Shelby Liquors

National Labor Relations Board - Board Decisions

Feb 1, 1974

208 N.L.R.B. 859 (N.L.R.B. 1974)

SHELBY LIQUORS
John L. Donnelly, Sr., T. Howard White, Sr., Richard
L. Speed, John L. Donnelly , Jr., Don J . White,
Robert A . Madry , John H. Aaron, d/b/a Shelby
Liquors and Athens Distributing Company, a
Division of Shelby Liquors and Max Appelbaum.
Case 26-CA -4648
February 1, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 28, 1973, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that the
reasons asserted by Respondent for the discharge of
Appelbaum "do not ring true." In our view, the
factors which were relied upon by the Administrative
Law Judge for that conclusion are explained by the
context in which Sales Manager Hess discharged
employee Appelbaum.
Thus, the timing, the abruptness, and the precipi-
tate manner of the discharge of a longtime and top-
rated employee are explained by the events which
took place preceding Appelbaum's discharge.
The general manager of Respondent had an-
nounced his decision to retire on the previous day.
On the day of Appelbaum's discharge, one of the
partners of the Respondent called in Hess and
advised him that Hess was being considered for the
general manager 's position which would mean an
increase of $16,000 a year over Hess' present salary
as sales manager . However, the partner inquired
whether Hess had everything straightened out be-
tween Hess and the salesmen's wives. Hess assumed
that the partner was referring to the earlier accusa-
i Counsel for the General Counsel called Max Appelbaum, the alleged
discnminatee , as a witness at the trial At the conclusion of Appelbaum's
testimony on direct examination , Respondent requested that all
statements or memorandums given by Appelbaum be produ cd by the
General Counsel. Pursuant to Section 102 118 of the Board's Rules and
Regulations , the General Counsel turned over to Respondent one entire
affidavit by Appelbaum, but requested that the Administrative Law
Judge excise a portion of a second affidavit by Appelbaum before
requiring that it be handed over to Respondent The Administrative Law
Judge examined the affidavit in camera and excised about two pages of
859
tion made by Appelbaum concerning Hess and
Appelbaum's wife. Thus, it seems apparent that Hess
would be apprehensive that this old accusation
against him, which Appelbaum had first brought to
Respondent's attention 2 years ago, was being
revived and might affect Hess' present chance for
promotion to the general manager's job. Hess
indicated that he would put an end to it. Later that
same day, immediately after a sales meeting had
concluded, Hess personally fired Appelbaum.
More importantly, however, we disagree with the
Administrative Law Judge that it has been shown
that Appelbaum's discharge was discriminatorily
motivated within the meaning of the Act. The sole
complaint allegation of unlawful conduct by Respon-
dent is the discharge of Appelbaum. No other
violations of the Act were alleged or found.
There is no evidence of union animus which would
support a finding of discriminatory motivation.
Thus, whether or not Respondent's reasons for the
discharge "ring true," the absence of affirmative
evidence of antiunion hostility and discriminatory
motivation compels the finding that a violation of
Section 8(a)(3) has not been established. In the
absence of any union animus and discriminatory
motivation, we need not determine whether Respon-
dent had good cause, bad cause, or no cause at all for
discharging Appelbaum.
The Fifth Circuit succinctly stated long ago a
guiding principle in N. L. R. B. v. T A. McGahey, Sr.,
et al., d/b/a Columbus Marble Works, 233 F.2d 406,
412-413:
The Board's error is the frequent one in which
the existence of the reasons stated by the
employer as the basis for the discharge is
evaluated in terms of its reasonableness. If the
discharge was excessively harsh, if lesser forms of
discipline would have been adequate, if the
discharged employee was more, or just as, capable
as the one left to do the job, or the like then, the
argument runs, the employer must not actually
have been motivated by managerial considera-
tions, and (here a full 180 degree swing is made)
the stated reason thus dissipated as pretense,
nought remains but antiunion purpose as the
explanation. But as we have so often said:
management is for management. Neither Board
the eight-page affidavit because, They deal entirely with the witness'
activities regarding the union, and in these portions , he names other
employees involving these activities ." Respondent contends that the
Administrative Law Judge committed prejudicial error in refusing to limit
the excision only to the names of the employees appearing on the pages
in question, and that Respondent was entitled to see the two-page portion
of the affidavit relating to the alleged discriminatee 's union activities,
minus the employee's names In view of our decision to dismiss the
complaint in its entirety , we find it unnecessary to rule on Respondent's
contention
208 NLRB No. 132
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor Court can second-guess it or giveit gentle
guidance by over-the-shoulder supervision. Man-
agement can discharge for good cause, or bad
cause, or no cause at all. It has, as the master of
its own business affairs, complete freedom with
but one specific , definite qualification : it may not
discharge when the real motivating purpose is to
do that which Section 8(a)(3) forbids.
Accordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed.
MEMBER JENKINS , concurring:
In all the circumstances of this case , I agree with
my colleagues that the General Counsel. has not
established that the discharge of Applebaum was for
union activity. The Respondent's explanation was
plausible, not directly .contradicted and the inferen-
ces the other way, relied on by the Administrative
Law Judge, are not sufficiently strong support to
offset Respondent 's explanation. However, the ma-
jority appears to me to imply that knowledge of
union activity and an animosity toward the union
cannot be found from circumstantial evidence. I
regard this proposition as erroneous. Even if I
subscribed to it, I would note that a year before
Applebaum's discharge, in an earlier organizational
campaign, Hess, the sales manager who discharged
Applebaum, at that time was advised by Applebaum
that he had attended a meeting and upon being so
advised told Applebaum that the Union would be
,.no good" for, the Employer. This is hardly "the
absence of affirmative evidence" of union animosity
which my colleagues discern here.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on February 27 and an amended
charge filed on April 13, 1973, by Max Appelbaum, an
individual, the General, Counsel, by the Regional Director
for Region 26 (Memphis, Tennessee), issued a complaint
on April 16, 1973.1 The complaint alleges in substance that
John L. Donnelly, Sr., T. Howard White, Sr., Richard L.
