John S. Doane Co.

National Labor Relations Board - Board Decisions

Oct 4, 1945

63 N.L.R.B. 1403 (N.L.R.B. 1945)

In the Matter of JOHN S. DOANE COMPANY and DISTILLERY , RECTIFY-
ING & WINE WORKERS ' INTERNATIONAL UNION or AMERICA, LOCAL
No. 8, A. F. OF L.
Case No. 1-C-2449.-Decided October 4, 1945
DECISION
AND
ORDER
On March 8, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a supporting brief. On August 17,
1945, the Board heard oral argument at Washington, D. C. The re-
spondent and the Union participated in the oral argument. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
'exceptions and brief, and the entire record in the case, and hereby
adopts the findings, -conclusions, and recommendations of the Trial
Examiner, with the following modifications and additions :
1. While the respondent concedes that the Board has jurisdiction in
this proceeding, the respondent urges the Board not to exercise its
power in view of the fact. that the respondent, a liquor distributor,
sells all its merchandise locally within the State of Massachusetts
and in view of the further fact that the State of Massachusetts pos-
sesses labor relations machinery similar to the National Labor Rela-
tions Act and the National Labor Relations Board. We find no merit
in this contention. While in other cases, we might, as a matter of
comity, refuse to exercise our authority, this is not such a case since
under Section 10 (b) of the Massachusetts State Labor Relations Act,
in effect at the time of the issuance of the complaint herein, the Massa-
chusetts State Labor Relations Board had no jurisdiction over unfair
labor practices subject to the National Labor Relations Act.,'
'General Laws of the State of Massachusetts, Acts of 1938, Chapter 345. Section 10
(b) thereof provides : "This chapter [ the Act] shall not be deemed applicable to any unfair
labor practice subject to the National Labor Relations Act."
63 N. L. R. B., No. 217.
1403
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. We agree with the Trial Examiner that the respondent refused to
bargain with the Union within the meaning of Section 8 (5) of the
Act. Concededly, the Union represented 7 of the respondent's whole-
sale liquor salesmen on August 11, 1944, the date on which the Union
made its first demand for recognition as the exclusive bargaining rep-
resentative of such employees. Concededly, also, on that day, and for
some time prior thereto, there were no more than 12 wholesale liquor
salesmen employed by the respondent and actually engaged in selling
its merchandise. As a defense to the allegation of unlawful refusal to
bargain, the respondent contends that 7 "new" wholesale liquor sales-
men had beep hired by the respondent prior to August 11, 1944, and
that, therefore, the Union did not represent a majority because the 7
"new" salesmen should be counted in determining whether the Union
then represented a majority. Among other things, as set forth in the
Intermediate Report, the respondent's dealings with each of the
"new" salesmen, prior to the Union's recognition demand, were limited
to a single interview, during which there was no mention of method
or amount of compensation, territory or accounts to be assigned, or allo-
cation of merchandise. It was not until August 17, 1944, after 3 con-
ferences had been held between union representatives and officials of
d therespondent, that any of the "new" salesmen obtained liquor sales-
men's licenses, as required by State law, and none of them began to
sell merchandise before August 28. Considering the entire record, we
agree with the Trial Examiner's finding that, at least prior to August
175 1944, none of the "new" salesmen were employees of the respondent,
and that between August 11 and August 17, 1944, the Union repre-
sented a majority of the respondent's wholesale liquor salesmen.
3. As a further defense to the allegation of unlawful refusal to bar-
gain, the respondent asserts that, even if the "new" salesmen were not
employees of the respondent at the time of the demand for recognition,
the respondent, in refusing to bargain, was motivated by a bona fide
doubt as to the Union's majority status, and, therefore, the respondent's
request that the Union first obtain a certification was a legal and proper
attitude to assume. As indicative of its doubt as to the Union's
majority status, the respondent relies upon the testimony of its attor-
ney, David Burstein, which we credit, as did the Trial Examiner, that,
during the afternoon conference on August 14, 1944, he stated that
the respondent "had agreed to take on a number of additional sales-
men and that these men might be entitled to be heard." It also appears
that at that conference, and again on August 21, the respondent re-
quested the Union to obtain certification. Were the record limited to
the foregoing evidence, the respondent's conduct might well be said to
have been dictated by a bona fide doubt as to the Union's majority
status. However, there is evidence in the record indicating that the
respondent's refusal to bargain stemmed from a desire to defeat its
JOHN S. DOANE COMPANY 1405
employees' efforts to bargain collectively and that, in insisting that
the Union obtain certification, the respondent was not acting in good
faith.
Although Plant Manager Milton Doling testified that he had per-
sonally hired' 7 additional salesmen on or about August 2, 1944,2 he
made no reference to additional personnel on August 11, when, at
the first conference, the Union asserted that it had attained majority
status by virtue of the union adherence of 7 of the respondent's 12
salesmen. Again, during the morning conference on August 14, the
"new" salesmen were not mentioned, although Manager Doling was
present. During the lengthy afternoon conference on August 14,
despite the fact that the respondent's attorney mentioned the "new"
salesmen, neither Doling nor President Garfinkle made any reference
to them. Rather, the respondent's officials urged, as their reasons for
not according recognition, a number of entirely different reasons,
such as, the appropriateness of the unit sought, the necessity of con-
sulting the respondent's third director, and the jurisdiction of the'
National Labor Relations Board. Thus, it appears that, during these
conferences, the Union's status as majority representative was not,
as now urged, a substantial factor which motivated the respondent
in withholding recognition from the Union. Moreover, during subse-
quent conferences on August 18 between Union Representative Louis
Blender and President Garfinkle, and on August 19 between Union
Representatives Blender and A. Herbert Barenboim and Garfinkle,
President Garfinkle set forth in detail the reasons why he believed a
union contract would prejudice the respondent's business and, accord-
ing to the record, made no mention whatever of additional salesmen.
