Barton Brands, Ltd.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 976 (N.L.R.B. 1990)

976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Barton Brands , Ltd. and James D. O'Daniel. Case
9-CA-24511
June 29, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On a charge filed July 22, 1987, by James D.
O'Daniel , the General Counsel for the National
Labor Relations Board issued a complaint Novem-
ber 12, 1987 , against Barton Brands , Ltd., the Re-
spondent , alleging that the Respondent had violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing O'Daniel on or about June 2, 1987. The Re-
spondent filed a timely answer admitting in part
and denying in part the allegations in the complaint
and raising certain affirmative defenses.
On June 27, 1988 , the General Counsel , the Re-
spondent , and the Charging Party filed with the
Board a stipulation and motion to transfer the case
to the Board . The parties stated that the stipulation
and attached exhibits constituted the entire record
in this proceeding , and that they waived a hearing
and decision by an administrative law judge. On
August 16 , 1988, the Board approved the stipula-
tion and transferred the proceeding to the Board
for issuance of a decision and order . Thereafter,
the General Counsel, the Respondent, and the
Charging Party , filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record and the briefs, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation with
an office and place of business in Bardstown, Ken-
tucky, is engaged in the manufacture and nonretail
sale and distribution of alcoholic beverages and re-
lated products. During the 12-month period pre-
ceding the issuance of the complaint, a representa-
tive period, the Respondent, in the course and con-
duct of its operations, purchased and received at its
Bardstown facility products, goods, and materials
valued in excess of $50,000 directly from points
outside the State of Kentucky.
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all material times Distillery, Wine and Allied
Workers International Union of America, Local
No. 23, AFL-CIO has represented certain of the
Respondent's production employees, including
O'Daniel. The Union and the Respondent were
parties to a collective-bargaining agreement that
was in effect from July 1984 through June 1987.
On July 10, 1986, the Respondent discharged
O'Daniel for an allegedly insubordinate act. At the
time of his discharge, O'Daniel was plant chairman
for the Union, a position equivalent to chief stew-
ard.l
On July 11, 1986, O'Daniel filed a grievance
concerning his discharge. On July 23, 1986, O'Dan-
iel filed a charge with the Board in Case 9-CA-
23357 alleging, in substance, that he was dis-
charged for attempting to process a grievance in
violation of Section 8(a)(3) and (1) of the Act. On
August 25, 1986, the Regional Director deferred
the charge to the contractual grievance procedure
pursuant to United Technologies Corp., 268 NLRB
557 (1984).
On January 16, 1987, after a hearing, the arbitra-
tor issued an award in which he found that O'Dan-
iel was clearly insubordinate on the day of the dis-
charge and that there was "no evidence to suggest
that [O'Daniel] was discriminated against because
of his union activities." The arbitrator found, how-
ever, that there were "slight mitigating circum-
stances" that warranted a lesser penalty than dis-
charge. Thus, acknowledging that O'Daniel had
been plant chairman for only 7 months at the time
of his discharge, the arbitrator found some validity
in the Union's contention that in the "heat of the
moment" O'Daniel believed that he was entitled to
have his problem considered immediately. The ar-
bitrator therefore converted the discharge to a dis-
ciplinary suspension from the date of discharge
through the date of the award, and provided for
reinstatement with the forfeiture of backpay, se-
niority, and other benefits during the time of the
suspension. Finally, relying on "the possibility of
continued friction if [O'Daniel] was to remain as a
Union steward," the arbitrator held that as a condi-
tion of reinstatement O'Daniel should resign his po-
sition as plant chairman and refrain from serving as
steward or in any other official capacity in the
Union's dealings with the Company for 3 years fol-
lowing reinstatement, 2 with violation of this condi-
' O'Damel held the position of plant chairman from January to De-
cember 31, 1986
2 By the time the award issued, O'Damel's term of office as plant
chairman had expired
298 NLRB No. 139
BARTON BRANDS 977
tion to result in revocation of the reinstatement and
immediate termination.