Speed, John L. Donnelly, Jr., Don J. White, Robert A.
Madry, John H. Aaron, d/b/a Shelby Liquors and Athens
Distributing Company, A Division of Shelby Liquors,
herein collectively called the Respondent, discharged
employee Appelbaum because of his activity on behalf of
I All dates herein refer to 1973, unless otherwise indicated.
2 The time for filing briefs was extended at the joint request of the
Highway and Local Motor Freight Employees Local
Union No. 667, affiliated with the International Brother-
hood of Teamsters , Chauffeurs,. Warehousemen, and
Helpers of, America , herein called the Union , or his other
union or concerted activities,,u' violation of Section 8(axl)
and (3)'of the National Labor 'Relatjons Act. In its answer,
duly filed, the Respondent admits some of the factual
allegations of the complaint , but denies the allegations that
it engaged in conduct vi%lative of the Act.
Pursuant to notice, a hearing . was held before the
Administrative Law Judge at Memphis , Tennessee, on
June 12 and 13, 1973. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine
and cross-examine available witnesses , and to introduce
relevant evidence . On, June 13 the hearing was postponed
until July 13 due to the illness of Robert Madry, one of the
Respondent's partners , whose testimony the Respondent
maintained was a material and necessary part of its
evidence. At a later date the hearing was further post-
poned, because of Madry's continued illness , until August
22. Prior to that date , however, the parties entered into a
stipulation setting forth what Madry would have testified if
called as a witness by the Respondent, transmitted the
stipulation to the Administrative Law Judge, and indicated
in the transmittal letter that none of the parties had any
further evidence to present in this case. Accordingly, the
Administrative Law Judge issued an order on August 22,
`1973, accepting the aforesaid stipulation and making it
part of the record in this proceeding , closing the hearing,
and setting a date for the filing of briefs . Thereafter, the
General Counsel , the Respondent, and the Charging Party
filed briefs on or about September 19, 1973,2 which have
been fully considered.
Upon the entire record in this proceeding, including the
aforementioned stipulation, and from my observation of
the witnesses who testified, I make the following:
FINDINGS OF FACr
1. THE BUSINESS OF THE RESPONDENT
The Respondent is,,,and.at all times material herein has
been, a partnership doing business in the State of
Tennessee, with an office and place of business located in
Memphis, Tennessee, where it is engaged in the wholesale
liquor business. During the past 12 months, the Respon-
dent, in the course and conduct of its business operations,
purchased and received at its Memphis, Tennessee,
location, products valued in excess of $50,000 directly-from
points located outside the State of Tennessee. The
complaint alleges , the Respondent in its answer admits,
and I find that the Respondent is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer
admits, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
Oeneral Counsel and the Charging Party.
SHELBY LIQUORS 861
III. THE LNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that John H. Aaron , a partner,
and Harvey H. "Joe" Hess, the sales manager of Shelby
Liquors, are agents of the Respondent and supervisors
within the meaning of Section 2(11) of the Act : that Hess,
on or about February 23, 1973, discharged employee
Appelbaum ; that the Respondent discharged Appelbaum,
and thereafter failed and refused to reinstate him, because
he joined or assisV .ed the Union or engaged in other union
or concerted activities for the purpose of collective
bargaining or mutual aid or protection : and that the
Respondent thereby interfered with , restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and discriminated in
regard to the hire or tenure or the terms or conditions of
employment of its employees , thereby discouraging mem-
bership in a labor organization , in violation of Section
8(a)(1) and (3) of the Act . The only issues raised pertain to
the reasons for the discharge of Appelbaum.
The Respondent 's answer admits the allegations of the
complaint that Aaron and Hess are agents and supervisors
of the Respondent, and that Hess discharged Appelbaum
on February 23. The Respondent, however , at the hearing
and in its brief, argues that the evidence does not show
knowledge of Appelbaum 's union activity or antiunion
animus, that there are no allegations of independent
violations of Section 8(a)(1) of the Act , and that the
discharge was for cause , and moves accordingly that the
complaint be dismissed in its entirety . This motion is
hereby denied for the reasons set forth below.
B. The Facts
1. The Respondent 's management hierarchy
In November 1970, Athens Distributing purchased
Shelby Liquors, and became a division of Shelby Liquors.
Shelby Liquors and Athens Distributing, as well as Athens
Wine Division , are located in the same building . Aaron,
Madry , and Don White are the responsible partners at the
Memphis location and are there daily. Each division of the
Respondent has its own salesroom and its own salesmen.
There are a total of 16 salesmen , 6 employed by Shelby
Liquors, 6 by Athens Distributing , and 4 by Athens Wine.
Aaron testified that he directs the work of the Athens
Distributing salesmen . Hess, who has been the sales
manager of Shelby Liquors for 25 years, directs the Shelby
Liquors salesmen . Hess reported to Bell, who had been the
general manager of Shelby Liquors for many years, and he
and Bell were responsible to the 3 partners named above.
The salesroom at Shelby Liquors had six desks , one for
each of the six salesmen . Hess had a separate enclosed
office adjacent to the salesroom . There was also a kitchen
used by salesmen , supervisors, and partners . The salesmen
of Shelby Liquors went from home to call on their
accounts , but were required by Hess to report back to the
office every afternoon from about 4 : 30 to 5:30. Hess talked
to the salesmen at their desks or in his office . The salesmen
were also required to attend a sales meeting every Friday
afternoon beginning about 2 o'clock.
2. Appelbaum 's employment history
Hess hired Appelbaum in April 1962 as a salesman.