Indeed, in a memorandum, signed by the respondent on August 21,
1944, and delivered to the Union, the respondent recognized that its
complement of 12 wholesale liquor salesmen as of August 11 was
appropriate for the purposes of collective bargaining.3
In addition, a number of unfair labor practices committed by the
respondent's officials persuade us that the respondent acted in bad
faith at the time it raised the question of formal certification pro-
ceedings, and shed further light upon the real reason underlying the
respondent's refusal to bargain. According to testimony of employees
Gaton Romani, Philip Berman, and Ralph Stone, contradicted by
Manager Doling and employee Robert Oster, but which we credit,
Doling stated, at-a salesmen's meeting in February 1944, that the
respondent did not want the union among its employees and that,
2 If Doling's testimony were true, there would have been 19 employees in the appropriate
unit on or about August 11, 1944
3It was the respondent ' s contention that it executed the memorandum for the purpose
of avoiding a strike and that the memorandum was intended to apply only in the event of
certification proceedings . Nevertheless , its recognition of the appropriateness of the unit
is inconsistent with. its defense of a bona fide doubt.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if necessary , he could sell all its merchandise by telephone. While
we do not find this statement to be an unfair labor practice,4 we deem
it indicative of the respondent's hostility toward union activity among
its employees and its rejection of the principle of collective bargain-
ing. On August 12 and 13, 1944, immediately following the Union's
initial demand for recognition, Doling, despite his promise to the
Union not to discuss union affairs with any of the salesmen, questioned
five employees as to their union membership. On August 21, Presi-
dent Garfinkle received the union members in his hotel suite so that
they might hear from his own lips the reason why the respondent
would not bargain collectively with the Union. In explaining why
he considered unionization harmful to the respondent's business, he
told the employees that distribution franchises of the respondent
might be jeopardized in the event of union recognition because of '
opposition to the Union by the Schenley Company, the respondent's
major supplier of merchandise. Garfinkle also told the employees
that the respondent had succeeded in obtaining certain franchises
although another liquor distributing company had failed to obtain
similar franchises because it employed union labor. Finally, during
the course of the subsequent strike to compel union recognition, the
respondent's officials engaged in further unfair labor practices. As
set forth in the Intermediate Report, on at least five occasions dur-
ing the strike, beginning on the first day thereof, Manager Doling
threatened the strikers with economic reprisals, saying that he would
"see to it" that they never worked in the liquor business again; ridi-
culed the Union, saying that it would never "get you a living"; and
called the strikers "a bunch of dogs." On another occasion, Manager
Doling and President Garfinkle sought to persuade Stone, a striker, to
return to work. When Stone conditioned his return upon union
recognition, Garfinkle replied, "that is something you will never have."
In view of the entire record in the case, and particularly the unfair
labor practices committed by the respondent's officials within the
meaning of Section 8 (1) of the Act, we are persuaded, as was the
Trial Examiner, and we find that, in its refusal to bargain with the
Union on August 11, 1944, and thereafter, the respondent was moti-
vated by a desire to frustrate collective bargaining by its employees
and thereby refused to bargain within the meaning of Section 8
(5) of the Act.'
{ This incident is not within the scope of the complaint herein since it alleges that the
respondent commenced its unfair labor practices on or about August 11, 1944.
5 On October 16, 1944 , in the face of the Union's demand for exclusive recognition, the
respondent entered into a contract with three striking employees individually , and thereby
induced them to abandon the strike and to return to work. By the execution of the con-
tract with such individual employees under the existing circumstances , the respondent
further refused to bargain , and thereby interfered with , restrained , and coerced the em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
JOHN S. DOANE COMPANY 1407
4. The Trial Examiner failed to find in his Intermediate Report,
that, by Manager Doling's conduct on August 12 and 13, 1944, in in-
terrogating employees Robert Oster, Frederick Brodney, Philip Ber-
man, Gaton Romani, and Ralph Stone, regarding their union
membership, the respondent violated Section 8 (1) of the Act. We
so find.
5. On April 4, 1944, the respondent filed with the Board a motion
for leave to file an annexed affidavit of Manager Doling, dated March
31, 1945, stating that, subsequent to the date of the hearing herein,
the respondent had employed 5 additional wholesale liquor salesmen,
making a total of 20, and that thereafter, 2 such salesmen had quit
its employ, 1 of them being a member of the Union. The motion is
hereby granted and the affidavit is hereby made a part of the record
in the case.
Presumably, the respondent's purpose in filing the affidavit is to
urge upon us that, since there has been an expansion in the unit
for which the Union originally sought recognition as exclusive bar-
gaining representative and since there is no showing of a present
union majority in the expanded unit, the Trial Examiner's recom-
mendation that the respondent be ordered to bargain with the Union
ought not be adopted. However, the record is silent as to how
many, if any, of the salesmen hired subsequent to the hearing have
become union members. In any event, assuming that the Union has
not increased its numerical strength in the appropriate unit and has,
in fact, lost the majority status which it had at the time of the re-
spondent's unlawful refusal to bargain, we perceive no valid reason
for departing from our usual remedial order. We have repeatedly
held that the unlawful refusal of an employer to bargain collectively
with its employees' chosen representatives tends to disrupt the em-
ployees' morale, to deter their organizational activities, and to dis-
courage their membership in and adherence to labor organizations.
For these reasons, a requirement that a numerical majority be main-
tained during delays incident to hearings in unfair labor practice
proceedings such as this, would permit employers to profit from their
own wrongful refusal to bargain and to defeat the purposes of the
Act.' Under the circumstances, we find that the Union's previously
established majority status has not been impaired because any loss
in such status was caused by the respondent's unfair labor practices.
In accordance with the Trial Examiner's recommendation and to ef-
fectuate the purposes of the Act, we shall order that the respondent
bargain collectively with the Union, upon request.'
9 See, for example, Franks Bros. Co. v. N. L. R B, 321 U. S. 702, aff'g 137 F. (2d)-
989 (C. C. A. 1), enf'g 44 N. L. It. B. 898, N. L . R. B. v. Bradford Dyeing Associatcon, 310
U. S. 318
'See our Supplemental Decision in Matter of Karp Metal Products Co, Inc., 51 N. L. R B.
621.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, John S. Doane Company,
Boston, Massachusetts, and is officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Distillery, Rectifying &
Wine Workers' International Union of America, Local No. 8, A. F.
of L., as the exclusive representative of all its licensed wholesale liquor
salesmen, employed at its Boston, Massachusetts, establishment, ex-
clusive of supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action;
(b) Giving effect to its contract of October 16, 1944, with Robert I.
Oster, Murray P. Roth, ,and Philip Berman, affecting their compensa-
tion, working conditions, or other conditions of employment, or to
any modification, continuation, extension, or renewal thereof;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Distillery, Rectifying &
Wine Workers' International Union of America, Local No. 8, A. F.
of L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities, for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Distillery, Rectifying
& Wine Workers' International Union of America, Local No. 8,
A. F. of L., as the exclusive representative of all its employees in the
appropriate unit set forth in paragraph 1 (a) of this Order, with
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment;
(b) Give separate written notice in the form and language of Ap-
pendix "A"" attached to the Intermediate Report herein, and duly
signed by the respondent's representative, to employees Robert I.
Oster, Murray P. Roth, and Philip Berman, that the contract of
October 16, 1944, or any modification, continuation, extension, or re-
newal thereof, will not in any manner be enforced or attempted to be
enforced; and that no employee is expected by virtue of such contract
8 Said notice , however, shall be, and it hereby is, amended by striking therefrom the
words "Recommendations of a Trial Examiner ," and substituting in lieu thereof the words
"A Decision and Order of the National Labor Relations Board."
JOHN S. DOANE COMPANY 1409
to deal with the respondent individually with respect to his compensa-
tion, working conditions, or other conditions of employment;
(c) Post at its establishment at Boston, Massachusetts, copies of
the notice attached to the Intermediate Report herein, marked Ap-
pendix "B." 9 Copies of said notice, to be furnished by the Regional
Director of the First Region, shall, after being duly signed by the re-
spondent's representative, be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notifying the Regional Director for the First Region (Boston,
Massachusetts) in writing, within ten (10) days from the date of this
Order, what steps the respondent has taken to comply herewith.
CHAIRuIAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
John W. Coddav' e, Jr., Esq, for the Board.
Hale & Doi, by Dai id Burstein . Esq; of Boston , Mass, for the respondent.
Louis J. Blender, Esq, and A Herbert Barenboinn , Esq., of Boston, Mass, for
the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 18, 1944, by Distillery,
Rectifying & Wine Workers' International Union of America, Local No. 8, affili-
ated with the American Federation of Labor, herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for
the First Region (Boston, Massachusetts), issued its complaint, dated November
20, 1944, against John S Doane Company, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the
Act Copies of the complaint accompanied by notice of hearing were duly
served upon the respondent and the Union.
With respect to the unfair labor practices. the complaint alleged in substance
(1) that on August 11, 1944, and thereafter, the respondent refused to bargain
collectively with the Union as the exclusive representative of its employees within
an appropriate bargaining unit, although the Union represented a majority of the
employees in said unit; (2) that the respondent questioned its employees regard-
ing their union membership; (3) made derogatory and disparaging statements
regarding the Union; (4) solicited its employees to resign from the Union; (5)
attempted to persuade its employees to abandon a strike called by the Union;
and (6) dealt and negotiated with its employees on matters affecting their
Said notice, however, shall be, and it, hereby is, amended by striking from the first
paragraph thereof the words "Recommendations Of A Trial Examiner " and substituting
in lieu thereof the words , " A Decision and Order."
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment when it knew that the Union was the exclusive representative of its
employees for the purposes of collective bargaining, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
On December 2, 1944, the respondent filed its answer in which it denied the
jurisdiction of the Board in the matter; denied that the Union represented a
majority of its employees in a unit appropriate for the purposes of collective
bargaining; and denied that it committed any of the unfair labor practices
alleged in the complaint.
Pursuant to notice, a hearing was held on December 11 to 16, inclusive, 1944,
at Boston, Massachusetts, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the iespondent and the Union
were all represented by counsel. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. °
At the close of the hearing, counsel for the Board moved to conform the
complaint to the proof with respect to formal matters A similar motion
was made by counsel for the respondent with respect to the answer. Both
motions were granted without objection. The parties were afforded an op-
portunity to argue orally on the record and to file briefs with the under-
signed. All the parties stated they did not care to argue orally, and that they
would file briefs with the undersigned.
Briefs were filed with the undersigned by the attorney for the Board and
the attorney for the respondent. Upon the entire record in the case, and from
his observation of the witnesses, the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent John S. Doane Company, is a Massachusetts corporation, li-
censed to sell and distribute alcoholic beverages within the State of Massa-
chusetts . The respondent has its place of business in Boston , Massachusetts,
and conducts both a wholesale and retail business on the same premises.
The wholesale and retail business are kept separated . The respondent has
operated its business since November 1943. During the first 8 months of 1944
the respondent purchased alcoholic beverages totaling $1,297,209.56 . On this
amount, $1,234 ,008.94 represents purchases of goods shipped to the respondent
from points outside the State of Massachusetts . During the same period of
time the wholesale sales of the respondent amounted to $1,386,193 .84 and its
retail sales amounted to $218,193 .17. No sales were made outside the State
of Massachusetts.
The respondent maintains a warehouse in Boston , through which pass all
the beverages it sells. None of the merchandise sold by the respondent is
shipped to its customers directly by its suppliers.
The respondent is engaged in commerce within the meaning of the Act.'
U. THE ORGANIZATION INVOLVED
Distillery, Rectifying & Wine Workers International Union of America, Local
No. 8, affiliated with the American Federation of Labor, is a labor organization
which admits employees of the respondent to membership.
' See Bradford Dyeing Ass'n, 310 U. S. 210; Matter of Jones & Laughlin Steel Corp.,
301 U. S. 1.
JOHN S. DOANE COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events ; ' interference , restraint , and coercion
1411
The Union began to organize the respondent's wholesale liquor salesmen
sometime in June 1944. On August 11, 1944, the Union's representatives, Louis
J. Blender and A. Herbert Barenboim, called at the respondent's place of busi-
ness and met Milton Doling, its vice president and manager. , The Union's
representatives handed Doling a letter in which the Union stated that it repre-
sented a majority of the respondent's wholesale liquor salesmen. The Union's
representatives then requested immediate negotiation of an agreement. Doling
asked why the Union's letter was delivered in this manner and not sent through
regular mail; to which the Union's representatives replied that they did not
trust Doling because they were of the opinion that he had interfered with em-
ployees' attempts at organization at another liquor concern where Doling had
been the manager. Doling denied the accusation and stated that he had no
authority to act on the Union's request and -that the matter must be referred
to the respondent's president who was presently in New York City but who
would be in Boston the following Monday, August 14. The Union's representa-
tives informed Doling that,7 of the respondent's wholesale liquor salesmen had
joined the Union and then obtained Doling's promise that he would not ap-
proach any of the Company's employees with any questions regarding their
union affiliations. The parties agreed to another meeting on August 14.
On August 11 during the time the Union's representatives were meeting with
Doling, 6 of the respondent's employees, who were members of the Union, re-
mained at the Union's office, the seventh being ill in a hospital at the time ; none
of these men called on their customers or did any work for the Company from
August 11 until after August 22 as hereinafter related.
On August 12 and 13, Doling personally spoke to two of the respondent's
wholesale liquor salesmen who were members of the Union and asked them if
they were members of the Union and spoke over the telephone to three other
such Union members and similarly asked if they were members of the Union ;
the telephone conversations consisting merely of Doling's question and the
answer given by the employees.
On Monday, August 14, 1944, the Union's representatives called at the re-
spondent's office and met with Doling and Henry Garfinkle, the respondent's
president. The Union's representatives told Garfinkle that they represented
seven of the respondent's wholesale liquor salesmen and demanded immediate
recognition of the Union and the negotiation of a contract. Garfinkle refused
to recognize the Union and asked for time to confer with certain undisclosed
individuals in New York City. The Union's representatives also told Garfinkle
that they did not trust Doling and that the respondent's employees who were
union members were waiting at the Union's office pending the negotiations.
They further informed Garfinkle that unless the Union were granted immediate
recognition, the respondent's establishment would be struck and picketed.
Garfinkle asked the Union's representatives to accompany him to the respond-
ent's attorney's office for a further conference and accordingly Doling, Garfinkle,
Blender and Barenboim, proceeded to the office of the respondent's attorney
where a conference of several hours duration took place ; during this con-
ference the Union's representatives again stated that the Union represented
seven of the respondent's wholesale liquor salesmen, demanded recognition of
2 The findings in this section of the report are based upon mutually corroborative and
admitted testimony , except as otherwise indicated.
