Medley Distilling Co., Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1970

187 N.L.R.B. 84 (N.L.R.B. 1970)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Medley Distilling Company, Inc. and Distillery,
Rectifying, Wine and Allied Workers, International
Union of America, AFL-CIO. Cases 25-CA-3452,
25-CA-3516, and 25-RC-4113
December 8, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On April 21, 1970, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
dismissed . Thereafter, the Respondent, the General
Counsel, and the Charging Party filed exceptions to
the Trial Examiner's Decision and briefs in support
thereof. The Charging Party also filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings,' conclusions, and
recommendations2 of the Trial Examiner, except as
modified below.
1. The Trial Examiner found that Respondent
violated Section 8(a)(3) and (1) when it discharged
1 Respondent has excepted to many of the credibility findings made by
the Trial Examiner It is the Board's established policy, however, not to
overrule a Trial Examiner 's resolutions with respect to credibility unless, as
is not the case here , the preponderance of all relevant evidence conviences
us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91
NLRB 544, enfd 188 F.2d 362 (C A 3).
The Trial Examiner refers to interviews Personnel Director John Medley
conducted with employees Herman Boulds , William Thomas, and Francis
G. Haynes in 1966 and 1967 in connection with his finding that Medley
violated Sec 8(axl) while interviewing employees As the incidents
occurred outside of the 10(b) period it is clear that the Trial Examiner's
references to these incidents were for background only. We do not construe
his findings of 8(a)(I ) violations as including anything which happened
during these interviews
2 Most of the unfair labor practices violations found herein occurred
between the filing of the petition on June 18 , 1969, and the election on
August 28, 1969. These unfair labor practices interfered with the exercise of
a free and untrammeled choice in the election Accordingly, we shall order
employee Herman V. Payne. We agree for the reasons
stated in his decision. The General Counsel and the
Charging Party except to the Trial Examiner's failure
to find that Respondent violated also Section 8(a)(1)
when about 2 weeks prior to his discharge Respon-
dent withdrew certain privileges it had previously
granted Payne. We find merit in these exceptions.
Approximately 1 year prior to Payne's discharge
Respondent, because of Payne's family situation,
granted Payne special permission to come in late on
occasion. Approximately 2 weeks prior to Payne's
discharge Respondent withdrew this permission. It is
clear from the surrounding circumstances as fully
detailed by the Trial Examiner, and especially from
John Medley's reference to Respondent's fight
against the "activity" (clearly meaning union activity)
at the time he was withdrawing the privilege, that
Respondent was taking this action as part of its effort
to defeat the Union. We find that Respondent's
withdrawal of Payne's privilege to be late on occasion
constitutes a discriminatory withdrawal of benefits in
violation of Section 8(a)(1).3
2. The Trial Examiner found, in our opinion
correctly, that Foreman Pete Zarn told employee
John Carrol approximately 1 week before the election
that the Respondent had promised a 45-cent raise and
that Zarn told employee William Thomas that if the
Union did not come in the Company would make a
better deal for them and that Thomas would get a
raise. The Trial Examiner does not pass on whether
Zarn by making these statements violated Section
8(a)(1). We find that these statements constituted
promises of benefits to employees to induce them to
abandon the Union and therefore were made in
violation of Section 8(a)(1) of the Act.4
3. The Trial Examiner found that the Respondent
violated Section 8(a)(5) by refusing to bargain with
the Union as requested and that the only appropriate
remedy is an affirmative order to bargain with the
Union. We agree. Moreover, in our opinion, Respon-
dent's unfair labor practices were so flagrant and
coercive in nature as to require, even in the absence of
the election set aside Dal-Tex Optical Company, Inc, 137 NLRB 1782
3 Charging Party contends that Respondent , by this conduct, also
violated Sec 8(a)(3) However, the complaint alleges only that this
conduct violates Sec 8(a)(1) and , in any case , even were we to find the
conduct also violated Sec 8(a)(3), the remedy would be unaffected
Therefore, we do not find it necessary to determine whether Respondent,
by withdrawing Payne's privilege to report late on occasion , violated Sec
8(a)(3) as well as Sect 8(a)(1)
4 The General Counsel and the Charging Party also except to the failure
of the Trial Examiner to discuss or pass on allegations that Respondent
violated Section 8(a)(1) on other occasions Unlike the incidents set forth
above, the Trial Examiner did not make the factual findings which would
be necessary to support a conclusion that Respondent violated the Act by
engaging in the conduct alleged In view of the already numerous findings
of violation of Section 8(a)(1), we find it unnecessary to pass on these
additional allegations as any additional finding of violations of Section
8(a)(1) would be cumulative and have no effect on the remedy
187 NLRB No. 12
MEDLEY DISTILLING COMPANY 85
an 8(a)(5) violation, a bargaining order to repair their
effect.
The Supreme Court, in setting forth general princi-
ples applicable to the issuance of bargaining orders,
held that the Board has authority to issue such orders
to remedy unfair labor practices "so coercive that,
even in the absence of a Section 8(a)(5) violation, a
bargaining order would have been necessary to repair
the unlawful effect of those [unfair labor practices J."5
In addition, the Court approved the Board's authority
to issue a bargaining order ". . . in less extraordinary
cases marked by less pervasive practices which
nevertheless still have the tendency to undermine
majority strength and impede the election
processes."6 In such a situation, the Board must
examine the nature and extent of the employer's
unlawful conduct and ascertain the likelihood that the
use of traditional remedies would ensure a fair
election. The Court instructed the Board to decide
whether ". . . even though traditional remedies might
be able to ensure a fair election there was insufficient
indication that an election . . . would definitely be a
more reliable test of the employees' desires than the
card count taken before the unfair labor practices
occurred." 7
We have examined the facts of this case with these
instructions in mind. The Trial Examiner, in our
opinion correctly, for the reasons stated in his
Decision, found that a majority of Respondent's
employees had designated the Union as their bargain-
ing representative by means of unambiguous authori-
zation cards.8 In response to the Union's organization
efforts, however, the Respondent engaged in exten-
sive violations of Section 8(a)(1) and discharged two
employees in violation of Section 8(a)(3). Respon-
dent's course of unlawful conduct has demonstrated,
5 NLRB v Gissel Packing Company, 395 U S 575, 615
6 Id at 614
7 Id at 616
8 Though agreeing with his colleagues that Respondent violated Sec
8(a)(5), Chairman Miller would not count the cards of James R Foster,
Ronald C Jones , Terry Bennett , or Esther Roby Foster testified he was
told the card would be used "only for an election " Jones signed a card at a
meeting where he was told the cards would be used "to hold an election
and to hold your job " Bennett testified the solicitor "just said they had to
get so many cards signed to have an election " Roby was told by solicitor
Morgan that " it was to get an election it didn ' t obligate you
Though the Trial Examiner found that Roby exaggerated , Morgan herself
testified, "]' just tried to explain to her that we was trying to see how many
cards we could get signed to see-we was trying to get an election for the
union " The Supreme Court, in its Gissel opinion, supra (395 U S at
608-609), cautioned the Board against extending its Cumberland Shoe, 144
NLRB 1268 , doctrine I find the aforementioned circumstances invalidated
the four-named authorization cards This does not, however , affect the
Union's majority status
Members Fanning and Brown adopt the Trial Examiner's finding that
the Foster , Jones , Bennett, and Roby cards should be counted In the case
of the Jones ' card , the talk that the card was for an election and necessary
in order that Jones could hold his job , referred to by Chairman Miller, was
not by the solicitor but by his fellow employees urging him to sign the card
As to the remaining three cards , the solicitor 's election comments were at
most ambiguous and do not constitute solicitation on the basis that the
we believe , a propensity to engage in violations of the
Act by their nature designed to undermine the
Union 's support among the employees . Its unfair
labor practices were so flagrant and coercive in nature
as to require , even in the absence of an 8(a)(5)
violation , a bargaining order to repair their effect. But
we find , in any event , that Respondent 's unfair labor
practices were of such a pervasive character as to
make it unlikely that their coercive effects would be
neutralized by conventional remedies so as to produce
a fair election . In these circumstances , we believe that
employee sentiment as expressed through the authori-
zation card is a more reliable measure of their desires
on the issue of representation in this case than an
election would be. We therefore find that by refusing
to bargain with the Union and engaging in extensive
unfair labor practices , Respondent violated Section
8(a)(5) and ( 1) and that to effectuate the policies of the
Act a bargaining order is required to remedy its
refusal to bargain,9 as well as its other unfair labor
practices. 10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, Medley
Distilling Company, Inc., Owensboro, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order, as herein modified:
1. Insert at the beginning of 1(c) the phrase
"Changing the terms and conditions of employment
in retaliation for employees' union activities."
