Barton Brands, Ltd.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 889 (N.L.R.B. 1977)

BARTON BRANDS, LTD. 889
Barton Brands , Ltd. and Edward Humes
Distillery, Rectifying, Wine and Allied Workers'
International Union of America, Local 23, AFL-
CIO and Edward Humes . Cases 9-CA-7816-1 and
9-CB-2286
March 17, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On November 29, 1976, Administrative Law Judge
Joseph I. Nachman issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
Employer filed exceptions and a supporting brief,
Respondent Union filed exceptions, a supporting
brief, and an answering brief,2 and the Charging
Party filed a 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 briefs
and has decided to affirm the rulings, findings,3 and
conclusions4 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Barton Brands,
Ltd., Bardstown , Kentucky, its officers , agents,
successors , and assigns , and the Respondent , Distill-
ery, Rectifying, Wine and Allied Workers' Interna-
tional Union of America, Local 23, AFL-CIO,
Bardstown , Kentucky , its officers , agents , and repre-
sentatives , shall take the action set forth in the said
recommended Order.
' 213 NLRB 640 (1974).
a Respondents have requested oral argument . This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
3 Respondents have 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 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
4 Respondent Union has excepted to the Administrative Law Judge's
conclusion that the decision of the Circuit Court of the United States for the
Seventh Circuit in Barton Brands, Ltd v. N.LR.B., 529 F.2d 793 (1976),
constitutes the law of this case. We find, in agreement with the Admimstra-
228 NLRB No. 107
tive Law Judge, that the court's opinion is binding on us for the purpose of
deciding this case.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Administrative Law Judge: This
proceeding initially heard by me at Louisville, Kentucky,
on August 28 and 29,1973 (213 NLRB 640 (1974)), came on
for further hearing on September 8, 1976, pursuant to a
remand from the United States Court of Appeals
for the Seventh Circuit (529 F.2d 793), and the Board's
Order thereon dated June 21, 1976.
At the reopened hearing, full opportunity was afforded
all parties to introduce relevant and material evidence, to
examine and cross-examine witnesses , to argue orally on
the record, and to submit briefs. Oral argument was waived
by all parties. Briefs submitted by the General Counsel,
Charging Party, Respondent Company, and Respondent
Union, respectively, have been duly considered. Upon all
the proceedings heretofore had, the testimony adduced at
the initial and remand hearings, including my observation
of the demeanor of the witnesses while testifying, and the
entire record in the case, I make the following:
FINDINGS OF FACT
Background
The evidence shows that Barton Brands, Ltd. (herein
Barton), and Glencoe Distilling Company (herein Glen-
coe), were separate companies engaged at Bardstown,
Kentucky, in the manufacture and sale of alcoholic
beverages . Distillery, Rectifying,Wine and Allied Workers'
International Union of America, Local 23, AFL-CIO
(herein Local 23 or Union), represented the production and
maintenance employees of both companies in separate
units and pursuant to separate contracts. By reason of
business reverses, Glencoe on August 31, 1969, sold its
plant facilities to Barton. At the time of this sale Glencoe
had about five unit employees on its payroll, and some 25 to
30 employees in layoff status, some of whom had been in
that status for 8 to 10 years.
With the consummation of the aforesaid sale, Kraus,
chief operations officer of Barton, arranged for and in
separate meetings addressed the Barton and Glencoe
employees including those of the latter that were in layoff
status . Officials of the Union attended both meetings.'
Kraus explained to the employees that Barton had exten-
sive plans for the expansion of both its original and newly
acquired plants; that it expected to build a new bottling
plant and expanded siding facilities; that it would accept as
its employees those formerly employed by Glencoe, includ-
ing all those in layoff status; but that it would not operate
the two plants with separate seniority lists. Kraus assured
the employees there would be no problems regarding
layoffs, because there would be plenty of work, and
recommended that the two groups of employees agree to
"dovetail" the seniority of the Barton and Glencoe employ-
i The meetings were in reality arranged at the behest of Union Agent
McKiernan who wanted Kraus to tell the employees just what he had in
mind for them.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees into a single seniority list. Kraus also told the employees
that if they refused to agree to his suggestion, Barton would
operate the two plants as separate units, without inter-
changing employees, and if need be would hire off the street
to acquire the necessary employees for operation of the
Glencoe plant. Both groups of employees and the Union
agreed to the "dovetailing" and the then current contract
between the Union and Barton was amended to effectuate
that agreement.