662514-46-vol. 63-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and the negotiation of a contract. Garfinkle told the Union's repre-
sentatives that he would not negotiate with the Union until he had conferred
with certain undisclosed individuals in New York City ; that he doubted whether
the Union represented the respondent's employees ; and argued that the re-
spondent also employed retail salesmen, warehousemen and office employees.
Ile stated that Doling was also a licensed liquor salesman and demanded that
the Union obtain certification from either the Massachusetts Labor Board or
the Board. The Union's representatives pointed out that the Union accepted
only wholesale liquor salesmen to membership and stated that Doling had
broken his agreement with the Union by inquiring into the Union affiliation of
the respondent's employees between August 11 and the present meeting. The
respondent's attorney, in the course of the argument, stated that the respondent
had employed additional wholesale liquor salesmen, but the respondent's officials,
Garfinkle and Doling, did not press this point' The conference adjourned with
an agreement to meet later in the afternoon. At the afternoon meeting it was
agreed to meet again on August 17.
On August 17, the Union's representatives were advised by telephone that
Garfinkle would not be in Boston until the next day. On the next day Blender
met with Garfinkle who then informed him that the respondent would not recog-
nize the Union and gave as his reason among other things that the distilling
company from which the respondent obtained the major portion- of its merchan-
dise objected to his recognizing the Union Garfinkle then suggested that the
Union first organize the other Boston liquor dealers who handled the same brands
of liquor as did the respondent and that thereafter the respondent would recog-
nize the deal with the Union.
The two men agreed to meet again the next day, and accordingly on the morn-
ing of August 19, Blender and Barenboim met with Garfinkle. , At this meeting
the Union's representatives again insisted upon recognition, Garfinkle again
stated that he would not recognize the Union and gave as his reason his fear of
reprisals by the distilling company which supplied the respondent with the major
portion of its merchandise, in the event the respondent did recognize the Union.
August 19 fell on a Saturday; the following Monday, (August 21), Blender called
Garfinkle by telephone and asked if he would meet with all the respondent's
wholesale liquor salesmen who were union members Garfinkle agreed and a
short time thereafter the Union's representatives, Blender and Barenboim, and
six of the respondent's liquor salesmen, met with Garfinkle and Doling in Gar-
finkle's hotel suite. The Union's representatives informed Garfinkle and Doling
that the seventh member of the Union was still in the hospital. Garfinkle gave
his reason for not recognizing the Union, as being the objections raised by the
distiller supplying the respondent with the major portion of its merchandise and
pointed out that the respondent had been able to secure distribution rights for a
new brand of liquor but that a competitor which employed "Union" salesmen had
not been able to do so. He then asked the union members to return to work and
attend a meeting of all distributors and salesmen of the Schenley liquor products
to be held the next day This meeting was referred to as the "Three Feathers"
meeting and will hereinafter be so referred to The Union's members insisted on
some written instrument for their protection and a memorandum was dictated by
Barenboim, which Garfinkle stated he would submit to the respondent's attorney
and to other undisclosed individuals and would thereafter mail to the Union that
8 In describing the above conference, the attorney for the respondent testified • "There
were few strong silent men in that room."
JOIi1N S. DOANE COMPANY 1413
same day. The Union received this memorandum 4 the next morning , the mem-
orandum containing some slight changes made by the respondent and on that day,
August 22, 1944, the union members attended the Three Feathers meeting.
-As previously, stated herein, none of the respondent's employees who were mem-
bers of the Union had called on their customers; did any work for the respondent
or in any way attended to any of the respondent's business between August 11,
1944 and August 22, 1944
On September 5, 1944, the Union's representative called Garfinkle by phone
and requested that the respondent discuss the signing of a contract with the
Union, the respondent refused to do so and the Union struck and picketed the
respondent's premises the same day. The strike continued until November 9,
1944.
On several occasions during the course of the strike, Doling approached Ralph
Stone, one of the strikers and an active picket, while he was engaged in picketing,
and asked him what he was striking for and told him that he was foolish for
striking. On one occasion Doling told Stone that the Union would never get him a
living and that as a married man he should return to work and on another
occasion he remarked to him, "A fat chance You will have of getting another job
somewhere else," and later he told Stone that he had just one day's time to quit
the strike aid return to work. On another occasion during the course of the strike,
Doling and Garfinkle met Stone in a nearby restaurant and urged him to return
to work and upon Stone's remark that the Union was striking for a contract,
Garfinkle told Stone that the Union would never get a contract from the
respondent.
Sometime during the course of the strike Doling said to Philip Berman, one
of the strikers who was at the time engaged in picketing, "You are just a bunch
of dogs. You are out on the street where you belong," after which he went on
to say "You will never work in the liquor business again I will see to that
personally "
On October 6, 1944, Robert Oster, one of the strikers, discussed with some of the
others the possibility of negotiating a settlement of the strike with the respond-
ent. Oster then discussed the matter with the Union's representative who in-
formed him in the presence of the other striking employees, that the Union could
not prevent the men from returning to work, but that any negotiations Oster would
enter into with the respondent would be strictly a personal matter and that Oster
could not represent the Union ; that the Union would not grant him any authority
to negotiate any settlement with the respondent.
Oster entered into negotiations with the respondent and an agreement was
drawn. During the final stages of the negotiation, the respondent was repre-
' MEMORANDUM
It is the policy of this Company that any members of the Wholesale Liquor Salesmen's
Union who are employed by this Company as liquor salesmen are in no way to be inter-
fered with in their membership with the Union or discriminated against in their tenure or
type of employment with the Company or the amount of goods that will be allotted to
them by reason of their membership in the Union The twelve men employed in and on
the Company 's payroll as of August 11, 1944 in the capacity of wholesale liquor salesmen,
or if any of them cease to be employed by the Company such salesmen as may be em-
ployed to take their places, shall be the only persons granted the right to act by vote or
otherwise in any question of certification of the representative of all wholesale liquor
salesmen of the Company for the purpose of collective bargaining in the event that at any
time in the future it becomes necessary to certify a bargaining representative for the
wholesale liquor salesmen . The Company reserves the right to hire such additional sales-
men as it sees fit . [ Italics supplied I
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented by its attorney who suggested some of the language of the agreement'
On October 16, three of the respondent's striking employees signed the agreement
and returned to work'
B. The refusal to bargain collectively
1. The appropriate unit
The Union contends that a unit appropriate for the purposes of collective bar-
gaining consists of all of the respondent's licensed wholesale liquor salesmen
excluding, however, all supervisory employees.
The respondent contends that the appropriate unit consists of all of the re-
spondent's employees or, in any event, all of the employees in its wholesale
department.
The respondent conducts both a wholesale and retail liquor business on the
same premises. The two branches of its business are kept entirely separate. The
retail department sells liquor over the counter and obtains its merchandise by
purcbase from the wholesale department.
The wholesale department maintains a warehouse from which all merchandise
is shipped. As above stated, the wholesale department's accounts and monies are
i JOHN S. DOANE COMPANY
645 Atlantic Avenue
Boston, Massachusetts
OCTOBER 16, 1944.