2. In the seventh indented paragraph of the
cards were to be used only for an election The closest case is that of
Foster Even though Foster uses the term "only" when testifying as to what
the solicitor told him about an election, when considered in context, we
conclude that Foster was simply testifying that an election was the only
specific use for the card mentioned by solicitor Joe Blandford , but not that
Blandford said or implied that that was the sole purpose for which the card
would be used Under these circumstances we find that Foster card , as well
as the other three cards, were correctly counted by the Trial Examiner In
our opinion our finding does not represent any extension of Cumberland
Shoe, supra In any case , as noted by Chairman Miller, these cards are not
determinative of the Union ' s majority status
9 The Charging Party has filed exceptions to the failure of the Trial
Examiner to recommend a remedy which would make whole all of
Respondent 's employees for contractual benefits which would have
accrued to them had Respondent not refused to bargain and negotiated a
collective -bargaining agreement , or at least to make all economic contract
terms retroactive to the date bargaining would have occurred had
Respondent accepted its statutory responsibility The granting of remedies
of this type in 8(a)(I) and (5) refusal-to -bargain cases is not within the
authority of the Board Ex-Cell-0 Corporation, 185 NLRB No 20
Accordingly , we find no merit in these exceptions Member Brown would
grant such remedy for the reasons stated in the dissenting opinion in the
Ex-Cell-0 case
10 Conclusion of Law 7 is hereby amended by inserting the phrase "by
changing employees terms and conditions of employment in retaliation for
their union activities" after the phrase "By the foregoing conduct "
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix to the Trial Examiner's Decision insert the
phrase "change employees terms and conditions of
employment in retaliation for employees' union
activities" after the words "WE WILL NOT."
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as is alleged unfair labor practices
not specifically found.
IT IS HEREBY FURTHER ORDERED that the election
held on August 28, 1969, among the Respondent's
employees in the appropriate unit, be, and it hereby is,
set aside and that the petition in Case 25-RC-4413 be,
and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on January 13 through 16, and
on February 2 and 3, 1970, at Owensboro, Kentucky. This
is a consolidated case; in Cases 25-CA-3452 and 3516, the
charges were filed on July 22 and September 19, 1969,
respectively, by Distillery, Rectifying, Wine and Allied
Workers, International Union of America, AFL-CIO,
herein called the Union; the General Counsel issued a
complaint on September 30, 1969, against Medley Distilling
Company, Inc., herein called the Respondent or the
Company. In Case 25-RC-4113 the Board conducted an
election on August 28, 1969, and the Union thereafter filed
objections to the election; on October 31 the Regional
Director directed a hearing on the objections. The issues
arising from both cases are whether the Company
improperly interfered with a free election, and whether it
violated Section 8(a)(1), (3), and (5) of the Act. Briefs were
filed after the close of the hearing by all parties.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Medley Distilling Company, Inc., a Kentucky corpora-
tion, maintains its principal office and place of business at
Owensboro, Kentucky, where it is engaged in the business
of distilling, storing, selling, and distributing alcoholic
spirits. During the past 12 months, a representative period,
it manufactured, sold, and shipped from this facility
finished products valued in excess of $50,000 directly to
points outside the State of Kentucky. During the same
period it purchased, transferred, and delivered to its
Owensboro facility goods and materials valued in excess of
$50,000 which were transported to that location directly
from States other than the State of Kentucky. I find that the
Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Distillery, Rectifying, Wine and Allied
Workers, International Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A Picture of the Case
In May 1969 a substantial number of the Respondent's
employees gathered to formulate demands for improve-
ments in working conditions and to select a small group of
spokesmen to articulate their desires to management; their
purpose was to present a united front in support of their
position. Unsatisfied by the Company's reaction, they
turned to the Union. Between Friday, June 6, and Monday,
June 9, 97 of the approximately 160 employees then at work
signed regular authorization cards in favor of the Union.
On June 13 the Union wrote to the Company advising that
the employees had designated the Union as their bargain-
ing agent and authorized it to negotiate for a contract; a
reply was requested. The Respondent answered by letter
dated June 17, acknowledging the communication and
saying nothing more. By this time several more employees
had signed union cards. The next day the Union filed a
petition requesting a Board election.
The Respondent is opposed to the principle of collective
bargaining. In furtherance of this policy repeated steps
were taken to assure defeat of the Union in the election that
was coming. Supervisors at every level, up to and including
John Medley, personnel director and a former individual
owner of the business , coercively interrogated the employ-
ees, spied upon their union activities, threatened them with
discharge to compel abandonment of their prounion
resolve, etc. More than 10 employees testified to being
called into the personnel director's office to be told, in the
privacy of the room, that they were being watched and that
they would be fired if they did not desist. Medley was
present throughout the first 4 days of the hearing while this
story was being told; he did not deny any part of it. Nor
were any of the supervisors called to contradict the direct
and consistent recital of the employees.
Two employees who were active in the organizational
campaign were discharged-Herman Vincent Payne and
Herman Boulds-and the complaint alleges each was
dismissed as punishment for his union activities. As to
Boulds, the Respondent denies the charge and contends he
was released purely for economic reasons . With respect to
Payne, his direct testimony that he was told, in conversa-
tions connected with his discharge, by two members of
management-the personnel director and Hugh Cecil, the
superintendent of the bottling and shipping
department-that it was his union activity the Company
resented also stands completely undenied. The defense as
to Payne is that he was a supervisor, and therefore could be
discharged for union activities with impumty.
The election took place on August 28, 1969, and the
Union lost-67 votes for and 94 against . The Union filed
objections to the Company's interference conduct and a
charge of illegal refusal to bargain. The two cases were
consolidated for a single hearing, on the objections and on
the merits of the complaint. If the evidence supports the
objections and proves the unfair labor practices allegations
of the complaint, the General Counsel asks, as remedial
MEDLEY DISTILLING COMPANY
measures, that the results of the election be set aside, that
the Respondent be enjoined from further misconduct
prohibited by the statute-including violations of Section
8(a)(1), (3), and (5)-and that it be ordered to bargain now
with the Union as exclusive representative of the employees
in the appropriate unit.
One defense to the refusal to bargain charge is that the
Union never represented a majority of the employees; this
assertion rests on the contention that when the employees
signed the union cards-on their face clear and unequivo-
cal designation of the Union as immediate collective-
bargaining agent-they did not intend to authorize the
Union to act on their behalf at all, but only had in mind the
thought there would be an election, at which future date
they would each decide whether they wished to be
represented by the Union. A more pervasive defense is a
purely legal one. It is argued that regardless of any written
and real authorization of a union by the employees, and
regardless of any coercive and unlawful conduct by
management in violation of any other sections of the
statute--be it Section 8(a)(1) and/or Section 8(a)(3)-in no
event may it be found that the employer has unlawfully
refused to bargain in violation of Section 8(a)(5) or be
ordered to bargain with the union, unless and until the
union succeeds in winning a majority of votes in a secret
Board election. This is the defense position made clear by
counsel for the Respondent during the first day of the
hearing. It was in keeping with this view of the law that the
Respondent did not bother to contradict any of the
voluminous evidence of coercive behavior by its superviso-
ry personnel. To this extent, the hearing resembled an
inquest, as though the allegations of the complaint were not
denied, with the prosecutor put to his proof-a sort of
confession and avoidance plea. Appraisal of the two
concepts in related context-undenied proof of unlimited
violations plus the legal argument-reduces the Respon-
dent's ultimate position to the following proposition: no
matter what an employer does to "impede the election
process," "disruptive of the election process," "with the
result that a fair and reliable election cannot be held," i and
no matter how often it repeats and continues the same
course of conduct, there can be no collective bargaining
unless somehow the union finds a way successfully to offset
the employer's misconduct.
A. Unfair Labor Practices in Violation of Section
8(a)(1)
During the month of May 1969, the employees held three
meetings-one in a nearby town, one in a church, and one
in a local courthouse-to formulate detailed economic
demands to pass on to the Company. They elected
representatives from the various departments to act as
committee spokesmen. Among the six or seven committee-
men were Herman Vincent Payne, Herman Boulds, and
Joseph Trodglen. The committee met twice with the
Company, which promised to consider the collective
demands but did not make any offer acceptable to the
87
employees. On May 12 the Company posted a notice on the
bulletin boards reading as follows:
There shall be no distribution of literature in any of
the company's production areas.
There shall be no solicitation at any time during an
employee's actual working time.
