Herb Sadler Budweiser Distributing Co.

National Labor Relations Board - Board Decisions

Jun 18, 1965

153 N.L.R.B. 119 (N.L.R.B. 1965)

HERB SADLER BUDWEISER DISTRIBUTING CO. 119
Herb Sadler Budweiser Distributing Co. and John Bryant and
Charles Dale. Cases Nos. 10-CA-5757-1 and 10-CA-5757-?.
June 18, 1965
DECISION AND ORDER
On January 6, 1965, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, only the Respondent filed exceptions to the Trial
Examiner's Decision, together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, 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 Respondent, Herb Sadler Budweiser Distributing Co., Birming-
ham, Alabama, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
i In affirming the Trial Examiner 's conclusion that Velotas ' discharge of his helper,
Bryant, was violative of Section 8(a) (3) and ( 1) and was attributable to the Respondent,
we rely not only on the reasons given by the Trial Examiner but also on the fact that
Velotas was expressly delegated authority by Respondent 's sales manager , Stephens , to dis-
charge Bryant , and Velotas discharged him for the stated reason that it was because of
his union activity . This is supported by Bryant 's credited testimony that Velotas told
him that it was not his work, it was the Union, and that the Company had been on his
back for about 3 weeks about firing him. Furthermore , Velotas' credited testimony was
that he discussed Bryant's work with Stephens , who told him that the discharge of Bryant
was up to Velotas . In view of this, we conclude that Respondent is liable for the dis-
charge of Bryant, and the discharge was unlawfully motivated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed June 16 , 1964, by John Bryant, an individual , herein called
Bryant , in Case No . 10-CA-5757- 1, and by Charles Dale, an individual, in Case
153 NLRB No. 13.
120 DECISIONS OF NATIONAL LABOR "RELATIOT^S BOARD
Ito. 10-CA-5757-2, the Acting Regional Director for Region 10' of the National
Labor ,Relations Board, , herein called the Board , issued an order consolidating the
cases , and a complaint on July 22, 1964 ,1 against Herb Sadler Budweiser Distributing
Co., herein referred to as Respondent , alleging violations of Section 8(a) (1) and (3)
of the National Labor Relations Act, as amended , herein called the Act, by reason
of the interrogation by its agents of its employees , and by the discharge of, and
refusal to reinstate , John Bryant and Charles Dale because of their membership in
and activities on behalf of Local Union No. 612, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen , and Helpers of America , herein called the
Union, and their concerted activities with other employees for the purpose of collec-
tive bargaining and other mutual aid and protection . In its duly filed answer
Respondent denied those allegations of the complaint setting forth interrogation of
its employees , agency of certain of its employees , and the discharge of and refusal
to reinstate the Charging Parties. By order of the Regional Director dated August 11,
the complaint in Case No . 10-CA-5757-2 was dismissed pursuant to a withdrawal
of the charge therein, and all reference thereto was deleted from the consolidated
complaint issued herein.
Pursuant to notice a hearing was held before Trial Examiner William W. Kapell
in Birmingham , Alabama, on September 23. All parties were represented and
afforded full opportunity to be heard , to introduce relevant evidence , to present oral
argument , and to file briefs . The General Counsel and Respondent filed briefs which
have been duly considered.
Upon consideration of the entire record and - the briefs; and upon my observation
of the demeanor of the witnesses testifying before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Herbert J. Sadler is, and has been at all times material herein, an individual pro-
prietor doing business under the trade name and style of Herb Sadler Budweiser Dis-
tributing Co., with an office and place of business at Birmingham, Alabama, where
he is engaged in the sale and distribution of beverages. During the 12 months prior
to the issuance of the consolidated complaint herein, which period is representative
of all times material herein, Respondent purchased and received products valued in
excess of $50,000 directly from suppliers located outside the State of Alabama.
Respondent admits, and I find, that at all times material herein Respondent was an
employer engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is and has been at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
General Counsel contends that Respondent violated Section 8 (a) (1) by the con-
duct of its agent, Kelly Velotas, in interrogating employee Bryant concerning his
union activity, and also violated Section 8(a)(3) by discharging Bryant because of
his union activity. Respondent denies the agency of Velotas, his interrogation of
Bryant, or Bryant's discharge because of his union activities.