GENTLEMEN - This is in reply to your suggestions made to Robert Oster whom we requested
to see you on our behalf, that we return to work pending decision of our disputes.
We are willing to return to work on the following conditions :
(1) A commission of 4% will be paid for all merchandise sold to the accounts
assigned to the undersigned, to become effective as of October 1, 1944.
(2) The accounts and territory serviced by the undersigned as of September 2, 1944,
will continue to be serviced by them.
(3) A commission will be paid on all merchandise sold and delivered to the respective
accounts of the undersigned during the period while they were on strike, to the
undersigned.
(4) The said undersigned will receive an equal distribution of all liquor purchased
by the said Company for the wholesale trade unless the said liquor is allocated by the
distiller or distributor.
(5) The said Company agrees not to have any more house accounts than it is servic-
ing at present but will make an equitable distribution of any further accounts among
all the wholesale liquor salesmen.
(6) Copies of invoices or commission statements will be Issued to the said under-
signed weekly.
(7) A uniform contract between each of the undersigned and the Company will
be drawn and executed as soon as legally possible, which contract will have incor-,
porated therein the hereinabove mentioned provisions, said contract to be in full force
and effect for a period of twelve months from the date of the execution of the same
with the added provision that it shall automatically renew Itself for the further
term of one year in its entirety pending negotiation for a new contract.
(8) That the undersigned will notify the said Company the name and address of
the person whom we shall appoint to represent us in the execution of the foregoing
contract.
Very truly yours,
( S) ROBERT J. OSTER.
(S) MURRAY P. ROTH.
( S) PHILIP BERMAN.
The said John S Doane Company hereby assents to and accepts the provisions and condi-
tions herein contained.
(S) MILTON DOLING,
V. P. 1 Treas.,
e As heretofore set out the strike ended November 9, 1944.
JOHN S. DOANE COMPANY 1415
kept separate from the retail department's, there being two bank accounts and
two sets of books. The management of the two departments is the same.
The retail department, at all times material herein, employed four retail liquor
salesmen . The retail department also employs three cashiers.
The wholesale department employs salesmen who solicit orders in certain fixed
territories assigned to them by the respondent. They do no selling on the premises.
The laws of the State of Massachusetts require that a wholesale liquor salesman
obtain and hold a license from the State, and obtain and hold a transportation
permit which grants the right to carry and transport samples of liquor. Wholesale
liquor salesmen are paid a commission on their sales . Retail salesmen are paid
salaries. No license is required of retail liquor salesmen by the State of
Massachusetts.
The respondent at all times material herein employed three warehousemen and
one truck driver and employed an office force consisting of five girls. The record
is silent as to whether or not the office force served both departments.
The Union is divided into four departments or branches : (1) A display division,
which admits to membership individuals engaged in the advertising activities
conducted by the liquor industry; (2) Distillery workers; (3) Beer salesmen;
and (4) Wholesale liquor salesmen. The wholesale liquor salesmen division of
the Union admits to membership only wholesale liquor salesmen who solicit sales
off the employer's premises and who hold licenses as wholesale liquor salesmen
from the State of Massachusetts. The wholesale liquor division does not admit
to membership any retail liquor clerks or salesmen. Throughout the area sur-
rounding Boston, in which the Union holds its membership, the Union is under
contract with various wholesale liquor establishments for wholesale liquor sales-
men ; these contracts recognize a unit consisting of licensed wholesale liquor sales-
men only. In the Boston area, the Board has certified units as appropriate for the
purposes of collective bargaining, consisting of wholesale liquor salesmen only.'
The respondent holds periodic salesmen's meetings at which attendance' is
required of all its wholesale liquor salesmen. The retail liquor clerks do not
attend these meetings.
The record is clear that the respondent's wholesale liquor salesmen constitute
a homogeneous group functioning separately and apart from its other employees
and having a clear diversity of working conditions and interests.
The undersigned finds on the entire record that the licensed wholesale liquor
salesmen employed by the respondent in its Boston establishment, excluding,
however, all supervisory employees with authority to hire, promote, discharge,
discipline or otherwise effect changes in the status of wholesale liquor salesmen,
or to effectively recommend such action, at all times material herein, constituted
and now constitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, and hours of employment, or other conditions
of employment and that said unit assures the licensed wholesale liquor salesmen
employed by the respondent the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
On August 11, 1944, the day the Union first informed the respondent that it
represented a majority of its wholesale liquor salesmen and requested recogni-
tion as such representative, the respondent had 12 wholesale liquor salesmen
in its employ actively engaged in selling its merchandise. At its first meeting
7 See New England Grocery Supply Company, 55 N. L. R. B. 334; Standard Wholesale
Company, 47 N. L. R. B. 920.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the respondent's vice president, Doling, the Union informed Doling that 7
of the respondent's wholesale liquor salesmen were members of the Union and
obtained Doling's promise that he would not speak to any of the respondent's
employees regarding their union membership until after August 14, the date set
for the next meeting between the parties. It is admitted by the respondent that
on August 13 Doling by personal contact and telephone conversation questioned
at least 5 of the union members regarding their union affiliation.
On August 14, 1944, in its meetings with the respondent, the Union again
informed the respondent that 7 of its wholesale liquor salesmen were members
of the Union and further informed the respondent that none of these men wei e
working pending the outcome of the negotiations between the respondent and
the Union. During the August 14 conferences, the respondent advanced argu-
ments against immediate recognition and insisted that the Union obtain certifi-
cation from either the Massachusetts Labor Board or the Board, and although the
respondent's attorney did state that the Company had hired additional wholesale
liquor salesmen, the officials of the respondent did not press this point but sought
to expand the unit by insisting that all the employees of the Company, meaning its
retail salesmen and its vice president as well as its wholesale liquor salesmen be
included within the unit.
On August 21, the respondent met with all its employee members of the Union,
save one who was ill, and at that time entered,into the agreement with them
previously referred to herein and asked them to attend the Three Feathers
meeting. At this meeting (August 21) the respondent informed the union mem-
bers that it had obtained a franchise to sell another brand of liquor and would
employ additional salesmen and that it could not recognize the Union. On August
22 at the Three Feathers meeting, the Union members were first introduced to the
respondent's newly employed wholesale liquor salesmen.
Milton Doling testified that in late July and early August 1944, before the
Union made its first demand for recognition, he had employed seven additional
salesmen. Of these only four were still in the employ of the respondent at the
time of the hearing; the others having either quit or been discharged and not
replaced These four "new" wholesale liquor salesmen testified that they had
been employed prior to August 11.