On March 4, 1987, the Regional Director dis-
missed the charge in Case 9-CA-23357 on the
grounds that the underlying contractual issue was
factually parallel to the unfair labor practice issue,
the arbitration proceeding was fair and regular, and
the arbitrator was presented generally with all the
facts underlying the parallel grievance and unfair
labor practice issues. O'Daniel's appeal of the dis-
missal was denied by the General Counsel by letter
dated March 27, 1987. The letter stated in pertinent
part:
The appeal is denied. Apart from other consid-
erations, it was concluded that the evidence
was insufficient to establish that you were dis-
charged in violation of the National Labor Re-
lations Act. While your appeal contends that
the arbitrator "exceeded his authority" and
that the Union failed to properly present your
case to the arbitrator, 1 hese contentions are not
relevant to our decision which rests on the
pre-arbitration evidence which was presented
during the investigation of the unfair labor
practice charge. According to that evidence,
your conduct was unprotected under the Act
and thus your discharge for such conduct was
not unlawful under the Act.
The Respondent reinstated O'Daniel to layoff
status following the issuance of the arbitrator's
award.3 On May 20, 1987, while still on layoff,
O'Daniel was elected president of the Union. By
letter dated' May 28, 1987., the Union notified the
Respondent that O'Daniel would take office as
president on June 1, 1987. The Respondent, by
letter dated June 1, 1987, notified O'Daniel that he
was terminated, effective immediately, pursuant to
the terms of the arbitrator's award.
B. Issues
The issue before the Board is whether, as alleged
in the complaint, the Respondent violated the Act
by discharging O'Daniel in June 1987 because of
his union and other protected concerted activities.
Additionally, the Respondent's answer raises, inter
alia, the following defenses: (1) that the charge is
time-barred under Section 10(b) of the Act; (2) that
O'Daniel waived certain rights and is ;estopped
from complaining of the conditions placed on rein-
statement by the arbitrator; and (3) that the Board's
decision to defer in Case 9--CA-23357 is res judica-
3 The Respondent had laid off certain employees due to a reduction in
work. O'Daniel acknowledged in his brief that at the time of his rein-
statement he did not have enough seniority to be actively employed.
to with respect to the propriety of the conditional
reinstatement.
C. Contentions of the Parties
The General Counsel contends that the Respond-
ent unlawfully discharged O'Daniel for being elect-
ed union president. In this regard, the General
Counsel contends that O'Daniel did not lose the
right to hold union office as a result of his July
1986 misconduct while serving as plant chairman.
Regarding the Respondent's affirmative defenses,
the General Counsel maintains that the case is not
time-barred because, under Hospital Employees
(Smithtown Hospital), 275 NLRB 272, 274-275
(1985), the statutory period did not begin to run
until the Respondent took final action to enforce
the arbitrator's condition-i.e., on June 1, 1987-
which was less than 2 months before the filing of
the charge. The General Counsel also asserts,
citing Aces Mechanical Corp., 282 NLRB 928
(1987), enf. denied 837 F.2d 570 (2d Cir. 1988), that
there has been no waiver of Section 7 rights by
either O'Daniel or the Union. In this regard, the
General Counsel contends that failure to appeal the
arbitrator's award does not constitute a clear and
unequivocal waiver and that an arbitrator does not
have the authority to require employees to aban-
don Section 7 rights. Regarding deferral, the Gen-
eral Counsel contends that because the award
cannot be reconciled with the policies of the Act,
deferral to, or attempted enforcement of, the award
is not appropriate. Finally, the General Counsel
maintains that it would not be inconsistent for the
Board to defer to the arbitrator's decision regard-
ing O'Daniel's July 1986 discharge, but to find the
July 1987 discharge unlawful because the two
issues are not factually parallel, and the second dis-
charge was not presented to the arbitrator.
The Charging Party contends, inter alia, that the
right to choose a particular representative to proc-
ess grievances and lead a union involves the mutual
aid and protection of a union. The Charging Party
also agrees with the General Counsel that the Re-
spondent's defenses are without merit.