Free conversation among the employees in this plant had
always been permitted; solicitation for social activities,
participation in friendly and money-involving numbers
games, and ordinary chitchat of the usual kind had never
been prohibited. There had never before been any no-
solicitation rule in this plant. The year before, on another
occasion when the employees had chosen spokesmen to
press economic demands jointly upon management, the
personnel director told one of the committeemen "that
right away when we are classified as spokesmen we are
linked with the union." A number of times after posting of
the notice the personnel director referred to it when telling
individual employees to stop their union activities, and no
other purpose has been suggested to explain the significant
timing. That the purpose of this notice, posted at this
moment for the first time in the Respondent's long history,
was to cut off before its inception formal union activity
connected with outside labor organizations is an inescapa-
ble inference. The Board has held that establishment of no-
solicitation rules for the first time at the very birth of union
activity is in itself a coercive step in violation of Section
8(a)(1) of the Act, and I so find in this case.2
As stated above the employees started signing union
cards on June 6. Employee witnesses testified to conversa-
tions with a number of admitted supervisors as follows:
1. Hugh Cecil-bottling house superintendent
Employee Martha Hamilton, a former employee whose
husband is now in the Respondent's employ. On August 5,
1969, Cecil telephoned her at home: "And he said that he
thought that I could influence Donnie, my husband's vote
against the union because I was his wife and had a child.
And he talked on for several minutes , but he repeated this
one thing two or three times . And he also said that since
Donnie hadn't worked there very long that if the union got
in he would probably be one of the first ones to be laid off.
And he said that if Donnie would talk to the Glenmore
employees that he would find out that they were dissatisfied
with that union. And he referred to my brother-in-law,
Vincent Payne, and he said that Donnie had probably been
talking to him, that he was strong for the union. And he
asked me if I was working at that time. And I said no. And
he reemphasized the fact that we'd be in trouble if Donnie
was laid off."
Employee Vincent I. Johnson: On June 15 he asked Cecil
for permission to post a notice of union meeting on the
bulletin board, and the superintendent answered: " 'No.
... The Medleys were opposed to the union,' and he didn't
think they would grant permission."
Two or three weeks before the election : "He asked me to
go to the main office and tell the Medleys that I was pulling
out, and he said that I was just the man that could throw the
1 N L R B v Gissel Packing Co, Inc, 395 U S 575
2 The Wm H Block Co, 150 NLRB 341
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election . . . . `If you will go to the office and tell them that
you're pulling out ... I'm sure it will make them very
happy .' . . . He told me he was sure if I would do that I
could have ajob there as long as I wanted to.,,
I find that Superintendent Cecil 's threat to discharge
employee Donnie Hamilton if he continued to favor the
Union and his promise to Johnson of permanent employ-
ment in return for assistance to the Company 's antiunion
campaign were each coercive statements in violation of
Section 8(a)(1) of the Act.
2. Roy Payne-foreman
Employee Herman Boulds, a miller regularly working 48
hours a week under Foreman Payne. Beginning a week
after the June 8 weekend : ". . . he'd tell me how we was
going to lose our-be cut to 48 hours, lose our overtime if
we went union ; and the company could close down, and
when they went down for repairs they'd lay everyone off
and contract all the work out. . . . He would-he always
told me , he said-Skippy didn 't sign a card , you know, and
he always wanted , he was always asking me did Skippy, you
know , sign a card , and I told him I wouldn 't tell him, you
know."
Employee James Kirk: On August 1: "And he asked me
how I felt about the union. . . . And he told me that I
should be thinking about it , because seniority, and
everything . He told me that if the union come in that I
knowed I was the youngest man down there and I 'd be the
first to be laid off. . . . He said if the union come in he was
pretty sure there would be a layoff."
On the day before the election : "-he come back there
and was talking with me , and he asked me how I was going
to vote . And I told him , well, I didn 't know . And he told me
to go home and talk it over with my wife, he was pretty sure
she could convince me not voting for it . I told him I would.
And before he left he said he was going to come back
tomorrow and he wanted a definite answer."
I find that , by Foreman Roy Payne 's interrogation of
employee Kirk , by his threat of layoff to Kirk, and by his
repeated and various threats of discharge and loss of
employment benefits to Boulds, the Respondent violated
Section 8(a)(1).
3. Gerard (Jerry) Kuntz-purchasing agent
Employee Wendell Bennett : In Kuntz' office on about
July 1: ". . . he asked me to shut the door and said there
was some other matters he'd like to discuss with me. He
then mentioned the union activities that was going on in the
plant , and asked me if I was aware of them . I told him that I
was. And he discussed some of the benefits that we were
receiving from the company , uniforms , and insurance, and
retiremen , [sic] what it actually meant for us paywise, so
forth , and told me he thought it was morally wrong for us to
try to bring in a union when we knew the company was
against it. . . . He did mention that there were some raises
in the planning stage. He said he didn ' t know how much
they would be but probably upwards of 20 [cents ]."
Employee William Payne: Two or three weeks before the
election . ". . . he was talking about how much better off
we'd be if the-how much better off we 'd be without the
union , and everything . And I asked him how we 'd be better
off without the union . . . . And I asked him if it was true
about the company fixing to go down to forty hours. And
he said, `Well,' he said, `there 's been some talk about it.'
The company was kicking it around some , he said.. . . He
said , `Well,' he said , `if the union didn 't come in,' or
anything like that , he said, `they was going to cut the hours
down to forty hours.' He said-he asked me what I was
making . I told him $2 .59. He said , `Well,' he said , `with a 47
[cent] raise , then,' he said, `you'd be making , with five hours
less,' he said , `with what you're making right now that that
47 [cent] raise would put you up, give you your overtime
back , and,' he said , `you'll have five hours less for the same
money.' He said that 's what they were talking about.. . .
He said that was an idea that he had been kicking around.
He said he thought something like that could be worked out
if the union didn 't-if we would forget the union idea."
Kuntz testified for the Respondent on a supervisory
issue . He is the personnel director 's son-in-law . Asked had
he ever mentioned a 20-cent wage increase to Bennett, he
answered: "I can't say-I never spelled anything out like
that in terms of cents, or anything , in any conversation with
him, no." Had he told William Payne the hours would be
reduced to 40? "No, I didn 't say it that way at all. I said
what I would like to try to do, particularly in the bottling
house, I'd like to see it in the whole plant , is eventually have
the whole plant on a 40-hour week . I told him I'd like to do
that without having to cut anybody , you know , without
having to cut their take-home pay. And if we could get the
work out in a 40-hour week that we are now getting out in
more hours , that everybody could actually have more
money."
I consider Kuntz ' explanation of the talk with Bennett of
wage increases to be an equivocation and not a real denial
of the contrary testimony, and his version of the talk with
Payne not a true contradiction of the employee 's story. I
find that Foreman Kuntz interrogated Bennett about union
activities , promised him increases in pay if he would
abandon the Union, and held out to Payne a promise of
fewer hours of work without loss of earnings in return for a
vote against the Union in the imminent election, and by
each such statement violated Section 8(a)(1) of the Act.
4. Pete Zarn-foreman
Employee John Carrol: In the cafeteria room in mid-July:
"He said, `Well, the company and I have been talking and
they told me that if the union comes in they're going to
contract out the painting.... When the Union comes in
you all won 't have a job.' "
In August : "Pete come to me and he said , `If you don't
quit soliciting for the union you're going to get fired.' "
A week after the election : "He told me , he says, `Why
don't you stop this damn union talk?' He says, `As you
know , the company is going to give you a raise.' . . . He
said that the company had promised us a 45 [cent ] raise."
Employee William Thomas: The month after the cards
were signed: ". . . we was sitting there and Pete Zarn came
in, and he sit down and started talking about the union
And he said, `Well,' he said , `if the union comes in,' he said,
`the company is going to contract out all of its painting
work.' "
MEDLEY DISTILLING COMPANY 89
A week later: "Pete, he came up on us there and, you
know , got to talking , and he brings the union up.. . . And
he said , 'Billy,' he said, 'if the union does not come in,' he
said , `the company will make you a better deal than .... '
well, he was talking about raise , seniority , you know, such
as that . . . He said, `You'll get a raise.' "
Employee Joseph Evans• ". . . he was talking about the
union coming in. He said if the union come in they would
contract the painting out.... And he said they would
contract the painting out and that we would lose our
insurance premium , insurance benefits."
I find that Foreman Zarn threatened Carrol, Thomas,
and Evans , all painters, that the Respondent would
contract out the painting work in retaliation if the
employees voted in favor of the Union, and that they would
in consequence lose theirjobs, and thereby violated Section
8(a)(l ).
_i. Charles Medley-plant superintendent
Employee Joseph Trodglen: In July: "I asked him, told
him that I had some work that needed to be done, but I
couldn't get no okay from nobody. And he said, `Joe,' he
said, `if we beat this election,' he said, `I'm going to try to
make it where you can do what you need to do without
asking.' "
Employee Carroll- In July: "Charles walked up to me and
I was getting ready to get a drink, and he said, `John
.Carroll,' he said, `I got a bad report on you yesterday.'.
I said, `You did? . . . What have I done now, Charles?' ..
`You were down here talking union. ... I'll have you
know,' he said, `we don't want union talk going on down
here.' He says, `If it happens again,' he said, `You'll be
sorry.' "
I find that the plant superintendent told Carroll he was
being watched in his union activities and threatened him
with economic reprisal if he continued it, and thereby
violated Section 8(a)(1).
