Kent Morgan Distributing Co.

National Labor Relations Board - Board DecisionsAug 12, 1968

172 N.L.R.B. 1503 (N.L.R.B. 1968)

KENT MORGAN DISTRIBUTING COMPANY 1503 Kent Morgan Distributing Company and General Drivers and Helpers Union Local No. 554, af- filiated with International Brotherhood of Team- sttrs, Chauffeurs , Warehousemen and Helpers of America . Cases 17-CA-3364 and 17-RC-5553 August 12, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 17, 1968, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled con- solidated proceeding, finding that Respondent 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 affirm- ative action, as set forth in the Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recom- mended dismissal thereof. In Case 17-RC-5553, the Trial Examiner recommended that the challenge to the ballot of LaVerne Wentling be overruled and the challenge to the ballot of Gail Walter be sustained.' Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Kent Morgan Distributing Company, Lincoln, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the com- plaint be, and it hereby is , dismissed insofar as it al- leges violations of the Act not found herein. IT IS HEREBY FURTHER ORDERED, in Case 17-RC-5553, that the challenge to the ballot of Gail V. Walter, which was cast in the election held on January 9, 1968 , be, and it hereby is, sustained; that the challenge to the ballot of LaVern Wentling , be, and it hereby is, overruled ; and that the Regional Director for Region 17 open and count the ballot of LaVern Wentling and cause to be served upon the parties a revised tally of ballots, and the appropriate certification. ' No objections were filed to the election conducted in Case 17-RC-5553 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceed- ing, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Lincoln, Nebraska, on February 13, 1968, pursuant to due notice. A complaint, issued by the Regional Director of Region 17 representing the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board) on November 29, 1967, alleged that Kent Morgan Distributing Company, Respondent herein, violated Section 8(a)(3) of the Act by discharging LaVern Wentling on October 3, 1967, because of his union activity and also violated Section 8(a)(1) of the Act by certain other specified conduct. In its duly filed answer, Respondent denied the commission of any unfair labor practices. On October 11, 1967, the Union filed an RC petition, Case 17-RC-5553. Pursuant to a stipula- tion a consent election was held on January 9, 1968, in a unit comprised of all advertising em- ployees, warehousemen and driver-salesmen em- ployed at the employer's Lincoln, Nebraska, facility but excluding all office clerical employees, profes- sional employees, guards, supervisors as defined in the Act, and all other employees. Three votes were cast for the Union, two against, and two ballots were challenged, those of Wentling, the alleged dis- criminatee herein, and of Gail V. Walter, hired after Wentling's discharge. On January 23, 1968, the Regional Director issued an order directing a hearing on the challenged ballots and consolidating the matter with the complaint case. Upon the entire record and from my observation of the witnesses, I make the following: 172 NLRB No. 166 1 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. RESPONDENT 'S BUSINESS At all times material herein Respondent has been a Nebraska corporation with its principal place of business at Lincoln, Nebraska, where it is engaged in the wholesale distribution of beer and related products. During the year preceding issuance of the complaint Respondent in the course and con- duct of its business operations purchased materials and products valued in excess of $50,000 from sup- pliers located outside the State of Nebraska. During the same period of time Respondent made gross sales in excess of $500,000. At all times material Respondent has been an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION At all times material General Drivers and Helpers Union Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES Respondent's Organization As of October 3, 1967,' in the operation of its wholesale beer distribution business, Respondent had a total of nine employees. These were com- prised of (I) four driver-salesmen who sold the beer to retail outlets within assigned areas or routes; (2) one warehouseman, 90 percent of whose work was performed in the warehouse but who, on occasion, made "some deliveries" to customers; (3) one man "mainly classified as an ad- vertising man" who drove a company panel truck and whose duties primarily "had to do with adver- tising ... and merchandising" but who also acted as a substitute driver-salesman relieving drivers during vacations, illnesses , or other absences, (4) one man classified as general manager or sales manager who admittedly was a supervisor and who, on occasion, might also substitute for a driver-salesman in the case of an emergency; (5) two office girls, one ap- parently on a part -time basis . Heading the entire or- ganization was Respondent's president and treas- urer, Kent Morgan. Union Activity In late September an effort was being made by the Union to organize the employees of various beer distributors in the Lincoln area. Pursuant to this effort the Union conducted a meeting