The Respondent contends that O'Daniel lost the
right to hold union office because he abused his po-
sition in July 1986, and that the arbitrator condi-
tioned O'Daniel's reinstatement to ensure that he
would not abuse that office again. The Respondent
further contends that the arbitrator's award was
"self-effectuating" and, therefore, that it took no
action that could be found unlawful. With respect
to its affirmative defenses, the Respondent, citing
Postal Service Marina Center, 271 NLRB 397
(1984), asserts that the instant case is barred by
Section, 10(b) because the statutory period began to
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
run on July 19, 1987, when the parties received the
arbitrator 's decision and therefore had notice of the
conditional reinstatement . Regarding waiver, the
Respondent maintains that the arbitrator had the
authority to formulate the conditional remedy be-
cause the Union , which has the authority to waive
employees ' statutory rights, agreed to arbitrate
O'Daniel 's grievance . Finally, the Respondent con-
tends that in reinstating O'Daniel pursuant to the
arbitrator 's award , it relied on the Board 's deferral
and dismissal of the charges in Case 9-CA-23357
and, therefore, that the complaint in the instant
case should be dismissed based on principles of es-
toppel.
D. Discussion
1. The 10(b) issue
We find initially that the instant case is not
barred by Section 10(b) of the Act. In rejecting the
Respondent's contention that the 10(b) period
began to run at the time the arbitrator issued his
decision, we find that the Respondent's reliance on
Postal Service Marina Center is misplaced.
In Postal Service Marina Center, the Board held
that in determining when the 10(b) period com-
mences it will focus on the date of an alleged un-
lawful act rather than the date its consequences
become effective, provided that a final and un-
equivocal adverse employment decision is made
and communicated to an employee. Id. at 399-
400.4 Applying a similar analysis in the context of
an arbitrator's award in Smithtown Hospital, 275
NLRB at 274, where the complaint alleged that the
respondent union violated the Act by petitioning
the state court to enforce an arbitrator's award that
afforded recognition based on tainted cards, the
Board held that the 10(b) period began to run
when the respondent filed the petition and not on
issuance of the award.5
In the instant case, the issuance of the award
providing for O'Daniel's conditional reinstatement
did not constitute an employment decision by the
Respondent. Contrary to the Respondent's conten-
tion that the award was "self-effectuating," the Re-
spondent was not compelled to discharge O'Daniel
on his election to union president. Further, the
conduct alleged to be unlawful in the instant com-
plaint is O'Daniel's June 1987 discharge, not his
4 See, e g, Machinists Local 68 (Holmatic, Inc.), 274 NLRB 757, 759
(1985) (regarding alleged unlawful intraunion fines, the Board found that
final adverse decision occurred not when trial committee recommended
fines but when union members voted to impose trial committee's recom-
mendations)
5 Although Smithtown Hospital does not cite Postal Service Marina
Center, its analysis is consistent with the view that the issuance of the
arbitrator's award did not constitute a final adverse decision by the re-
spondent
conditional reinstatement. With respect to that dis-
charge, the adverse employment decision oc-
curred-and the statutory period began to run-
when the Respondent effectuated the award by ter-
minating O'Daniel following his election to the
office of union president. See Holmatic, above;
Smithtown Hospital, above. We therefore find that
the July 22, 1987 charge was timely filed.6
2. The deferral, waiver, and estoppel issues
In its answer to the complaint, the Respondent
raised the deferral defense based on the dismissal of
the charge in Case 9-CA-23357. For the following
reasons, however, we reject the Respondent's de-
ferral defense and find that O'Daniel is not es-
topped from contending here that the conditions
placed on his reinstatement were unlawful.
We first find that the General Counsel's dismissal
of the prior case was not based on deferral. The
August 25, 1986 letter announcing prearbitral de-
ferral was based on the Board's deferral policy as
set forth in United Technologies Corp., 268 NLRB
557 (1984). Similarly, the March 4, 1987 letter of
dismissal , reflecting the Board's traditional lan-
guage of deferral, stated, inter alia, that the con-
tractual and unfair labor practice issues were factu-
ally parallel and that the arbitration proceeding
was fair and regular.? By contrast, the General
Counsel's March 27, 1987 letter denying O'Daniel's
appeal of the dismissal indicates that, in dismissing
the charge, the General Counsel did not defer to
arbitration but rather reviewed the evidence de
novo and made an independent decision on the
merits. Specifically, addressing O'Daniel's conten-
tions that the arbitrator exceeded his authority and
that the Union did not properly present his case,
the General Counsel stated:
. . . these contentions are not relevant to our
decision which rests on the pre-arbitration evi-
dence which was presented during the investi-
gation of the unfair labor practice charge. Ac-
cording to that evidence, your conduct was-
unprotected under the Act and thus your dis-
charge for such conduct was not unlawful
under the Act.
