Maryland Distillery, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1937

3 N.L.R.B. 176 (N.L.R.B. 1937)

In the Matter Of MARYLAND DISTILLERY, INC., CALVERT DISTILLING
COMPANY, INC., CALVERT MARYLAND DISTILLING COMPANY, INC.,
now known as CALVERT DISTILLERS CORPORATION, CALVERT-MARY-
LAND CORPORATION, INC., and DISTILLERY WORKERS UNION 20270,
and H . S. MULLINEAUX, B. FOSTER , C. W. GREGER , E. GOSSMAN,
A. HANSHAUD , GEORGE HODGSON , R. W. ALDoM , FORD EDWARDS,
JULIAN BoswELL , FRANK W. CLIBOURNE and A. KARwosKi
Case No. C-157.-Decided August 2, 1937
Liquor Distilling Industry-Interference , Restraint or Coercion : attempt to
persuade employees not to join union but to join company -dominated union-
Company-Dominated Union: domination and interference with formation and
administration ; financial and other support ; disestablished as agency for col-
lective bargaining-Employee Representation Plan: form and operation-
Strike: provoked by employer 's unfair labor practices-Agreement Between
Union and Employer Which Is Inconsistent With the Provisions of the Act:
does not affect Board's power to prevent any person from engaging in any
unfair labor practice affecting commerce-Discrimination : discharge of active
union members and officials ; nonreinstatement following strike called as result
of unfair labor practices-Reinstatement Ordered-Back Pay: awarded.
Mr. Jacob Blum for the Board.
Weinberg and Sweeten, by Mr. Leonard Weinberg, Mr. Harry J.
Green, and Mr. Zanvil Krieger, of Baltimore, Md., for the re-
spondents.
Mr. Joseph Rosenfarb, of counsel to the Board.
DECISION
STATEMENT OF THE CASE
Upon charges duly filed by Distillery Workers Union 20270, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Bennet F. Schauffler, Regional Director for the Fifth
Region (Baltimore, Maryland), issued its complaint, dated January
8, 1937, against Calvert Maryland Distilling Company, Inc., Balti-
more, Maryland. The complaint and notice of hearing thereon were
duly served upon the Calvert Maryland Distilling Company, Inc.
and the Union. Thereafter, an amended charge was duly filed, and
an amended complaint dated January 14, 1937, was issued against
Distillers Corporation, Seagram of Canada, Calvert Distilling Com-
pany of Maryland, Calvert Maryland Distilling Company, and Cal-
vert Maryland Corporation, a Massachusetts corporation. The
176
DECISIONS AND ORDERS 177
amended complaint and notice of hearing thereon were duly served
upon the respondents and the Union. Thereafter, a second amended
charge was duly filed, and a second amended complaint, dated Janu-
ary 16, 1937, was duly issued against Maryland Distillery, Inc., a
Maryland corporation; Calvert Distilling Company, Inc., of Mary-
land; Calvert Maryland Distilling Company, Inc., now known as
Calvert Distillers Corporation ; and Calvert-Maryland Corporation,
Inc., a Massachusetts corporation, the respondents as finally appear-
ing herein. The second amended complaint and notice of hearing
thereon were duly served upon the respondents and the Union.
The second amended complaint alleged that all of the respondents
were under the same management, direction, and control and were
engaged in the distilling, bottling, barreling, and sale of whiskies.
It also alleged that the respondents had engaged in unfair labor prac-
tices affecting commerce, within the meaning of Section 8, sub-
divisions (1), (2), and (3) and Section 2, subdivisions (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
Prior to the hearing the respondents, Calvert-Maryland Corpora-
tion, Calvert Distillers Corporation, and Maryland Distillery, Inc.,
each filed a special appearance to object to the jurisdiction of the
Board. Thereafter each of said respondents filed its answer specifi-
cally and expressly reserving all of its rights to question the consti-
tutionality and validity of the Act. The answer of Calvert-Mary-
land Corporation admitted that it was' engaged in the sale of spir-
ituous liquors but asserted that all of its operations were carried on
wholly within the State of Massachusetts, that it had no knowledge
of any of the other allegations contained in the complaint, and
moved that the complaint against it be dismissed. Likewise, the
answer of Maryland Distillery, Inc. admitted that it is a corporation
engaged in the distilling of spirituous liquors, is the corporate owner
of the distilling plant at Relay, Maryland, and is the employer of
the men named in the complaint, but denied that it had engaged in
the alleged unfair labor practices and moved that the complaint
against it be dismissed. The answer of Calvert Distillers Corpora-
tion denied knowledge of any corporation named Calvert Distilling
Company, Inc., of Maryland, and asserted that the Calvert Distillers
Corporation denied the allegations of the complaint pertaining to
the unfair labor practices.