at its headquarters on the evening of October 2. Three of Respondent's driver-salesmen (Richard York, Ed- ward McGarvie, and Charles Brown) and its adver- tising man (LaVern Wentling) attended this meet- ing and signed union cards. Interference , Restraint, and Coercion The following day, according to the undenied and credited testimony, Morgan approached York as he was loading his truck and said, "I heard you went to a union meeting ." York said, "Yes." Mor- gan said , "Would you mind telling me who all at- tended?" York told him that besides himself, Mc- Garvie, Brown, and Wentling had attended. Mor- gan then asked why he had attended and York replied that he had gone "to see what the Union had to offer." When Morgan asked what there was that York would want to find out about, York "made the remark that they (the Union) had a good plan with a retirement and so forth." After talking to York, Morgan called Wentling into the office, closed the door, and asked Wentling if he had attended the union meeting the previous night . Wentling replied that he had attended the meeting . Morgan said, "How do you stand?" Wen- tling said , "I stand with the majority." Morgan said, "Then we can't use you any more." Thereupon en- sued a discussion between the two reviewing Wentling's past work record with Morgan ex- pressing dissatisfaction with Wentling on various counts . In his defense Wentling told Morgan that during the preceding 9 months he had spent practi- cally all of his time "on the route truck day in and day out" which had made it very difficult to per- form his own duties "as an advertising man." At the end of the conversation Wentling left the premises. That evening he called Morgan to see if his dismis- sal "still stood" and was assured that it did. In addition to York and Wentling, Morgan also called warehouseman George Niederhaus into the office that day and asked him if he "knew what was going on" regarding the Union. Niederhaus replied that he did. Morgan then asked Niederhaus to tell him who had attended the union meeting. Niederhaus refused to do so telling Morgan that he wanted "nothing to do with it." Morgan said, "That's o.k. then." Later that day Morgan convened a formal meet- ing with the employees in the warehouse office. At this meeting he stated' that he had heard that the employees had been to a union meeting and that considering the small size of Respondent's or- ganization he did not feel that they needed a union. He indicated that he was against the Union but that if need be he could live with it. He wanted to know All events are in 1967 unless otherwise noted What Morgan said at the meeting is a composite of the testimony of the four witnesses called by the ( eneral Counsel , all of which stands undemed in the record Some of the witnesses were uncertain as to whether particu- lar matters were mentioned in this meeting or a similar meeting held by Morgan with the employees the following day KENT MORGAN DISTRIBUTING COMPANY 1 505 what the employees' complaints were and why they had gone to the Union rather than coming to him about them . He mentioned certain benefits he was willing to give the employees such as a retirement plan, profit sharing, better work schedules, holidays off, and less Saturday work. He also mentioned that they might lose present benefits if the Union came in, such as the $18,000 life insurance policy he car- ried on them at no cost to them. Sometime during the course of the meeting Morgan interrupted the discussion to inform the employees that he had discharged Wentling.' At a similar meeting with the employees the fol- lowing day Morgan announced to them that hen- ceforth they would have six holidays off; that there would be no case delivery on Saturdays, only kegs (an improvement ); that they would be called upon to make no more than two deliveries a week to a customer ( in contrast to three or four a week on occasion previously );' that they would be called upon to work only every third Saturday in contrast to every Saturday morning as they had been work- ing; that if they had to work an extra Saturday they would get an afternoon off during the week in com- pensation ; that they would now be paid both for sa- lary and commission on a weekly basis as compared to a monthly basis for salary and a yearly basis for commission ; that they would now get double com- mission for holiday work ; that Morgan "was going to try to work out a better commission ... if he could get more money on the case for himself"; and that "he had looked at two or three different" profit-sharing plans but had not yet found one he wanted. All of the foregoing announced changes thereafter became effective except that there was no general increase in the commission rate and no profit-sharing plan was adopted. Admittedly some of the employees' problems had been mentioned to Morgan and Dewey prior to this time especially the holiday work and the call-in problem, but nothing had ever been done about them before these meetings, the employees simply having been told in substance that the Company would try to do something about them.' According to Brown's undenied and credited testimony, about November 20, Morgan came to him while he was unloading his truck and called him towards his car saying he wanted to talk to Brown. In the car he told Brown that he "couldn't talk