everett was; and that was all that was said in that telephone conver- sation. Christman explained that a driver-salesman performs the following func- tions: He takes a truck out loaded with beer, calls on the accounts, solicits sales, goes to the truck to get the merchandise and delivers it, makes out a bill, collects the money, goes on to the next stop, and at the end of the day checks in with the warehouse and turns in the money collected, a route may run anywhere from 35 to 50 or 60 stops per day. C. Concluding findings 1. As to the 8 (a)( I) allegations The complaint alleges that Respondent violated Section 8(a)(1) of the Act by the conduct of General Manager Schweigart in the April 10, 1964, hiring interview in stating that he had not called Everett earlier because when he (Schweigart) had called Christman to find out why Everett had been let go, Christman stated that Everett was "one of the worst union men over there," that he (Schweigart) felt he could not use Everett because "we have no union here," and that he would hire Everett if he promised to refrain from engaging in union activities at Respondent. There is no dispute that if the testimony of Everett were to be credited, these alle- gations would be sustained. All parties agree that the evidence with respect to these allegations presents a pure credibility issue between the testimony of Everett, on the one hand, and Schweigart and Christman, on the other. My careful scrutiny of the demeanor of these witnesses while testifying under oath leads me to credit the testimony of Everett, who impressed me as a sincere, straightforward, and honest witness entitled to full credence. In addition, the fol- ]owing factors have influenced me in favor of Everett's version: (1) There was a union organizational campaign at Mangels and Everett was one of the two union organizers there; (2) Christman did not deny having knowledge of Everett's union activities at Mangels; (3) Schweigart's admission that Respondent is not and was not at that time a union company; (4) the admission of Schweigart and Palomba that Palomba did leave the room during the interview and left Schweigart and Everett alone for about 5 minutes; (5) Schweigart's admission that while Palomba was out of the room he (Schweigart) "discussed things about the Henry E. Mangels Co."; (6) the admitted fact that Schweigart had telephoned Christman to inquire about Everett prior to the April 10 hiring interview; (7) the lack of any explanation as to how Everett could have learned about such a call unless Schweigart told him about it; and (8) the admitted fact that Christman and Schweigart are and were close personal friends of long standing who visited socially and met frequently at the restaurant for breakfast. Upon consideration of all the foregoing, I find that Christman was aware of Everett's union activities at Mangels, that he did inform Schweigart that Everett was one of the worst union men there,2 and that Schweigart made the statements attributed to him by Everett in the April 10 hiring interview. By such conduct, I find that Respondent violated Section 8(a) (1) of the Act. 2. As to the 8(a) (3) allegation The complaint alleges that Respondent violated Section 8(a)(3) of the Act because, in failing to hire Everett, it was motivated by its knowledge that Everett 2 As previously noted, the allegations of the complaint against Mangels were withdrawn when that case was settled during the course of the instant hearing. 1576 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD was a known union adherent and by its desire to remain unorganized. I do not agree that the preponderance of the record evidence supports this allegation. While there are some conflicts in the versions of Everett and Schweigart and Palomba as to what they told Everett after he took the polygraph tests, the main essentials are not in dispute. In any event, I deem it unnecessary to resolve these conflicts because, even accepting Everett's version in toto, the evidence still does not warrant a finding of a discriminatory refusal to hire Everett. Thus, when Everett promised to refrain from union activities at Respondent in response to Schweigart's request, as previously found, Schweigart either believed or did not believe him. If he did not believe him, he obviously would not have sent Everett to take the physical and polygraph tests or agreed to hire him upon passing these tests. If he did believe him, then what intervening event occurred between the time when Everett went to take the polygraph test on the morning of April 10, and his return that same after- noon after taking the test, to cause the failure to hire him9 The record shows only one event occurring, and that is the report from the polygraph service that Everett had failed to pass the test and the recommendation against hiring him. In addition, the written reports submitted by the polygraph service since the inception of its use by Respondent and Respondent's files show that the recommendations of the service to hire or not to hire have always been followed with the exception of two cases involving warehousemen who do not handle money and were adequately explained at the hearing. Although Everett's case