6. John Medley-personnel director
Employee Herman Boulds, the day he was hired in
September 1966: "And he brought up, he mentioned they
didn't have no union down there, they didn't want none,
and if I mentioned the word I would hear about it, he had
people throughout the plant, it would get back to him."
Employee William Thomas: At his hiring interview on
December 26, 1967: "Well, he told me the rules that they
have down there . He said if he caught me stealing or
drinking on the job they would fire me. And he mentioned
the union, they didn't want a union. And he said if a union
tried to get in down here, he said, `I'm going to do
everything in my power to keep it out' And he said, `If I
ever hear of you talking union ,' he said, 'I'm going to fire
you.' And he said, `You've got a big family and you can't
take any chances.' "
Employee Francis G. Haynes At his hiring interview in
1967: " . he hesitated hiring me on account of my eye.
And he started, he mentioned union. He said this wasn't a
union plant, and he'd do everything in his power to keep the
union out And he said if he ever heard of any union talk
out of me he would fire me."
Three weeks before the election : "Well, he said he had
heard some union talk about me, not much , but from his
officials he said he had heard that I had been talking union.
And he got on to talking about my eye, and he said he
would fire me if he heard any more talk , and it would be
hard for me to get anotherjob .... And he also mentioned
that he didn 't have enough informers on the yard crew and
he wondered, in a round about way he wondered if I
would-well, what would you say-be a squealer, or
whatever you call it.... If I would be an informer. And I
never answered yes or no."
Employee Joseph Evans: At his hiring interview on May
24, 1969 : ". . . and he asked me if they had a union over
there. [The applicant's prior employment.] I said, `Yes, they
did.' And he asked me if I belonged to it. And I told him I
didn ' t. . . . He made reference to-see , I had, one of the
references I had on my application was Snookie, or
Herman Boulds , and he asked me how well I knew him.
And I told him that we run around together, you know,
before we got married . And he said then that Snookie was,
or Herman was a strong union organizer, and he said he
didn 't know why he was like that because he was, he said he
was picking shit with the chickens when he came there. And
he asked me how I felt about a union . And I told him that I
was against it."
In July: "He called me over to the office .. . he asked me
if I was still of the same opinion concerning the union as I
was when I first came in, you know. And I told him yes.
And he told me about the same thing that Pete Zarn told
me, that if the union did come in they would contract the
painting out. And he didn't say anything about the
insurance , but he did say they would contract the painting
out . . . he said that he knew that I was under pressure, you
know, from John Carroll, a fellow worker, you know, he's a
painter , to sign a union card , or vote for the union . . . he
said, you know, just hold out."
Employee Carroll: After the card signing started he was
called to the office where Medley told him he had been seen
in the boilerroom talking with other persons ; Carroll
explained he had been seeking a telephone number: "And
then he proceeds to bring me up to date on this soliciting.
He asked me , he said, `Did you see this notice that was
posted on May 21st,' which is May the 12th on the poster. I
said, `Yes, sir.' I said, `I remember this.' He says, 'Do you
know what that means?' I said , `Yes, sir,' I said, I
understood it fully when you,' he said, `you're asking for a
lot of trouble! He said, 'I know I read it.' He said, `Well,' he
said, 'now,' he said, `I'm telling what you were doing in the
boiler room.' And he said, `I don't want to see it anymore.'
He said, `If I hear any more union talk out of you in any
way,' he said, `you'll be discharged.' He said, `And I don't
want to see you up here no more.' "
Employee Wendell Bennett: About June 15: "He told me
that he knew that I had been attending union meetings, that
he had had some bad reports on me, and he told me about
no-solicition rules on the company property, and he also
told me that what I done outside of the plant was my own
business and none of his. And he stated that regardless of
which way the election went my ass was grass."
Employee Herman Y. Payne: Three weeks before his
August 17 discharge he was called to Medley's office: ".. .
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as I entered Mr. Medley's office he told me to be seated.
... And he sort of looked up, and he said, `Vince, I'm
disappointed with you, I hear that you have been engaged
in umon activities, and even soliciting on the job.' And he
said, `After all that I have done for you, and all the
privileges I have given to you I can't understand why in the
world you want to do something like this.' I says, `Well, how
do you know this? How do you know it's true?' He said,
`My security men have told me that you have been engaged
in these things.' And I said, `Well, there's no way of proving
it.' He says, `I don't have to prove it. I don't want to get
mad.' He said, `From now on if I hear of you doing
anything wrong, or talking in any way towards these
activities , or anything that I can catch you on,' he said, `I'll
have to dismiss you.' And he said, `That's all I've got to say
to you right now.' "
Employee Kirk: At his initial hiring interview in February
1968: "He asked me how I felt about the union, and I told
him, well, I have been in a union before and I never thought
too much about it. He told me if word ever got back to him,
or anything, that I had said about the union that I'd be
gone . And he said he had ways of finding these things out."
Employee Joseph Trodglen: Called to the office a few
weeks after signing a union card: "He just told me that we
didn't need no union, that we was doing well enough as it
was, we didn't need somebody else to tell us how to run the
business .... And he said that we should think before we
signed-before we got into it.. . . He asked me at that time
how I felt about it. . . . Well, it was brought up every time
we talked, and the way of we didn't need a union.. . . At
one time , and I can't tell you just exactly which time it was,
he asked me if I signed a card. And I told him I did.. . . I
talked to Mr. John one time and told him that I thought
there was a lot of tales being carried to him because we had
always been friendly. . . . But then later on he told me that
they had been coming to him telling him that I was causing
disturbance, still talking union, and that he was sure that it
was a mistake."
Employee Vincent I. Johnson. In Medley's office on the
9th or 10th of June: "He told me he had me down for
distribution. . . . `Well, let's see what I've got you down
for.' He said, `December 9th,' of the following year, which
was before we had started any of this. . . . He told me, he
says, `Now, I don't want to hear any more of this union
from you. If you do, that's all of it for you.' "
Employee William Payne: Late in June called to Medley's
office: "Well, he told me that he'd been getting several
reports on me about me going for the union, and
everything. And he said in the past he'd never had any
trouble with me and he thought he'd call me in and thought
I deserved a warning ; that he'd never had any trouble with
me, and he said he'd been getting all those bad reports, and
he told me that if I didn't stop it that he wouldn't have no
alternative or nothing.. . . And when the conversation was
about to break up I asked him if anyone was going to be
fired over this umon activity after it was all through. He
said, `Well, you don't have any witnesses and I don't either.'
He said, `You can better bet there's going to be five or six
asses that's going to burn.' "
Employee A. J. Wilson: Called three times to Medley's
office. In early June: "He said, 'Come in and close the
door,' when I first went in, and he wanted to know if I had
saw the sign about soliciting on the board. He said some of
his informers had told him that I had been soliciting, he
never said specifically what it was, but he left the
impression, you know, union cards, that I had tried to get
someone to sign some union cards. And I told him, I said,
`You should have called me up here and asked me instead
of depending on your other source of information.' And
then he said in this meeting, `If I hear of this any more you
area gone goose.' "
In mid-July: "He said, `Come in, close the door.' And he
said, `You keep soliciting and soliciting. I wonder why you
keep on, A. J. . . . He told me, he said, `You know what I
told you last time would happen if I heard of you soliciting
any more.' "
First of August: "Well, this particular time we talked
about several things. It was about a two-hour session this
time-bottle collection, different things, various things.
And we got back to it, where I had said I had solicited
money for the boy that was dismissed, or fired, whatever
you want to call it, the Boulds boy that was dismissed... .
He said on this particular time, the best I can remember, he
said, `Well,' he said, `I told you about this, an,' he said, `it's
not up to me any more. I have to take it up with the rest of
them. And I'll let you know the first part of the week what
we will do with you.' "
Medley listened to all this testimony without comment.
There could be no clearer picture of a fixed determination
to frustrate the employees' desire to engage in collective
bargaining without regard to the extremity of measures
necessary. He was completely indifferent to any and all
proscriptions of law or rights of employees guaranteed by
the statute. There is nothing to be gained by precise,
enumerated, and repetitive findings of separate unfair labor
practices committed, as in the usual case. Medley
unlawfully interrogated employees, he told them he had
spies throughout the plant surveying their union activities,
he threatened them with adverse discrimination and
outright discharge in retaliation, he confronted them with
his confidentially reported knowledge in a way that of
necessity must intimidate them, and he even invited them,
with promise of reward, to be his "security men," and turn
against their fellow workmen to help defeat the remaining
desire of others to be represented by any union. All these
were out-and-out unfair labor practices in direct violation
of Section 8(a)(1) of the Act.