in the warehouse about the Union, but it was legal for him to talk ... off the premises ...... He "brought up something about profit sharing. He was looking at some, but ... his hands were tied. He couldn't go into a profit-sharing deal as long as (he) had the Union over his head." He then in- formed Brown that Brown could draw his card out of the Union if he wanted to-that all he had to do was "write up and get it" without giving any reason for his request. Thereupon he told Brown that he would like to have him get together with York and McGarvie and discuss with them the matter of withdrawing their union cards. Brown indicated that he would do so. Two or three days later as Brown was leaving the warehouse Morgan drove in and motioned for him to stop. Morgan asked Brown if he had had an op- portunity to talk to the other employees about the cards. Brown said that he had spoken to them in- dividually but they had not gotten together to discuss it as a group. Morgan said, "If you get an opportunity, get together with them and let me know." He also told Brown at this time that "he would prefer to go without the Union. Give him a try the way (they) were working. If (they) didn't like the way things were going, (they) could always vote the Union in. That would be no problem. He would like to change the things ... like profit shar- ing." McGarvie also testified about having a sub- stantially similar conversation with Morgan about this same time. The General Counsel contends that the foregoing evidence establishes that Respondent interfered with, restrained, and coerced its employees in viola- tion of Section 8(a)(1) of the Act by (1) illegally interrogating them about their union activity, (2) creating the impression in them that their union ac- tivities were under Respondent's surveillance, (3) promising and granting them benefits to refrain from union activity or support, (4) threatening reprisals because of their union activity, and (5) promising benefits if they would withdraw from the Union. The General Counsel further contends that the foregoing evidence also establishes that Respondent discriminated against its employees in violation of Section 8(a)(3) of the Act by discharg- ing Lavern Wentling on October 3. Except for the contention regarding the impres- sion of surveillance, I agree with and find for the ' According to the testimony of Brown , who impressed me as being an in- telligent and forthright witness , Morgan interrupted the discussion by inter- jecting the comment , " Incidently, I let Vern go " According to York's testimony Morgan had said "Oh, by the way , I hale let Mr Wentling go - ' One of the employees' biggest "gripes" was where customers failed to stock sufficiently during regular dchseries and then called in for a special delivery later This was particularly aggresating when the calls came on holidays s For instance, according to Brown 's undemed and credited testimony, about 2 months before this the driscrs had discussed holiday work with Dewey At that time Brown had asked Dewey why he and % entling could not "run one route while (the driscrs) ran the other and cscnhods would get the holidays off Dcwes replied that ''it sounded like a good idea It was something )they ) would hale to work out Later Brown mentioned the matter to Dewey again and Dewos replied that 'he was still working on it '' According to ti ork s testunons Morgan had told the eniplosccs some. time presioush that he was attempting to "work out' Lertam plans with the Beer Wholesalers Association regarding holiday and Saturd is delis cries 1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel on all counts .6 If I understand Respondent 's contention , apparently Respondent's position is (1) that any interrogation or comments by Morgan here were " innoncent " and "casual" re- marks occurring in friendly conversations customarily engaged in between Morgan and his employee and ( 2) that any promises made and benefits granted at this time were merely the result of previous commitments made to the employee by Morgan. Neither of these contentions presents a valid defense . In my opinion , Respondent 's first conten- tion is patently invalid . As for its second conten- tion , the most that the record established is that the complaints about " call-in " deliveries and holiday and Saturday work were the only matters that had been previously discussed with Respondent and that the only commitment made by Respondent re- garding them was that an effort would be made to do something about them . Thus even if it might be said that the promises and action by Respondent re- garding these three matters had no contention with the employees ' union activity , the promises of a retirement plan, a profit -sharing plan, double com- missions for holiday work and the accelerated pay- ment of salary and commissions were matters never before mentioned by Respondent and obviously could not provide Respondent with an alleged previous commitment as a defense here. In any event , on this record I find that Respondent's con- duct here is not excused by anything that went on before. Thus , Respondent 's precipitous action on some of the employees ' longstanding complaints only after it was confronted with the imminent unionization of its employees clearly establishes Respondent 's illegal motive. Discrimination