B. Background
Beginning in September 1963, Velotas began working for Respondent as a truck-
driver-salesman and, at all times material herein, Bryant was his helper. The pri-
mary duties of a driver- salesman were to sell beer to his customers and to keep them
supplied with that product. In performing this work he utilized the services of his
helper to load the truck at the company plant with beer and to unload the deliveries
at the places of business of his customers . According to Peter F. Stephens, Respond-
All-dates herein refer to the year 1964 unless otherwise noted.
HERB SADLER BUDWEISER DISTRIBUTING CO. 121
ent's sales manager, truckdriver-salesmen had the authority under their union con-
tract 2 with Respondent to hire, fire, and supervise their helpers.
C. Interference, restraint, and coercion
On about May 3 Bryant attended a union meeting at the Teamsters Union hall for
the purpose of organizing the helpers to the driver-salesmen, and while there signed
a union membership card in Local 612 of the Teamsters Union, and also secured
signed membership cards from a few other helpers. The following morning Velotas
asked Bryant whether he had attended the union meeting and signed a membership
card the previous night. Bryant advised him that he had. On May 10, Bryant
attended another union meeting where he was informed by a union official that more
signed membership cards were needed. Blank cards were distributed to Bryant and
a few others, who were requested to get them signed and transmitted to Atlanta
within 2 weeks. The following morning Velotas again questioned Bryant as to
whether he had attended the union meeting. After Bryant informed him that he had,
Velotas said ". . . you better watch yourself. If the Company found out about it ...
they would fire you." 3
D. The discharge of Bryant
Bryant attended about four more union meetings prior to June 11. That morning
when he arrived at work Velotas told him he had bad news for him and proceeded
to inform him that he was discharged; that it was not his work, it was the Union;
and that the Company had been on his back for about 3 weeks about firing him.
Velotas also advised Bryant that he was a good helper and he had no complaints;
and that he had worried about discharging him and his wife consoled him by point-
ing out that it was not his job, it was their (the Company's) job .4
The record also shows that in support of its position that Bryant was discharged
because of problems arising in connection with his work, Respondent adduced testi-
mony from Velotas that, following the purchase of a car in April or May by Bryant,
he began reporting late for work; that he complained about it to Bryant without
avail; and that he had been bothered by collection agents who were attempting to
collect unpaid debts of Bryant. Bryant also admitted under cross-examination of
having been involved in an -accident in February while driving a company truck in
which he had been charged with failure to yield the right-of-way; that about 4 or 5
years ago he had been falsely charged with stealing beer while employed at Charlie's
Market for which he and the driver each paid $50 in settlement of the claim; that,
however, he continued to service Charlie's Market while employed by Respondent;
and that there had been some shortages of beer claimed by Respondent prior to his
discharge.
2 Article 9 of Respondent's contract with Local 899 of the Teamsters Union provided:
"All drivers shall be required to have a helper. Helpers shall be paid by the Company
and mutually governed by the Company and the drivers Helpers shall be paid the pre-
vailing minimum hourly wage scale required under the Wage and Hour Law. Each driver
shall be responsible for selecting his own helper "
i Although the alleged interrogation on June 11 was not pleaded in the complaint, it
was fully litigated at the hearing without objection and may be used to support a finding
of an unfair labor practice. New England Web Inc, et al, 135 NLRB 1019, 1023. The
findings as to the above-related interrogation are based upon Bryant's testimony. Al-
though Velotas denied having had any conversations with Bryant concerning his union
meetings, I find that Bryant's testimony was forthright and convincing, and is credited..