They shed a revealing light upon the discharge of Boulds
and Herman Payne, which came before the election and in
the midst of the Union's continuing effort to maintain its
representative strength. They also remove any doubt as to
the intendment of any seemingly ambiguous words used by
his underlings when they spoke of the Union to employees
in their own private conversations. As subordinate agents
of management they necessarily acted consistent with
company policy, so clearly set by the personnel director. If
they were devious in any of their messages to employees,
the vagaries must be resolved as a cloak to cover antiunion
animus. With so widespread a practice of direct intimida-
tion by the personnel director, with so clear and direct
warning by him to all that there existed a network of
deceptive persons in confidence with Medley to keep him
MEDLEY DISTILLING COMPANY 91
informed, every person with whom the supervisors talked of
the Union knew what was meant. And, of course, what all
this also proves is that when , after the Union advised that
the employees had designated it to negotiate a contract for
them, and the company president, John Medley's brother,
sat back to await an election, the purpose of the
Respondent was to gain time in order to make impossible
any free and fair expression of choice by its worker
complement.
There is also a series of exhibits, numbering six, not really
necessary to prove the merits of the complaint, but which,
in the light of this testimony and of certain admissions
extracted from the personnel director when called as an
adverse witness by the General Counsel , are established as
his original memoranda of conversations he had with
employees called to his office in furtherance of his
antiunion campaign. Each is a typewritten sheet, or portion
of such a sheet, once torn into bits, and later painstakingly
put together coherently in legible arrangement with scotch
tape. A reading shows clearly that they are notes of
conversations with one or more employees on the subject of
which employees were active in the union activities, and
what they were doing; all are dated during the month of
June 1969. Two of them contain the statements "I talked
with . . ." and lists seven names of employees in type. The
other four reflect interviews with six persons whose names
appear in pencil, instead of type, with the writing so garbled
as to be unintelligible. One bears the initials J. A. M.-mph;
Medley's secretary is May Jane Hurst.
Medley was asked were these his notes; he equivocated.
Did he prepare General Counsel Exhibit 14-one listing six
employees as being interviewed: "I have talked to basically
all the fellows that you've got lasted on here." "Q Didn't
you cause that to be prepared? A. You said Bodie Wallace.
This is more than any Bodie Wallace conversation.. . . A
part of phis I didn't say to Bodie. A part of this I said at that
time." One particular exhibit reads: "I talked to Bodie
Wallace and told him that it has been reported that he was
favorable to the Union. I told him that this was his
privilege; but after what I had done for him and how I kept
him from being fired, he had better do some more serious
thinking." Before being shown the exhibit Medley had
testified "I talked to Bodie. In fact I talked to basically
every employee in the plant.. . . Dust asked Bodie how he
felt, was he interested " "Q. You did ask him how he felt
about the union? A. I probably did, but I didn't tell him
he'd have to do anything about it."
Exhibit 15 shows an interview with Troy Bybee. Medley
testified : "I remember I talked probably to Troy, I
probably talked to him in the yard, or office. . . . I just
asked him how he felt about the situation, what was going
on, and that we didn't want a union but that was his
prerogative, I couldn't tell him what to do." "Q. Now, isn't
this in fact, General Counsel's 15, notes of that conversa-
tion that you had with Troy Bybee? [Document handed to
witness.] A. It's reasonable, but I can't verify that
absolutely. . Q. What did you do with the notes? A. I
destroyed all my papers. They wouldn't be any good to
anyone but me. Q. What did you do with the papers in
destroying them? A. That's not anybody's business but
mine."
Examination of Medley continued in this vein. As the
various exhibits were placed in his hands he said a number
of things all more and more tending to establish their
authenticity . Referring to one name he said had been
deliberately written illegibly : " I can read the name, but I
don't see why I should read that name ." Did a certain one
of the exhibits reflect his notes on a conversation with the
employee? "This would be a reflection of them." Why did
he write the names of employees in code ? "Because that is a
personal business of mine , my personal operations , and it is
not for the perusal of everybody as to whose names, who,
what , or why." "Trial Examiner : Does that sheet of paper
state something about a conversation you had with some
other employee? The Witness: This is an employee that
came to me. This is basically the same thing . . . . Q. And
this was some other notes prepared by your secretary? A.
Could be."
At the close of his testimony Medley said he did not
authorize anyone to reassemble the torn sheets in the
coherently legible form in which they were produced at the
hearing . Counsel for the Respondent also had him say he
had not authorized anyone to turn "those" over to the
National Labor Relations Board. In its brief the Respon-
dent says: "Some of the 8 (a)(1) evidence was apparently
taken or, better, purloined from Respondent, and it would
seem strange indeed were the charging party or General
Counsel to be rewarded for this type of conduct- unless
two wrongs make a right."
No useful purpose would be served by further belaboring
these exhibits, or in making further pinpointed unfair labor
practice findings based upon them . They are Medley's
notes, and all they prove is further unlawful conduct
exactly like that shown in full pattern by the uncontradicted
oral testimony of so many employees at the hearing. Were
there any dispute-and there is none-that the Respondent
maintained a centralized system of surveillance and
funneling of information into the personnel director's
office , these exhibits would serve to remove all doubt on the
matter.
B. Unfair Labor Practices in Violation of Section
8(a)(3)
1. The discharge of Herman V. Payne
Herman Payne worked for the Respondent upwards of 12
years, the last several as a shipping clerk. According to
Foreman Kuntz , director of bottling operations and who
was ultimately in charge of the work Payne did, he was "a
good man," "he had his job, he did it well." Because he has
nine children , and attendant family obligations, he was
given special permission by the personnel director to come
in late on occasions ; he made up the time during
coffeebreaks and at lunch. The privilege was over a year
old. The men do not punch timecards in this plant, but
starting time is 7 a.m. On August 17 Payne arrived at the
parking lot before 7 o'clock and in walking towards the
building stopped to talk to a fellow employee about a
personal matter . The bell rang while he was standing in the
yard , and he set foot on the loading dock outside the
shipping room-his actual work area-a minute or a
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minute and a half after 7. He was discharged then and
there.
The Respondent' s assertion that Payne was released
because he came to work late is a pretext and is not
credible. He was a very active union man , first as an elected
spokesman of his department when the employees chose a
committee to press their demands directly upon the
Company, and later by successfully soliciting 12 authoriza-
tion cards for the Union inside the plant. The Company
knew he was doing this.
Unlawful motivation is no less clear on the record. As
Payne testified, without contradiction, the personnel
director told him, 3 weeks before the discharge, he knew
Payne was "engaged in union activities," and even
"soliciting," despite the "privileges" he had extended, and
therefore, if he heard of Payne doing "anything wrong .. .
anything that I can catch you on," he would dismiss him. A
week later Charles Medley, the plant superintendent, told
Payne "I want you in here at 7:00 o'clock from now on,"
and brushed off the employee's reminder that John Medley
had given him permission to come late. The next day Payne
went back to the personnel director, who now told him "I
have a wildcat on my ass.... I 'm going to fight.... I can
get rough . . . You can forget about any privilege that I
have given you.. . . From now on I want you here on time.
I want you to stay out of the bottling house." He then told
Payne that if his work took him into the bottling
house-this was where the man obtained the union card
signatures-he is "not to say anything at all to any of the
women on the line, or to any of the men on the line
whatsoever." And during the next 2 weeks the plant
superintendent-whose arrival time had long been 8:30
a.m.-started coming to the plant before 7. And then
Payne's work required him to go into the bottling house.
With this, Cecil, the bottling house superintendent, told
him: "Don't even come in here for Cokes, don't come in
here to even use the restrooms, or anything. . . . If you
change your mind about the union maybe they wouldn't be
so hard on you." All this is uncontradicted testimony.
I find Payne was discharged because the Respondent
resented his union activities and wanted to put a stop to
them. The question remains whether he was a supervisor,
and I find the record in its entirety does not support the
defense assertion . A better name for his job duties would be
shipping clerk-checker. He worked where the case whiskey
is selected out of the stockroom and moved, in fulfillment
of detailed purchase orders, out of the loading area and into
trucks or railroad boxcars, via conveyor, and sometimes
onto pallets. It was important to fill each order correctly,
not to get the products mixed up, and to see that
appropriate stencils were placed on the boxes For some
time Payne had worked along with the other shipping
clerks, lifted the stock, and actually put it in place in the
3 No one contradicted Payne's following explanation of what passing on
Randall Wahl's orders meant.
After he would tell me I would tell them [the shipping clerks ] If they
were in the back , I would tell them , then , that Randall said to get this
next, or get that next , or put this on
And he [Wahl] would call the trucks, and keep a record of what
cars we loaded , and so forth , or numbers See, we called the cars and
the trucks, and we would check-the whiskey would be thrown on the
vehicles. With more and more errors being made, it was
decided he should do a minimum of physical work, or none
at all, but concern himself only with assuring that the
correct stock was shipped, that all orders were filled
correctly, and that cases were properly stacked in the
vehicles. There are multiple copies of every order, one
always given to him and another to a clerk who did most of
the actual physical moving of whiskey cases . The regular
clerk was responsible to see that things went right, but
Payne always checked the end of the line to be sure there
were no mistakes.