Respondent 's defenses regarding the discharge of Wentling are ( I) that he was a supervisor within the meaning of the Act and as such not protected " I would not find the implication of surveillance here since it must have been apparent to the employees that whatever knowledge Morgan had about the employees ' union activity was obtained by his illegal interroga- tion of them That interrogation and the promising and granting of benefits to refrain from union activity are so obvious from the foregoing evidence as to require no specific analysis or comment The threat of the loss of life in- surance if the Union came in is clearly a threat of reprisal within the mean- ing of the Act As for the allegation of a promise of benefit to the em- ployees for withdrawing from the Union , while Morgan may not have bluntly put the profit -sharing matter to Brown and McGarvie as a quid pro quo for withdrawing from the Union , considering his comments in their full context there could have been no mistake on their part that Morgan's re- marks about profit sharing and their withdrawing from the Union amounted to and were meant to amount to lust that ' Later Morgan answered in the affirmative when asked by his counsel if part of Wentling 's responsibility was to be "in charge of the advertising de- partment for Kent Morgan " The advertising "department " was made up of one employee-Wentling " Elsewhere Morgan testified that Wentling supervised the four driver- salesmen and the warehouseman "as far as his advertising (was) con- cerned" except that his supervision of the warehouseman extended only to the unloading of advertising matenal received in shipment by it and ( 2) that in any event his discharge was for cause and not motivated by his union activity and thus was not discriminatory within the meaning of the Act. Let us examine first The Alleged Supervisory Status of Wentling In support of his contention that Wentling was a supervisor Morgan testified as follows : That Wen- tling worked for him about 5 or 6 years being "mainly classified as an advertising man": 7 that he had the "authority and responsibility to direct that part of the work which had to do with advertising. . . and merchandising",8 that he "was given the op- portunity to select employees " for interview by Morgan who had the sole power to hire them;9 that he had authority to transfer employees from one route to another " if he could show ( Morgan ) that it was a help"; he also had authority to adjust customer complaints but with respect to employee grievances " he would only have been the liaison man between the employee and [Morgan ]." " He had no authority to suspend an employee and could "only recommend " in that respect." According to Morgan 's further testimony, he was Wentling 's immediate supervisor12 and considered Wentling "as a member of [Respondent 's] super- visory and management group ." In response to a question by his counsel if it "was part of his [Wentling 's] responsibility to attend management and supervisory meetings "Morgan testified as fol- lows: Yes, certainly . Most of those I held early in the morning like 8 o 'clock . A good many times Mr. Dewey and I visited together and he wasn't even at work at this time or else he had chosen to go to some other place . It was not a require- ment he be there. 13 It was Wentling's job to "interpret company pol- icy" regarding advertising to the men. As explained to Morgan , " it wasn 't that LaVern was supposed to put up every piece of point of sale (i.e., advertising " He also testified that he had never hired an employee on the basis of Wentling 's recommendation In his affidavit he had made a contrary state- ment "' Elsewhere Morgan testified that the employees had been instructed to bring their grievances directly to him " Later his counsel asked if Wentling had "authority to recommend or promote an employee or assign him to a particular job or route and his answer was , " to assign, yes " "The testimony of sales manager Dewey contradicts Morgan here Dewey testified that in his view Wentling was a supervisor If so the record shows that Wending was subordinate to Dewey as illustrated by an incident that occurred between them in 1966 According to Dewey, on that occa- sion Dewey had asked Wentling to run a certain route and Wentling refused Dewey asked Wentling the reason for his refusal and Wending replied, "Because I don't have to " According to Dewey he then told Wen- tling that if he was not going to run the route he might as well take the truck back to the warehouse at which point Wentling capitulated and "ran the route " " Wentling testified that occasionally he was asked to attend such meetings and only did so upon invitation KENT MORGAN DISTRIBUTING COMPANY 1507 material) that we had to put up. He was hired to motivate the drivers to put up point of sale. "14 Wen- tling had no special reports to make other than a daily report to Morgan as to where he had been directing his efforts and a quarterly report to the brewery showing Respondent's point-of-sale inven- tory. Wentling was instructed to put the good pieces of advertising in the "Class A accounts and move the other pieces down, refurbish them." Ex- pendable type advertising such as easy-to-place paper "he should have authorized to driver- salesmen but it was his responsibility to put up large signs