Pursuant to the notice, a hearing was held in Baltimore, Maryland,
on January 28 and 29, 1937, before A. Howard Myers, the Trial
Examiner duly designated by the Board. The respondents appeared
specially by counsel and made an oral motion to dismiss the com-
plaint. The motion was denied. At the opening of the hearing
178 NATIONAL LABOR RELATIONS BOARD
counsel for the Board moved to dismiss the complaint as to E. Goss-
man, George Hodgson, R. W. Aldom, and A. Karwoski, and during
the hearing he moved to strike the name of Julian Boswell from the
complaint. The motions were granted. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evi-
dence bearing upon the issues was afforded to all parties. Counsel
for the respondents however did not call any witnesses in behalf of
the respondents and limited his participation in the hearing only to
making motions of dismissals and cross-examining witnesses. The
parties were granted a reasonable period for oral argument at the
close of the hearing and were afforded an opportunity to file briefs
but did not avail themselves of these offers. At the close of the
hearing the respondents, through their counsel, renewed their motion
to dismiss the complaint, which motion was again denied.
On February 23, 1937, the Trial Examiner filed an Intermediate
Report in accordance with Article II, Section 32, of National Labor
Relations Board Rules and Regulations,-Series 1, as ' amended, in
which he found in substance that the respondents, with the excep-
tion of Calvert-Maryland Corporation, a Massachusetts corporation,
have committed unfair labor practices as charged in the complaint
and recommended that the respondents cease and desist from commit-
ting the unfair labor practices, reinstate the employees named in the
complaint with back pay, and that the respondents withdraw recog-
nition from the Employees Representation Plan as representatives of
their employees for the purpose of collective bargaining. The Trial
Examiner recommended that the complaint as to Calvert-Maryland
Corporation, a Massachusetts corporation, be dismissed. The Inter-
mediate Report was duly served upon the parties.
On March 13, 1937, counsel for the respondents filed exceptions to
the Intermediate Report of the Trial Examiner. The exceptions to
the Intermediate Report are hereby overruled and all rulings and
motions made by the Trial Examiner are affirmed.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. THE RESPONDENTS AND THEIR BUSINESS
The respondent corporations are owned and controlled by the same
parent corporation, Distillers Corporation-Seagram's Limited of
Montreal, Canada. According to a copy of the Registration State-
ment (form A-2) filed with the Securities and Exchange Commission
by the latter corporation on October 1, 1936,1 the respondents Calvert
Distillers Corporation and Calvert-Maryland Corporation, a Massa-
1 Board Exhibit No. 3.
DECISIONS AND ORDERS 179
chusetts corporation,2 are listed as wholly-owned subsidiaries of the
respondent, the Calvert Distilling Company of Maryland; 2 while the
latter company and the respondent, Maryland Distillery, Inc., a
Maryland corporation, are in turn wholly controlled by the parent
corporation. Other subsidiaries of the Canadian company are : Dis-
tillers Corporation Limited (Canada), Joseph E. Seagram & Sons,
Limited (Canada), Joseph E. Seagram & Sons, Inc. (Indiana),
Julius Kessler Distilling Co., Inc. (Indiana), Joseph E. Seagram &
Sons, Inc. (Maryland), Joseph E. Seagram & Sons, Inc. (Delaware),
Julius Kessler Distilling Co., Inc. (Kentucky), Lincoln Inn Distil-
ling Co., Inc. (Delaware), Reserve Corporation (Kentucky), Robert
Brown, Limited (Great Britain), Distillers Corporation-Seagrams,
Ltd. (Delaware), Seagram, Inc. (Kentucky), Seagram, Inc. (Ne-
braska), Alexander Maclaren & Company Limited (Great Britain),
Stewart Cameron & Son (Great Britain), and Joseph E. Seagram
& Sons Limited (Great Britain).
The parent corporation was organized in March 1928, acquiring at
that time all of the stock of several predecessor companies incor-
porated in the British Empire. Prior to the repeal of the Eighteenth
Amendment, activities of the parent corporation and its subsidiaries
were confined to production, warehousing, and sales in Canada and
exports from Canada. Since repeal, Canadian operations have been
continued on a more limited scale, and activities have been primarily
directed to building up productive capacity in the United States, to
the blending, bottling, and selling in the United States of aged
American type whiskey imported from Canadian subsidiaries, to the
establishment of brands in the United States through advertising
and sales promotion, and to the establishment of a sales organization
throughout the United States. During the fiscal year ending July
31, 1936, substantial advertising and sales promotion expenses were
incurred in establishing the brands of the respondent, accounting in
the main for an increase in such expenditures from $3,775,000 for
the previous year to $5,541,000 in the latter year.
The parent company distills, blends, and bottles Canadian whis-
kies, Scotch type whiskies, and gins, through subsidiaries in Canada.
It ships in bulk from inventory previously produced to its American
subsidiaries for blending, bottling, and marketing in the United
States. Through its American subsidiaries it distills, blends, and
markets in the United States various spirituous liquors, as well as
marketing Canadian and American type whiskies produced, aged,
2In the complaint called Calvert-Maryland Corporation , Inc., a Massachusetts Corpo-
ration.