4 These findings are based upon the testimony of Bryant. Velotas testified that when
Bryant was discharged he told him, "I hate to do this, but I have been putting up with
this long enough I thought you would straighten up. I cannot put up with it. My
customers get on me." Velotas was presumably referring to certain alleged short-
comings and problems arising in connection with Bryant's work, more particularly de-
scribed hereinafter. However, I credit Bryant's version of the conversation which took
place at that time, and in doing so, I attach great weight to other testimony of Velotas
that prior to Bryant's discharge he discussed his work with Sales Manager Stephens who
told him, "It is up to me. He worked for the Union and you do what you want to do "
This indicates that Bryant's union activities were known to management, and apparently
figured prominently as a factor in his discharge. Stephens' testimony that he was unaware
of Bryant's union activities is not credited. -
f
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Status of Velotas
Respondent contends that Velotas is not a supervisor within the meaning of the
Act, and it cannot be held responsible for his conduct, citing several Board decisions,
including Gulf Bottlers, Inc.,5 a case substantially similar to the instant case with
the exception that there the driver-salesmen, in effect, paid part of the salary of the
helper. In that case the Board sustained the Trial Examiner's findings that driver-
salesmen were not supervisors despite their authority to hire, fire, or supervise their
helpers. In arriving at that conclusion, the Trial Examiner cited and relied primarily
upon the Board's decisions in Wells Dairies Cooperative, 109 NLRB 1450, and
Southern Bleachery and Print Works, Inc., 115 NLRB 787, and found, in effect, that
the Board held in the former case the driver-salesmen were not supervisors because
the direction of their helpers was of a routine nature and their authority was akin
to that of a skilled craftsman with respect to a single operator under their direction,
and in the latter case that skilled craftsmen were not supervisors although they could
effectively recommend the discharge, transfer, promotion, and demotion of other
workers on their machines because to hold otherwise would eliminate a substantial
part of the craftsmen in the Nation from coverage of the Act and fly in the face of
the demonstrated concern of Congress for craft units.6
Although it appears in the instant case that the helper was mutually governed by
the Company and the driver-salesman according to their union contract, and that his
salary was wholly paid by Respondent, I do not regard these factual differences of
such significance as to warrant a different result from that reached in Gulf Bottlers,
supra, and consequently, I feel constrained to follow the Board's prior decision that
driver-salesmen are not supervisors within the meaning of the Act. Accordingly,
I conclude that Velotas is not a supervisor, who in that capacity could make Respond-
ent responsible for his interrogation of, or statements to, Bryant. However, regard-
less of whether Velotas was technically a "supervisor," I find that in view of his
authority to hire, fire, and supervise his helper, he was, in fact, a representative of
management in the performance of his duties incident to his position vis-a-vis Bryant
As such, he was in a "strategic position to translate [to employees] the policies and
desires of management," 7 and reflected management's union policy when he interro-
gated Bryant and warned him that he would be fired if the Company found out about
his union activities.
Violation of Section 8(a)( I)
Accordingly, I conclude that Respondent is chargeable with Velotas' conduct, and
violated Section 8(a)(1) of the Act by his interrogation of, and threats to, Bryant
on June 11. However, I find that Velotas' interrogation of Bryant on May 4, per se
or in the context in which it was used, did not suggest an element of coercion or
interference which was violative of Section 8 (a) (I).
Violation of Section 8(a) (3)
I find further that Bryant was actually discharged because of his union activities
or sympathies. In reaching that conclusion I do so on the basis of my appraisal of
the entire record which persuades me to believe that Bryant's shortcomings or prob-
lems arising in his work were not seriously raised, and were utilized as a pretext to
mask Respondent's discriminatory purpose to discharge him because of his union
activities. In arriving at that conclusion I find also that Respondent is chargeable
with the knowledge of Bryant's union activities acquired by Velotas during the course
of his interrogation of Bryant, and that his warning to Bryant may be considered in
determining why he was discharged. Furthermore, even assuming, arguendo, that
Bryant's work performance constituted valid ground for his discharge, they do not
legalize it where the circumstances reasonably indicate, as found herein, that his union
activities weighed more heavily in the decision to fire him than did other factors.
N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1); N.L.R.B. v. C. & I.
Camp, Inc., d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (C.A. 5).
Accordingly, I conclude that Bryant was discriminatorily discharged by Respondent
in violation of Section 8(a) (3) and (1).
6127 NLRB 850, enfd . 298 F. 2d 297 (C.A.D.C.) cert. denied 369 U.S. 843.
S. Rept. 105, S. 1126, 80th Cong., 1st seas. 4 (1947).
Cf. International Association of Machinists V. N.L.R.B. (Serrick Corp.), 311 U.S.
72, 80-81.