himself." If he needed assistance, according to Morgan "we sent somebody with him."" Wentling made the decisions where the large signs were to go. Other employees would relay advertising requests from customers to Wentling. It was the duty "of someone in supervisory per- sonnel" to instruct new employees, "to go out with them on their truck, get them on the proper delivery order, to make proper tickets, and to meet the retailer." This duty devolved upon Wentling or Dewey.'s Asked if Wentling "was ... assigned to make any appraisal of the progress of these new men and report back ..." Morgan answered, "This is a natural thing to do. It is required. You always ask how is the new man, it was up to him (Wentling) to appraise him, correct." Notwithstanding Respondent's insistence that Wentling was a supervisor, when asked if Wentling took action in the supervisory areas he was authorized to act in Morgan replied, "In a good many cases, no. Early in his employment he did a better job than he did the final year or two. He digressed from the work that was set out by me for him to do." Moreover, it appears from Morgan's further testimony that Wentling was not hired as a supervisor nor, indeed, formally promoted to one but simply "grew into" it. Although Morgan could not state definitely that the older employees were informed that Wentling was a supervisor, testifying that he thought that "in the inception ... when he (Wentling) came there ... my other employees were informed this,"" he testified that employees hired within the last year of Wentling's employment were not so informed because "by this time Mr. Wentling had digressed so much in management that we didn't know where he was" and as a result the supervisory status of Wentling became questionable in Morgan's mind. According to Morgan's further testimony, 2 weeks after Wentling's discharge Gale Walters was hired because of "a deficit" in Respondent's person- nel complement. Walters "was to be trained in the advertising part and driver route salesman and to fill in (in) any capacity that (he) might be needed" for the purpose of seeing if "he had the ability to go in one direction or another." As indicated, both Dewey and driver-salesman Brown took a hand in breaking him in. After "a short stab" by Walters at the same type of work Wentling had been doing (i.e., point-of-sale placement) he was called upon to replace a disabled driver-salesman on one of the route trucks where, according to Morgan, his "basic training . . . would be just fine . . . as it would be (in) any other place." Walters had no su- pervisory authority and, according to Morgan, had not at the time of his testimony replaced Wentling to Morgan's "satisfaction, yet." Received in evidence were four exhibits offered by Respondent through the identification of Mor- gan involving the enrollment of Respondent's per- sonnel in brewery sponsored sales contests for the years 1966 and 1967. There were two forms for each year-one applying to sales managers and route supervisors and the other to salesmen. In both years Wentling and Dewey were the only ones whose names were entered on the sales manager and route supervisor forms while warehouseman George Niederhaus was among those listed as a salesman on the two salesmen forms. According to Respondent the "status and designation" of the em- ployees listed on the contest forms received in evidence were taken from information contained in the company payroll records and accurately reflected those records. Although Morgan did not mention in his testimony that Respondent had secured a member- ship for Wentling in the junior chamber of com- merce and had paid his dues therein," such was the fact that appears from Wentling's testimony who also stated that in this membership he had made a lot of friends and developed business for Respon- dent. Even in the absence of any countervailing evidence on this matter from the General Counsel, the foregoing testimony of Morgan raises con- siderable skepticism regarding Wentling's alleged supervisory status particularly in view of the manner in which most of it was adduced. Although repeatedly warned about it, Respondent's counsel persisted in bringing out Morgan's testimony by means of leading questions. And even then it was devoid of any objective or factual foundation to support Morgan's subjective assertions regarding Wentling's alleged authority. When viewed in the " Elsewhere Morgan testified that Wentling "was responsible for the point of sale placements If he doesn't do it, he is falling down on his job " 151 accent "we " because with all the authority Wentling was supposed to have I would have expected the answer to be that Wentling would direct someone to accompany and assist him 1fl Apparently it also could devolve on the driver-salesmen since the record shows that one of the driver-salemen , Brown , took part in the train- ing of Walters in this manner 17 This is hardly consistent with Morgan 's testimony that Wentling was not a supervisor at first 1M Apparently Wentling 's predecessor in the job had had a similar mem- bership and Wentling was merely taking his predecessor 's place in that or- ganization 1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD light of the testimony given by the General Coun- sel's witnesses , the flimsy nature of Morgan's asser- tions is shown in its