8In the complaint called the Calvert'Distilling Company, Inc., of Maryland . In Decem-
ber 1936, the name as registers : with the Federal Alcohol Commission was changed by
striking "Company, Inc ." and adding "Co.".
180 NATIONAL LABOR RELATIONS BOARD
and bottled in Canada by its subsidiaries. The sales activities of
the subsidiaries are confined almost entirely to the sale of goods
bottled under their own brands.
Sales in Canada are made to Provincial Liquor Commissions and
Control Boards, and export sales are subject to the supervision of
the Canadian Government. Sales in the United States are made
primarily to wholesale distributors and to State Boards, and are
carried on under license from the Federal government in compliance
with Federal regulations and state laws. All the distilling, rectify-
ing, and bottling operations are carried on under the supervision
of the Canadian government or the United States government, in
each case under license from the respective government. The busi-
ness is also subject to substantial excise taxes both in the United
States and Canada, and is subject to import and other taxes on
exports from or imports to either of the two countries.
The following tabulation of net sales, exclusive of inter-company
sales, for each of the five fiscal years ending July 31, 1936, indi-
cates the growth of the business subsequent to the organization of
the parent company's subsidiaries in the United States after repeal
of the Eighteenth Amendment on December 5, 1933:
Fiscal Period Ending July 31 : Net Sales
1932 ----------------------------------------------------- $6,481 , 356.36
1933 ---------------------------------------------------- 4,884,837.04
1934----------------------------------------------------- 8,%1,766.20
1935 ----------------------------------------------------- 55,204 , 438.92
1936----------------------------------------------------- 60,585 , 916.71
For the two complete fiscal years subsequent to repeal, the percentage
of the above sales made in the United States was 95.4% for the
fiscal year ending July 31, 1935, and 95.5% for the fiscal year ending
July 31, 1936.
On May 1, 1934, the company acquired all of the issued and out-
standing capital stock of the Maryland Distillery, Inc., which owned
the distillery involved in this case at Relay, Maryland, and all of the
outstanding capital stock of the Calvert Distilling Company. These
two respondent companies have been operating the distillery at
Relay since repeal. In August 1934, Calvert-Maryland Distilling
Co., Inc., now known as Calvert Distillers Corporation, was organ-
ized to handle and is now handling sales in the United States of
products of the Relay plant and such products of the Canadian
plants as are bottled under the Calvert name for sale in the United
States.
The Maryland Distillery, Inc., one of the respondents, is the
owner of a trade mark known as Calvert Amber Bottle, registered
with the. United States Patent Office for use in commerce among the
DECISIONS AND ORDERS 181
several States of the United States.4 The Calvert- Distilling Com-
pany, another of the respondents, is the owner of a trade mark,
The Flavor of By-Gone Days, which is similarly _registered.5 Each
of the respondents holds a distillers basic permit issued by the
Federal Alcohol Administration Division of the United States
Treasury Department authorizing it to distill whiskies at Relay,
Maryland, and to sell, offer, and deliver for sale, contract to sell
and ship, in interstate and foreign commerce, the distilled spirits
so produced.6
The distilling plant operated by the respondents, Maryland Dis-
tillery, Inc. and Calvert Distilling Comany, is located on a 12-acre
tract of land owned by the former at Relay, Maryland. The plant
is served by a railroad siding leased from the Baltimore and Ohio
Railroad. It is operating under permits from the United States
Government at a mashing capacity of 4,085 bushels per 24 hour day,
the equivalent of approximately 18,000 United States proof gallons.
All the buildings, equipment, and machinery are practically new,
having been erected in and since the summer of 1933. The plant
is equipped to manufacture rye whiskey and to produce dried grain
for cattle feed. Storage warehouses have a total capacity of ap-
proximately 256,000 barrels of 50 United States proof gallons each.
The two bottling houses are capable of bottling 12,000 cases per
8 hour day. The plant is equipped with a laboratory for checking
all materials and manufactured products in the various stages of
fermentation and distillation.
In 1934 the number of employees at the Relay plant was 215; in
1935, 411; in 1936, 600. At the time of the hearing the number of
employees was 462.
The Maryland Distillery, Inc. and Calvert Distilling Company,
two of the respondents, distill and rectify in the Relay plant
whiskies in the preparation of which various products are utilized,
almost all of which come from destinations outside of the State of
Maryland ,7 namely, barley malt, rye malt, hops, rye, bottles, cartons,
labels, spirits, caps and seals, filters, barrels, fuel oil, coal, and bags.
Minor supplies such as labels, barrels, fuel oil, and bags are acquired
principally in Maryland. The Commissioner of Customs reported
that during the month of December 1936, Maryland Distillery, Inc.
imported 129,838.7 gallons of whiskey from Canada.
