Pearl Beer Distributing Co. of Jefferson County, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1963

143 N.L.R.B. 596 (N.L.R.B. 1963)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporate reorganization, we find in agreement with the Employer and
the IAM that the experimental flight-test employees are not an ac-
cretion to or properly includible in the UAW's Long Beach, Cali-
fornia, production and maintenance unit. Accordingly, we deny the
motion for clarification.
[The Board denied the motion of the United Automobile , Aircraft
& Agricultural Implement Workers of America (AFL-CIO) to
clarify the certification in Case No. 21-R-2025.]
Pearl Beer Distributing Company of Jefferson County, Incorpo-
rated and International Union of United Brewery, Flour,
Cereal , Soft Drink and Distillery Workers of America, AFL-
CIO
Pearl Beer Distributing Company of Jefferson County , Incorpo-
rated and Beer Drivers Local 253, AFL- CIO, International
Union of United Brewery, Flour, Cereal , Soft Drink and Dis-
tillery Workers of America , AFL-CIO. Cases Nos. 23-CA-1460
and 23-CA-1510. July 11, 1963
DECISION AND ORDER
On May 3, 1963 , Trial Examiner Robert E. Mullin issued his In-
termediate 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 Intermedi-
ate Report . Thereafter , the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Rodgers, Fanning, 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 Intermedi-
ate Report , the exceptions and brief , and the entire record in the
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.
143 NLRB No. 65.
PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 597
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Rela-
tions Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act,
was heard before Trial Examiner Robert E. Mullin, in Beaumont, Texas, on Febru-
ary 6 and 7, 1963, pursuant to due notice to all parties. The complaint issued by
the General Counsel of the National Labor Relations Board, and based on charges
duly filed and served, alleged that the Respondent had engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1) and (3) of the Act. In its answer, duly filed,
the Respondent conceded certain facts with respect to its business operations, but
denied that it was engaged in commerce within the meaning of the Act or that it
had committed any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, and to argue orally.
The parties waived oral argument. Subsequent to the hearing, able briefs were
submitted by both the General Counsel and the Respondent. These have been
fully considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal office and warehouse
in Beaumont , Texas, where it is engaged in the operation of a beer wholesaling
distributorship. During the 12 months prior to the issuance of the complaint, a
representative period, it sold and distributed products the gross value of which ex-
ceeded $500,000. At all times material herein the Respondent has been a member
of a multiemployer bargaining group whose members participate in multiemployer
bargaining negotiations. This latter group, at all times material herein, has con-
ducted bargaining negotiations on behalf of its employer-members. During the 12-
month period referred to above, one or more of the members of the said multi-
employer bargaining group purchased in excess of $50,000 worth of beer which
product originated and was shipped from points outside the State of Texas directly
to said member or members. The foregoing findings are based on the concessions
which the Respondent made in its answer. On the other hand, the Respondent
denied that it is engaged in commerce within the meaning of the Act.