true light. Thus, apart from what Wentling himself physi- cally did (either on his own initiative or upon infor- mation received from the drivers about the adver- tising needs or requests of their customers) regard- ing the placement , erection, cleaning , and refurb- ishing of advertising material and his contacts with the brewery about it,'9 his alleged authority to direct that part of his work that had to do with ad- vertising and merchandising would seem to boil down to his asking the warehouseman to help him move the heavier pieces of advertising material20 or on occasion to enlist the help of the route drivers in distributing certain material (such as involved cur- rent sports events) in which time was of the essence in getting it placed.21 That Wentling "was given the opportunity to select employees" for interview by Morgan was not unique with him but was an opportunity conferred upon all the employees as appears from York's testimony that it was Morgan's policy "to go through his help to find a good man rather than put an ad in the paper" and his further testimony that Morgan had asked him to recommend someone re- liable and further told York to "keep (his) eye out for one." In the same vein was Wentling's alleged authority to transfer employees from one route to another "if he could show (Morgan) that it was a help." This qualification in itself tends to belie any authority on the part of Wentling in this respect. But it would appear that any worthwhile suggestions along this line would be equally welcome from any of the other employees as is shown from Morgan's testimony that "all recommendations that coine from either the field or the other management are weighed and if they have merit, somethings ... done about it. "22 As for Wentling's authority to adjust customer complaints or have the drivers adjust them, these amounted to such minor items as deficient deliv- eries, improper stacking of beer cases, and the like which complaints he simply "relayed" to the drivers in accordance with company policy that the employees "relay information to one another."2:' It was the driver's responsibility to act on information so received and to their benefit to do so. Regarding Wentling's authority to "interpret company policy" to the men regarding advertising, the only "policy" reflected in the record in this connection was that the best advertising material was to be placed with the "Class A accounts." As shown, the training of new men and the ap- praisal of their performance were engaged in by any of the employees as occasion demanded and were not restricted to or required to be done by su- pervisors only. It is well established that it is actually what the employee does as distinguished from what the em- ployer or his job description2a might say he does that determines whether he is a supervisor or not. Nevertheless, such evidence as job descriptions and the like may have some weight in resolving this type of question. In this connection I refer to the brewery sales contest forms offered in evidence by Respondent and heretofore described and reject them as not being particularly significant or diaposi- tive in this matter. In the first place that they accu- rately reflected the Respondent's payroll or other records as contended by Respondent is disproved by the fact that Niederhaus was listed on the salesman 's form while admittedly he was carried on Respondent's records as the warehouseman. Without some evidence about the contests, and their conduct which the forms purportedly per- tained to, the mere fact that a man's name was car- ried on either one in and of itself is of little value in determining if he was indeed in the category named on the form as is shown by Niederhaus' inclusion on the salesman form. Furthermore, since Respon- dent maintains that its payroll records would verify and support the employees ' status reflected by the contest forms, its failure to produce its payroll records as a primary source of this information would seem to require an inference adverse to Respondent here. In any event, even if Wentling was carried on the company records as a supervisor it would not, in my opinion, be sufficient in the context of all the facts herein to establish him as a supervisor within the meaning of the Act. As an employee whose duties were centered on advertising and merchandising, moreover, I can see no particular supervisory implication in Wentling's company sponsored membership in the junior chamber of commerce. Presumably it would be a sound investment to place an advertising and merchandising employee in an organization like the junior chamber of commerce particularly in the beer business. And the very nature of Wentling's duties could also explain his meeting on occasion with Morgan and Dewey to discuss, as he testified, "what was happening out in the territory" pertain- ing to the changing of accounts being handled by drivers, special sales deals, or the like. Because his advertising duties took him into every driver's terri- tory he might very well have useful information for " These contacts for the most part involved obtaining the football, baseball, and basketball schedules of the University of Nebraska and their transmittal (by "scratch paper" memos) to a brewery representative and the filing with him of quarterly inventories of advertising