Appelbaum , who was then unmarried , became a social
friend of Hess and his wife and, when Appelbaum in 1965
began dating the woman he married in 1966 , the two
couples became social friends. Appelbaum also talked to
Hess each afternoon , as did the other salesmen of Shelby
Liquors, when he reported back to the office , and saw him
at the sales meetings on Friday afternoons . The social
relationship between the two couples came to an end in
1970. This apparently had no effect on Appelbaum's work
performance as he ranked four among the Respondent's
salesmen in total dollar volume of sales in 1971; two in
1972; and, for January and February 1973, until his
discharge on February 23, he was one.
The social relationship came to an end because Appel-
baum became convinced in about the fall of 1970 that his
wife and Hess were having an affair . In 1971 , about the
first of the year , Appelbaum went to Bell's office and
reported his suspicion . 3 Bell called Hess to the office,
repeated what Appelbaum said , and suggested the two
discuss it there while he left . Hess testified that "I assured
Mr. Appelbaum that there wasn't anything going on like
this and to get it out of his mind and to go on back to
work," and Appelbaum admitted that Hess denied there
was any basis for Appelbaum's suspicion.
There is no indication that Bell reported this matter to
any of the partners . Aaron, a partner , in explaining the
events culminating in Appelbaum's discharge on February
23, 1973 , testified that "I heard one other time a rumor
back in the summer of-we moved in in February 1971, it
was in the summer of 1971. During that summertime,
sometime there was a rumor , we heard a couple of rumors
to this effect . Now that was the only other time I remember
hearing anything about it . That's the first time I heard
anything about it, in the summer of `71." Aaron could not
remember where or from whom he heard the rumor, or in
which month . He testified further that : "All I did then, is
when I heard the rumor I called Joe [Hess] in one day and
said, `Joe, I have heard a rumor concerning you and
Appelbaum 's wife . I said , you have got a good future with
this company and neither you nor the company or the
people connected with it can afford this kind of conversa-
tion .' And he denied it at the time and said it would be
taken care of. And that is the last I heard of it." Aaron
admitted that he did not mention this matter to Hess again
after the summer of 1971 until the day of Appelbaum's
discharge in February 1973.
Hess testified, in regard to this conversation in Aaron's
office "during the summer of 1971," that : "Mr. Aaron had
said to me that he had heard some rumors on the street
that there was difficulty with Mr. Appelbaum and his wife
and if I expected to progress in the company, that I would
have to get these rumors ceased . I assured him I would."
He testified further, however, that he never discussed what
Aaron said with Appelbaum because "I figured in my
3 Bell was not called as a witness
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind that this thing was so small that it would soon wear
off." Hess testified further about this matter , on cross-
examination by the General Counsel, as follows:
Q. And would you tell us what you told Mr. Aaron
when he asked you about the rumor, what were your
words if you recall Just as exact as possible?
A. I told Mr. Aaron there wasn't anything to it and
I would get it straightened out.
Q. What action did you then take to get it
straightened out?
A. I took no action.
Q. Aaron is your boss, isn't he, he is your boss, isn't
he?
A. At that particular time, no.
Q. Was he a partner?
A. Yes.
Q. You are responsible to the partners of the
business, aren't you?
A. Yes.
Q. (By Mr. Johnson) You don't deny that you took
no action even though you told Mr. Aaron that you
would get it straightened out, is that correct?
A. I took whatever action I thought was best, that
was to leave it he.
Q. Which was no action?
A. If you determine that is no action.
Asked then if there was any further conversation with
Appelbaum or his superiors from the summer of 1971 until
the summer of 1972 regarding this accusation, Hess
replied: "In 1972, in January, Mr. Appelbaum said-he
asked-on the division of the accounts, he said, that he
thought I owed hum something for all the trouble that I had
caused him and I assumed he was still referring to that."
This "division of the accounts" conversation occurred
when Liherto, a salesman, retired in January 1972, and
Hess divided Liberto's accounts among the other salesmen.
Hess testified that he gave Appelbaum about six to eight of
Liberto's "prime accounts"; then that he did not know the
exact number4 he gave Appelbaum or if all of them were
prime accounts, but that he knew what he gave Appelbaum
"was a substantial amount to raise his take home pay
plenty"; that nevertheless "Mr. Appelbaum wasn't satis-
fied with the division of the accounts and he said that I
owe him something. . . . I decided then that there was no
use for me to talk any further to Mr. Appelbaum about
this, so I told Mr. Appelbaum to meet me in the general
manager's office to discuss this with him.... I said to Mr.
Bell that Mr. Appelbaum was not satisfied with the way the
accounts were divided, he thinks he should have better
accounts, more accounts and Mr. Bell said to Mr.
Appelbaum, Mr. Hess divided up the accounts, this is the
way they are going to stand and the only way that you can
increase your earnings is to sell your accounts more
whiskey, because you are on commission . . . . That's all
that 1 recall of the conversation." Hess admitted, on cross-
examination by the General Counsel, that he had assumed
Appelbaum's remark about his owing Appelbaum some-
thing referred to the matter of Appelbaum's wife even
though this was not said by Appelbaum, he did not ask
Appelbaum what was meant , the matter had not been
referred to since the summer of 1971, and no reference to
this matter was made in Bell's office . Hess testified further
that Appelbaum at times said Hess owed Appelbaum
something and at others that Hess owed Appelbaum for
the trouble he caused, that he could not recall how
Appelbaum said it at this time , but that he could recall that
Appelbaum gave no dollar amount at this time . Hess also
commented in his testimony that "If I had wanted to kick
Max about these accusations I wouldn't have given him
any" of these accounts.
Appelbaum testified that he was given two of Liberto's
accounts although he had a total of only 32 accounts
whereas other salesmen had 40-45; he told Hess, in
connection with the division of Liberto's accounts, that he
needed more accounts because other salesmen had more
than he did; he did not say he should get more accounts
because Hess owed him something; he did not recall going
into Bell's office about this; and it was Hess who was
constantly asserting that the way to make more money was
to sell more whiskey.