Herman Karll testified that on August 2, 1944, he was a Second Lieutenant
in the United States Army but that he had been discharged effective as of August
15, 1944, and was on furlough waiting his discharge papers, but still subject
to Army regulation and discipline and drawing pay, he was required to wear his
uniform until officially discharged as a member of the armed forces and he con-
tinued to wear his uniform until August 23 Karll testified that he was aware
that he could not engage in any civilian activity until he received his discharge
and that lie did not receive his discharge until August 18, 1944. Karll testified
that on August 2 he called on Doling at the respondent's office and asked' for
employment as a liquor salesman. Doling asked if he had an automobile and
on learning that Karll's automobile was registered in Florida, advised him to
obtain Massachusetts registration. Karll did not obtain the Massachusetts reg-
istration until August 31. Doling told Karll to come in and see him on August
15, the date he expected his discharge. Between August 2 and August 17 he
(Karll) did not see Doling. At his first meeting with Doling, Karll did not
discuss with Doling the rate of pay he would receive, whether he would be paid
a salary or receive a commission on his sales, nor was he told the territory
that would be assigned to him On August 22, Karll attended the Three Feathers
meeting, at this meeting lie was still in uniform. On August 25, Karll was given
a check payable to the Massachusetts Alcoholic Beverage Control Commission
and told to call at the Commission's office and obtain the license required by
JOHN S. DOANE COMPANY 1417
the State for a wholesale liquor salesman. He obtained the license, but the
transportation permit, which would enable him to transport and carry samples
was not issued to him until August 31 because his automobile was registered
in Florida. On August 25 Karl] attended a meeting of the respondent's newly
employed wholesale liquor salesmen, at which meeting merchandise was allo-
cated to him and his territory assigned. He called on trade and sold mer-
chandise on and after August 28.
At the time he applied for employment Karll was not acquainted with Doling
and had never before been employed in the liquor industry. The record shows
that his original interview with Doling was brief.
Wilbur H. Eisenmann testified that on August 2, 1944, he called at the respond-
ent's office in search of employment as a wholesale liquor salesman ; there met
Milton Doling and after a conversation lasting for a period he estimated to be
from 10 minutes to three quarters of an hour in length, he was employed. At
that time he was not acquainted with Doling and had no experience whatever
in the liquor business. During the initial interview the questions of territory
Eisenmann was to cover and the remuneration or basis of remuneration for his
services were not discussed. Following this interview Eisenmann made several
calls on Doling, during the course of which he was told that he could begin
actively selling liquor only after certain new merchandise was received. Eisen-
mann testified that on August 17 he happened into the respondent's office 8 and
was given a check for $11 and told to call on the Massachusetts Alcoholic Bev-
erage Control Commission and obtain a license as a wholesale liquor salesman
and a transportation permit.
On August 22 Eisemann attended the Three Feathers meeting previously
referred to and on August 25 he attended a meeting of all the "new" salesmen
and was allocated merchandise and his territory was assigned to him. Eisenmann
received commission checks for merchandise sold by him during August after
August 25.
William Weiss testified that on or about July 4, 1944, he was introduced to
Milton Doling and asked him for employment as a wholesale liquor salesman.
Doling employed him as a salesman at that time but told him that there would
be no merchandise to sell until the end of August. Weiss attended the Three
Feathers meeting on August 22 and the meeting of the "new" salesmen on August
25. He obtained his license from the Massachusetts Alcoholic Beverage Control
Commission on August 18, although he first made application for it on August
17, having been given a check to cover the fee by the respondent on that date.
Weiss made no attempt to sell merchandise until after September 1, 1944.
Weiss testified that at the time he first met Doling and was employed by him
he (Weiss) was employed at the Boston Navy Yard and continued in such
employment until August 28, 1944.
Eugene Dwyer testified that he called on Milton Doling at the respondent's
office sometime during the first week in August, having been sent there by friends.
At that time he was not acquainted with Doling and had no previous experience
as a liquor salesman. He asked for employment as a wholesale liquor salesman
and was so employed by Doling at their first meeting. Doling told him that
he could start selling sometime during the last week in August, at least not
later than September 1. Dwyer testified that he called Doling by telephone and
was told to come in sometime around August 15 to apply for his license. He
called at the respondent's office on August 17, was given a check for $11 and
told to apply for his license and transportation permit. Dwyer attended the
0 Eisenmann testified "I was getting a shine and I said I will go over and see Milton
Doling."
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three Feathers meetings and the meeting of the "new" salesmen . Dwyer made
no sales during August. Dwyer testified that he did not know the rate of pay
be was to receive until sometime after his first interview with Doling.
Although the respondent did not so specifically admit at the hearing, it states
in its brief filed with the undersigned : I
The company admits that on August 11th and until sometime after the
strike began when Brodney and Glazer resigned , the Union represented
seven wholesale liquor salesmen . This the company has always admitted,
and never disputed . It is further admitted that on August 11th and until
on or about August 25th there were only twelve wholesale liquor salesmen
employed by the company who were then actually soliciting business, but
the company contends that there had been hired in July and during the first
week of August seven other salesmen , and that these salesmen were em-
ployees of the company entitled to be considered in the selection of a
bargaining agent for all the wholesale salesmen.
It is significant that in his first meeting with the Union 's representatives
Doling, who was familiar with labor relations practices , advanced no claim
that the respondent had more than 12 wholesale liquor salesmen in its employ
and did not challenge the Union 's claim to a majority on the basis that it rep-
resented only 7 of its employees . In the August 14 meetings both at the respond-
ent's office and at the offices of the respondent's attorney , although all phases of
the situation were discussed at lenth and apparently with considerable heat,
the claim that additional salesmen were on the Company's pay roll at the time
was advanced only by the respondent 's attorney and was not at all pressed by
the respondent 's officials , instead, the respondent sought to expand the unit by
including within it its retail clerks, its warehouse employees and its vice pres-
ident.
It is also significant that on August 14 the respondent argued strenuously for
delay, called other union officials by long distance telephone and asked them to
talk to the Union's representative in his efforts to obtain delay, and at the same
time insisted that the Union seek certification.
It is further significant that although the respondent 's president agreed to
meet with the union officials on August 17 , he did no do so but delayed the
meeting until August 18 and at that time told them he could not recognize the
Union because of the opposition of the distilling company which was his principal
source of supply and repeated this same statement to the six union members with
whom be met on August 21, and at the same time made the statement to the
union members that there were additional wholesale liquor salesmen on the
Company 's pay roll entitled to representation , yet, despite its claim that addi-
tional men were entitled to representation within the unit, the respondent entered
into an agreement with the Union members in which it fixed the, unit as the
12 and closed with the statement "The Company reserves the right to hire such
additional salesmen as it sees fit." The undersigned is mindful that 7 of the
respondent 's wholesale liquor salesmen joined the Union and that from the
date . the Union first sought recognition , these men were, in fact , striking for
recognition of the Union and that the respondent employed 7 additional sales-
men. The respondent contends that these 7 additional salesmen were em-
ployed before August 11 , yet no licenses which would permit them to sell mer-
chandise were procured for them until August 17 , the date that the respondent
had agreed to meet with the Union and did not do so.
