O. Del Papa and Sons

National Labor Relations Board - Board Decisions

Jun 24, 1963

143 N.L.R.B. 1 (N.L.R.B. 1963)

0. Del Papa and Sons and Beer Drivers Local 253, AFL-CIO,
International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, AFL-CIO. Case No.
23-CA.-1540. June 24, 1963
DECISION AND ORDER
On April 11, 1963, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Inter-
mediate Report. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent filed exceptions
to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Inter-
mediate Report, the exceptions and brief, and, the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner
George A. Downing at Beaumont, Texas, on March 7, 1963, pursuant to due notice.
The complaint, issued on January 21, 1963, by the General Counsel of the National
Labor Relations Board, upon a charge dated December 7, 1962, alleged in substance
that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1)
of the Act by interrogation of employees, by threat of reprisal, and by assigning an
employee to more onerous and arduous tasks because of his union membership
and activities. Respondent answered denying the unfair labor practices.
The issues are whether (1) Respondent engaged in the alleged conduct, and (2)
one Albert J. Aucoin is a supervisor and/or agent within the meaning of the Act.
Respondent submitted with its brief proposed findings and conclusions, which
are disposed of in accordance with my findings in section II and my conclusions of
law, infra.
143 NLRB No. 3. 1
`Z 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. JURISDICTIONAL FINDINGS : THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted by answer and by stipulation
that Respondent, a Texas corporation engaged in the wholesale distribution and sale
of Budweiser and Busch Bavarian Beer, is engaged in commerce within the meaning
of the Act,' and that the Charging Union is a labor organization within the meaning
of the Act.
H. THE UNFAIR LABOR PRACTICES
This case of slight subject matter rests entirely on the testimony of Blaise Joseph
Kraemer, a driver-salesman (since discharged), to certain coercive conduct which
he attributed to Respondent's sales manager, W. R. Reed, and to one Albert Aucoin,
whose status as a supervisor is in sharp dispute. The latter issue is resolved
preliminarily.
(1)
Respondent's admitted supervisors were President Del Papa, Sales Manager Reed,
and Office Manager Robichau. The sales territory was covered by eight driver-
salesmen on eight separate routes, four of which were assigned to Albert Aucoin
and four to Joseph Romero. Aucoin and Romero held exactly the same kind of
job, and their duties and their authority-or lack of it-were identical. They were
engaged in distributing advertising materials, arranging displays, promoting sales,
seeing that the beer was properly distributed, and checking on the manner in which
the driver-salesmen were servicing their routes.
Though Respondent offered evidence that all authority to hire, fire, discipline, and
otherwise responsibly to direct the drivers was in the hands of Del Papa and Reed,
there was also evidence that Aucoin and Romero exercised a type of supervision over
their respective drivers. Thus, Kraemer testified, without denial, that Romero
sometimes spoke to him about his sales being low and urged him to bring them up,
and that on one occasion Romero threatened him with discharge for passing up a
customer. The drivers reported to Romero and Aucoin any problems which arose
on the routes, and the latter made at least the initial attempts to work out such
problems. Aucoin and Romero also received complaints from customers and ad-
justed them where possible with the drivers, though the more serious complaints
were taken to Reed. In the latter cases, if asked for a recommendation regarding
discipline, they would make one. Though Romero testified (as Respondent's wit-
ness ) that he could recall no case where he recommended that a driver be fired
or disciplined, his pretrial affidavit to the Board contained the following statement:
When someone is hired I will be asked if I know anything about him. I have
never fired anyone but feel that I have authority to recommend that someone
be fired. Once I told the manager, Bill Reed, that a man was not doing his
job properly.
Romero also affirmed the correctness of the following statements in his affidavit:
Under Mr. Del Papa there is a manager, then the salesmen, myself and Mr.
Aucoin. I would say that the manager has control over the two salesmen,
eight route-salesmen, warehouseman, and office manager. Outside of the sales
force I would say that I do not have control over anyone else.
Though there was other evidence concerning comparative earnings and other
alleged indicia of supervisory authority, it was of no particular help or significance
save for a portion of Kraemer's testimony (not denied by Reed) that on an occasion
in July or August, after he had failed to comply with Romero's direction to pick
up some old beer, Reed informed him that Romero was his boss, that he had to do
whatever Romero told him to, and that if Romero told him to pick up the beer,
he had to do it. Any doubt of supervisory status which might otherwise have
existed was plainly dispelled by that unequivocal bestowal of supervisory status.
Cf. Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 111 NLRB 708,
716-717, enfd. 228 F. 2d 159 (C.A. 5).
Through the distribution and sale of products valued in excess of $50 ,000 which
originated at, and which were received by Respondent indirectly from , points outside the
State of Texas.
0. DEL PAPA AND SONS 3
I therefore conclude and find on the entire evidence that Aucoin and Romero
were supervisors within the meaning of the Act.
(2)
We turn now to the meager events which accounted for this proceeding.
Kraemer had been a member of Beer Salesmen of the Sabine District (herein
called the Independent), with whom Respondent was under contract during the year
1962. On June 20, however, representatives of the Charging Union held a meeting
with the driver-salesmen, who voted to affiliate with it, and Kraemer, who was present,
signed an authorization card.
Kraemer testified that a few days later he was questioned by Reed, who called him
into the front office of President Del Papa. Reed inquired why Kraemer had signed
for AFL-CIO and if he knew the risk of it, and told Kraemer he should stay in the
Independent, pointing out that the Independent had been good to Kraemer by send-
ing him money while he was in the hospital. Reed also told Kraemer he had better