Although the Respondent, by itself, does not appear to meet the Board's standards
for the assertion of jurisdiction, the contrary is true of those members of the multi-
employer bargaining group which had out-of-State purchases in excess of $50,000
annually. Siemons Mailing Service, 122 NLRB 81, 84. Moreover, in Westside
Market Owners Association, et al., 126 NLRB 167, 170, the Board held that it
would assert jurisdiction over a multiemployer association , or the individual mem-
bers, if the total annual volume of gross business of all the members met the neces-
sary amount set for the Board's minimum jurisdictional standard, and legal jurisdic-
tion existed over one or more members of the association. Belleville Employing
Printers, 122 NLRB 350, 352. Both of these standards are met in the present in-
stance. As found above, in its answer the Respondent conceded that it participated
in the multiemployer negotiations of the aforesaid bargaining group. In Siemons,
the Board held that it would adhere to its past practice of "considering all members
of multiemployer associations who participate in . multiemployer bargaining
negotiations as single employers for jurisdictional purposes." Idem.; see also
N.L.R.B. v. Sightseeing Guides and Lecturers Union Local 20076 of Greater New
York, AFL-CIO (ABT Sightseeing Tours, Inc., 310 F. 2d 40, 42 (C.A. 2) ). On the
basis of the foregoing, it is my conclusion and I find that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Beer Drivers Local 253, International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL-CIO, herein called Local 253,
and International Union of United Brewery, Flour, Cereal , Soft Drink and Distillery
Workers of America, AFL-CIO, herein called Brewery Workers, are labor organiza-
tions within the meaning of the Act.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
During the summer and fall of 1962 the Respondent had approximately 26 em-
ployees. According to Hunter Miller, president and general manager, this number
included nine driver-salesmen and four warehouse employees, as well as administrative
and clerical employees and sales personnel. For many years the driver-salesmen have
been represented by an independent union known as "Beer Salesmen of the Sabine
District" (herein called Independent). Miller testified that the Respondent has
had contractual relations with Independent for about 15 years, although at the time
of the hearing, no contract was in effect. According to the Respondent's president,
the last contract, which covered a term of 3 years, expired on December 31, 1962,
and has not been renewed pending the outcome of a representation matter.'
Prior to July 1962, the Respondent's warehouse employees were unorganized.
Early that month James Chandler contacted several of them, and secured authoriza-
tion cards on behalf of the Brewery Workers. When information as to this organiza-
tional movement reached M. J. Hyatt, foreman of the warehouse, he made it clear
to the employees under him that he strongly disapproved. Albert Sells, one of
the warehouse employees, testified that in mid-July he asked Hyatt "his opinion
of what I should do concerning the union conflict they had at the Company . .
And he told me if I wanted him to tell me, it would be better to keep my nose out
of it completely and don't become involved." 2 Other witnesses testified that a
short while later Foreman Hyatt went much further than merely to offer his opinion
as to what the employees should do. Thus, Otis Granger testified that about
July 18, while all of the warehouse employees were present, Hyatt stated, "You
know you all made a mistake by joining the AFL-CIO Union. You are not co-
operating with the Company, neither with the truckdrivers . . . . I am going over
to suggest to Mr. Miller about ten dollars be cut off your pay." According to
Granger, later that same day and as they were about to conclude the shift, Hyatt
reminded them of his earlier statement and told them, "Be careful how you spend
your money. You know you are going to have ten dollars cut out of your check."
Granger and another warehouse employee, Wilbert Vaughn, testified that during
the course of that same day Hyatt warned them that if they stayed in the "AFL-CIO
Union" the Company "could easily find a reason for firing us. If we dropped a
case of beer or busted it . . . they would make us cut grass, clean up around the
place, and make it so hard on us we would have to quit " 3
The Respondent's warehouse employees wore uniforms, for some of which the
Employer paid 4 Granger testified that on July 18, Hyatt told him and the other
employees in the warehouse that "if we remained in the Union we were going to
get our uniforms taken away from us; we would have to pay for them," that the
employees would lose sick leave and vacations and that the Company "would cut
every man in the AFL-CIO."
The initial charge in Case No. 23-CA-1460 was filed by Chandler on July 23,
1962. Preparatory to filing the charge the representative of the Brewery Workers
secured statements from several of the employees, including Granger. The latter
testified that prior to this time, Hyatt had occasionally loaned him money. Accord-
ing to Granger, however, after he signed the statement, Hyatt refused to lend him
any money, and, in declining, told him "You know why, because you signed a
statement against me." During this period the foreman also told this same em-
ployee that "every day he has to spend in court he would see [the employees]
got two days off without pay." 5 Clifton Rideaux, another warehouse employee,
testified that he likewise heard Hyatt make the latter remark.