The testimony of the four "new" salesmen claimed by the respondent to have
been hired prior to August 11, follows a similar pattern. Each testified that
he was employed sometime prior to August 11; that lie had never meet Doling
JOHN S. DOANE COMPANY 1419
prior to the initial interview ; that he had no previous experience in the liquor
business ; that he was hired after a brief interview ; that at the interview the
question of compensation and sales territory was not mentioned.
Realistically, it seems improbable to the undersigned that on a single brief
interview, an experienced executive such as Doling would employ total strangers
who had no experience, to engage in a competitive enterprise, in which part of
the work is the collection of money away from the respondent's premises.
.None of these men could legally sell the respondent's merchandise without
obtaining a license from the State, and the first licenses were not obtained until
August 17 as above related.
Eisenmann testified that he was not called to the respondent's office on August
17. Dwyer testified that nobody instructed him to come to the respondent's office
on August 17. Weiss testified that although he obtained his license on August 18,
he first went to the Commission on August 17, having come to the respondent's
office without being called on August 17. All four of the men testified that
they received allocations of merchandise and assignments of territory at a
meeting attended by the "new" salesmen on August 25 and had sold no merchan-
dise prior to that date.
Although it is true that the testimony of Doling, Karll, Eisenmann, Weiss and
Dwyer to the effect that the four last named individuals were employed by
the respondent prior to August 11, is entirely uncontradicted and the under-
signed is persuaded from the entire record that these men were interviewed on
or about the time they state they first met Doling, the undersigned is not at all
persuaded that the interviews ended in a definite offer and acceptance of em-
ployment ; too may salient and ordinarily necessary factors to employment were
not covered or even discussed in these interviews and in no event did the
employer-employee relationship become fixed and definite until at least August 17,
1944, the date the licenses were first procured.
The record discloses that licenses for wholesale liquor salesmen are issued
to salesmen to represent a specific employer, that the employer pays the fee,
and the license itself is issued at the request of the employer and immediately
upon application. Irrespective of when these salesmen were originally inter-
viewed, they could not represent the respondent or take orders for merchandise
until their licenses were issued. The undersigned is convinced from the entire
record that these salesmen were not employees of the respondent prior to their
obtaining licenses.
On August 11, 1944, when the Union first informed the respondent that it
represented - its employees, the Union obtained Doling's promise not to ques-
tion the respondent's employees regarding their union affiliation. Doling
promptly broke this agreement and inquired into the union membership of at
least five of the Union's members among respondent's wholesale salesmen.
On August 14 the respondent argued for delay, advancing various reasons for
delay, and refused to recognize and deal with the Union. At that time the
respondent had knowledge that the Union represented seven of its employees
and that these employees were in fact already on strike to enforce recognition
of the Union. In view of this knowledge the respondent clearly was not acting
in good faith in seeking delay. The respondent's lack of good faith is further
shown on August 18 when he again refused to recognize the Union, advancing
a specious reason for his refusal with full knowledge that on the previous day
the respondent had already obtained licenses for new employees who cannot be
considered other than strikebreakers hired by the respondent for the sole
purpose of either replacing its present striking employees or destroying the
Union's majority. The respondent's bad faith is again shown on August 22
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when it entered into the memorandum agreement with its union employees in
which it fixed a unit of 12 wholesale liquor salesmen as an appropriate unit
The undersigned accordingly finds , on the entire record that at all times
material after August 11, 1944, the Union was the duly designated representative
of the respondent 's employees in the aforesaid appropriate unit and that by
virtue of Section 9 (a) of the Act the Union was at all times material herein
the exclusive representative of all the employees in such unit for the purposes
of collective bargaining with respect to rates of pay, wages , hours of employ-
ment, or other conditions of employment.
3. The refusal to bargain
The record is clear that on August 11, 1944, when it first requested recogni-
tion by the respondent the, Union represented a majority of the respondent's
employees in an appropriate unit, and again on August 14 at the time the Union
met with the respondent and its attorney it also represented the same majority.
Between August 11 and August 14, the respondent embarked on a course
of unfair labor practices designed to destroy the Union 's majority , to deny the
Union recognition and to prevent its employees from enjoying the fruits of
collective bargaining.
The continued insistence by the respondent that recognition of the Union be
delayed and the various arguments advanced by it for such delay ; its refusal
to recognize the Union and bargain with the Union ; coupled with its pointing out
to its union employees that the respondent , a non-union concern, was able to
obtain merchandise while a competitor whose employees were organized could
not obtain merchandise ; and further coupled with Doling ' s action between
August 11 and August 14 to show the respondent 's bad faith in its relations with
the Union . The entire attitude of the respondent in the August 14 conferences
with the Union clearly shows that the respondent 's sole effort was directed to
obtain delay . , The record is clear that the respondent refused to bargain with
the Union at a time when it was aware that the Union represented a majority
of its employees within an appropriate unit.
The undersigned accordingly finds that on August 11, 1944, and at all times
thereafter , the respondent has refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit and
has thereby coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C Concluding findings
The record is.clear that the Union was in fact on strike on and after August
11 and that the respondent was fully aware of this and knew the extent of the
Union's membership The respondent then agreed to meet with the Union's
representatives on August 17. The meeting was not held but was postponed
to August 18, 'on which date the respondent instead of negotiating with the
Union, merely renewed its former refusal to recognize the Union and flatly
refused to negotiate . It seems highly significant to the undersigned that on
August 17 the day that the respondent should have met with the Union, at
least three of the four "new" employees by coincidence visited the respondent's
office and on that day obtained their licenses as wholesale liquor salesmen. It
seems highly significant that seven "new" men had , according to the respondent's
testimony , been hired prior to the Union's request for recognition , and that
seven members of the respondent 's sales force had joined the Union and were
in fact on strike at the time these seven "new" men first obtained licenses
permitting them to sell merchandise for the respondent . As previously stated
herein, the undersigned is not convinced and does not credit the testimony of
JOHN S. DOANE COMPANY 1421
either Doling, Karll, Eisenmann , Weiss and Dwyer as to the date they were
first employed.
The undersigned finds that Milton Doling's activities and statements made
to employees on the picket line and the statements of both Doling and Garfinkle
to the effect that the Union would never obtain a contract were clearly threats
of economic reprisal.
The undersigned finds that by Doling's statement to Ralph Stone to the effect
that he was foolish for striking; that the Union would not get him a living;,that
he had a "fat chance" of getting a job elsewhere; Doling's statements to Philip
Berman to the effect that the Union' s members were "just a bunch of dogs," and
that he (Doling) would see to it that Berman would never work in the liquor
business again ; Garfinkle's statement to Stone to the effect that the Union
would never get a contract and Garhnkle's statement to the Union members
to the effect that a certain competitor employing union labor could not obtain
certain merchandise while the respondent could obtain such merchandise, the
respondent has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act
The respondent negotiated an individual contract on wages and conditions of
employment with Robert Oster, one of its striking employees, who in turn induced
other of the respondent's striking employees to join him in signing this contract
with the respondent.
The Board sought to show that Oster in negotiating the contract above referred
to, was acting as an agent for the respondent, while the respondent sought to
show that Oster represented the Union. The record does not support either con-
tention.