Appelbaum left his wife because of his suspicion about
her and Hess. They were separated for about a week. In
about March 1972, while they were separated, his wife had
an automobile accident in which another individual was
fatally injured. The legal fees and other expenses resulting
from the accident cost Appelbaum between $6,000 and
$7,000. Appelbaum admitted that sometime after that, on a
date he could not recall, he accused Hess of having cost
him $6,000-7,000. He denied that he said Hess owed him
that money, that he said at that time he would sue Hess for
the money, and that he had earlier said Hess was going to
owe him some money for the trouble Hess had caused. He
admitted that he did accuse Hess of causing the trouble,
and that Hess denied having caused any trouble.
Hess testified that, after this accident, "Mr. Appelbaum
says, `Look what you have caused. You are going to owe
me a lot of money.' And I again assured Mr. Appelbaum
there was nothing going on between me and his wife." Hess
testified further that "in the summertime in July" 1972,
Appelbaum came to his office and "said that you owe me
$7,000 for court costs and attorney's fees and I would like
to have my Jack Daniels allocation increased to substanti-
ate my income. . . . I said to Mr. Appelbaum, the Jack
Daniels is allocated on an equitable basis to the salesmen
and it would not be fair to them to give you anymore Jack
Daniels and take it away from them . Therefore-I got a
little hot about this and told Mr. Appelbaum I did not
want to hear anymore about this. This was all done and
4 Hess testified that he did not know and could not approximate how but allocates accounts on the basis of location, personality, and judgment,
many accounts Appelbaum had when Liberto retired , or how many of based on his extensive experience as to which assignments will be in the best
Liberto's accounts he gave other salesmen, as he does not deal in numbers interests of Shelby Liquors
SHELBY LIQUORS 863
this was the way it was going to he and I didn't want to
hear anymore about what I owed him." When counsel for
the Respondent asked whether Appelbaum said why Hess
owed him $7,000, Hess replied that "He said that the
reason I owed him $7,000 was for something-all this
trouble I had caused him with his wife."
3. Appelbaum's union activities
The Respondenit's warehousemen and drivers were
organized by a union in 1972, and a Board election was
held in that unit, which did not include salesmen. In about
February 1972 a union attempted to organize wholesale
liquor salesmen on a citywide basis but apparently did not
succeed with regard to the Respondent's salesmen. Appel-
baum, who went to one organizing meeting of this union,
testified that, before the meeting , he was called into Hess's
office; Hess asked if he got a letter from the umon, and he
said he did; Hess asked if he was going to go to the
meeting, and he said he was to see what it was all about;
Hess said he did not believe the union was "good for us";
and Appelbaum then left the office.
About January 1973, Appelbaum talked to several of his
fellow salesmen about organizing a union , and found they
were interested in doing so. On about the first of February,
Appelbaum called Moffitt, a business agent of the Union,
and reported this interest to him. Moffitt asked Appel-
baum to obtain and send him a list of names and addresses
of the salesmen. Appelbaum did so, and sent Moffitt a list
of I I names and addresses including his own. He testified
that he obtained the names and addresses of six or seven at
the office and four or five others as he met the men at
liquor stores in making his selling rounds. He also testified,
on cross-examination by the Respondent, that he supplied
to Moffitt only the names of those to whom he spoke about
the Union and knew to be sympathetic; he told them this
would be kept confidential; he trusted them; he kept the
matter confidential around the office; and, when he talked
about the Union to other interested salesmen and when he
obtained the list of names and addresses, they agreed at
first to stick together and to keep everything confidential,
but that he did not know how confidential it was kept.
Moffitt testified that Appelbaum's call on about Febru-
ary 1 was his firs: communication from the Respondent's
salesmen , that he requested the list of names and addresses
which Appelbaum later sent him, that he did not know
whether the list of about 11 names represented the
Respondent 's entire complement of salesmen , and that
Appelbaum was the only one of the salesmen who was in
touch with the union office at this time. The list sent by
Appelbaum was received at the union office when Moffitt
was out of town. Upon his return, Moffitt sent each of the
salesmen on the list a letter dated February 14, 1973, in
which he enclosed a membership application and checkoff
authorization, advised that both be signed and returned in
the enclosed self-addressed stamped envelope, and stated
that, "You may rest assured that this information will be
kept strictly confidential." Appelbaum signed his card at
home and mailed it to the Union.
In regard to the 1972 organizing attempt , Hess denied
that he asked if Appelbaum received a letter from the
union , that he asked Appelbaum if he was going to attend
a union meeting , and that he told Appelbaum the umon
was "no good for us." He testified in this regard that: "I
am not specific about the time, but one day Max came into
my office and voluntarily told me that he had attended a
union meeting to see what it was all about and that is all
the conversation that was said. . . . I didn 't ask him
anything that was all of it . I just casually might have said,
`So what.' " Hess testified further that he did not
remember what Appelbaum responded, or whether Ap-
pelbaum said the union was good or bad, and that "I don't
think he made any-I think he was just apologizing for
going or something . I don't know why he said that to
me. . . . it was just a casual thing." Hess also testified that
Appelbaum was the only salesman who told him about the
meeting ; he could not recall when this occurred, even as to
the year, which he believed was 1971, but he was emphatic
that it was not 1973; he had no knowledge about
Appelbaum's union activity in 1973; and, while he called
on retail customers himself , he heard no rumors from them
or from anyone else about Appelbaum or any of the
salesmen engaging in union activities in February 1973.