Randall Wahl is Payne's supervisor in this work; Wahl is
a blue card man-all blue card men are salaried and enjoy
greater fringe benefits. Payne was hourly paid, like all rank-
and-file employees. When Payne was told to limit his
activities to checking the moving stock, about a year before
his dismissal, his pay was not changed. A raise he received
at or about that time was only an incident of a plantwide
increase in wages. In the attempt to make him a supervisor
at the hearing the personnel director called him a leadman;
he then admitted there are others also called leadmen, or
leadladies-none of them blue card personnel-and named
three such women, Geraldine Rowland, Margaret or Kay
Sapp, and Kay Durham. He described their duties
substantially as he did Payne's, but the names of all three
appear on the stipulated list of nonsupervisory employees
in the bargaining unit.
Work started in the shipping department with Wahl
giving the shipping orders to Payne in the morning and
telling him which vehicles were to be used for which
shipments. When Wahl, who often leaves the department,
was not there, Payne passed the directions on to the other
men. When Wahl was on vacation, or otherwise absent,
Cecil, Wahl's superior, gave Payne the necessary orders.
Payne carried a clipboard with the orders; the other men
did the same. Both checked what they were doing and
Payne made the final check in the end. Sometimes
additional help was needed for short periods and Wahl
asked Fulkerson, who supervises the yard crew, to send a
man or two for a while. When the work was pressing, and
Wahl was not nearby, Payne told Fulkerson more men were
needed. It is this duty to pass Wahl's instructions to the
men, to call for help from the yard, and even to tell Wahl
some of the clerks are not working, if it should ever happen
that any of them were deliberately idling-an eventuality
not shown ever to have happened-that the Respondent
contends proves Payne "responsibly" directed others and
was therefore a supervisor. And it was this sort of directing
that employees Terry Bennett and John Millay were talking
about when they testified, in conclusionary words and in
agreement to purely leading questions, that Payne told
them "what to do "3
The only time Payne was shown to have spoken to
line, and I would check the end of the line to make sure that the
numbers corresponded See, he had a shipping order and I had a
shipping order
Q Who is he9
A Just a regular laborer It might be anyone back there I have a
shipping order and he has a shipping order , and I just check at the end
of the line the cases that they throw on That was the same procedure
every day
MEDLEY DISTILLING COMPANY 93
management about raises for the men was when he acted as
a committeeman with the elected representatives in May
1969 to press the concerted demands of all employees on
the Company. He had no authority to hire or discharge
anyone. He recommends hiring no more effectively than
does any other rank-and-file employee.
I find that the Respondent discharged Herman V. Payne
because of his union activities , to increase the chances that
the employees would vote against union representation in
the election scheduled for 11 days later, and thereby
violated Section 8(a)(3) of the Act.
2. The discharge of Herman Boulds
Herman Boulds worked for 3 years with the Respondent,
his last years as a miller. Together with a longtime miller
called William E. Payne, his job was to help unload grain
and run it through a milling machine ; he watched for
breakdowns in the machinery, checked certain cleaners in
the operation, and generally assisted in that particular
function , including a certain amount of cleaning up. In
June 1969 a new , more modern, and more automatic
milling machine was installed to replace the old. In
consequence less man hours of work were required daily
than had previously been performed by the two men, and
Boulds was discharged on July 17. He was a very active
union man, the Company knew it, and management had its
eye on him because of it.
When the employees began their concerted activities in
April and May, and elected a committee of spokesmen
from the various departments , Boulds was chosen to speak
on behalf of the employees in the distillery department He
met several times with management agents while the
committee attempted to win the joint demands of all the
employees for betterment of working conditions. With the
employees still unsatisfied, Boulds, together with "Vincent
Payne" (the Herman Vincent Payne discharged in August),
sought out the union agent on the 6th of June, the first step
leading to all the signing of cards. He then distributed cards
and testified to being present when 13, other than his own,
were signed.
The defense to the complaint allegation that this man was
discharged because of his union activities is simply that
with installation of the new milling machines there was no
further need for his full-time services in that room and that
this is the reason for his dismissal. And it is true that with
the mechanical change two men were not needed as before.
A portion of the work Boulds used to do there has since
been done by someone else, Lyman Pierce, called when
necessary from a nearby department. Part of Boulds' work
was to be relief man during certain hours for the regular
miller, Payne, whose hours were different from those of
Boulds. Payne , a witness for the Company, testified that
Pierce only started helping him after Boulds left.
It has long been this Company's policy not to discharge
its employees when need for their services on any particular
assignment ends, but to reassign them and to find other
work expressly to avoid leaving them without jobs. This is
the testimony of John Medley, the personnel director. ".. .
[I ]f we can work a fellow around we try it if we can. .. .
A prehearing statement of position written by company
counsel reads, in part: "Employer does not have layoffs as
such although on occasion it has modernized or automated
its operation and taken care of the slack by not replacing
employees who quit or leave its employ for any reason. It is
following this policy now and the last fifteen employees
who left the Company have not been replaced."
Company records back only to January 1, 1968, show
that from that date on, at least , no one other than Boulds
was discharged for lack of work or discontinuance of his
job. Walthen Medley, the company president, explained
how the change in the milling operation had long been
planned, the new machine ready, and the physical work
starting in June. The very purpose of the change was to
achieve improved efficiency with less labor. But despite the
advanced knowledge, nothing was done about Boulds.
Instead, the Company hired new people in the
interim-one on June 15, three between June 23 and 29,
and three on July 2. There is no indication special skills or
training were required for the newly hired person , such as
Boulds might not have himself.
Why was this extraordinary and unprecedented discnmi-
nation practiced on Boulds? The answer appears in the
plain evidence on antiunion animus directed towards him
personally. He was told the day he was hired that he "would
hear about it" if he as much as mentioned the word
"union ." Foreman Roy Payne kept asking Boulds whether
Skippy had signed a union card; he must have had Boulds
marked as one who would know. Two months before the
discharge , on May 24, 1969 , while the personnel director
was warning a new employee about union activities, he
asked the applicant did he know Boulds, and referred to
Boulds as a "strong union organizer." And when Foreman
Payne sent Boulds into the personnel director 's office to be
dismissed , he said "there was more yet to come," but he
"wasn ' t going to tell me [Boulds ] what it was ." Boulds
asked John Medley was he going to be transferred to the
yard, and the answer was: "No, not even in this plant."
I find on the basis of the entire record , including
especially the very persuasive picture of deep-seated
antiunion animus in the Respondent generally towards the
organizational campaign then current, that it discharged
Herman Boulds to put a stop to his union activities, and
thereby violated Section 8 (a)(3) of the Act . The conclusion
is not effectively weakened by the fact Medley recommend-
ed Boulds for a job elsewhere . The illegal objective was to
remove him from the area of the plant and from contact
with the employees then preparing for the imminent
election, and the fact that the personnel director sought to
find him other work is irrelevant to the main question.
C. Violation of Section 8(a)(5)
Appropriate Unit
The unit description was established by precise amend-
ment of the complaint at the hearing, now an allegation
which the Respondent admitted is correct . Accordingly I
find that all production and maintenance employees at the
Respondent's Owensboro facility , including all truckdri-
vers, power plant employees, cafeteria employees , working
foremen , crew leaders , line floorladies , and laboratory
employees , but excluding all office clerical employees,
casual and seasonal employees , purchasing agents, profes-
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sional employees , guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
The parties stipulated that a list exhibit received in
evidence contains the names of persons working in the
bargaining unit between June 6 and October 17, 1969, with
dates of entry and exit from the unit during that period; it
shows 170 names. In his brief the General Counsel asked
that June 13-the day the Union mailed its demand for
recognition-be the time for testing majority, and therefore
the day when the total employee complement must be
determined. The exhibit shows that eight of the listed
persons either started work after June 13 or left the
Company before that date, and therefore all these must be
excluded from the count. They are: Raymond Thomas, left
the Company on June 9; Jerry Devins, hired June 26;
Allene Blanford , hired on July 2; Allen Levy, hired June
29; Margaret Love, hired July 2; Edward Lyons, hired June
23; Joyce Settles, hired July 2; and Jack Wilson, hired June
15. With this, the total becomes 162. The parties agreed to
exclude Homer Barton, as a supervisor. The list of
employees, as of June 13, therefore, is reduced to 161.
There was dispute as to the alleged supervisory status of
Ben Medley and William Medley, whose names the
General Counsel would remove from the list. The evidence
does not prove Ben Medley to have been a supervisor, and
for reasons stated below I will remove William Medley
from the list. The total then is reduced to 160. At the
hearing the General Counsel also urged addition of three
other names , persons he called regular part-timers. While
disputing this last assertion, the Respondent stipulated with
the other parties that the employees listed on the exhibit
were all employed as indicated and that there were no other
employees at work in the agreed-upon production and
maintenance unit.