Early in October the Independent began a campaign to enlist the support of the
warehouse employees. About October 3, Hyatt and one of the truckdrivers, Sam
Fertita, told the warehouse employees that they had heard that Chandler, the
representative of the Brewery Workers, had withdrawn his request for an election on
their behalf and that Chandler would have nothing further to do with them.6 Im-
1 Namely, Sabine District Wholesale Beer Distributors Association , Inc., Case No.
23-CA-1930
2 This testimony was credible and it was not denied by Hyatt
s The quotation Is from the testimony of Granger
4 Miller testified that the Respondent paid for the uniforms of only those employees
who had been working for 6 months or more
The quotation is from the credible, undenied testimony of Granger Hyatt concedod
that he had made such a threat to the employees as to what they might anticipate in the
event the union problem compelled him to make any court appearances
6 This finding is based on the credible testimony of Albert Sells It was undenied by
Myatt
PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 599
mediately thereafter the four warehouse employees, Albert Sells, Wilbert Vaughn,
Oris Granger, and Clifton Rideaux, asked Miller if they could meet with him.
When the general manager agreed to do so, they told him of the report which
Hyatt had given them about the Brewery Workers and asked him for his advice.
Miller testified that the employees told him on this occasion that they wanted to
know if he could help them get out of the AFL-CIO and into the Independent.
According to Miller, he told them that there was nothing he could do to help or
hinder them in a matter of this kind, but that he would assist them in any way
that was legal, honorable, and ethical. Sells testified that during the course of the
meeting, Miller told them that the conflict between the Brewery Workers and the
Independent could be tied up in the courts for several years and that he would like
to see all the employees in one union.?
Shortly after the meeting in Miller's office, Vaughn and Granger signed cards in
the Independent. Sells, however, refused to do so when he was solicited. Prior to
the end of the shift that same day, Hyatt approached Sells and, according to Sells'
testimony which Hyatt did not deny, the following conversation ensued:
[Hyatt said] Al, what in the is wrong with you? I asked him what did
he mean . He told me I was all fired up that morning , talking with Mr. Miller
about joining the Independent Union, and now that all the men were there
I did'nt want to sign the papers . I told him I hadn't had time to think about it.
He told me it was getting close to the slack season and pretty soon he would
have to let me go , and since I was the latest addition to the warehouse crew,
more than likely it would be me. . . I told him I didn't care if it did mean
giving up my job, I would not sign the card . he told me it wasn 't meant to
be a threat but he would like for me to think about what he had said.
There was testimony about another incident which occurred during this same
period when Miller donated a sum of money for coffee and sandwiches for the men .a
The warehouse employees testified that in announcing the gift Hyatt suggested that
it was a reward for deserting the Brewery Workers. Thus, Wilbert Vaughn testified
that on this occasion Hyatt explained that they were getting the coffee money
"Maybe because you all went back to the Independent Union." Oris Granger testi-
fied that one morning a short time later and after he and others had attended a
meeting sponsored by the Brewery Workers, the coffee truck arrived and he declined
to order any. At that point, according to the employee, Hyatt asked, "Why, your
conscience bothering you?" According to Granger, when he denied any problems of
conscience in this regard, Hyatt stated, "Yeah, I know you went to the meeting last
night ... because I've got a guy over there-he calls me and told me about it ...."
Granger's testimony was corroborated by Vaughn. Although Hyatt testified that he
spent the coffee money without discrimination , he did not deny the comments at-
tributed to him by the employees which have been set forth above.
On October 12, 1962, Local 253 filed the initial charge in Case No. 23-CA-1510.