Aaron admitted that there was "a common rumor in the
trade" in 1972 that "they were trying to form a sales
union," but testified that he did not know what umon was
involved in these rumors as he "passed them off lightly,"
that he did not hear any rumors that Appelbaum was
involved , that he made no investigation as to the
involvement of any of the Respondent's salesmen, and that
he heard these rumors for only about a week . Asked if "this
rumor that the salesmen were forming a union , attempting
to form a salesmen union ," continued in 1973, Aaron
replied that it did not.
4. The discharge of Appelbaum
In February 1973, Bell, the general manager of Shelby
Liquors, notified the Respondent that he was "phasing
out," which meant he was in the process of gradual
retirement, but there is no indication in the record of how
long a process this was. Bell announced his decision to the
salesmen on Thursday afternoon, February 22. On Friday,
February 23 , Aaron, one of the partners, called Hess to his
office and said that Hess was among those being
considered for Bell 's job and that "things looked good."
Aaron testified that this was about noon or in the
afternoon , he was not sure of the time . He also testified
that Hess had expressed an interest in this job and they had
discussed it on a couple of occasions . Asked when this
occurred, he replied "just over the period we had been
together." During the conversation with Hess, Aaron
testified , "I made an off the cuff remark . . . I had just said
was everything straight between him and the salesmen's
wives. That's all I said." Aaron testified further that he
threw out this comment , which was "almost casual," about
the "salesmen's wives" because of the rumor he heard,
from a source he could not recall, sometime in the summer
The Jack Daniels allocation was important to the salesmen as the
demand for it was greater than the supply.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 1971, and had not heard or mentioned in the intervening
2 years; that Hess "said that `is this Appelbaum thing
again '? He had had enough of it, he was tired of it and he
was going to put an end to it right now.. . .. I told him he
was the sales manager . . . He stormed out of the office.
.. . Walked out, he went out of the office." At another
point in his testimony, Aaron stated that Hess also said,
before he "stormed out," that "I am going to fire him."
Aaron then left for an Athens sales meeting and heard
nothing further about Appelbaum until he returned to his
office. He did not recall the time but testified that "It had
to be later on in the afternoon after he had fired him."
Hess testified that he had previously talked to Aaron
about "wanting the job" of general manager, which paid
about $16,000 a year more than he was earning as sales
manager , but, like Aaron, he did not indicate when these
conversations occurred . Hess testified , as to the conversa-
tion in Aaron's office on February 23, 1973, that "Aaron
said to me, I've been looking over this general manager's
job and before we make any recommendations or before
we select a general manager 1 want to know one thing, Joe,
have you gotten this business straightened out with the
salesmen 's wives, have you been running around with the
salesmen's wives." Hess, who admitted he did not ask what
Aaron meant by this question about "salesmen's wives," or
if, it related back to a conversation in the summer of 1971,
continued his testimony as follows : "So, this just flew all
over me because I could see that Mr. Aaron still had in his
mind some accusations that went on before, so 1 told Mr.
Aaron in no uncertain terms that I would stop all of this
immediately. That I was discharging Mr. Appelbaum this
afternoon.... I went to the bookkeeper's office and got
Mr. Appelbaum's check. . . . I went to the sales room and
the sales meeting was in progress at that time. I finished the
sales meeting as it was a general meeting and I made a talk
on salesmanship . I finished the sales meeting and asked
Mr. Appelbaum to come into my office after the sales
meeting. . . . I told Mr . Appelbaum that I was letting him
go. . . . Mr. Appelbaum asked me why and I told Mr.
Appelbaum that he didn't fit into my plans for the future.
And he says to me, are you firing me or is the company
firing me? And I said Max I am the sales manager, I am
firing you. He said, am I going to get beat out of my
commissions? No, Max, I told him, as soon as the
computer finishes the February sales figures, you will be
paid for all the rest of February and in addition to that you
will be paid for all of March. And he asked me again, why.
And I said Max the way you have taken this, you have not
believed anything I have told you in the last 2 or 3 years so
why should you believe anything that I am telling you
now? And he said, well, you know I am going to sue you
personally for $7,000 for all the trouble that you have
caused me. Then he said I will see you in court. . . . That
is all I recall."
Appelbaum testified with regard to his discharge that
Hess walked into the sales office after the conclusion of the
sales meeting, told everyone there to go home except
Appelbaum who was to come mto Hess' office, and in the
office stated that "I'm letting you go, you don't fit into the
company's plan." Appelbaum's testimony continued:
A. I replied, "What plans, what are you talking
about that I don't fit into the company plans. As hard
as I have worked to build up the accounts I have, I
can't believe it."
Q. Did he make any reply to that?
A. He just kept replying that you don't fit into the
company's plan.
Q. Was there anything else said , did you say
anything else after he made his last statement that you
just didn't fit into the company's plan?
A. Only that I was going to sue him personally.
Q. Did you tell him any amount?
A. No. I told him what he had-I told him, which
he had known before because I had mentioned it to
him twice before , he had cost me between $6,000 and
$7,000.
Q. What did he say after you said you were going
to sue him?
A. He didn't say anything after that he just said,
"Go ahead and sue."
Q. Was there anything else said?
A. No, just when I asked him I said I just couldn't
believe that I am being fired and he kept repeating
himself over again that I just didn 't fit into the
company's plan.
Q. Did he offer you your final check?
A. He gave me $750.00, which was the production
for the month of March and told me that I would get a
commission check for the month of February and
March at a later date.
Q. Was there anything else said?
A. He asked me to clean out my desk , which I did
do and he walked up to the desk while I was cleaning it
out and asked me if I had anything in the car that
belonged to the company and I said , "No, I don't."
Q. Was there anything else that happened there?
A. No, I got up and walked out to my car and that
was it.
Appelbaum admitted that he said at this time he was going
to sue Hess for $6 ,000-7,000, but maintained that,
although he had previously mentioned to Hess what Hess
had cost him , this was the only time he mentioned suing
Hess.