Three women worked in the bottling house, their names
are not on the stipulated list. Mary O'Bryan, who in May
1969 became Mary Ebelhar, worked the following hours
during 1969: January 19-16-1/4; January 26-14-3/4;
February 2-12; March 2-8; March 19-24; March
16-8; March 23-8; March 30-16; April 13-24; April
20-12; May 11-8; May 18-16-1/2; May 25-8; June
8-31-3/4; June 15-31-1/2; June 23-31; June 29-25;
July 6-16; and July 13-30. Martha Jones did the same
work and her records show the following hours worked:
January 19-16-1/4; January 26-30-1/4; February
16-16; February 23-16; March 9-24; March 16-15-
3/4; March 23-16; March 30-0; April 6-8-1/4; April
13-24; April 20-36; April 27-4; May 4-23-3/4; May
11-16; May 18-24-1/2; May 25-35; June 1-8; June
8-32; June 15-31-1/2; June 29-25; July 6-16; and July
13-30. I find that both Mary Ebelhar and Martha Jones
were regular part-time employees appropriately to be
included in the bargaining unit as of June 1969?
" At the hearing the General Counsel also urged inclusion of Margaret
O'Bryan , but in his brief withdraws the contention The record shows
clearly she was no more than a casual employee
5 Walter E Schwartz , Mary Ebelhar, Margaret O'Byran, Martha Jones,
Bertha L Young, James Nicely, Anna Nicely, Essie D Cox, James E
McDaniel, Joseph A O'Bryan, Jr ., Martha Sims , Larry E Payne, Edward
Payne, William Lanham , Billy Haynes, Frank Fulkerson, Rex G Howard,
Accordingly I find that as of June 13, 1969, there were
162 rank -and-file employees in the appropriate bargaining
unit at most.
Union Authorization
There were received in evidence 109 signed authorization
cards in favor of the Union. Each reads as follows:
DISTILLERY, RECTIFYING, WINE AND
ALLIED WORKERS' INTERNATIONAL
UNION OF AMERICA, AFL-CIO
I hereby designate Local No. - Distillery, Rectify-
ing, Wine and Allied Workers' International Union of
America, AFL-CIO, or its representatives, as my sole
collective bargaining agent, and authorize them to
represent me in any and all proceedings involving my
right to designate a collective bargaining agent and also
grant them the right to negotiate with my employer an
agreement relating to wages, hours and other conditions
of employment.
One card was signed by Margaret O'Bryan, the casual
employee who is not counted in the unit; it will be ignored.
One was signed by Charles P. Drury, who testified at the
hearing and said he was employed by the Company both
then and when he signed the card. The name as he signs it
does not appear on the stipulated list, but there is a Paul
Drury. No one on behalf of the Company questioned his
testimony and his card will therefore be counted. The
witness Wilson testified there is an employee named
Thomas Boehman and that he saw the man sign a card; no
objection was made to its authenticity. The employee list
shows only a Thomas Ray Boehmann, but I am satisfied it
is the same man . There is like ambiguity in two other
cards-signed by Eugene C. Brooks and Frank
Fulkerson-both identified by other persons who testified.
Although the employee list shows only a Coleman Brooks,
a Sam Fulkerson, and a Joseph F. Fulkerson, no objection
was made to Brooks' card and no issue was taken when the
witness said Frank Fulkerson was in fact an employee. The
record reflects a great number of instances where
employees in this plant commonly use their middle instead
of their first names. I will count both these cards.
All of the remaining cards in evidence appear on their
face to have been signed by employees listed on the
stipulated exhibit. For the total of 108 cards, 52 were
proved by the employee's appearance and testimony given
at the hearing. Forty cards were authenthicated by direct
testimony of witnesses that they actually saw the employees
sign the cards.5
The remaining cards were received in evidence on the
strength of the oral testimony of the employee who solicited
the signature and then, within a very short time, usually a
matter of minutes, received the card personally from the
Oswald Howard, Joseph E Mills, Paul J Drury, Wavie Johnson, Jr,
Eugene C Brooks, Francis E Payne, Wm Weise , Daniel Haynes, Donald
R Hamilton, Mary Husk, Forest Husk, Charles V Mattingly, Sam
Fulkerson, Thomas McPherson , Paul Hedrick , Charles Young, William
Millay, Helen Bumm, Catherine Ferrell, Judy Hartz, Teresa Henderson,
John W Mattingly, Thomas Balhman
MEDLEY DISTILLING COMPANY 95
employee in question, whom he in each case knew
personally, fully signed.6 I. Taitel and Son, 119 NLRB 910.
Of the 108 cards, all but 11 bear the date June 6, 7, 8, or 9.
The oral testimony shows that a few were dated the 7th or
8th, although actually signed on the 9th, because the
employee involved, sensitive to possible criticism for
signing in the plant on a workday, sought to protect himself
by predating the card to the weekend. The evidence is
unconlradicted, however, that in each instance 97 cards
were signed no later than June 9. Two cards were signed on
June 10-Conkright and V. Richard-and three on the
13th-P. Hedricks, R. Jones, and Mary Adkisson. This
means that the Union was in possession of 102 signed cards
when it wrote the demand letter of June 13.
The last six cards bear the following dates: M.
Jones--June 15, R. Young-June 16, L. Morgan-June 18,
C. P. Drury-July 11, C. Young-July 15, and J.
Willianns-June 16. Are the 102 cards dated no later than
June 13 valid authorizations?
In the course of the organizational campaign there was
talk of the procedures being followed, by McKiernan, a
union agent from out of town at a union meeting or two, as
well as by some of the solicitors who later testified to having
obtained signatures on the cards. And the record does show
that in the general discussions the possibility that an
election might be necessary before recognition could be
won was a subject of concern. It is a defense argument by
the Respondent that the cards cannot be used now-any of
them-as evidence of an intent by the employees to
authorise collective bargaining at the time they were signed,
because, as it asserts, the employees were then told, or they
believed, that the sole purpose of the cards was to bring
about such an election, and not to designate the Union as
their agent without more. It is also argued that some
employees signed on the threat of later discharge. In
support of this position the Respondent called 17
witnesses-all employees who had signed cards.
In some instances their oral testimony, placed against
that of the solicitors who invited them to sign and who also
testified, presents a question of credibility. In the light of
the clear language of the cards, plainly stating a present
intent to authorize the Union to negotiate a collective-
bargaining agreement on all working conditions, and the
fact that the employees do speak English and said they read
the cards, resolution of the matter of who gave the more
reliable story at the heanng-in those few instances where
resolution is required-demands that consideration be
given to a very significant factor pervading the case as a
whole. After signing the cards, employees without number
had been subjected to the most intimidating form of
coercion-direct threats of discharge voiced in the office of
personnel director to many of them, individually and alone.
The pattern of threats emanated from the office of the
personnel director and spread throughout the plant for
many weeks before the election, and it would be unrealistic
to ignore the Respondent's illegal conduct towards the
employees between the signing of the cards and the time of
the hearing.7
6 James E Higdon, Joseph K Blandford, Francis E Aull, Joseph C
Aull, Thomas Payne, Paul E Ralph, Paul Rickard, Joseph Tweddell,
Herman Higdon, James Earl Cecil, Ernest H. Wiggin, Samuel Hardesty,
Be that as it may, for the most part the employee
witnesses whom the Respondent did call-all of whom had
signed cards-not only did not give comfort to its defense,
but gave supporting substance to other evidence that what
reference was made to an election was in the context that it
might be necessary only if a majority of cards were not
signed, or if the Employer refused to recognize a proper
majority and forced the Union into a Labor Board
proceeding.
Jack Hanks' first version of what the solicitor, Wilson,
told him was: ". . . the cards could be used for union vote,
but that the main reason why that he was wanting to use
them was this committee . . . that they had formed, they
were going to use these cards as a leverage to force the
company into accepting some of the demands that they had
made for, you know, higher wages, and for better
retirement plans, stuff like that." The witness then said he
asked Wilson " `Will this get a union in here?' And he said,
no, you'd have to have a vote to get the union in. And so
that's the opinion I had.' " Hanks also recalled it this way:
"Well, all he said was that they wanted us to sign these
cards so that it may throw a scare into the company to, you
know, accept some of the demands that they had there.
That's about all he told us. . . . He said that it could be
used for an election, but he didn't think that it would be
necessary."
Benjamin Pruden also signed at Wilson's request. He
testified Wilson ". . . said it's sole purpose was to be used
as a bargaining agent when they were bargaining with the
company, to help us get a raise . But no union was
mentioned at the time . . . of course I may have
understood it wrong, that there wouldn't be any union
involved .... " "Trial Examiner: Did he say the union
would not be involved? The Witness: He didn't exactly say
not, but he said when I signed the card that they wasn't
going to have a union, and didn't want a union; all they
wanted was to use it as a bargaining agent to try to get us a
raise. And that's the way that I took it . . . he might have
said something different. That's the way I interpreted it."