6 See also Manitowoc Engineering Co, 291 NLRB 915, 920 (1988) (the
Board found that the unlawful act was not the denial of a withdrawal
card to the charging party but the union's causing the employer to lay off
the charging party based on an unlawful provision in the collective-bar-
gaining agreement)
7 The Board will defer to an arbitrator's decision when (1) the unfair
labor practice issue was presented to and considered by the arbitrator, (2)
the arbitral proceedings were fair and regular, (3) all parties agreed to be
bound, and (4) the decision is not repugnant to the purposes and policies
of the Act See Spielberg Mfg. Co, 112 NLRB 1080 (1955); Olin Corp,
268 NLRB 573 (1984)
BARTON BRANDS 979
This language undermines the Respondent's asser-
tion that its reliance on the Board's deferral to the
arbitrator's decision warrants dismissal of the in-
stant complaint.8
Moreover, even if the General Counsel's dismis-
sal of the prior case was based on deferral, we find,
for the reasons set forth below, that it is inappro-
priate to defer to the arbitrator's award to deter-
mine the lawfulness of O'Daniel's June 1987 dis-
charge. Under Olin Corp., above, deferral to an ar-
bitration award is appropriate when, inter alia, an
arbitrator has adequately considered the unfair
labor practices. An arbitrator is found, under Olin,
to have done so when the contractual issue is fac-
tually parallel to the unfair labor practice issue and
the arbitrator has been presented generally with the
facts relevant to resolving the unfair labor practice
issue. Aces Mechanical Corp., 282 NLRB 928, 929-
930 (1987).
In Aces Mechanical, which also involved a condi-
tional reinstatement offer, the Board found deferral
inappropriate because the contractual, and statutory
issues were not factually parallel. In that case the
respondent and the union had agreed that,- pending
arbitration of Union Steward O'Toole's September
1982 discharge, O'Toole could return to work if he
would not serve as steward. O'Toole returned to
work on November 4, 1982, but wanted to remain
steward; faced with a dispute about his job status,
he left the job on November 5. On or about March
7, 1983, the arbitration panel majority issued an
award, to which the Board deferred, finding that
the respondent had just cause for the September
1982 discharge. Thereafter, the Regional Director
issued a complaint alleging that the respondent vio-
lated the Act by threatening O'Toole with dis-
charge unless he refrained from serving as steward,
and by refusing to reinstate him from November 5,
1982, through March 7, 1983.
The Board rejected the respondent's deferral de-
fense on the grounds that the contractual issue
before the arbitrators, concerning the propriety of
O'Toole's September 1982 discharge, was not fac-
tually parallel to the unfair labor practice issues
before the Board, concerning the lawfulness of the
respondent's subsequent conditioning of O'Toole's
reinstatement. In this regard, the Board found that
the former required an analysis of O'Toole's al-
leged job misconduct that caused the discharge,
while the latter required an analysis of events oc-
curring after the discharge. Turning to the merits
of the complaint allegations , the Board, citing Met-
ropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983),
8Because Member Cracraft agrees with her colleagues that the Gener-
al Counsel did not defer, she finds it unnecessary to join the following
discussion.
concluded that there was no evidence of a clear
and unmistakable waiver of O'Toole's Section 7
right to hold union office.9
Similarly, in the instant case we fired that deferral
is not appropriate because the issue considered by
the arbitrator is not factually parallel to the unfair
labor practice issue presented here. The issue
before the arbitrator involved O'Daniel's July 1986
discharge, and required an analysis of O'Daniel's
alleged insubordination. On the other hand, the
issue now before the Board concerns the lawfulness
of O'Daniel's subsequent termination in June 1987,
when the Respondent implemented the arbitrator's
award. See Aces Mechanical, above. Moreover, it is
clear that in formulating a conditional reinstate-
ment remedy the arbitrator did not consider wheth-
er O'Daniel waived his Section 7 right to hold
union office, an issue that is central to an analysis
of the unfair labor practice issue here. See Armour
& Co., 280 NLRB 824 fn. 2 (1986),10
Pursuant to Olin Corp., above, the Board also re-
fuses to defer to a decision by an arbitrator that is
repugnant to the purposes and policies of the Act.