The raw materials come to the distillery at Relay from destina-
tions outside of the State of Maryland by rail and truck. The
whiskey produced from these raw materials at Relay leaves in inter-
4 Board Exhibit No 4.
5 Board Exhibit No. 5.
° Board Exhibit No 6
' Board Exhibit No 8
49446-38-vol ui-13
182 NATIONAL LABOR RELATIONS BOARD
state commerce by rail. The products of the Relay plant are sold
by Calvert Distillers Corporation, a third respondent, "in all States
excluding dry States," and are advertised by it in various periodi-
cals and newspapers.
It is the position of the respondents that the Maryland Distillery,
Inc. is a manufacturing corporation owning the plant at Relay and
is engaged in the manufacturing business solely in the State of Mary-
land ; that the Calvert Distillers Corporation does not manufacture
but is solely engaged in selling; that the Calvert Distilling Company
has at all times distilled and rectified at its plant at Relay ; that
Calvert-Maryland Corporation, a Massachusetts corporation, does no
manufacturing nor does it make any sales but is a Massachusetts
corporation acting solely as an agent whose activities are confined
to the State of Massachusetts.
Whatever division of functions exist among the respondents, it
is undeniable that they are owned and controlled by the same parent
corporation and are subject to the same management and control.
With the exception of Calvert-Maryland Corporation, all of the
respondents constitute one business enterprise engaged in interstate
commerce, the enterprise consisting in the importation in Maryland of
raw materials and supplies, the processing of these materials and sup-
plies, the selling and the shipping of the finished products to destina-
tions outside of the State of Maryland. The operations of the
respondents are interrelated and interdependent. They are wholly
subject to the same ownership, control, and actual management.
Indeed, the labor policies of all of the respondents are directed by
the parent company, Distillers Corporation-Seagram's Limited.
The resort to the corporate fiction of the holding company device
does not hide the real picture presented by the respondents and their
business, namely, that of a single enterprise with unitary control
doing business of national, indeed of international, scope and
ramifications.
II. THE UNFAIR LABOR PRACTICES
A. The employers
Maryland Distillery, Inc., one of the respondents, admits in its
answer that it is the employer of the men working at the Relay
plant. The evidence is uncontradicted that the employees at the
Relay plant were paid by checks of the Calvert Distilling Com-
pany, another- of the respondents. From this and other evidence
in the record, it is clear that Maryland Distillery, Inc. and Calvert
Distilling Company are the employers of the men working at the
Relay plant.
DECISIONS AND ORDERS
B. The Union
183
In July 1936, there appeared among the employees of the respond-
ents at the Relay distillery a movement for organization. On July
16, 1936, one of the employees at the Relay plant wrote to the Balti-
more Federation of Labor asking for assistance in becoming organ-
ized. In response to this letter Joseph Gillis, organizer of the Amer-
ican Federation of Labor, saw a number of interested employees, and
on or about July 20, 1936, the American Federation of Labor issued
a charter to them as Distillery Workers Union 20270. Shortly there-
after organizational meetings of the Union were held resulting in a
continuous increase. in membership. Employees of the respondents
employed at the Relay distillery are eligible to membership in' the
Union. However, at no time during the events involved in this case
has the membership of the Union been more than about 80. The
Union is a labor organization.
C. The labor dispute
The campaign for the unionization of the employees of the re-
spondents at the Relay distillery galvanized the respondents into ac-
tivity. On August 10, 1936, 11 employees of the distillery were dis-
charged, or "furloughed" as they were told. All of these were mem-
bers of the Union, and some of them were officers. On August 11,
1936, Gillis attempted to confer with the respondents concerning the
discharges, but without success.
On August 12, 1936, an "Employee Representation Plan" was or-
ganized under circumstances related below, and the employees were
urged. by the officers of the respondents not to join the Union.' On
the next day Ford W. Edwards, an active member of the Union, was
discharged.
On August 14, 1936, the president of the respondents, Calvert Dis-
tilling Company and Maryland Distillery, Inc., Edwin F. Fleisch-
mann, in a conference requested by Gillis, could not be persuaded by
Gillis to reinstate the discharged employees. When, on the same day,
Gillis reported to a meeting of the Union the results of the conference
with Fleischmann, the members of the Union who were still working
at the distillery voted to strike in protest against the discharges
which they believed were due to the union activities of the em-
ployees. The strike became effective the following day.
After numerous conferences the strike was called off on October
22, 1936, when an agreement was reached between the representatives
of the Union and the respondents whereby the strikers and the dis-
charged employees were to be reinstated. However, the employees
named in the complaint have never been reinstated.
Such, in brief, is the outline of the labor dispute in this case.
184 NATIONAL LABOR RELATIONS BOARD
D. The Employee Representation Plan
On August 12, 1936, a notice signed by President Fleischmann was
posted on the bulletin board announcing a meeting of all of the em-
ployees to be held that afternoon at 3 o'clock in the distillery. The
employees were notified by their foreman to attend the meeting and
no deduction from the wages of the employees was made for attend-
ing.
President Fleischmann and Vice President Hermann presided over
the meeting and addressed the employees. Fleischmann's remarks
were in part as follows : 8
Now, we have had a happy family up to now, but we have had
a little bit of trouble. We don't want no outside union to come
in and run our business for us . . . We realize in the last few
months the cost of living has gone up, so we have decided to give
all laborers and all helpers and all of the girls a raise.