HERB SADLER BUDWEISER DISTRIBUTING CO. 123
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities , set forth in section III, above , occurring in connection
with Respondent 's operations 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 commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that Respondent engaged in unfair labor practices in viola-
tion of Section 8(a) (1) and ( 3) of the Act, it will be recommended that Respondent
cease and desist therefrom , and take certain affirmative action designed to effectuate
the policies of the Act. It will be recommended that Respondent offer John Bryant
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to seniority and other rights and privileges , and make him whole
for any loss of earnings he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of offer of rein-
statement less interim earnings , and in a manner consistent with the Board policies
set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as
prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
I shall recommend that Respondent 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 other
records necessary to analyze the amount of backpay due and the right to reinstate-
ment under the terms of these recommendations.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. By discriminating in regard to the hire or tenure of employment of John Bryant,
thereby discouraging membership in the above Union , Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By interrogating and threatening John Bryant with economic reprisal Respond-
ent has interfered with , restrained , and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found herein , Respondent has not otherwise engaged in
acts or conduct in violation of Section 8(a)(1) and ( 3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I hereby recommend that Respondent , Herb Sadler
Budweiser Distributing Company, its agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union No. 612 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , or in any other
labor organization by discharging , refusing to reinstate , or in any other manner dis-
criminating against employees in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating employees concerning their union activities: and/or threatening
them with economic reprisals in a manner constituting interference , restraint, or
coercion violative of Section 8(a) (1) of the Act.
(c) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer to John Bryant immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, and make him whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him, as set forth in the section of this
Decision entitled "The Remedy."
(b) Notify the above-named employee, if presently serving in the Armed Forces
of the United States, of his right to full reinstatement upon application in accordance
with the Selective Service Act and Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
(d) Post in conspicuous places at its plant in Birmingham, Alabama, including all
places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for Region 10, shall, after being duly signed by Respondent, be posted by
it immediately upon receipt thereof, and be maintained by it for at least 60 consecu-
tive days thereafter. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps Respondent has taken to comply herewith .9
8 In 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".
"In the event that 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
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 notify our employees that:
WE WILL NOT discourage membership in Local Union No. 612, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or in any other labor organization , by discharging or refusing to reinstate any
of our employees , or in any manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union activities with
respect to the above -named or any other labor organization or threaten them
with economic reprisals in a manner constituting interference , restraint , or coer-
cion violative of Section 8(a) (1) of the Act.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization or to form labor
organizations , to join or assist the above -named or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer to John Bryant immediate and full reinstatement to his former
or a substantially equivalent position without prejudice to seniority and other
rights and privileges, and make him whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remain-
ing member of the above -named Union, or in any other labor organization.
HERB SADLER BUDWEISER DISTRIBUTING CO,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
THE RATH PACKING COMPANY 125
NOTE.-We will notify the above -named employee , if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance 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, 528 Peach-
tree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-
3311, Extension 5357, if they have any questions concerning this notice or compliance
with its provisions.
The Rath Packing Company and District Local Union No. 431,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO and Local 46, United Packinghouse, Food,
and Allied Workers, AFL-CIO, Party to the Contract. Case
No. 38-CA-19 (formerly Case No. 18-CA-1908). June 18, 1965
DECISION AND ORDER
On January 18, 1965, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Local 46, United Packinghouse, Food, and Allied
Workers, AFL-CIO, hereinafter called UPWA, filed exceptions to
the Trial Examiner's Decision and a brief in support thereof.
UPWA's brief asserted , inter alia, that on January 12, 1965, after
the close of the hearings herein, an agreement was entered into between
the Charging Party, the Respondent, and UPWA; that this tripartite
agreement superseded the bilateral agreement of July 3, 1964, upon
which the complaint and the Trial Examiner's findings were based,
and which purportedly had never been implemented or enforced; and,
that the later agreement resolved the dispute in the instant case and
the complaint should therefore be dismissed. The National Labor
Relations Board, on May 3, 1965, issued an Order To Show Cause
returnable on or before May 13, 1965, why the Board should not
receive into evidence the tripartite agreement of January 12, 1965, a
copy of which was appended to UPWA's brief, and why, if so received,
that agreement would not then warrant dismissal of the complaint in
its entirety on the ground that it would not effectuate the policies of
the National Labor Relations Act, as amended, to issue a decision in
these circumstances. No response having been filed by any of the
parties, the Board orders that the tripartite agreement of January 12,
1965, be, and it hereby is, received into evidence and made a part of
the record herein.
153 NLRB No. 8.