Hess denied that he told Appelbaum to clean out his
desk but admitted he knew Appelbaum did so. Hess also
testified , in explaining the discharge of Appelbaum, that
there was animosity between him and Appelbaum during
the period from July 1972, when the matter of the Jack
Daniels allocation was raised , to February 1973. Asked to
indicate how this animosity manifested itself , Hess replied:
"Well, Mr. Appelbaum was continually trying to get the
edge on a lot of little different things, no particular
incidents . It just wasn 't a good relationship between us."
Hess admitted , however , that the situation caused no
conflict between him and any other salesman, and that he
knew of no conflict between Appelbaum and any other
salesman ; the last time he heard any reference to his owing
Appelbaum something was in July 1972; the issue did not
as far as he knew cause any decrease in Appelbaum's sales
SHELBY LIQUORS 865
in the period from July 1972 to the discharge in February
1973, he knew of Appelbaum's rating as two in 1972 and
one for January 1973, but had not checked the February
figures at the time of the discharge ; and he has commend-
ed Appelbaum for doing a good job but could not recall
the dates when he did so. When counsel for the Respon-
dent asked whether he confirmed with Aaron that he had
discharged Appelbaum , Hess replied : "Only casually,
because Mr . Aaron knew what was going on. He knew that
I had discharged him as I had told him previous to this."
Finally, asked by the General Counsel to state all the
reasons for Appelbaum's discharge, Hess replied : "I only
used one reason . . . . Namely, the fact that Max kept on
with his accusations , and on and on and I knew that
eventually it would get to the management and I had a
chance for a $16,000 a year better job and I didn' t want it
to get into the other salesmen what he was talking about
and it was a big personal conflict , a lot of animosity and I
didn 't see any reason to tear apart my sales department
over something there wasn ' t anything to. He wasn't happy
and I wasn 't happy."
With regard to the reaction of management , however,
Hess admitted that the only partner who mentioned the
matter to him was Aaron, and that Aaron did so once in
the summer of 1971 and not again until he referred to
"salesmen 's wives" on February 23, 1973, the day of the
discharge . With regard to the reaction of the other
salesmen , Hess admitted there had been none in the 2
years since the matter arose . With regard to Appelbaum
not being happy, Hess admitted that in the discharge
interview he gave Appelbaum no opportunity to explain
his conduct or to say he would change, and justified his
failure to do so on the ground that "I think he had time
to-after me giving him 2 or 3 years to quit bringing up
this stuff he had plenty of time . I wore out, I wore thin, he
had no more time." Hess admitted , however, that he did
not tell Appelbaum the discharge was related to Appel-
baum "bringing up this stuff."
In his testimony about the discharge of Appelbaum,
Aaron indicated he was told by Hess there was "a conflict"
with Appelbaum over the allegation about Appelbaum's
wife . Asked by the General Counsel to explain this
"conflict," Aaron replied : "Well, I didn' t use the wording,
John, you know the man-well, there is Appelbaum and
Hess. there is an allegation about the wife , that 's it." Aaron
admitted that, as to Hess, there was no "conflict" between
the two men or. the job. He replied , as to Appelbaum, that
the General Counsel had to ask Hess, but he finally
admitted that there was no reduction in Appelbaum's
efficiency as far as he knew , and that he was aware of no
complaints by Hess about Appelbaum's work . Aaron also
testified that th-- last time a salesman was discharged was
about 2 years before Appelbaum's discharge, that he was
the one who discharged that salesman, but that he did not
participate in the decision to discharge Appelbaum
although he was aware from what Hess said that Hess was
going to discharge Appelbaum . Appelbaum was the only
employee Hess had discharged in the past 11 years.
5. Events subsequent to the discharge
Appelbaum telephoned the Union's business agent on
Monday, February 26, told him of the discharge , and was
advised to obtain a separation notice from the Respondent
for unemployment compensation purposes . Appelbaum
testified that he then called the Respondent 's office
secretary . who said she would try to get the notice for him
that day: that he went to the office later to get the notice;
that he did not on this occasion see any management
representative ; and that the secretary gave him a separa-
tion notice on a Tennessee department of employment
security form . This notice states that Appelbaum was
discharged because "Employee did not fit into company's
plans to develop highly motivated and enthusiastic sales
force," and is signed for Shelby Liquors by Madry, a
partner.
Hess testified that Appelbaum asked him for a separa-
tion notice on "Friday night , after his discharge at my
home ." He testified further that he had never seen a
separation notice as Madry , "the senior or general manager
of the big division . . . did all that preparation": he
informed Madry on Monday morning of the discharge of
Appelbaum and his reason for it; "I related every incident
from the January incident when Mr. Bell brought me into
the office to the accident , to the accusations to the
allocation of Jack Daniels , to the separation of the
accounts , the actual firing of Max Appelbaum and I also
related to him that I thought to the best of my ability that
if this got to the salesmen , especially to my young men,
they would not have any respect for me and it would be a
great detriment to the company if I could not motivate
these men , by them not looking up to me as their sales
manager. . . . I don 't recall exactly what Mr . Madry said."
He testified at another point that Madry's only comment,
after Hess related the discharge conversation with Appelb-
aum, "was, that was my department ." There is no
indication that Madry had previously been aware of any of
the incidents about Appelbaum that Hess related to him at
this time.
The stipulation entered into by the parties provides that
Madry, if called by the Respondent as a witness, would
testify:
1. That he is the senior partner of the Respondent,
meaning Manager of the Memphis location.