When changed economic conditions caused Barton to
abandon its plans to build a new bottling plant and expand
the siding facilities, layoffs developed resulting in loss of
employment for the original Barton employees while some
former Glencoe employees continued to work. This quite
understandably resulted in dissatisfaction among the Bar-
ton group, and they called on the Union to negotiate for an
end of the "dovetailing" agreement. When the next contract
negotiations commenced, and the Union proposed to end
the dovetailing arrangement, Barton at first refused to agree
to the Union's demand in that regard. Following several
months of negotiations, and, although the evidence fails to
show that any party had suggested any legal problem, an
opinion was obtained from an attorney that the matter
might appropriately be resolved through collective bargain-
ing, and Barton and the Union thereafter agreed to an
"endtailing" provision which provided that for purposes of
layoff and recall only, the former Glencoe employees would
have seniority with Barton only from the date they became
Barton employees , and the new collective-bargaining agree-
ment which had been agreed upon in the interim was
amended accordingly, retroactive July 1, 1972. When
further layoff thereafter developed the former Glencoe
employees, who lost the seniority they acquired by the
"dovetailing" agreement , were the ones who lost employ-
ment by reason of the "endtailing" agreement . The instant
charges alleging a violation of Section 8(aX3) and (1) by
Barton , and Section 8(bXIXA) and (2) by the Union,
were filed by the former Glencoe employees who
had lost employment, and a consolidated complaint issued
on said charges.
My initial decision, issued October 30, 1973, recommend-
ed that the complaints be dismissed in their entirety. The
basis for this recommendation was, in substance, that
absent bad faith, which the evidence did not show, the
Union enjoyed a wide area of discretion in resolving the
problem which faced it and that the evidence failed to
disclose that such discretion had been abused. By a
Decision and Order issued September 27, 1974 (213 NLRB
640), a Board panel composed of Chairman Miller and
Member Kennedy, with Member Jenkins dissenting, con-
cluded that violations of the Act by Barton and the Union
were established by the evidence. The Board majority
reasoned that the Union violated its duty of fair representa-
tion to all employees in the unit when it "endtailed" the
seniority of the former Glencoe employees largely for the
purpose of advancing the political cause of Ken Cecil, then
engaged in a campaign for reelection as an officer of the
Union, and to assure his reelection by the numerically
superior Barton group, at the expense of the smaller group
of former Glencoe employees. The Board concluded that
by that conduct the Union violated its duty of fair
representation, and by attempting to cause and causing
Barton to enter into the "endtailing" agreement, the Union
violated both Section 8(bX IXA) and (2) of the Act, and that
Barton by entering into and giving effect to an agreement
containing unlawful seniority provisions, discriminated
against the former Glencoe employees in violation of
Section 8(aX3) of the Act.
Upon the separate petitions of Barton and the Union to
set aside the Board's Order, and the Board's petition for
enforcement, the court of appeals held that the Board's
Order could not be sustained on the theory on which the
Board predicated it. Barton Brands, Ltd v. N.LRB., 529
F.2d 793 (C.A. 7, 1976). The court concluded that Cecil's
conduct designed to promote his political status with a
majority of the unit employees , who happened to be Barton
employees, could not be imputed to the Union, because in
doing so he was acting not as an agent of the Union, but in
his own behalf as a candidate for union office. The court
also concluded, however , that the Board's Order could be
sustained under certain circumstances , but that the record
was not sufficiently complete to enable the court to make
the necessary determination, and in any event the initial
determination in that regard should be made by the Board.
To enable the Board to properly complete and evaluate the
record, the court set forth the applicable criteria for the
Board to apply in its considerations of the case on remand.