was the first time the polygraph service had recommended against hiring a driver-salesman, the fact remains that after April 10, 1964, six applicants for driver-salesmen received unfavorable polygraph recommen- dations and were not hired. It is true that Schweigart insisted at the instant hearing that the oral report from Marcus of the polygraph service contained more unfavora- ble information about Everett's polygraph test than the written report. While this creates some suspicion, it clearly may not support a finding of a discriminatory refusal to hire. Nor can I attach much significance to the statement under "Employ- ment History" in the written report on Everett's test, pointed out by the General Counsel, that after he was terminated by Mangels "the drivers got together but lost." Although Schweigart admitted that he understood that to mean that the men got together in connection with the union and lost an election, it relates to union activi- ties which occurred after Everett's termination at Mangels and adds nothing to what Schweigart had already earlier learned that Everett "was one of the worst union men over there," as previously found Upon consideration of the foregoing and the entire record as a whole, I find that the General Counsel has failed to satisfy his burden to prove by a preponderance of the evidence that the failure to hire Everett was discriminatorily motivated in violation of Section 8(a)(3) of the Act. I will accordingly recommend dismissal of this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Although Respondent engaged in a single incident violative of Section 8(a)(1) of the Act, I regard the nature of the conduct to be such as to warrant the issuance of the order hereinafter recommended. Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 By the conduct of General Manager Schweigart in telling Carroll Everett, an applicant for employment, that the reason Schweigart had not called him was because the general manager of Mangels, Everett's previous employer, had informed Schweigart that Everett was one of the worst union men there and because Respond- ent was not a union company, and in conditioning Respondent's employment of Everett, subsequent to passing his physical and polygraph tests, upon Everett's prom- FALSTAFF BEER DISTRIBUTORS OF GREATER MIAMI 1577 ise that he would refrain from engaging in union activities, all as previously found in section III, C, 1, supra, Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act 3. Respondent has not engaged in unfair labor practices by failing and refusing to hire Carroll Everett. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Respondent, Falstaff Beer Distributors of Greater Miami, Miami, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling applicants for employment that failing to consider them was due to information to the effect that they were regarded as union men or adherents. (b) Conditioning employment with Respondent upon a promise not to engage in union activities. (c) In any like or related manner interfering with, restraining, or coercing employees and applicants in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act: (a) Post at its plant and offices at Miami, Florida, copies of the attached notice marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for Region 12, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date hereof, what steps it had taken to comply herewith 4 I further recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act by failing to hire Carroll Everett. 3In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." s If this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order,of a Trial, Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby give notice that: WE WILL NOT tell applicants for employment that failure to consider them was due to information to the effect that they were regarded as union men or adherents. WE WILL NOT condition employment upon any promise not to engage in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees and applicants in the exercise of their rights guaranteed in Section 7 of the Act. FALSTAFF BEER DISTRIBUTORS OF GREATER MIAMI, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Employees may communicate directly with the Board 's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida , Telephone No. 228- 7711 , if they have any question concerning this notice or compliance with its provisions. Circle Equipment Co., Circle Paving Co ., Circle Construction Co. and Metropolitan D. C. Paving , Highway and Construction Ma- terials Council , AFL-CIO . Case No. 5-CA-2979. June 15,1965 DECISION AND ORDER On March 1, 1965, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondents, Circle Equipment Co., Circle Paving Co., and Circle Construction Co., Washington, D.C., their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE This complaint 1 under Section 10 (b) of the National Labor Relations Act, as amended (herein called the Act ), involved allegations that Circle Equipment Co., Circle Paving Co., Circle Construction Co. (herein collectively called Respondent 'Issued November 19, upon a charge filed November 6. All dates are 1964, unless otherwise stated. 152 NLRB No. 161.