St. Louis Dr. Pepper Bottling Company, 702 (1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Universal Foods Corporation, d/b/a St. Louis Dr.

Pepper Bottling Company and David Harsch.

Case 14-CA- 14449

August 13, 1981 DECISION AND ORDER

On April 13, 1981, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

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 and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Universal Foods Corporation, d/b/a St. Louis Dr. Pepper Bottling Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.2 ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products,

Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

2Member Jenkins would provide interest on the backpay award in accordance with his partial dissent in Olympic Medical Corporation, 250

NLRB 146 (1980).

DECISION

BERNARD RIES, Administrative Law Judge: This matter was heard in St. Louis, Missouri, on February 2, 1981. Principally at issue is whether Respondent Universal Foods Corporation, d/b/a St. Louis Dr. Pepper Bottling Company, in violation of Section 8(a)(1) and (3) of the Act, retaliated against the Charging Party for filing a grievance pursuant to the procedure established in an applicable collective-bargaining agreement.

Briefs were received from the parties on or about March 9, 1981. Based on the entire record, my recollection of the demeanor of the witnesses, and due consideration of the briefs, I make the following findings of fact, conclusions of law,' and recommendations.

Respondent conceded at the hearing that it is an employer engaged in commerce within the meaning of the Act, and I conclude that assertion of jurisdiction by the Board is appropriate here. Respondent also agreed at hearing that Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter called 'the Union,' is a statutory labor organization.

Respondent is engaged in the bottling and distribution of soft drinks and related products in St. Louis. The Union represents Respondent's 23 drivers, 20 helpers, and 4 vending personnel, and at relevant times the Union and Respondent were bound by a collective-bargaining agreement which provided for a grievance procedure.

David Harsch, the Charging Party, is one of Respondent's helpers, whose function is to accompany and assist drivers on their routes. Harsch, who began employment with Respondent in 1976, also acted as an assistant union steward servicing the helpers.

Prior to July 1980,2 management officials would routinely serve as substitutes for absent route salesmen.

Around July, General Sales Manager Charles Lloyd and Sales Supervisor Dary DeBerry decided to use their management personnel more efficiently and to upgrade the helper position at the same time, by assigning qualified helpers to act as substitutes for missing drivers. Five helpers, Harsch being one of them, were approved by Respondent for such employment. Harsch thereafter substituted for various regular routemen for short periods, earning increased wages when he did so.

Richard Crider, a sales trainee,3 was injured in late July. On July 30, Respondent offered to allow Harsch to take over Crider's route for an extended period as a 'temporary sales trainee.' A written agreement entered into at that time between Respondent, Harsch, and David Henderson, a driver who served as the chief union steward, provided for such substitution and also that '[w]hen Richard Crider returns to assume his position, [Harsch] will then return to [his] route as a helper and continue in [his] capacity as such.'4

Harsch served Crider's route until Monday, November 17, when he reported for work and found that Crider had returned to employment. Harsch spoke to DeBerry about an assignment and was told that he should drive the route normally served by Doug Blumenthal, who had been injured on the weekend preceding November 10. Until November 17, helper Tim Hunt had been serving the Blumenthal route. According to Harsch, DeBerry said that Harsch 'would be running Blumenthal's route until he came back.'a Harsch thereupon left to take over the Blumenthal route.

Harsch had never before handled that route; he was also operating under the handicap of being without a helper. He sold fewer cases of soft drinks on Monday than any of the other drivers. This showing made Harsch the reluctant victor in a contest initiated by Respondent apparently 6 or 8 weeks before, in which, each day, the name of the high-volume driver for the preceding day would be featured, on a poster displayed in the 2 All dates hereafter refer to that year, unless otherwise indicated.

3 This is, evidently, a category of employees training to be route salesmen.

4 The reason for executing such an agreement, according to General Sales Manager Lloyd, was to assure that Harsch had no illusions about becoming a 'swingman,' or a 'substitute . . . on a permanent basis.' Presumably the difference between such a category and the kind of substitution work that the five helpers were doing was that the former would do nothing but substitute for absent drivers, while the helpers, when not substituting, would be helping.

s DeBerry testified that he was 'just about sure' that he had not made such an indefinite assignment. I credit Harsch.

257 NLRB No. 102

702

ST. LOUIS DR. PEPPER BOTTLING COMPANY office, as 'Superman,' and the low producer as-what else- 'Superdog.' It was General Manager Lloyd's belief that this good-humored chivying would inspire competition among the drivers.

It inspired Harsch, when he saw his name shown in the office as 'Superdog' on early Tuesday morning, to search out a grievance form. On the form, he stated the nature of his complaint as 'Defamation of character in disagreement [sic] of my personal rights for having my name listed under 'Superdog,'' and, as a proposed settlement, Harsch asked 'to never have my name up there again with an apology for having my name up there today.' Harsch left the form on Lloyd's desk.6

According to Harsch, about 20 minutes later, Lloyd came downstairs and told Harsch, 'Starting tomorrow, you're going to go back to being a helper.'7

Harsch then left and, for the second and last time, drove Blumenthal's route.

Steward David Henderson testified that as he was checking in from his route later on Tuesday, at 'approximately 2:35 in the afternoon,' Lloyd came out of his office and told him, in the presence of DeBerry and other employees, that Harsch had 'filed a grievance and that he had just hurt himself by doing this, that he was no longer what they had called a relief driver or a salesman, that he was now as [sic] a helper.' In expanding on this theme, Lloyd told Henderson that 'if they want to play games, we'll play games'; that Harsch had 'won the battle, but he lost the war'; and that the demotion would 'cost [Harsch] such and such money' and 'if he can play around with money that way, he can play.' The circumstances of this case are such that, even without Henderson's testimony, a finder of fact, having credited Harsch's testimony, would feel virtually compelled to conclude that the decision to remove Harsch from Blumenthal's route was linked to the grievance filed by Harsch. Henderson's testimonial account of Lloyd's outburst, of course, if credited, makes any other conclusion impossible. That Henderson should indeed be considered creditable was indicated not only by his extremely impressive appearance, but also by the fact that Lloyd corroborated Henderson's testimony in significant part.

While denying that others were present, as Henderson had testified, Lloyd conceded at the hearing that he did have a conversation with Henderson in which he told the latter that Harsch had filed the grievance and that Harsch would no longer be labeled a 'superdog' if he did not wish to participate in the contest. Lloyd went on: 'My main concern there was the fact that I did not want to pull that...