An award is repugnant when it is not susceptible to
an interpretation consistent with Board policy. See
Manitowoc Engineering, above at 917. A related
issue-the extent to which a respondent is permit-
ted to claim good-faith reliance on an unlawful ar-
bitrator's award-depends on whether the Board
could properly further the strong national policy in
favor of private settlement of labor disputes with-
out abdicating its responsibility to remedy viola-
tions of national labor 'law. Consolidated Freight-
ways, 290 NLRB 771, 773 (1988), on remand from
669 F.2d 790 (D.C. Cir. 1981), enfd. 892 F.2d 1052
(D.C. Cir. 1989). The Board in Consolidated
Freightways, having previously found that an arbi-
trator's award that conditioned the discriminatee's
reinstatement on the placement of a warning letter
in his personnel file was repugnant to the Act,11
9 The Second Circuit, in denying enforcement, found that the contrac-
tual and statutory issues were parallel because, in light of the arbitrators'
decision that O'Toole's September 1982 discharge was for just cause,
O'Toole was ineligible to serve as shop steward under the terms of the
collective-bargaining agreement We note that there is no similar provi-
sion in the relevant collective-bargaining agreement in this case In fact,
the Respondent conceded that if O'Damel's discharge had not been con-
verted to a disciplinary suspension with conditional reinstatement rights,
he could have held union office.
to In Armour the issue before the Board was whether the respondent
unlawfully refused to bargain about , and implemented unilateral changes
regarding, severance and vacation pay allocations. In rejecting the re-
spondent's deferral defense, the Board found that the question of waiver
by the union was not presented to or considered by the arbitrator and,
therefore, that the contractual and statutory issues were not factually par-
allel
11 253 NLRB 988 (1981)
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rejected the respondent's contention that its reli-
ance on the award tolled its backpay obligation. In
this regard, the Board reasoned that the tolling
would, "in substantial effect, be deferring to the
award." Id. at 773.12
In the following section, we find that the arbitra-
tor's award insofar as it conditions O'Daniel's rein-
statement rights is unlawful under the Act. There-
fore, under Olin Corp., above, we find that deferral
is inappropriate because the award is not suscepti-
ble to an interpretation consistent with the Act and
is therefore repugnant to the Act.13 Additionally,
under Consolidated Freightways, above, we reject
the Respondent's defense of estoppel based on its
contention that it acted in good-faith reliance on
the arbitrator's award.
For the above reasons, we deny the Respond-
ent's request that the complaint be dismissed.
3. The merits of the complaint allegations
The right to hold union office clearly is protect-
ed by Section 7. An employer violates Section
8(a)(3) and (1) by refusing to employ an individual
because he has been designated as union steward.
Aces Mechanical, above at 930 (citing John P. Bell
& Sons, 266 NLRB 607 (1983)), or by conditioning
an employee's reinstatement on, inter alia, resigna-
tion from the union and an agreement not to run
for union office for 3 years. Vulcan-Hart Corp., 262
NLRB 167 (1982). The Board has also recognized
the rights of employees and their union to be repre-
sented by persons of their own choice. Sycon Corp.,
258 NLRB 1159, 1160 (1981).
A waiver of statutory rights must be established
clearly and unmistakably. Metropolitan Edison Co.
v. NLRB, above, 460 U.S. 693. The Respondent
contends that the fact that the Union agreed to ar-
bitrate O'Daniel's grievance constitutes a valid
waiver and, therefore, that the arbitrator had the
authority to formulate the conditional reinstatement
remedy. The Respondent's contentions are without
merit. Assuming without deciding that union offi-
cials can waive employees' rights to hold union
office, Aces Mechanical, above at 930, we fmd that
an agreement to arbitrate a specific discharge,
without more, does not meet the exacting standards
we require of a waiver of an employee's statutory
rights. Further, the relevant portions of the parties'
12 The Board in Consolidated Freightways, id at 773 fn 9, suggested
the following example of an award to which deferral would be inappro-
priate
Hypothetically, suppose an arbitrator awarded an employee rein-
statement on the condition that the employee not engage in any pro-
tected concerted activities? The award would clearly be repugnant
to the Act
12 See American Commercial Lines, 291 NLRB 1066, 1076 (1988), in
which the Board found that it could not defer to an arbitrator's award
because its remedy was clearly repugnant to the Act
collective-bargaining agreement do not establish a
clear intent to give up the right to hold union
office in exchange for the right to arbitrate griev-
ances. Thus, the provision cited by the Respondent
in its brief merely provides:
The decision of the arbitrator . . . shall be
final and binding on all parties involved in
such controversy or grievance and shall con-
clusively determine same.