Fleischmann then asked the employees to indicate by raising their
hands whether they favored an "outside" labor "organization" or a
company "organization". At the conclusion of the meeting the em-
ployees were handed a two-page memorandum containing an outline
of an Employee Representation Plan at the bottom of which memo-
randum the employees were asked to vote on whether they were in
favor of or against the plan.9
As its purpose the Employee Representation Plan declared :
This Plan provides a means whereby elected representatives of
the employees and appointed representatives of the management
shall meet in joint conference to discuss and settle all matters of
mutual concern including wages, hours and working conditions
subject to review when necessary as provided in paragraph 6
below.
The Employee Representation Plan was of the standard pattern.
Adjustment of wages, hours, and conditions of work were to be made
in conference between an equal number of employee representatives
and representatives of the management, subject to the subsequent-ap-
proval of the management. However, when adjustments were to be
made the representatives of the employees were to be limited to the
voting group or operating unit affected without any such limitation
on those representing the management.
The joint meetings of the representatives were called by notices
mailed to them, signed by H. C. Price, personnel manager at the
Relay distillery, who also acted as one of the management's repre-
8 Page 89 (stenographic transcript).
9 Board Exhibit No. 10.
DECISIONS AND ORDERS 185
sentatives 10 Meetings were held in President Fleischmann's office.
Eventually nine employee representatives were elected and they met
from time to time with nine management representatives. In addi-
tion to the nine management representatives, President Fleischman
presided as chairman of the joint conference while Emile E. Grig-
nard, industrial relations manager of the respondents, attended
some of these meetings as the "guest" of the management." Thus,
actually there were at times 11 management representatives and only
nine representatives of employees, two of the former without formal
vote but necessarily with some influence on the decisions. There
were no provisions for dues and the meetings were held on the re-
spondents' time and property.
It is too clear to require discussion that the Employee Representa-
tion Plan was the creature of the respondents. It was initiated,
sponsored, and established by the management of the respondents.
There is no pretense to the contrary. By actual participation in
the administration of the Plan and by financing it the management
of the respondents had complete control of it.
We find that the Employee Representation Plan is a labor organ.
ization.12
Brought into being and administered by the respondents as one of
the means of thwarting its employees in their right to self-organiza-
tion and to bargain collectively, it obviously cannot serve as an in-
strument of collective bargaining contemplated by the Act.
E. The discriminatory discharges and failure to reinstate
In- order to frustrate the campaign to unionize the employees the
respondents also resorted to the heavy bludgeon of economic compul-
sion, the discriminatory discharge.
Herbert Samuel Mullineaux was discharged on August 10, 1936.
He entered the employ of the respondents in August 1935. Before
then he had been working for eight months on the premises of the
respondents on a construction job for an independent contractor and
had been selected by one of the executives of the respondents for
employment in the shipping department. He had joined the Union
in July 1936, solicited membership in the Union among the other
employees, and discussed unionization with them.
Mullineaux's work for the respondents consisted in loading and
unloading trucks and freight cars. He had never been singled out
for any reprimand or criticism by his superiors although on a few
10 Board Exhibits 11 and 12.
11 Board Exhibits 12 and 13.
12 This, however , is not to be taken as placing the stamp of legitimacy upon the Plan as
a bona fide labor organization. Matter of Atlanta Woolen Mtills and Local No. 2307, United
Tecettie Workers of America, Supplemental Decision , 1 N. L. R . B. 328.
186 NATIONAL LABOR RELATIONS BOARD
occasions he had been taken to task with others for "just playing
around like kids; that is all." He enjoyed seniority in his job
over many of the men in the shipping room who were not dis-
charged. Subsequent to his discharge he applied for reinstate-
ment but without success although he had seen new men working
in the shipping room.
Mullineaux's wage while working for the respondents averaged
between $17 and $18 a week and he had earned since his discharge
approximately $380 as a laborer, first with the Doughnut Machine
Corporation in Ellicott City, Maryland, and then with the Gibson
and Kirk Brothers Foundry in West Baltimore, Maryland.
Andrew Handschuh 13 was also discharged or furloughed on
August 10, 1936. He had worked for the respondents since 1934
as a rectifier helper. Prior to the completion of the Relay plant
he had worked for the respondents in Baltimore. He was among
the first to join the Union in July and was active in union affairs.
Handschuh's work for the respondents had been satisfactory. He
had never been warned or criticized and he had never been laid
off before, even during slack periods. He testified that in fact there
was no falling off of work in his line at the time he was discharged.
He had earned approximately $350 since his discharge working
intermittently in a boiler shop.