In this connection the court of appeals pointed out that
while a union may make seniority decisions within a wide
range of reasonableness in serving the interests of the entire
unit it represents , "such decisions may not be made solely
for the benefit of a stronger, more politically favored group
over a minority group," and that "arbitrary decision-
making is contrary to the union 's duty of fair representa-
tion...." After rejecting certain defenses raised by
Barton and the Union , the court summarizing its position,
stated (529 F.2d at 800):
In summary, since the established seniority rights of a
minority of the Barton employees have been abridged
by the 1972 collective bargaining agreement for no
apparent reason other than political expediency, there
seem to be sufficient grounds in this case to support the
Board order . We thus are remanding the case to the
Board for a determination whether the Union violated
its duty of fair representation, and thus committed an
unfair labor practice, by successfully negotiating for the
endtailing proposal . In making its determination, the
Board should consider that in order to be absolved of
liability the Union must show some objective justification
for its conduct beyond that of placating the desires of the
majority of the unit employees at the expense of the
minority. [Emphasis supplied.]
Additionally, in commenting on the contention of both
Barton and the Union that Barton's decision not to build
the bottling plant was failure to fulfill a condition precedent
to the initial dovetailing agreement, the court stated in the
last paragraph of its footnote 14:
The argument that the endtailing is proper since
Barton's decision not to build a new bottling plant was a
failure to fulfill a condition precedent to the initial
BARTON BRANDS, LTD. 891
dovetailing agreement also is without merit . There is no
express condition precedent in the agreement itself and
there is nothing in the record which suggests that the
building of a new plant was an implied condition precedent.
[Emphasis supplied.]
Evidence Adduced on Remand
At the hearing on remand, the General Counsel offered
no testimony either on direct, or in rebuttal. Both the Union
and the Company called witnesses which resulted in the
following facts being developed.
Robert H. Dickerson, a Barton employee, called as a
witness by the Union, testified that he attended the meeting
of Barton employees which Kraus addressed shortly after
Barton's purchase of the Glencoe properties; that Kraus
explained that Barton needed more room than was avail-
able at their own location, and that this was the reason for
purchasing the Glencoe properties where Barton proposed
to build a new bottling plant; that Barton was accepting as
its own, all the former Glencoe employees, and wanted a
dovetailed seniority list to avoid problems of operating the
plant with two separate seniority lists; and that the
dovetailing would be advantageous to everyone. According
to Dickerson, some employees raised a question from the
floor, asking what would happen if the Barton employees
decided not to vote to dovetail the seniority lists, and that
Kraus replied that in such event, the two plants would have
to be operated separately, and that he would then take what
employees he wanted from Barton to work at the Glencoe
plant, who would then be at the bottom of the Glencoe
seniority list, or he could hire off the street the extra
employees that might be needed at the Glencoe location.
Dickerson also testified that, when the question of the
endtailing provision arose in 1972, there was a meeting of
all union members employed by Barton, and that discus-
sion was directed to the point that as the Company had not
built the bottling plant, the seniority situation should revert
to that which prevailed prior to the dovetailing agreement;
and that at no time was there any discussion that the
endtailing agreement should be adopted in order to help or
hurt any employee or group of employees.
Also called as a witness by the Union was John E.
McKiernan, presently retired but at the time of the events
here material, a vice president of the International Union,
and its Regional Director for the area which includes
Kentucky; that included among his duties was the negotia-
tion and servicing of contracts. According to McKiernan,
he attended the initial meetings Kraus held with both the
Barton and former Glencoe employees, and that Kraus told
both groups substantially the things testified to by Dicker-
son. McKiernan testified that it was on the basis of these
representations by Kraus that he recommended to the
membership that they agree to the dovetailing; that he
would never have done so had there been any doubt that
the Company would build the bottling plant; and that it
was only because of the representations Kraus made in that
regard that he got the vote in favor of dovetailing.