2. That on February 26, 1973, Joe Hess met with
him in his office with no one else being present . At that
time Hess stated that he had discharged Appelbaum on
February 23, 1973. When asked why, Hess told him
that Appelbaum had been accusing him of impropriety
with Appelbaum's wife since about January 1971 and
then related the specifics of each time Appelbaum had
mentioned the subject as well as his discussion with
Aaron during the summer of 1971 . Hess told him that
he felt that the attitude of Appelbaum toward him
personally and the accusations and rumors would
affect his ability to serve as sales manager and affect
his promotion opportunities as he felt it would be
difficult to gain the respect of other salesmen and to
motivate them in these circumstances . After hearing the
details, he ordered Nell Ray , a secretary , to prepare a
Separation Notice and to put on it the words as
contained in General Counsel 's Exhibit Number 4. The
full details were not put on the Separation Notice in an
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempt to avoid embarrassment to all parties involved.
Appelbaum did not request him to insert the words on
the Separation Notice.
3. That he had no knowledge of any union activity
among the salesmen prior to the receipt of the charge
herein.
4. That neither he, nor to his knowledge anyone
else, has ever notified the Tennessee Department of
Employment Security of the existence of any reason for
Appelbaum's discharge other than the reason set forth
on the Separation Notice.
Concluding Findings
I found Appelbaum a candid and straightforward
witness, whereas I found Aaron and Hess, on the basis of
their demeanor as well as the nature of their testimony,
evasive and unconvincing witnesses. I therefore credit
Appelbaum's testimony where it is in conflict with that of
Aaron or Hess.
The Respondent contends that (1) Hess discharged
Appelbaum because of the conflict arising from Appel-
baum's belief that his wife had an affair with Hess, and (2)
the Respondent had no knowledge of Appelbaum's
activities in 1973 in organizing the Union.
As to (1), however, 1 find that the Respondent's asserted
reasons for the discharge are based on matters the
Respondent treated as insignificant at the time they
occurred. Thus the record shows that when Appelbaum's
suspicion about Hess was reported to Bell, the general
manager, in 1971, Bell arranged to have Appelbaum
discuss it with Hess, but evidently did not report the matter
to any of the partners nor, as far as the record shows,
consider that the situation called for any further action by
him. Aaron heard of the matter from some unidentified
source as a rumor, and referred to it in a conversation with
Hess, but evidently did not view the situation as calling for
any further action by him. Madry was apparently unaware
of the "conflict" until after the discharge. And Hess, after
the conversation in which Aaron mentioned the rumor to
him in 1971, considered the matter "so small that it would
soon wear off," and, therefore, took the action he "thought
was best, that was to leave it lie," which he conceded was
"no action" if the General Counsel considered that "that is
no action." Hess admitted also that when Appelbaum
referred, sometime in 1972, to what Hess owed him, Hess
assumed that this was a reference to the alleged affair with
Appelbaum's wife, although Appelbaum did not so state,
and the matter of the affair had not been mentioned for a
considerable period of time. That Hess took this matter
lightly is also indicated by his comment that if he "had
wanted to kick Max about these accusations," he would
have given him none of the Liberto accounts.
Aaron, who stated that in his conversation with Hess on
February 23, 1973, he made only a casual "off the cuff"
6 For the well-settled principles that knowledge as well as motivation
may properly be inferred from the particular circumstances surrounding a
discharge , and that the Board in determining employer knowledge may rely
on circumstantial as well as direct evidence, see N LR B v Miller Redwood
Company, 407 F.2d 1366, 1369 (C.A 9, 1969 ), N L R B v. UNeCO, Inc, 433
F.2d 974, 976 (C A. 8, 1970), N LR B v Long Island Airport Limousine
Service Corp , 468 F 2d 292, 295 (C A. 2, 1972)
comment about Hess and the " salesmen's wives," that this
comment was based on a rumor he heard about 2 years
earlier from a source he could not recall, and that he had
not heard or mentioned it since then, did not indicate why,
after this casual comment , Hess "stormed out of the office
... Walked out, he went out of the office" in order
immediately to discharge Appelbaum, the Respondent's
top-rated salesman. His only explanation of why he and
the other partners were so indifferent to the abrupt
discharge of their number one salesman after 11 years of
employment was that Hess was the sales manager and
there was some "conflict" about Appelbaum's wife. He
admitted, however, albeit reluctantly, that the "conflict"
had had no effect on the work performance of Hess or
Appelbaum in the 2 years since Aaron heard the rumor.
Furthermore, Hess, as the sales manager, had in the past 11
years discharged only one employee, Appelbaum.
Hess likewise failed to explain why it suddenly became
necessary on February 23 to discharge Appelbaum
precipitately, with no warning or notice, late on a Friday
afternoon, after informing all the other salesmen they
could leave, and then directing Appelbaum to clear out his
desk and return all company property as I find, on the
basis of Appelbaum's credited testimony, Hess did.
As to (2), the question of knowledge, the record shows
that Appelbaum initiated and carried on the activities to
organize the Union; he first ascertained which salesmen
were interested and later obtained a list of names and
addresses of salesmen to send to the Union; this activity
was carried on among a small complement of six salesmen
employed by Shelby Liquors and a total of 16 salesmen
employed by the Respondent; Appelbaum discussed the
organization with salesmen on the Respondent's premises,
at times in the Shelby Liquors salesroom, where Hess
frequently talked to the salesmen , and at times on the
premises of customers, on whom Hess also called; and
Appelbaum was abruptly discharged about a week after
the Union's letter was sent to the salesmen named on the
list prepared by Appelbaum. Both Aaron and Hess became
aware of the attempt in 1972 to organize the salesmen. 1
infer and find, from all the circumstances of this case,
including particularly the small employee complement
involved, the organizing activity on company premises,
and the manner in which Appelbaum was discharged,s that
the Respondent also learned of Appelbaum's attempt in
1973 to organize the salesmen even though Appelbaum
sought to keep this activity confidential.?
In conclusion, I have considered all the circumstances
relating to the discharge of Appelbaum, including the
timing of the discharge about a week after the Union's
letter was sent to the salesmen listed by Appelbaum; 8 the
precipitate manner, with no warning or notice, in which an
7 N.LR B v. Marathon Oil Company, 478 F.2d 1405 (C A 7, June 1973),
Heath International, Inc, 196 NLRB 318: Wal-Mart Stores, Inc, 201 NLRB
250.