About November 8, Hyatt was away from the warehouse for some while. Clifton
Rideaux testified, and his testimony in this respect was not denied, that before Fore-
man Hyatt left, "He told me he had to go down and talk to the Labor Board man;
when he got back things wasn't going to be the same." That evening when Hyatt
returned, the warehouse employees were put to work washing windows and cutting
the grass around the building before they could unload any of the trucks which
arrived. Since they were paid a weekly rather than an hourly wage, and were
required to stay at the warehouse until all the trucks were unloaded, that particular
evening they were on duty until about 8 p.m. Albert Sells testified that in a con-
versation that evening with Rideaux, his coworker, they discussed the amount of
extra work they were doing and he proposed that they contact Chandler, the Brewery
Workers representative, about their treatment. Rideaux, however, disagreed and
commented that he felt they had already signed too many statements. At this
point , according to Sells , the two employees discontinued their conversation when
they observed that Hyatt was standing nearby.
Clifton Rideaux testified that on the following morning he came to work with an
injured hand and about 8:30 or 9 a.m., Hyatt came to him and asked whether his
7 Miller testified that he could not remember having made any statement about the
union conflict being the matter of extended litigation . The latter portion of Sells' testi-
mony as to the general manager 's preference for one union instead of two was not denied
8 Miller testified that during the World Series of 1962 he had , on one occasion , won the
baseball pool which the employees had started , and that he turned the entire amount of
his winnings , a total of $18 , over to the warehouse foreman to provide coffee and sand-
wiches for the men as long as the money lasted.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand had recovered enough so that he could move cases of beer. According to
Rideaux, when he answered the foreman in the affirmative, Hyatt told him that he
was "going to cut Albert [Sells] loose . . . he thought Al was the brains of the
AFL-CIO." 9 Later that morning, Sells was terminated.
The hearing in this case began on February 6, 1963. Oris Granger testified that
Wilbert Vaughn apprised Hyatt of the fact that he and the other warehouse em-
ployees had been subpenaed to testify at the hearing. According to Granger, while
he was at work on February 5, a man approached him and inquired as to the pros-
pects of employment in the warehouse. Granger testified that he referred the in-
Aividual to Hyatt who was standing nearby. Thereafter, according to Granger,
while he and his coworkers, Rideaux and Anderson, were present , Hyatt told the
jobseeker, "We don't need anybody right now but you better give me your name and
.address because we might run these boys off tomorrow." Granger's testimony as
to this incident was credible and it was not denied or contradicted by the foreman
when he was on the stand.
At the hearing, Hyatt frankly conceded that he had told the employees that each
of them would lose a day's work for every day they caused him to spend in court
because of their organizational activities. Foreman Hyatt, however, generally denied
that he had ever threatened the employees with a cut in wages or the deprivation of
benefits, or that he had warned them not to join the AFL-CIO. On the other hand,
when asked the following questions he gave the answers which appear below:
Q. Mr. Hyatt, did you ever state to any of the warehousemen what you
thought about any union ... ?
A. Oh, I probably did.
Q. You discussed the merits of the Union?
A. Well, I told them, frankly, I didn't think too much of any of them.
In a prehearing affidavit which Hyatt attested on November 9, 1962, he averred that
he had "never discussed the merits of any union with the warehousemen who work
for me." In an earlier statement, however, which Hyatt attested on August 21,
1962, he conceded that he had had a number of discussions on this subject with the
men. Thus, in the latter affidavit, Hyatt averred:
[On] various occasions employees of the warehouse at the Company would
come to me asking my opinion of unions and on the Brewery Workers, AFL-
CIO Union. At these times I would tell them just how I felt in my opinion.
I had told them for instance if it were my business and I owned it-I would
eliminate paid vacations, no uniforms and other benefits, rather than have
some outsider tell me how to run my business.
During the course of his testimony at the hearing, Hyatt also stated that after an
occasion in 1962 when Miller had gone to the Labor Board office in Houston "I
haven't opened my mouth to the boys about anything." As noted earlier, a number
of the statements set out above which the employees attributed to Hyatt were
never denied or contradicted by him when on the stand. As a result, it is my
conclusion, on the basis of the foregoing, as well as his demeanor as a witness, that
during the months after the Brewery Workers initiated their campaign, Foreman
Hyatt was very outspoken in his opposition to this movement among the employees.