McKiernan additionally testified that early in 1972, he
began receiving reports of dissatisfaction among the mem-
bership employed at Barton because the bottling plant had
not been built, and that this was repeated so frequently that
he had some 8 to 10 meetings with employees , and each
time the question was what was the Union going to do
about Barton's failure to build the bottling plant, which was
creating the chaotic condition which had developed, and
employees demanded that the dovetailing agreement be
terminated immediately; that he told the membership that
their demand could not be immediately attained, but had to
wait until the time arrived to negotiate a new contract; and
in support of this position legal advice was sought and
obtained; 2 that the membership finally agreed to wait; and,
when the time for negotiations arrived, the Union negotiat-
ed the endtailing agreement solely because of Barton's
failure to comply with its commitment to build the bottling
plant.
Barton called as its only witness its chief operations
officer Kraus, who testified that to induce the employees to
agree to the dovetailing agreement , he promised them that
the bottling plant would be built, and that this was a
condition of the agreement ; that he fully intended that the
plant would be built, and gave no thought to the idea that
circumstances might lead to other conditions; that, when it
became evident that the bottling plant would not be built,
he agreed to the endtailing agreement for three reasons,
each of which he regarded as important to his company: (1)
he had made the representations and provided certain facts
which induced the Union to agree to the dovetailing, hence
the integrity of the Company was involved; (2) the situation
which developed when the bottling plant was not built, had
resulted in low morale; and (3) it was simply unfair to
continue a contractual situation which had been built on a
condition which did not materialize. Kraus specifically
denied that his decision to abrogate the dovetailing
agreement was entered into to assist or help the Union, or
any official thereof.
Discussion and Conclusions
Were I writing from a clean slate, I would adhere to my
original recommendation that the complaints be dismissed,
basically for the reasons there stated. However, I do not
write from a clean slate ; there is extant the decision of the
court of appeals, to which no petition for certiorari has been
filed, and the time for such filing has expired. That being
the case, the decision of the court of appeals, whether one
agrees with it or not, is final, constituting the law of the
case, and hence must be my guide in the disposition of the
issues before me. Applying the principles there enunciated,
I can only conclude on the basis of the entire record, and
for the reasons hereafter stated, that a violation of Section
8(b)(1XA) and (2) by the Union, and of Section 8(a)(3) by
the Company, is established by the evidence.
2 The legal opinion is referred to supra and a copy thereof was received as
an exhibit at the original hearing.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Conclusions Regarding the Union's Liability
There can be no question that the dovetailing agreement
immediately upon its execution, vested seniority rights in
the former Glencoe employees .3 Likewise, there can be no
question but that the execution of the "endtailing" agree-
ment substantially impaired the seniority rights which the
former Glencoe employees acquired pursuant to the dove-
tailing agreement.4 The conclusion of the court of appeals
was that such action on the part of a union is a violation of
its duty of fair representation ,5 and that in the instant case
the Union could absolve itself of liability only if it could
"show some objective justification for its conduct beyond
that of placating the desires of the majority of the unit
employees at the expense of the minority."
My review of the entire record convinced me, and I
therefore find and conclude, that the Union has made no
showing "of objective justification for its conduct." The
only showing it made was that its members in the Barton
unit relied on the representations made by Kraus that a new
bottling plant would be built, and that the failure to build
the plant constituted a breach of an implied condition
precedent to the dovetailing agreement becoming effective
and justifying the restoration of the status quo ante, which
was effectuated by the execution of the endtailing agree-
ment. McKienan's testimony in this regard has all the
earmarks of a self-serving afterthought, and I regard it as
just that . McKiernan himself testified that just after the first
layoffs members of the initial Barton group discussed with
him on several occasions the fact that the new plant had not
been built ; that they wanted the dovetailing agreement
ended immediately ; that he advised them nothing could be
done until the time arrived to negotiate a new agreement to
replace the then current contract , and finally prevailed
upon the employees to wait until that time . If, as McKier-
nan claimed , the building of the new plant was an implied
condition precedent to the effectiveness of the dovetailing
agreement there was no reason for him to wait for the
expiration of the then current agreement , and it is strange,
indeed, that McKiernan makes no claim that he ever called
on Barton to cease giving effect to the dovetailing agree-
ment because the implied condition precedent had not been
fulfilled. Additionally, it may be pointed out that the court
of appeals rejected the contention that the failure to build
the bottling plant constituted a failure to fulfill a condition
to the dovetailing agreement, pointing out that the agree-
ment itself contained no such provision , and that the record
before it contained nothing to suggest that the building of
the plant was an implied condition. See court opinion, 529
F.2d at fn. 14.