material-both of which obviously could have been performed by the office girls SO As testified by Nicderhaus " As was testified by wending 2S Prior ro this testimony Morgan had testified that he would look into suggestions made "in the normal course of business" or delegate their in- vcsugation to Mr Dewey or even to a driver 21 Wentling so testified Closely related to this policy was Respondent's further modus operand, as shown by York's testimony that it was "every- body's responsibility" to develop business "on all routes, all accounts." _' Respondent claimed that Wenthng 'sfob was reflected in a written job description which had been lost prior to the hearing KENT MORGAN DISTRIBUTING COMPANY 1509 Morgan on such matters, totally unconnected with any supervisory capacity on his part. The most that can be said for Respondent's posi- tion on this record is that at some point in his em- ployment Morgan may have entertained the possi- bility of Wentling's becoming a supervisor or possibly even so viewed him. But it would appear from Morgan's own testimony that if indeed Wen- tling "grew into" a supervisor, he also had grown out of it long before he was discharged. Ac- cordingly I find that at the time of Wentling's discharge he was not a supervisor and of course was entitled to the protection of the Act.25 The Motive for Wentling's Discharge Respondent's alternative defense is that even if it be determined that Wentling was not a supervisor, his discharge was for cause and had no connection with union activity. To this end Respondent ad- duced considerable evidence regarding Wentling's derelictions and deficiencies as an employee. Whether or not Morgan was aware of all of these things before the discharge or the decision to discharge was made is questionable.26 It is also questionable to what extent and depth Morgan's dissatisfaction with Wentling went before the discharge or to what extent Wentling's short- comings in his advertising work (the only area of his work to which complaints were directed)27 were caused (and perhaps justified) by being called upon to drive route trucks about 75 percent of the time .21 There is also some question as to what extent Dewey may have self-righteously influenced Mor- gan against Wentling.29 Regardless of what the answers to any of these questions might be they would not eliminate the fact that at the time of his discharge Morgan had voiced some reservations to Wentling about the caliber of his work which were probably sincere. But in the context of the entire case and Morgan's comment when he learned that Wentling would side with the majority, i.e., not with Morgan, the conclusion is inescapable that Wentling would not have been discharged but for his position regarding the Union and that this attitude played an impor- tant part in the discharge. I so find. Thus, even though there might have been valid cause to discharge Wentling and even though he might even- tually have been discharged for such cause quite apart from any union considerations , since the union attitude did play a part in his discharge it must be considered discriminatory within the mean- ing of the Act and a violation of Section 8(a)(3) thereof. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5). THE OBJECTIONS Having found that LaVern Wentling was dis- criminatorily discharged in violation of Section 8(a)(3) of the Act, it follows that the objection to this ballot should be overruled and his ballot counted. And having found that Gail V. Walters was hired as a replacement for Wentling and would not have been in Respondent's employment at the time of the election but for the discharge of Went- ling, the objection to Walters' ballot should be sus- tained and it should not be counted. I so recommend. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship 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 Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent discharged LaVern Wentling for engaging in activity protected by the Act, I will recommend that Respondent be ordered to offer Wentling immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by pay- ment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of an 25 One other factor I believe has a hearing on this matter That is that Walters, whom I find was hired as a replacement for Wentling, although he was doing the same work as Wentling both in advertising and as a relief driver admittedly was not a supervisor 16 Morgan admitted that some of Wentling's deficiencies were "dis- covered after Vern was released " It would also appear from Morgan's testimony that he "started making inquiries, recapping route sheets, visit- ing with advisors" in connection with Wentling's performance on the day he discharged Wentling and after he had made the decision to discharge him " Wentling's testimony stands undemed in the record that in his termina- tion discussion with Morgan the latter had told him that he "was a tremen- dous route driver or route salesman " =" Wentling's testimony that during the preceding year he had driven route trucks about 9 months stands undemed in the record 2' The difficulty between Wentling and Dewey regarding Dewey's having ordered Wentling to drive a certain sales route has been noted According to Dewey's testimony, he had been criticizing Wentling's work to Morgan for a long period of time and