It is my further conclusion that the testimony of Sells, Granger, Rideaux, and
Vaughn as to specific conversations with Hyatt is the more credible than the
general denials of the latter that he had ever made such statements as they attributed
to him. At the hearing and in its brief, the Respondent contended that insofar
as Hyatt had made any statements in derogation of the employees' rights under
the Act, the statements were unauthorized and the Company should not be held
responsible for them. There was no evidence, however, that the management had
ever made any effort to communicate this disavowal to the employees. Conse-
quently, it is my conclusion that the Respondent must be held liable for the actions
and conduct of Foreman Hyatt as found above.
A. The termination of Albert Sells
The General Counsel contends that Sells was discriminatorily dismissed on No-
vember 9, 1962. The Respondent denies this allegation and asserts that Sells was
terminated solely because lack of business required that one warehouse worker be
laid off and, that Sells was selected because he was a temporary employee with
less seniority than any other worker.
9 Rideaux's testimony as to this conversation was credible and it was not denied by
Hyatt.
PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 601
Sells was originally hired in June 1962, as a temporary employee to take the
place of an employee named Anderson who was off duty because of an injury.
When the latter returned to work after about a week, Sells was laid off for 2 days.
When Sells returned to the Company to secure his paycheck, Hyatt told him that
if he wanted further employment with the Company he could return on the follow-
ing Monday and go to work. Sells testified, and his testimony in this regard was
not contradicted, that about a month later Hyatt promised him that he would speak
to Mr. Miller about putting him on as a regular employee on a permanent basis.
The other warehouse employees had a license from the State Beverage Control
Board to deliver beer. According to Sells, on numerous occasions throughout the
summer, Hyatt told him that the Company would have to get his license for him.
Notwithstanding the fact that Sells did not have such a license, in a few instances,
he was ordered to deliver beer to customers.10
As found above, when the Brewery Workers first began their camapign, Sells
asked Hyatt his opinion of the matter and the foreman advised him to keep his
"nose out of it completely and don't become involved." Notwithstanding this advice
from his supervisor, on July 19, Sells signed an authorization card and thereafter
he actively solicited his coworkers to support that Union. Late in September or
early in October he was appointed a trustee of Local 253. Early in October, when
Hyatt and one of the truckdrivers told the warehouse employees that at a meeting
of the Independent Union the drivers heard the Brewery Workers and Chandler
would no longer represent the warehousemen, Sells and his coworkers sought a
meeting with Miller.
Earlier I have found that at this meeting, held on October 3, the employees in
the warehouse discussed with Miller the alternatives which they had if they wanted
to withdraw from the Brewery Workers and join the Independent. Sells also testi-
fied that shortly after this meeting Miller gave him two copies of an application
form for permanent employment and asked that he fill out the form immediately.
The General Counsel contends that at this point the Respondent planned to take
Sells on as a permanent employee and would have done so had he not remained
faithful to the Brewery Workers. This is denied by the Respondent. The facts
as to this issue will now be considered.
During the course of the meeting between the employees and Miller on October 3,
it is undisputed that the Respondent's president asked the men whether any of them
had a high school diploma, that Sells stated that he was a high school graduate, and
that Miller then proposed that he might be able to help Sells continue his educa-
tion at Lamar Tech." According to Miller, the only purpose in asking that Sells,
a young man, fill out the application forms was to secure background information
to determine whether the Respondent could help the employee continue his educa-
tion . Further, according to Miller, when Sells turned in the completed application
he learned, for the first time, that the employee had a wife and children so that
it was obviously impossible to help with any further schooling since all other em-
ployees whom the Company had assisted were unmarried.