Accordingly, I find and conclude that the Union has
failed to make the showing imposed on it by the court's
opinion , necessary to relieve itself of liability for infringing
3 The court of appeals held (first paragraph of In. 14), that there was no
ment in the contention that the acquisition of such rights by the former
Glencoe employees was a more "windfall " which could properly be revoked.
4 The parties stipulated at the reopened hearing that as a result of the
endtailing agreement the former Glencoe employees suffered layoffs and
substantial losses of wages and other employment benefits. Computation of
the amount of such losses can await the compliance stage of this proceeding,
either by agreement of the parties or in a backpay hearing.
s In Miranda Fuel Company, Inc., 140 NLRB 181 (1%2), the Board
concluded that a violation of Sec . 8(bXI)(A) and (2) resulted when a union,
on the seniority rights of the former Glencoe employees by
entering into the endtailing agreement.
B. Conclusions Regarding Barton 's Liability
There can be no doubt, as the court of appeals held, that
by entering into the endtailing agreement , thereby reducing
the seniority acquired by the former Glencoe employees
which they acquired by the dovetailing agreement, Barton
discriminated against the former Glencoe employees, and
that such discrimination had at least a slight effect on said
employees, and that it thereby committed an unfair labor
practice proscribed by Section 8(a)(3) and (1) of the Act,
unless it shows that its action in this regard was motivated
by legitimate objectives . 529 F .2d at 800; N.L.R.B. v. Great
Dane Trailers, Inc., 388 U .S. 26 (1967). In my opinion
Barton has made no such showing , and I so find and
conclude.
Krause testified that he agreed to the endtailing for three
basic reasons, each of which he regarded as of great
importance to his Company : (1) that having made the
proposals and representations he did to the Union and its
members to induce them to agree to dovetail the theretofore
separate seniority lists , the integrity of the Company was
involved; (2) that , when it became known that the Compa-
ny had abandoned its plans to build the new bottling plant,
employee morale dropped substantially ; and (3) it was
plainly unfair to continue a contractual situation built on
conditions which did not materialize . This testimony by
Kraus, like that of McKiernan , I find and conclude has all
the earmarks of a self-serving afterthought , and I regard it
as just that . I do so because all the factors mentioned by
Kraus, and which he allegedly regarded as of such
importance of his company , were known to him before the
Union made its demands on him for endtailing , and yet
when the Union made its demands in that regard, Kraus
rejected it, and continued to reject it for a period of about 6
months . It is significant also that Kraus mentioned none of
the factors that he now relies on when he testified at the
original hearing , and instead claimed that he ultimately
agreed to the Union 's demand because he concluded that
the Union could not control its members in this area.
Moreover, even if the factors relied on by Kraus are
accepted at face value, they do not individually nor
collectively establish what Barton must show ; namely, that,
in agreeing to the endtailing provision , it was motivated
only by "legitimate objectives," within the meaning of
Great Dane Trailers, supra.
Accordingly, I find and conclude that by entering into
the endtailing agreement, which reduced the seniority of its
employees formerly employed by Glencoe , Barton discrimi-
nated against said employees regarding terms and condi-
because it felt an employee had, with his employer's consent , taken a
vacation at a time when it was inappropriate for him to have done so,
prevailed on the employer to reduce the employee's position on the seniority
register substantially below the position to which he was entitled under the
collective-bargaining agreement . Although the Board 's decision in Miranda
Fuel was denied enforcement by the Court of Appeals for the Second Circuit
(326 F .2d 172 (1%3)), the Supreme Court in Manuel Vaca v. Niles Sipes, 386
U.S. 171 (1%7), discussed the Board's Miranda Fuel decision with apparent
approval.
BARTON BRANDS, LTD.
tions of their employment, thereby encouraging member-
ship in the Union, in violation of Section 8(a)(3) of the Act .6
Miranda Fuel Co., supra?