get in touch with Chunky Aycock (of the Independent) and "sign back" with him,
though it might cost Kraemer $50 to do so, even if the Independent would take him
back.
Kraemer testified that the next afternoon Aucoin called him into the same office
and went over substantially the same matters. Specifically, Aucoin told Kraemer
he thought Kraemer had made a mistake by signing over to AFL-CIO, that it was
"the wrong way to go," and that the Company and the Independent were good to
him. Aucoin added that although he did not think the Company would fire Kraemer
for "signing over," it could "make it rough" on Kraemer.
Aucoin was not called as a witness.
Though Reed denied initially that he ever interrogated Kraemer about his union
activities or discussed with him which union he should or should not belong to, he
admitted on further examination that he asked Kraemer if he had joined AFL-CIO
and received no answer. Though Reed endeavored to relate that inquiry to the
stale bees incident which Kraemer had fixed as occurring in July or August,2 he
admitted on further examination that he heard immediately after the June 20 meet-
ing that Kraemer was not going to continue his affiliation with the Independent, but
had signed a card with Brewery Workers, and that, "That is when I asked the ques-
tion." Reed admitted further that he told Kraemer the Independent had been very
good to him when he was in the hospital and that he asked Kraemer what he held
against it.
Thus, Reed's subsequent admissions substantially contradicted his original denials,
and they also lent substantial confirmation to Kraemer's testimony, which I there-
fore credit.
There remained of the case only Kraemer's testimony that for 2 days around
November 1, Reed assigned him to drive a truck known as "the old milk wagon,"
which was more difficult and more inconvenient to operate than Respondent's other
equipment. Respondent's evidence showed, however, that it leased all its trucks
from another concern which periodically ordered them to the shop for inspection
and check up, and that it was such an order which accounted for Kraemer's assign-
ment to the older truck, which as Kraemer admitted, was usually done when a
driver's regular truck was not available.
Kraemer testified further, however, that Aucoin remarked, concerning the assign-
ment, that the only reason he could see was that Kraemer signed up "the wrong
way," and that he would hate to see anything happen to Kraemer because of his
mistake. Those remarks, though plainly coercive, do not establish that the assign-
ment was in fact retaliatory, for it was not shown that Aucoin had any part in making
the assignment or that he had any knowledge of the reason for which it was made.
I therefore conclude and find on the entire evidence that by the interrogation of
Kraemer concerning his union membership, activities, and desires and by the threat
of reprisal because of his signing with the Charging Union, Respondent interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
III. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases, as provided in the
2 The parties agreed during the hearing that that incident was significant only for its
bearing on the issue of supervisory status.
717-672-64-vol. 143-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Recommended Order below, which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act.
In view of the fact that Respondent was under contract with Beer Salesmen of the
Sabine District during the year 1962, I have inserted its name, as well as the Charging
Union's, in Appendix A.
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 interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that
the Respondent, O. Del Papa and Sons, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Interrogating coercively its employees concerning their union membership,
activities, and desires.
(b) Threatening employees with economic or other reprisals because of signing
with the Union.
(c) In any like or related manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Post in its offices and warehouse at Beaumont, Texas, copies of the attached
notice marked "Appendix A." 3 Copies of said notice, to be furnished by the
Regional Director for the Twenty-third Region, shall, after being signed by Re-
spondent'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. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps Re-
spondent has taken to comply herewith?
It is further recommended that the complaint be dismissed insofar as it alleges
violations of Section 8(a)(1) except as herein specifically found.
3If this Recommended Order Is 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. If the Board's Order Is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals, Enforcing an Order" for the words "A Decision
and Order."
4 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Twenty-third Region, 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, we hereby notify you that:
WE WILL NOT interrogate coercively our employees concerning their union
membership, activities, or desires.
WE WILL NOT threaten our employees with economic or other reprisals if
they sign with or remain in the Union.
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, to form, join,
or assist Beer Drivers Local 253, AFL-CIO, International Union of United
MANNING, MAXWELL & MOORE, INCORPORATED 5
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL--
CIO, Beer Salesmen of the Sabine District, or any other labor organization, to
bargain collectively through representatives of their own choosing , or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
All our employees are free to become or remain or to refrain from becoming
or remaining members of the above-named or any other labor organization.
0. DEL PAPA AND SoNs,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617 Fed-
eral Office Building , 515 Rusk Avenue, Houston , Texas, 77002 , Telephone No.
Capitol 8-0611 , Extension 271, if they have any question concerning this notice
or compliance with its provisions.
Manning, Maxwell & Moore, Incorporated and International
Union of Operating Engineers, AFL-CIO. Case No. 15-CA-
2248. June 24, 1963
DECISION AND ORDER
On April 30, 1963, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 Inter-
mediate Report, the Respondent's exceptions, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed , the General Counsel for the National Labor Relations
Board , for the Regional Director for the Fifteenth Region (New Orleans, Louisiana),
143 NLRB No. 4.