Miller was an intelligent and, in many respects, a very frank witness. On the
other hand, I cannot believe that his only purpose in asking Sells to fill out the
permanent application form was to secure such elementary information as to
whether the man was married and had children. Such data could have been ob-
tained by asking the man a single question at the original meeting. Moreover, it
does not seem reasonable to presume that Miller would have been interested in
assisting Sells to attend college if, as the Respondent now argues, Sells was then
only a temporary employee whom it proposed to lay off within a few weeks when
business declined. The meeting had been initiated by the employees from the
warehouse crew who had heard from Hyatt that they were being abandoned by the
Brewery Workers. The employees present could assume that only the Independent
Union remained and in his discussion with the warehouse workers at this time Miller
stated his desire that all of the employees be in one union. Earlier herein, I have
found that after Miller met with the men, Vaughn and Granger, two of the em-
ployees present at the meeting deserted the Brewery Workers and signed cards in
the Independent. Sells, when solicited to follow the same course, refused. Later,
on the evening of October 3, Foreman Hyatt admonished Sells for adopting this
attitude after having been "all fired up that morning, talking with Mr. Miller about
joining the Independent Union . . As found earlier herein, Hyatt concluded
the conversation by telling the employee that, although he did not mean it as a
10 This finding is based on Sells' undenied, uncontradicted testimony. Miller conceded
that it was possible that Sells had delivered "some beer."
U Lamar State College of Technology located in Beaumont, Texas.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat, he wanted Sells to know that with the approach of the slack season he might
have to lay him off since Sells was the last addition to the warehouse crew. Sells
remained adamant , however, and stated that he would not sign a card in the Inde-
pendent even if it meant relinquishing his job.
In the light of the foregoing, I find that, contrary to Miller's testimony, the Re-
spondent's objective in suggesting that the employee fill out the application form in
question was not to get background information on a temporary worker who would
shortly be off the payroll. At the time it appeared to the Respondent that Sells and
his coworkers were about to leave the Brewery Workers. It is my conclusion that,
when giving the employees these forms, Miller planned to convert Sells' status to
that of a permanent member of the warehouse crew and thereafter assist him in
furthering his college education. After the meeting, however, Sells' apparent en-
thusiasm for joining the Independent waned. When Wyatt learned of this develop-
ment he expressed his strong displeasure and saw fit to point out that Sells was a
likely candidate for layoff. The employee was not dissuaded by this obvious threat
and told Hyatt that he would not sign a card in the Independent even if it meant
that he might lose his job. Not long thereafter the Brewery Workers filed additional
charges against the Respondent. On November 8, Hyatt left the warehouse with
the announcement that he had to report to the Labor Board and that when he got
back things would not be the same. Upon his return, Hyatt put the men to work on
additional duties that kept them at the warehouse considerably past their normal
hours. The next morning Hyatt told employee Rideaux that Sells was "the brains
of the AFL-CIO" and that he was "going to cut Albert [Sells] loose." Shortly
thereafter that day Sells was terminated
Miller testified that at Hyatt's suggestion, on the morning of November 9,
Sells was called into his office. According to the Respondent's president, when Sells
reported, he was told, in the presence of Hyatt and Assistant General Manager
James L. Floyd, that because the peak of the beer season was over and Sells was
the most recently hired employee, he would have to be the first one laid off.12 Sells
was then given his final paycheck as well as an additional week's pay. About
November 13, Sells returned to the Respondent's office to ask that he be contacted
if any openings arose. The secretary in the office promised to contact him in the
event he was needed. Subsequent to Sells' termination, Granger was injured and
a replacement was hired temporarily until Granger recovered and was able to return
to work. Sells, however, was never contacted and never recalled
The Respondent contends that Sells was laid off only because a decline in business
required that it cut back its warehouse crew. On the other hand, both Miller and
Hyatt testified that the "season" in their business extended from March to Labor
Day. Hyatt testified that after Labor Day the Respondent needs only one-half the
warehouse crew that it employs during the summer. From their own testimony it
would appear that if Sells were being dropped because the end of the beer season
had arrived he would have been laid off in September Moreover, the Respondent
offered no evidence as to any change subsequent to Labor Day that caused it to keep
Sells on the payroll for 2 additional months. From the evidence set forth above it
is my conclusion that Sells was considered an intelligent and valued employee in
October who, when it appeared that he was interested in joining the Independent,
was considered for a place on the permanent payroll and for further help in connec-
tion with his college education. Thereafter, however, when Sells declined to with-
draw from the Brewery Workers and join the Independent, Foreman Hyatt reproached
him for his vacillation and pointedly referred to the prospect of a layoff in the near
future. Even this did not cause Sells to change his ways and a short while later, on
November 8, newly filed charges by the Brewery Workers compelled Hyatt to sub-
mit to further interrogation by the Labor Board. On November 9, the next day,
the foreman described Sells as the "brains of the AFL-CIO" whom he would have to
"cut loose." That morning Sells was terminated, and never recalled notwithstand-
ing the fact that the Respondent subsequently hired a replacement for Granger.