Upon the foregoing fmdings of fact, and the entire record
in the case, I restate and by this reference adopt Conclu-
sions of Law 1, 2, and 3 of my original Decision, and now
state the following additional:
CONCLUSIONS OF LAW
4. The "endtailing" provision of the contract between
the Union and Barton, as amended in October 1972,
reduced the seniority of the former Glencoe employees for
the purpose of layoff and recall.
5. By performing and giving effect to the aforesaid
endtailing provision Barton has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and has discriminated against
employees in respect to their hire and tenure of employ-
ment and other terms and conditions of employment, and
has thereby engaged in unfair labor practices proscribed by
Section 8(a)(l) and (3) of the Act.
6. By performing and giving effect to its collective-
bargaining agreement with Barton containing the aforesaid
unlawful seniority provision, the Union has restrained and
coerced employees in the exercise of rights guaranteed by
Section 7 of the Act, and has caused or attempted to cause
Barton to discriminate against employees in violation of
Section 8(a)(3) of the Act, and has thereby engaged in
unfair labor practices proscribed by Section 8(bXl)(A) and
(2) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Barton and the Union engaged in
unfair labor practices, it will be recommended that each of
them be ordered to cease and desist therefrom and take the
affirmative action hereafter set forth, designed and found
necessary to effectuate the policies of the Act.
Barton, having discriminated against Edward Hume,
Lucy Stone, Samuel A. Cambrom, Charles E. Ball, A. D.
Lanham, Charles Miles, James R. Hutchins, Charles E.
Mattingly, Edwin C. Walker, Joseph J. Riggs, Charles
Greenwell, William E. Welch, and Lelia Fields (herein the
former Glencoe employees), who were on the seniority list
of Glencoe Distilling Company on August 31, 1969, for
purposes of layoff and recall, by adoption of the last
paragraph of article VIII, section 1, of the collective-
bargaining agreement as amended in October 1972, retro-
active to July 1, 1972, will be required to immediately
6 Although both the Barton and former Glencoe groups are all members
of the Union, it does not necessarily follow that there was no encouragement
of union membership . The court of appeals (529 F.2d at 799), in passing on
that contention , quoted from N.L.RB. v. International Longshoremen's
Association, Local No. 1581, AFL-CIO [Manchester Terminal Corp], 489
F.2d 635, 638 (C.A. 9, 1974):
These holdings reflect "a recognition that the union 's ability to effect
this kind of discrimination is likely to have an intimidating effect on
workers who might otherwise prefer to refrain from union membership
893
restore them to their former positions on the seniority
roster, or to such higher positions on said roster to which
they may be entitled if employees of higher seniority have
terminated their employment with Barton, for all purposes,
as well as to all other rights attaching to such positions on
said roster. The Union having caused Barton to discrimi-
nate against the former Glencoe employees , as herein
found, it will be required to immediately notify Barton and
each of the former Glencoe employees above mentioned,
that it has no objection to their restoration on the seniority
list as above set forth, and to all rights attached to such
employees on said roster.
It will be additionally recommended that Barton and the
Union, jointly and severally, make whole each of the
aforementioned former Glencoe employees for any loss of
pay they may have suffered by reason of the discrimination
against them as herein found, by paying to each such
discriminatee a sum of money equal to the amount such
discriminatee would normally have earned as wages had
they been occupying their former positions on the seniority
list from July 1, 1972, to the date when, in accordance with
the order to be entered herein, Barton shall restore said
discriminatee to his or her proper position, on the seniority
list, less his or her net earnings during said period. The
Union may terminate its liability for the further accrual of
backpay by notifying Barton, in writing, that it has no
objection to the restoration of the former Glencoe employ-
ees to their proper positions on the seniority roster in
accordance with the decision herein , and commencing on a
date which is 5 days from the giving of such notice, the
Union shall not thereafter be liable for any backpay
accruing. The backpay herein provided for shall be
computed in the manner provided in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest added thereto
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Additionally, it will be recommended that Barton be
required to preserve and make available to authorized
agents of the Board, all records necessary or useful in
determining compliance with the Board's Order herein, or
in computing the amount of backpay due the several
discriminatees as therein provided.