8 Scott Gross Company, Inc, 197 NLRB 420, enfd. 477 F.2d 64 (C.A 6.
1973); Lang Towing, Inc, 201 NLRB 629, Elm Hill Meats of Owensboro,
Inc, 205 NLRB No 41, Carbide Tool. Incorporated, 205 NLRB No. 61
SHELBY LIQUORS
admittedly top-rated employee was discharged after 11
years of employment ; 9 the requirement that Appelbaum
remove his belongings from the premises immediately; 1°
the absence of any showing of conduct by Appelbaum
within a year or more of his discharge warranting
discharge ; the failure to explain why Appelbaum 's suspi-
cion as to Hess, tolerated for years , at this time called for
immediate discharge : and the lack of credible or probative
evidence to support the Respondent's asserted reasons for
the discharge, which do not ring true , and which are at
variance with one another.[[ It is apparent , therefore, from
the totality of the evidence , and I find, that the reasons
advanced by the Respondent for discharging Appelbaum
were pretextual . 12 In view of the coincidence in the timing
of Appelbaum 's union activity , which took place on the
Respondent 's premises among a very small complement of
employees , and his sudden discharge , and in all the
circumstances of this case , I am convinced, and find, that
the Respondent learned that Appelbaum was organizing
the salesmen , and sought to discourage any possible
interest of its salesmen in the Union by immediately
discharging the employee responsible for it . 13 Accordingly,
I conclude and find that the Respondent discharged
Appelbaum becat .se he joined or assisted the Union or
engaged in other union or concerted activity , and that the
Respondent thereby interfered with , restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and discriminated in
regard to the hire and tenure and the terms and conditions
of employment of its employees , in order to discourage
membership in or activity on behalf of the Union, in
violation of Section 8(a)(1) and (3) of the Act.1i
IV. THE EFFECII OF 1'HE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IIl,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship 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.
9 A' L R B v Southern Desk Co Inc, 246 1. 2d 53 (C.A 4, 1957),
N L R B v Sutherland /.umber Company, Inc, 452 F 2d 67. 69 (C A 7,
1971), quoting with approval the holding in N L R B v. Montgomery Ward
& Co, 242 F 2d 497. 502 (C A 2. 1957) cert. denied 355 U.S. 829 (1957), that
"The abruptness of a discharge and its timing are persuasive evidence as to
motivation "
is Dobbs Houses, a Division of Squibb Beechnut, Inc, 182 NLRB 675, 679;
Carbide Fools, supra.
11 See N L R B v Texas Bolt C ornpan v, 313 F 2d 761 (C A. 5. 1963);
N L R B v Melrose Processing Co, 351 F 2d 693,698 (C A. 8. 1965), Great
Atlantic & Pacific Tea Company N, N L RB., 354 F 2d 707 (C A 5, 1966),
holding that `"The Board is not compelled to accept the employer's
statement [of the ground for discharge] when there is reasonable cause for
believing that the ground put forward by the employer was not the true one,
and that the real reason was the employer's dissatisfaction with the
employee's union activity". Shattuck Denn Mining Corporation v N LR B.,
362 F.2d 466, 470 (C.A 4, 1966), holding
Actual motive, a state of mind, being the question. it is seldom that
V. THE REMEDY
867
Having found that the Respondent discharged Appel-
baum in violation of Section 8(a)(1) and (3) of the Act, I find
that it is necessary that the Respondent be ordered to cease
and desist from the unfair labor practices found, and from
in any other manner infringing upon its employees' Section
7 rights,15 and to take certain affirmative action designed
to effectuate the policies of the Act. The Respondent will
also be ordered to offer Appelbaum reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make Appelbaum whole
for any loss of pay suffered as a result of the discrimination
against him, with backpay computed on a quarterly basis,
plus interest at 6 percent per annum, as prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, John L. Donnelly, Sr., T. Howard
White, Sr., Richard L. Speed, John L. Donnelly, Jr., Don J.
White, Robert A. Madry. John H. Aaron, d/b/a Shelby
Liquors and Athens Distributing Company, A Division of
Shelby Liquors, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Highway and Local Motor Freight Employees Local
Union No. 667, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Max Appelbaum on February 23,
1973, because he joined or assisted the above-named
Union or engaged in other union or concerted activity, the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and discriminated in regard to the
hire and tenure and the terms and conditions of employ-
ment of its employees, thereby discouraging membership in
direct evidence will be available that is not also self -serving In such
cases, the self-serving declaration is not conclusive , the trier of fact
may infer motive from the total circumstances proved Otherwise no
person accused of unlawful motive who took the stand and testified to
a lawful motive could be brought to book. Nor is the trier of fact-here
the Trial Examiner-required to be any more naif than is a judge
[Footnote omitted I If he finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive. More than
that, he can infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference
i2 Santa Rita Mining Company, a Division of Home-Slake Production
Company, 200 N LRB No 144; Scott Gross Company, Inc, supra
i3 Lloyd', Ornamental and Steel Fabricators, Inc, 197 N LRB 367, Wal-
Mart Stores, Inc., supra
19 N LR B v West Coast Casket Co Inc, 469 F.2d 871 (CA 9, 1972),
N L R B v Marathon Oil Company, supra, Heath International, Inc, supra
19 N LR B v Express Publishing Company, 312 U S. 426. 437. NLRB
v Entwistle Mfg Co, 120 F 2d 532, 536 (C.A. 4, 1941).
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization, in violation of Section 8(a)(1) and (3) practices affecting commerce within the meaning of
of the Act. Section 2(6) and (7) of the Act.
The aforesaid unfair labor practices are unfair labor [Recommended Order omitted from publication.]