On the basis of the foregoing evidence, it is my conclusion that Sells was discharged
because of his persistent adherence to the Brewery Workers and not because of a
decline in beer sales, as the Respondent contends. Accordingly, I find that by this
action the Respondent violated Section 8(a)(3) and (1) of the Act.
In the context of the discriminatory termination of Sells, it is my further con-
clusion, and I find, that the Respondent also violated Section 8(a) (1) by the follow-
ing conduct of Foreman Hyatt:
12 Although the Respondent contends that it followed strict seniority in laying off Sells,
it is significant that its contract with the Independent Union had no seniority provision.
PEARL BEER DISTRIBUTING CO. OF JEFFERSON COUNTY 603
(a) About July 18, 1962, Hyatt 's threat , uttered to the warehouse employees,
that if they remained with the Brewery Workers he would suggest to General
Manager Miller that their pay be cut by $10 , and Hyatt 's prediction , made at the
same time , that the Respondent would eliminate free uniforms , that the employees
would lose sick leave and vacations , that the Company "would cut every man in
the AFL-CIO," and that if the men stayed with the Brewery Workers the Respondent
"could easily find a reason for firing [ the warehouse employees]." 13
(b) Hyatt's declaration to the employees , late in July, after they had submitted
statements in support of an unfair labor practice charge, that "every day he has to
spend in courts he would see [the employees ] got 2 days off without pay."
(c) Hyatt's interrogation of Sells on October 3 as to why the latter had not
signed a card in the Independent Union , and the threat of an impending layoff which
Hyatt voiced to the employee in that same conversation.
(d) Hyatt 's discriminatorily assigning additional duty to the warehouse employ-
ees on or about November 8 when he returned from a meeting with a representative
of the Labor Board.14
(e) Hyatt's statement to employee Clifton Rideaux on November 9, that he was
"going to cut [Sells] loose" because he thought "Al was the brains of the AFL-CIO."
N.L.R.B. v. Armstrong Tire and Rubber Company , Tire Test Fleet Branch, 228
F. 2d 159, 161 (C.A. 5).
(f) Hyatt's comment on February 5, 1963 , the eve of the hearing , to an applicant
for employment at the warehouse , and in the presence of the employees then on
the payroll , that the job seeker leave his name and address "because we might run
these boys off tomorrow."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, appearing in
connection with the operations of the Respondent, described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the 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 conventionally ordered in such cases as provided in the Recom-
mended 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. For reasons set
forth in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend a broad cease-and-desist order.
Having found that the Respondent unlawfully terminated Albert Sells on Novem-
ber 9, 1962, I recommend that it offer him 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 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 normally would have earned from the aforesaid date
of discharge to the date of the Respondent's offer of reinstatement, with backpay
and interest thereon computed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB
716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and Brewery Workers and Local 253
are labor organizations all within the meaning of the Act.
13 The Respondent contends that since none of these threats were carried out, the com-
ments attributed to Hyatt by the employees should not be held a violation of the Act.