The record is clear that this contract was negotiated for the purpose of defeat-
ing the Union, destroying its majority and circumventing- recognition of the
Union by the respondent The undersigned finds on the entire record that the
respondent negotiated individual contracts relating to their employment with
certain of its employees for the sole purpose of destroying the Union's majority
and forestalling collective bargaining with the Union. It has been well settled
that a contract obtained as the result of an unfair labor practice may not be
used as the basis of advantage to the violator of the Act nor of disadvantage to
the employee, the undersigned therefore finds on the entire record that the con-
tract negotiated by the respondent with individual employees through Robert
Oster, one of its employees, is invalid and of no force and effect and will recom-
mend that the contract be declared void except that the voidance of the contract
shall be without prejudice to the employees of any advantage that they may
have acquired therein regarding their rates of pay, hours, working conditions
and other conditions of employment.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent described in Section I above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging
in certain unfair labor practices, it will be recommended that he cease and desist
See Matter of J. I. Case Co. Y. N L. R. B., reported 11 L. R. R. 17; National Licorice
Co. v. N. L. R B., 309 U. S. 350.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom and take certain affirmative action which the undersigned finds will
effectuate the policies of the Act. It having been found that the respondent has
refused to bargain collectively with the Union, it will hereafter be recommended
by the undersigned that the respondent, upon request, bargain collectively with
the Union. .
It having been found that the contract entered into by the respondent with
certain of its employees as individuals because such contract was for the purpose
of forestalling collective bargaining with the Union at a time when the Union
was the duly designated sole collective bargaining agent of an appropriate unit
of the respondent's employees, and was the fruit of the unfair labor practices of
the respondent, therefore the undersigned will recommend that the respondent
cease and desist from performing, or giving effect to such contract. Nothing
herein, however, shall be deemed to give the respondent the right to withdraw or
abandon those wages, hours, security or other substantive features of its rela-
tionship with its employees themselves which the respondent may have estab-
lished in the performance of the contract.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Distillery, Rectifying & Wine Workers International Union of America, Local
No. 8, affiliated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All the licensed, wholesale liquor salesmen, excluding supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, employed by the
respondent in its Boston, Massachusetts, establishment, at all times material
herein constituted and now constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
3. Distillery, Rectifying & Wine Workers International Union of America,
Local No. 8, affiliated with the American Federation of Labor, was on August 11,
1944, and at all times thereafter has been and is now the exclusive representative
of all the employees of the respondent in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on August 11, 1944, and at all times thereafter, to bargain col-
lectively with Distillery, Rectifying & Wine Workers International Union of
America, Local No. 8, affiliated with American Federation of Labor, as the ex-
clusive representative of its employees in the appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
. 5. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of the
Act.
6. The aforesaid labor practices are labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, John S. Doane Company, its offi-
cers, agents, successors, and assigns shall :
JOHN S. DOANE COMPANY 1423
1. Cease and desist from :
(a) Refusing to bargain collectively with Distillery, Rectifying & Wine Work-
ers International Union of America, Local No. 8, affiliated with the American
Federation of Labor, as the exclusive representative of all its licensed wholesale
liquor salesmen, exclusive of supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of employees
or effectively recommend such action, employed by the respondent in its Boston,
Massachusetts, establishment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in their right to self-organization, to form and assist labor organizations,
to join or assist Distillery, Rectifying & Wine Workers International Union of
America, Local No. 8, affiliated with the American Federation of Labor or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act ;
(c) Giving effect to the contract it entered into with Robert I. Oster, Murray
P. Roth, and Philip Berman, affecting their compensation, working conditions, or
other conditions of employment, or any modification, continuation, extension, or
renewal thereof.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with Distillery, Rectifying & Wine Work-
ers International Union of America, Local No. 8, affiliated with the American
Federation of Labor as the exclusive representative of all the licensed wholesale
liquor salesmen, exclusive of supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of employees
or effectively recommend such action, employed by the respondent in its Boston,
Massachusetts, establisment ;
(b) Give separate written notice in the form and language of Appendix A
attached hereto, and duly signed by the respondent's representative to Robert
Oster, Murray P. Roth, and Philip Berman, that contract of October 16, 1944, or
any modification, continuation, extension or renewal thereof will not in any
manner be enforced or attempted to be enforced ; that the employee is not
expected by virtue of such contract to deal with the respondent individually in
respect to his compensation, working conditions or other conditions of employ-
ment and that such discontinuance of the contract is without prejudice to the
assertion of any rights the employee may have acquired under such contract ;
(c) Post at its establishment at Boston, Massachusetts, copies of the notice
attached hereto, marked "Appendix B." Copies of said notice, to be furnished by
the Regional Director of the First Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by other material;
(d) File with the Regional Director for the First Region, on or before ten (10)
days from the receipt of this Intermediate Report, a report in writing setting
forth in detail the manner and form in which the respondent has complied with
the foregoing recommendations.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, 'effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a brief
iii support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33,,should any party desire permis-
sion to argue orally before the Board, request-therefor must be made in writing
within ten (10) days from the date of the order transferring the case to the
Board.
Louis PLOST,
Trial Examiner
Dated March 8, 1945.
To: ROBERT OSIER
MURRAY P. ROTH
PHILIP BERMAN
APPENDIX A
Date ------------------------ 1945.
BOSTON , 'MASSACHIISETrs
You are hereby notified that pursuant to the Recommendations of a Trial
Examiner, in the matter of John S. Doane Company and Distillery, Rectifying &
Wine Workers International Union of America, Local No. 8 (A. F. of L.), Case
No. 1-C-2449, we will not in any manner enforce or attempt to enforce the
contract entered into on October 16, 1944 between ourselves (John S. Doane
Company) and Robert Oster, Murray P. Roth, and Philip Berman, or any modi-
fication, continuation, "extension or renewal thereof, and that you are not ex-
pected by virtue of said contract to deal with us individually in respect to your
compensation, working conditions, or other conditions of employment and that
the discontinuance of the said contract is without prejudice to the assertion of
any rights you may have acquired thereunder.
(S) JOHN S. DOANE Co.,
By------------------------------
(Official Title)
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Distillery, Rectifying & Wine Workers
International Union of America, Local No. 8 (A. F. L.), or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection. All our employees are free to
become or remain members of this union, or any other labor organization.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
JOHN S. DOANE COMPANY 1425
understanding in a signed agreement. The bargaining unit is: all licensed
wholesale liquor salesmen, exclusive of supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, employed by
John S. Doane Company, at its Boston, Massachusetts, establishment.
We will, cease and desist from giving any effect to the contract entered
into between us and Robert I. Oster, Murray P. Roth, and Philip Berman,
affecting their compensation, working conditions, or other conditions of
employment, or any modification, continuation, extension or renewal
therof.
JOHN S. DOANE COMPANY,
By--------------- -----------
(Representative) (Title)
Dated------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.