Ford W. Edwards was discharged on August 13, 1936. He had
been employed by the respondents since October 1935. His work
had never been criticized and in fact he had been promoted to an
assistant foremanship in charge of the repacking department about
eight months before his discharge. He joined the Union three days
before he was discharged. At the time of his discharge he was
told by his foreman Jack Schlosser that his union activities were
the reason for his discharge. When, two weeks after his discharge,
he inquired of one Hopkins, superintendent of bottling at the Relay
distillery, about his chances of getting his job back he was told
that his discharge was due to his union activities and that as far as
he, Hopkins, was concerned, he would discharge and never rehire
members of the Union. Subsequently he asked Superintendent Gar-
lock and Vice President Hermann for reinstatement but without
success. He received, while working for the respondents, a 50-
cent hourly wage for a 40-hour week. After his release he had
earned approximately $450, working for the Baltimore and Ohio
Railroad, but at the time of the hearing he was not employed.
Bernard Foster was an employee of the respondents in the recti-
fying plant for a year before the strike. His work had never been
criticised by his superiors. He joined the Union in August 1936,
13 Spelled Hanshaud in the complaint.
DECISIONS AND ORDERS 187
had gone out on strike, and picketed for over a month in front of
the distillery at Relay in full view of the respondents' executives.
When the strike ended he asked for reinstatement and also author-
ized Gillis to apply for reinstatement in his behalf. He has never
been reinstated by the respondents. While working for the re-
spondents he received 50 cents per hour for a 48-hour week. Since
he ceased working for the respondents he had earned $75 working
in a boiler shop. At the time of the hearing he was not employed.
Charles William Greger was in the employ of the respondents
from September 1934 to November of that year as a laborer and
then had been transferred to the rectifying department with a wage
increase from 40 cents to 45 cents per hour. This was afterwards
increased to 50 cents per hour. He had joined the Union on July 31,
1936, and gone out on strike August 15, picketing for over a month
in front of the Relay distillery in full view of the executives of
the respondents. After the end of the strike he asked Garlock, the
superintendent, several times for reinstatement but without success.
Since he ceased working for the respondents he had earned approxi-
mately $215 at occasional jobs, the last one being with the Maryland
Dry Dock Company.
Frank W. Clibourne was employed by the respondents as a copper-
smith on January 20, 1936. Four months later, when the respondents
discharged one of its two coppersmiths, they retained Clibourne in
preference to the employee who had greater seniority. He had
been selected as the employee representative for the Power and
Maintenance Department. He joined the Union on November 20,
1936, and on the same day he was asked by Garlock if he had been
given a Union application card to sign by Boswell, another em-
ployee in the department. Later in the day Clibourne was ap-
proached by his foreman and was asked whether Boswell had solic-
ited him for membership in the Union. He was discharged on
December 2, 1936, when he was given a furlough notice and a week's
pay in advance. After his discharge his work was divided among
other men in the department in so far as they could do it, while
the rest of the work was given to an outside contractor. The re-
spondents offered no explanation for his discharge. Clibourne, while
in the employ of the respondents, received $36 per week for a 40-
hour week. Clibourne, since his discharge, had not earned any
money.
After Gillis' unsuccessful attempt to confer with the respondents
on August 11 he was granted a conference with Fleischmann on Au-
gust 14, 1936, to discuss the discharges. Fleischmann stated at this
conference that the men were laid off because a falling off of busi-
ness necessitated a reduction of the force and that he could not give
any definite date when they would be taken back.
188 NATIONAL LABOR RELATIONS BOARD
During the strike several conferences were held between the repre-
sentatives of the Union and the respondents. These conferences cul-
minated in the settlement of the strike on October 22, 1936. At the
conference of October 22, the Union representatives were informed
that 15 of the 45 strikers were already back at work. At the same
conference the following memorandum 14 was drafted by Grignard
and signed by representatives of the Union and of the respondents:
CALVERT-MARYLAND DISTILLING Co., INC.
GENERAL SALES OFFICES, CHRYSLER BUILDING, NEW YORK
DISTILLERY, RELAY, MD.
October 22, 1936.
OFFICE OF THE PRESIDENT
Relay, Md.
Recognizing that a misunderstanding existed between the man-
agement of the Calvert-Maryland Distillery, a Seagram interest,
located at Relay, Maryland; and the American Federation of
Labor, which it is now mutually desired shall be corrected, it is
agreed :-
1-That members of Local Union No. 20270, as per attached list
will be reemployed and will be brought back in one group,
if possible, otherwise in two groups within ten days.
2-The company agrees to meet with a representative or repre-
sentatives of the American Federation of Labor to discuss
problems affecting members of Local Union No. 20270, who
may be employed at the distillery.
3-Where possible, employees will be given positions in the same
department in which they were employed, prior to August 14,
1936, and will be given the prevailing scale of wages now in
effect.
4-Where any employees return to work and find their former
job has been combined with some other job or abolished, he
will be given work at some other position, at not less than
the established hourly rate now in effect.
5-The company reiterates its policy of non-discrimination
among its employees and recognizes the rights of employees
to become members of the union known as Distillery Workers
Union No. 20270, affiliated with American Federation of
Labor. And further states this right is extended to all other
CALVERT and SEAGRAM plants.