There is no merit to this contention.
14 The additional duty involved, namely, washing windows and cutting the grass around
the warehouse, was not unusual and it was, in fact, the type of work which the employees
might normally be assigned. On the other hand, prior to Hyatt's departure from the ware-
house that day he had prophesied that when he came back "things wasn't going to be the
same " As if in fulfillment of that prediction, on his return he gave the men these tasks
and delayed their normal work of unloading the beer trucks so that all of them were com-
pelled to remain on duty for several additional hours that evening
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of Albert Sells, thereby
discouraging membership in the Brewery Workers and Local 253, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondent , Pearl Beer
Distributing Company of Jefferson County, Incorporated , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees by dis-
criminating in regard to their hire , tenure, or any other terms or conditions of their
employment.
(b) Directly, or by implication , threatening employees with the withdrawal of
existing privileges , or other economic reprisals , to discourage union membership or
activity.
(c) Interrogating employees concerning union affiliation or activities in a manner
constituting interference , restraint, or coercion in violation of Section 8(a)(1) of
the Act.
(d) In any other manner interfering with , restraining , or coercing its employees in
the exercise of their right to self-organization , to form labor organizations , to join
or assist International Union of United Brewery, Flour , Cereal , Soft Drink and
Distillery Workers of America, AFL-CIO, and Beer Drivers Local 253, AFL-CIO,
International Union of United Brewery, Flour, Cereal , Soft Drink and Distillery
Workers of America, AFL-CIO, or any other labor organization , to bargain collec-
tively 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 re-
frain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer Albert Sells immediate and full reinstatement to his former or substan-
tially 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 in the
manner set forth in the section of this Intermediate Report entitled "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, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(c) Post at its warehouse in Beaumont , Texas, copies of the attached notice marked
"Appendix." 15 Copies of said notice, to be furnished by the Regional Director for
the Twenty-third Region , shall, after being duly signed by the Respondent's author-
ized representative , be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places , including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region , in writing , within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps it has taken to comply herewith.16
If 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. In the further event that the Board's Order is 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 the Respondent has taken to comply herewith "
LIBERTY ELECTRONICS CORP., ETC. 605
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, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union of United
Brewery , Flour, Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, and Beer Drivers Local 253, AFL-CIO, International Union of
United Brewery , Flour, Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO, or any other labor organization , by discharging any of our em-
ployees, or in any manner discriminating in regard to their hire or tenure of
employment , or any term or condition of employment.
WE WILL NOT directly, or by implication , threaten employees with the with-
drawal of existing privileges or with other forms of reprisals , because of their
union membership or activities.
WE WILL NOT interrogate employees concerning union affiliation or activities
in a manner constituting interference , restraint , or coercion in violation of Sec-
tion 8 (a) (1) of the Act.
WE WILL offer to Albert Sells immediate and full reinstatement to his former
or a substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the above -named unions , or any other labor organization,
to bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
PEARL BEER DISTRIBUTING COMPANY OF
JEFFERSON COUNTY, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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, 6617
Federal Office Building, 515 Rusk Avenue , Houston , Texas, 77002, Telephone No.
Capitol 8-0611, Extension 271, if they have any questions concerning this notice or
compliance with its provisions.
Liberty Electronics Corp .; Flight Electronic Supply Corp.;
Ogelsby Corp., d/b/a Liberty Electronics Corp .; McCool Cor-
poration, d/b/a Flight Electronic Supply Corp .; and Wyle
Laboratories and Warehouse , Processing & Distribution Work-
ers' Union, Local 26, International Longshoremen 's and Ware-
housemen's Union . Case No. 21-CA-45923. July 11, 1963
SUPPLEMENTAL DECISION AND AMENDED ORDER
On September 27, 1962, the Board issued a Decision and Order 1
finding that Liberty Electronics Corp, and Flight Electronic Supply
1 138 NLRB 1074.
143 NLRB No. 64.