Having found that Barton and the Union are giving effect
to an agreement containing unlawful seniority provisions, it
will be recommended that they be required to refrain from
doing so in the future.
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
or upon members who might like to refrain from extensive union
activity."
7 I also reject Barton's contention that the complaint against it must be
dismissed because, even assuming that the Union acted improperly, there is
no evidence that Barton was aware of the Union's unlawful conduct. I
assume arguendo that the contention correctly states the law , but the facts do
not support its contention. Kraus certainly knew that the Union advanced
the endtaihng proposal ; that the proposal under ordinary circumstances
violated the Act is clear under the Miranda decision, and as a matter of law
Kraus must be held to have been aware of that fact.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER8
A. Respondent Barton Brands , Ltd., Bardstown, Ken-
tucky, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in, or activities on behalf of,
Distillery , Rectifying , Wine and Allied Workers' Interna-
tional Union of America, Local 23, AFL-CIO, or any other
labor organization of its employees , by reducing seniority
of any of its employees , pursuant to a collective -bargaining
agreement or otherwise, or by discriminating against them
in any other manner in regard to their hire or tenure of
employment , or any other term or condition of employ-
ment, except to the extent permitted by Section 8(a)(3) of
the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Restore Edward Hume, Lucy Stone , Samuel A.
Camborn , Charles E . Ball, A. D. Lanham, Charles Miles,
James R. Hutchins, Charles E. Mattingly, Edwin C.
Walker, Joseph J . Riggs, Charles Greenwell, William E.
Welch , and Lelia Fields to their former positions on the
seniority roster or to such higher positions on said roster to
which they may be entitled if employees of higher seniority
have since terminated their employment with the Compa-
ny, for all purposes, and to all rights attaching to such
positions on the roster.
(b) Preserve and, upon request , make available to
authorized agents of the Board, for examination and
copying, all payroll records, social security payment re-
cords , timecards , personnel records and reports, and all
other records necessary or useful in determining compli-
ance with this Order , or computing the amount of backpay
due under the terms hereof.
(c) Post at its premises at Bardstown , Kentucky , copies of
the attached notice marked "Appendix A." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 9 , after being signed by an authorized representa-
tive, shall be posted as herein provided immediately upon
receipt thereof, and be so maintained for a period of 60
consecutive days thereafter , in conspicuous places, includ-
ing 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) Post at the same places and under the same conditions
as set forth in paragraph A, 2(c), above, as soon as they are
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
9 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order of
forwarded by the aforesaid Regional Director, copies of
the attached notice marked "Appendix B."
(e) Mail to the aforesaid Regional Director , signed copies
of the attached notice marked "Appendix A" for posting by
Distillery, Rectifying, Wine and Allied Workers' Interna-
tional Union of America, Local 23, AFL-CIO, at its
business offices and meeting halls , including all places
where notices to members are customarily posted. Copies of
said notice, to be furnished by the aforesaid Regional
Director, shall, after being duly signed by an authorized
representative of Barton Brands , Ltd., to be forthwith
returned to the aforesaid Regional Director for such
posting.
(f) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
B. Distillery, Rectifying, Wine and Allied Workers'
International Union of America, Local 23, AFL-CIO,
Bardstown, Kentucky, its officers, agents, and representa-
tives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Barton Brands, Ltd.,
to discriminate against Edward Hume , Lucy Stone , Samuel
A. Cambron, Charles E. Ball , A. D. Lanham, Charles Miles,
James R. Hutchins, Charles E. Mattingly, Edwin C.
Walker, Joseph J. Riggs, Charles Greenwell, William E.
Welch, and Lelia Fields, or any other employee, in
violation of Section 8(aX3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Notify Edward Humes , Lucy Stone, Samuel A.
Cambron, Charles E. Ball, A. D. Lanham, Charles Miles,
James R. Hutchins, Charles E. Mattingly, Edwin C.
Walker, Joseph J . Riggs, Charles Greenwell, William E.