Therefore, we do not find that a clear and unmis-
takable waiver has been established here.
Here the arbitrator found that O'Daniel was dis-
charged for just cause, but that mitigating circum-
stances warranted converting the discharge to a
disciplinary suspension . In the absence of a clear
and unmistakable waiver of O'Daniel's right to
hold union office, we find that the arbitrator's
award that deprives him of his statutory rights-
albeit in an effort to mitigate monetary losses-is
unlawful under the Act. Thus, the Respondent was
not entitled to rely on the arbitrator's award to jus-
tify O'Daniel's discharge.14
Accordingly, we conclude that the Respondent
violated Section 8(a)(3) and (1) by discharging
O'Daniel on June 1, 1987, because of his election as
union president.
CONCLUSION OF LAW
By discharging James D. O'Daniel on June 1,
1987, because he was elected union president, the
Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY'5
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order the
Respondent to cease and desist and to take certain
affirmative action to effectuate the policies of the
Act. Having found that the Respondent unlawfully
discharged James D. O'Daniel, we shall order the
Respondent to offer O'Daniel reinstatement to the
position to which he would have been recalled in
the absence of the discrimination against him with-
14 Because the conduct alleged to be unlawful in the instant complaint
is O'Danrel's June 1987 discharge, we find it unnecessary to pass on
whether O'Daniel's July 1986 discharge violated Sec 8(a)(3) and (1) of
the Act In this regard, our determination that the arbitrator's remedy is
repugnant to the Act is not dependent on a finding that O'Daniel was
discharged in 1986 for engaging in protected activity
Finally, based on the evidence in the record, we reject the Respond-
ent's contention that O'Daniel forfeited his right to hold union office by
his July 1986 conduct or by his returning to work pursuant to the arbitra-
tor's award.
is In the circumstances of this case , we find it unnecessary to include a
visitatorial clause in the Order, as requested by the General Counsel See
Cherokee Marine Terminal, 287 NLRB 1080 (1988)
BARTON BRANDS 981
out prejudice to his seniority or any other privi-
leges previously enjoyed.16 Additionally, the Re-
spondent shall be ordered to make whole O'Daniel
for any losses resulting from its unlawful conduct
on June 1, 1987, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Finally, the Respondent shall be or-
dered to remove from its files any reference to
O'Daniel's June 1, 1987 discharge and to notify
him in writing that this has been done and that the
discharge will not be used against him in any way.
the Regional Director for Region 9, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
ORDER
The National Labor Relations Board orders that
the Respondent, Barton Brands, Ltd., Bardstown,
Kentucky, it officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they are
elected to union office.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer immediate reinstatement to James D.
O'Daniel in the job to which he would have been
recalled in the absence of the discrimination against
him.
(b) Remove from its files any reference to the
June 1987 unlawful discharge and notify O'Daniel
in writing that this has been done and that the dis-
charge will not be used against him in any way.
(c) Make whole James D. O'Daniel for any loss
of earnings and other benefits suffered as a result of
the discrimination against him in the manner set
forth in the remedy section of this decision.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Bardstown, Kentucky,
copies of the attached notice marked "Appen-
dix."17 Copies of the notice, on forms provided by
16 We shall leave to the compliance stage a determination of when, if
at all, under the Respondent's stated formula for layoff and recall,
O'Daniel would have been reinstated from layoff to active employment
status in the absence of the Respondent's unlawful conduct.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge you because of your
election to union office.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James D. O'Daniel recall to the
job he would have had in the absence of our dis-
crimination against him.
WE WILL notify James D. O'Daniel that we have
removed from our files any reference to his June
1987 discharge and that the discharge will not be
used against him in any way.
WE WILL make whole James D. O'Daniel for
any loss of earnings and other benefits resulting
from his unlawful discharge, less any net interim
earnings, plus interest.
BARTON BRANDS, LTD.