had recommended Wentling's dismissal al- most a year before it had occurred Considering that Dewey and Wentling were both attractive appearing young men about the same age a certain amount of competition could naturally he expected Dewey also testified that Morgan had told him in the summer of 1966 that he was going to discharge Wentling 1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer of reinstatement , less net earnings during said period , with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company , 90 NLRB 289, 291-294, in- cluding interest as held in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent preserve and make available to the Board , upon request, payroll and all other records necessary to facilitate determination of the amount due under this Recommend Order. In view of the nature of the unfair labor practices committed , I am of the opinion that the commission of similar unfair labor practices may be reasonably anticipated . I shall therefore recommend that Respondent be ordered to cease and desist from in- fringing in any other manner upon the rights guaranteed its employees by Section 7 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. Kent Morgan Distributing Company is en- gaged in commerce within the meaning of Section 2(6) and ( 7) of the Act. 2. General Drivers and Helpers Union Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)( I) of the Act. 4. By discharging LaVern Wentling on October 3, 1967 , because of his union activities thereby discouraging membership in the aforesaid labor organization , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , it is hereby ordered that Respondent , Kent Morgan Distributing Com- pany , its officers , agents, successors, and assigns, shall: 1 Cease and desist from: ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall he substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States (a) Discouraging membership in, or activities on behalf of, General Drivers and Helpers Union Local No. 554 , affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , or by any other labor organiza- tion , by discharging or in any other manner dis- criminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with reprisals if they should acquire membership in or engage in ac- tivities on behalf of or in support of the above- named Union. (c) Illegally interrogating its employees concern- ing their union membership or activities. (d) Promising or granting benefits to its em- ployees in an effort to cause them to reject the Union as their bargaining representative. (e) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights to self-organization , to form labor or- ganizations , to join or assist General Drivers and Helpers Union Local No. 554 , affiliated with Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, or any other labor organization to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , or to refrain from engaging in such ac- tivities. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer LaVern Wentling immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner provided in the section of this decision en- titled "The Remedy." (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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify LaVern Wentling if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (d) Post at its warehouse in Lincoln, Nebraska, copies of the attached notice marked " Appen- dix."30 Copies of said notice, on forms provided by Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " KENT MORGAN DISTRIBUTING COMPANY the Regional Director for Region 17, after being duly signed by Respondent's representative, shall 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 Respon- dent 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 have been taken to comply herewith.31 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of General Drivers and Help- ers Union Local No. 554, affiliated with Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or in any other manner discriminat- ing against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with reprisals because of their membership in, sup- port of, or activities on behalf of the above- named Union. WE WILL NOT illegally interrogate our em- ployees concerning their union membership or activities. WE WILL NOT promise or grant benefits to our employees in an effort to cause them to re- ject the Union as their bargaining representa- tive. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist the " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in 1511 above-named Union, or any other labor or- ganization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, and to refrain from any or all such activities. WE WILL offer LaVern Wentling immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of pay he suffered as a result of the discrimination against him. WE WILL notify LaVern Wentling if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All of our employees are free to become or remain, or refrain form becoming or remaining, members of General Drivers and Helpers Union Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. Dated By KENT MORGAN DISTRIBUTING COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5181. writing, within 10 days from the date of this Order. what steps Respondent has taken to comply herewith "