Welch, and Lelia Fields, as well as Barton Brands, Ltd.,
that it has no objections to the restoration of said employ-
ees to their former positions on the seniority roster for all
purposes, or to such other positions on said roster to which
the said employees may be entitled, together with the rights
pertaining to those positions.
(b) Post at its business offices and meeting halls in the
Bardstown, Kentucky, area, copies of the attached notice
marked "Appendix B." 10 Copies of said notice, on forms
provided by the Regional Director for Region 9, after being
duly signed by its authorized representatives, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
iU In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
BARTON BRANDS, LTD. 895
members are customarily posted . Reasonable steps shall be
taken to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Post at the same places and under the same conditions
as set forth in paragraph B, 2(b), above, as soon as they are
forwarded by the aforesaid Regional Director , copies of the
notice attached marked "Appendix A," to be executed by
Barton Brands, Ltd.
(d) Mail to the aforesaid Regional Director , sufficient
signed copies of the notice marked "Appendix B" for
posting by Barton Brands , Ltd., at its premises in Bards-
town, Kentucky, in places where notices to its employees
are customarily posted . Copies of the notice , to be fur-
nished by the aforesaid Regional Director , shall after being
duly signed by its authorized representative be forthwith
returned to the aforesaid Regional Director for such
posting.
(e) Notify the aforesaid Regional Director , in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
C. Barton Brands , Ltd. its officers , agents , successors,
and assigns, and Distillery, Rectifying, Wine and Allied
Workers' International Union of America, Local 23, AFL-
CIO, its officers , agents, and representatives , shall jointly
and severally make whole Edward Humes , Lucy Stone,
Samuel A . Cambron, Charles E. Ball , A. D. Lanham,
Charles Miles , James R. Hutchins, Charles E . Mattingly,
Edwin C. Walker, Joseph J. Riggs, Charles Greenwell,
William E. Welch , and Lelia Fields , severally, for any loss
of pay they may have suffered because of the discrimina-
tion against them, in the manner set forth in section hereof
entitled "The Remedy."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership, or activities on
behalf of, Distillery, Rectifying, Wine and Allied
Workers' International Union of America, Local 23,
AFL-CIO, or any other labor organization of our
employees, by reducing the seniority of any of our
employees pursuant to a collective-bargaining agree-
ment or otherwise , or in any other manner discriminat-
ing against our employees in regard to their hire or
tenure of employment, or any other terms or conditions
of employment, except to the extent permitted by
Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(3) of the Act.
WE wiLL restore Edward Hume , Lucy Stone, Samuel
A. Cambron, Charles E. Ball, A. D. Lanham , Charles
Miles, James R. Hutchins , Charles E . Mattingly, Edwin
C. Walker, Joseph J. Riggs, Charles Greenwell , William
E. Welch, and Lelia Fields to their former positions on
the seniority roster, or to such higher positions on said
roster to which they may be entitled if employees of
higher seniority have since terminated their employ-
ment with the Company, for all purposes , together with
all the rights pertaining to those positions.
WE wiLL, jointly with the aforementioned Union,
make whole each of the aforementioned persons for any
loss of pay they may have severally suffered because of
the discrimination against them.
BARTON BRANDS, LTD.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Barton
Brands, Ltd., to discriminate against Edward Hume,
Lucy Stone, Samuel A. Cambron, Charles E. Ball, A. D.
Lanham, Charles Miles, James R. Hutchins, Charles E.
Mattingly, Edwin C. Walker, Joseph J. Riggs, Charles
Greenwell, William E. Welch, and Lelia Fields, or any
other employees in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(aX3) of the Act.
WE WILL notify each of the aforementioned persons,
and Barton Brands, Ltd., that we had no objections to
the restoration of said employees to their former
positions on said Company's seniority roster, or to such
other positions on said roster to which said employees
may be entitled, together with all the rights pertaining to
those positions.
WE WILL, jointly with Barton Brands, Ltd., make
whole each of the aforementioned employees for any
loss of pay they may have severally suffered by reason
of the discrimination against them.
DISTILLERY, RECTIFYING,
WINE AND ALLIED
WORKERS' INTERNATIONAL
UNION OF AMERICA, LOCAL
23, AFL-CIO