6-Returning employees will enjoy all rights of other employees
as to time of employment, dating back to original date of
employment, including vacation policies.
"Respondents ' Exhibit No. 1.
DECISIONS AND ORDERS 189
The American Federation of Labor agrees :-
To immediately notify all organizations and individuals, who
had previously been advised that CALVERT and SEAGRAM
organizations were unfair to organized labor, that CALVERT
and SEAGRAM organizations are fair to the American Federa-
tion of Labor and that they be instructed to cease discriminating
against the products of the CALVERT, SEAGRAM and WIL-
SON organizations.
For the Company
EDWIN M. FLEISCHMANN (sgd)
Pres.
EMILE C. GRIGNARD (sgd)
For the American Federation of Labor
JOSEPH GILLIs (sgd)
JOSEPH P. MCCURDY (sgd)
Attached to this memorandum was a list of 18 names. Those named
in the complaint were not included among them.
Despite the contents of this memorandum it is clear from the testi-
mony that the terms of the settlement were that the respondents were
to reinstate 20 strikers and "furloughed" employees immediately and
that the remaining ten employees would be reinstated by the
respondents ten days later.
Of the first group of 18 strikers only five were reinstated by the
respondents. The others refused to return to work. Subsequently,
on or about November 7, 1936, Gillis presented to President Fleisch-
mann a second list of ten employees, in which list were included all
those named in the complaint in the present case, and asked that they
be reinstated in accordance with the agreement of October 22, 1936.
Fleischmann replied that due to a lack of business no more employees
would be reinstated. In fact, no more were.
The position of the respondents, in so far as it can be learned from
the testimony in behalf of the Board, and from cross-examination by
counsel for the respondents, is untenable. The respondents' alleged
need to reduce the personnel at the distillery cannot serve as a suffi-
cient reason for the discharge of the Union members and officers on
or about August 10, 1936. It is true that the figures submitted by
the respondents at the request of the Trial Examiner show a steady
decrease of employment from March 1936 to September of the same
year.15 However, this does not explain why those discharged or
u Jan. 1936----------------------- 404 Aug. 1936-------------------------- 344
Feb. 1936----------------------- 410 Sept. 1936 -------------------------- 339
Mar. 1936---------------------- 430 Dct. 1936--------------------------- 378
Apr. 1936----------------------- 395 Nov. 1936-------------------------- 402
May 1936----------------------- 373 Dec. 1936-------------------------- 379
June 1936 ---------------------- 367 Jan. 1937 -------------------------- 250
July 1936---------- ------------ 362
190 NATIONAL LABOR RELATIONS BOARD
furloughed on or about August 10, 1936, were active Union men and
officers and why no others were discharged. Their records of em-
ployment, as we have seen, would not justify their selection for dis-
charge. Moreover, the evidence indicates that when there was a
falling off of business before the Union organization campaign began
the employees had been staggered or rotated rather than discharged.
Furthermore, as the figures submitted by the respondents show, there
was a constant increase of employment from September on, but those
discharged in August were not reinstated.
Fleischmann's position that the second group of strikers and "fur-
loughed" employees could not be reinstated after October 22, 1936,
because of a falling off in business is not borne out by the figures sub-
mitted by the respondents themselves. They show that the number of
those employed by the respondents increased from 378 in October to
402 in November.
Likewise, although the respondents were ready to give immediate
reinstatement to 20 strikers on October 22, 1936, only five were rein-
stated due to the fact that the rest did not wish to return to work for
the respondents, thus leaving 15 vacancies for the second group of ten
employees which the respondents obligated themselves to reinstate
within ten days.
The objection by counsel for the respondents to the oral testimony
of Gillis that the respondents agreed to reinstate the second group
of employees within teii days was correctly overruled by the Trial
Examiner. First, Gillis' testimony did not violate the parol evidence
rule since it tended to show that the written memorandum was not
the whole contract entered into between the respondents and the rep-
resentatives of the Union; second, the parol evidence rule is not con-
trolling in a proceeding under this Act 16; third, whatever the agree-
ment may have been between the Union and the respondents, it can-
not relieve the respondents from their obligation under the Act to
reinstate the strikers and those discharged in August, for Section
10 (a) of the Act provides that the Board's power to prevent any per-
son from engaging in any unfair labor practice affecting commerce
"shall be exclusive and shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement, code, law or otherwise."
The discharge of the active Union members and officers of the
Union, organization by the respondents of the company-dominated
Employee Representation Plan, the failure to reinstate the dis-
charged and striking employees and the open opposition by the re-
spondents to the "outside" union, form the component parts of a
course of action undertaken by the respondents to frustrate the
unionization of their employees.
16 Section 10 (b).
DECISIONS AND ORDERS 191
F. Conclusions respecting the unfair labor practices
We conclude that :
Andrew Handschuh, Herbert Samuel Mullineaux, Ford E. Ed-
wards, and Frank W. Clibourne ceased work as the result of an
unfair labor practice by the respondents. The strike involved in
this case is- a labor dispute. Bernard Foster and Charles William
Gregor ceased work as a consequence of and in connection with a
current labor dispute. Handschuh, Mullineaux, Edwards, Cli-
bourne, Foster, and Greger had not obtained any other regular and
substantially equivalent employment. They are now, and have been
all through the occurrences of this case, employees of the respond-
ents. The respondents have dominated and interfered with the for-
mation and administration of the Employee Representation Plan
and have contributed financial and other support to it. The re-
spondents, by discharging Handschuh, Mullineaux, Edwards, and
Clibourne and by failing to reinstate Foster and Greger, thus dis-
charging them, had discriminated against its employees in regard
to hire and tenure of employment, thereby discouraging member-
ship in a labor organization. The respondents, by all of the acts
above set forth, have interfered with, restrained, and coerced their
employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, 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 as guaranteed in Section 7 of the Act.
III. EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the respondents set forth in Section II above,
occurring in connection with the operations of the respondents de-
scribed 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.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
1. Distillery Workers Union 20270 is a labor organization , within
the meaning of Section 2, subdivision (5) of the Act.
2. The Employees Representation Plan is a labor organization,
within the meaning of Section 2, subdivision (5) of the Act.
3.' The strike of the employees of the respondents is a labor dis-
pute, within the meaning of Section 2, subdivision (9) of the Act.
192 NATIONAL LABOR RELATIONS BOARD
4. H. S. Mullineaux, B. Foster, C. W. Greger, A. Handschuh, Ford
Edwards, and Frank W. Clibourne are now, and have been all
through the occurrences of this case, employees of these respondents,
within the meaning of Section 2, subdivision (3) of the Act.
5. The respondents, by discriminating in regard to the hire and
tenure of employment of H. S. Mullineaux, B. Foster, C. W. Greger,
A. Handschuh, Ford Edwards, and Frank W. Clibourne, and each
of them, have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8, subdivision (3) of the Act.
6. By the domination and interference with the formation and ad-
ministration of the Employees Representation Plan and by contrib-
uting financial and other support thereto, the respondents have en-
gaged in and are engaging in unfair labor practices, within the
meaning of Section 8, subdivision (2) of the Act.
7. By all of the acts set forth in these conclusions of law the re-
spondents have interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act and have engaged and are engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondents Maryland Distillery, Inc., a Maryland corporation,
Calvert Distilling Company, and Calvert Distillers Corporation, and
their officers, agents, successors, and assigns shall:
1. Cease and desist from :
a. Discouraging membership in Distillery Workers Union 20270
or any other organization of its employees by discharging, refusing
to reinstate, or otherwise discriminating against their employees in
regard to hire and tenure of employment or any term or condition
of employment;
b. Dominating or interfering with the administration of the Em-
ployees Representation Plan or with the formation or administra-
tion of any other labor organization of their employees and from
contributing financial or other support to the Employees Representa-
tion Plan or any other labor organization of their employees;
c. In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively by
DECISIONS AND ORDERS 193
representatives of their own choosing , and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to H. S. Mullineaux , B. Foster , C. W. Greger , A. Hand-
schuh , Ford Edwards, and Frank W. Clibourne , and each of them,
immediate and full reinstatement in their former positions without
prejudice to their seniority and other rights or privileges;
b. Make whole said H. S. Mullineaux , B. Foster, C. W. Greger,
A. Handschuh , Ford Edwards , and Frank Clibourne , and each of
them, for any loss of pay they have suffered by reason of their dis-
charge by payment to each of them , respectively , a sum equal to that
which each would normally have earned as wages during the period
from the date of their discharge , in the case of H. S . Mullineaux
and Handschuh being August 10, 1936 , in the case of Ford Edwards
being August 13, 1936, in the case of B. Foster and C . W. Greger
being November 7, 1936 , and in the case of Frank W. Clibourne be-
ing December 2, 1936, to the date of such offer of reinstatement, less
the amount earned by each of them , respectively , during such period ;
c. Withdraw all recognition from the Employees Representation
Plan (under which representatives have been selected ) as representa-
tive of any of their employees for the purpose of dealing with re-
spondents concerning grievances , labor disputes , wages, rates of pay,
hours of employment , or conditions of work, and disestablish the
Employees Representation Plan as such representative;
d. Post notices in conspicuous places in all of the departments
of the Relay plant stating that : ( 1) the respondents will cease and
desist in the manner aforesaid ; ( 2) that the Employees Representa-
tion Plan is so disestablished and that the respondents will refrain
from any recognition thereof; and (3) that such notices will remain
posted for a period of at least thirty ( 30) consecutive days from the
date of posting;
e. Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this order of the steps
respondents have taken to comply herewith.
3. The complaint as to Calvert -Maryland Corporation (Massa-
chusetts ) is hereby dismissed.
4. The complaint as to E. Gossman, George Hodgson , R. W. Aldom,
A. Karwoski , and Julian Boswell is hereby dismissed without
prejudice.