And again the witness' own version fits the pattern of the
overall solicitation that was going on-bargaining now, and
an election only if unavoidable despite designations.
Steve Nix also signed at Wilson's request. All he could
recall of the conversation, when Wilson had gone to see him
expressly to obtain his signature, was: "Nothing specifical-
ly. Just that this would just be for, more or less just to see
whether anybody wanted to have an election."
Wilson expressly denied telling any of these three men, or
anyone else, the purpose of the cards was to obtain an
election . He denied telling Pruden no union was involved.
He said flatly he explained to everybody the purpose was to
have the Union "represent" the employees. I credit him.
William E. Payne was solicited by Herman Boulds.
"Well, I don't remember what was said. One thing, he said I
wouldn't have ajob if the union came in and I didn't sign it.
What else was said, I don't remember." Payne refused to
sign the card at first. "So he came again and asked me
again. So things were in bad shape, so I thought that we
Joe Curtis, Glen R Finley , John Horn, Mike Fulton, Jerry Payne
7 See Liz of Rutland, Inc, 156 NLRB 121, 133
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needed the election to settle the thing one way or the other,
so I did sign the card."
Verdie L. Shouse also signed for Boulds. "... [H ]e told
me all the rest of them had signed except one man. And
so-He said , `Well, if you want to work here you'd better
sign this card.' He said, `If the union does come in, if you
. . . Idon't have a card signed you may not have a job.'
didn't read it , but I knew what it was for.... it was
actually bunging-it was to bring in the union . . . . But I
figured the voting is what counted, so I signed the card."
Shouse then explained that what Boulds said was that
everybody but one in the distillery department had signed.
James A . Millay received his card from Boulds. Three
times the witness responded that Boulds had said nothing
to him when inviting him to sign . "He just asked me if I'd
take it , and I told him I would." With the Respondent's
counsel pressing him, he then said "I taken the cardjust to
sign it , have an election . Q. Well, was that said to you? A.
No, it wasn 't said to me.... I can't recall whether I said it
or not . I might have said it."
And then there is the testimony of E. B. Wallace. His
name is Everette Brodie Wallace , and he is called Bodie
Wallace . This is the man the personnel director admitted
having called to his office-in closeted interrogation, only
one of many-to ask how he felt about the Union, and who,
according to the written memoranda exhibits, was told
"what I have done for him and how I had kept him from
being fired , he had better do some more serious thinking."
He denied flatly having talked to Medley about signing a
union card before the election , or ever having been in his
office ; he lied . He testified Boulds told him "It looks like
we're going to have an election before we get this thing
settled . . . . [W]e've got to have so many before we can
have an election."
Elvy Edwards also signed at Boulds' request. He started
by saying what he heard at the union meeting when a union
agent was present . "They wanted to sign some cards for the
union to have a meeting . They was talking about that. And
they was talking about some other benefits , or something,
they might have. But that 's about all that I can remember."
Then he added "They wanted to get cards signed so they
could have an election ." Later he rephrased this as to the
union meeting : "I just said they said that they wanted to get
a union , or something like that, in, and they had to have so
many cards before they could have an election ." Edwards
continued that Boulds came to his home seeking his
signature . ". . . I didn 't want to sign the card really, but in
order to get an election , or something , to settle the thing
they had to have some cards, and he said about 80%, or
something like that had already signed cards, so I went
ahead and signed the card so they could have an election
and settle it some way or another ." "Q. Did he [Boulds ] say
anything to you? A. Nothing only he asked me to sign the
card."
Boulds denied telling anyone he solicited that the purpose
of the cards was for an election . Testifying before hearing
the Respondent's witnesses , he expressly denied such talk
with Payne, Shouse , Wallace, or Edwards; Edwards'
admission Boulds said nothing about an election supports
the finding . Boulds also denied saying employees who did
not sign cards then would be without jobs later I credit
him. Shouse remembered talk that employees "may not
have a job" with a union in the picture . More likely this was
his recollection of general talk, of which there was some, of
a possible union-shop contract that might later be
negotiated . Moreover , the testimony reduces itself to no
more than a present assertion of what the men had in mind
8 months earlier when they read and personally filled in the
cards. These cards are good and I find that , when they
signed them, these employees did intend to have the Union
bargain for them.
John W . Millay said Herman Payne gave him the card.
"Q. And was anything said at that time? A. No, sir. They
was all signing them at the time and he handed it to me, and
he filled it out and I signed it." He then added he thought it
was for an election because he "heard them talking...
The ones, you know , around."
Mary K. Clark went to a union meeting . "I don't
remember , really." What was said at the meeting? ". . . I
don't remember if an election was brought up or not at that
meeting." Vincent Johnson brought the card to her home
for signing . What had Johnson said about it? "Nothing
important I don't guess . I don 't remember."
Delbert Ashton signed at home for Carroll ; first he said
he signed after a union meeting and then that it happened
before. All he could remember despite much prodding was
that the man at the meeting had said "the cards was for the
election day ." Asked to repeat , it came out ". . . he just
said you get better, you know , better , you know , benefits,
and stuff , you know."
In the circumstances of this case vague generalities of this
kind cannot serve to offset the clear designation spelled out
in the cards these employees signed . The best evidence of
what references were made to any election by the prounion
campaigners came from Thomas Dant, also a company
witness. With his family he was a dinner guest at the home
of J. A . Payne and they discussed "the pros and cons" of
unionism. He had great difficulty remembering anything
Payne said . At one point came this : "[H ]e said the people
wanted a union and we should at least give them a chance
to decide what they wanted because it was an election, an
election to see what the people wanted." Pressed to
remember more , Dant finally said : "I remember only one
thing, and this is vague now , I may have it wrong , I don't
swear, I don't know for sure dust the way he stated it. I
remember he said, maybe , maybe if we get enough cards we
won't have to have an election." Again the testimony fits
precisely into what the union representatives would most
likely say, and comports with other record indications of
what was said . If not more than 50 percent of the cards
could be obtained, there would have to be an election; if
more , a demand for bargaining without need for voting.
Esther Roby and Mary Rowan both were solicited by
Lucy Morgan . Roby's direct testimony was: "She told me
that it was to get an election , to see if the people wanted the
union in the company . And she said it didn't put you in the
union , and it didn 't obligate you. It was just to get an
election ." Mary Rowan testified : "She told me that the
reason for the card , wanting the card was for the election, to
have the election . She said that would be all. The card really
didn't mean nothing . . . just about everybody had signed,
and that they needed the signatures in order to have the
MEDLEY DISTILLING COMPANY 97
election . . . . Whether the union was to be voted in or not.
She said that was the main thing."
Morgan denied having said the purpose of the card was
to obtain an election , or that any certain number or
percentage of signatures was being sought . While her
purpose at the hearing was to stress the point her appeal
had been "to get the Union in" at Medley's, she did admit
having talked of or mentioned a possible election to Roby.
"I just tried to explain to her that we was trying to see how
many cards we could get signed to see-we was trying to
get an election for the union , for getting a union in
Medley's, sure." As to Rowan, Morgan said clearly there
was no talk of any election.
Roby was a suspect witness. She was laid off after signing
the card and appealed to the Union's lawyer in Louisville
for assistance , claiming she had been wrongly laid off out of
seniority . She was later put back to work . In the context of
the total picture of illegal interference and coercion-Roby
even said she went back to the personnel director after
seeing the union lawyer-I am convinced she exaggerated
greatly in her recital. After saying Morgan had told her a
percentage was necessary for an election , she added
Morgan also said "they had enough cards to have an
election." But, if she knew an election was already assured,
Roby must also have known there was another purpose in
obtaining still more signatures.
Both girls admitted they filled in the entire card when
they signed . It is, of course , possible a woman could
misunderstand when talk is general . The only card that
gives pause is that of Rowan , for she particularly impressed
me as a very honest person . I find Roby's card was a valid
designation , but shall , without deciding , ignore Rowan's,
which in no event is of moment.
Adrian Clark was solicited by William D. Millay; he
shifted his testimony back and forth from page to page,
almost from one answer to another. He said he refused to
sign when Millay first asked him, and did so when Millay
tried again "about a week later ." But no cards existed
before June 6 and he filled out his own in full and signed it
on June 9. He said Millay told him the card ". . . really
didn ' t mean anything at that time to sign the union card;
they just wanted to see how many they could get signed."
Then he added there had been "rumors you heard around
.. . that if you didn't sign a card you couldn't got to the
meetings ." What had Millay said the second time he came?
.. [N ]othing other than the majority of them had signed
them , and he just said he'd like for me to sign one, but I
wasn 't--but I did not have to sign it, I could use my own
judgment on it ." Finally counsel for the Respondent asked
the witness had Millay said anything about an election, and
the answer came ". . . he said ... regardless of how many
cards were signed there would still be an election, that that
was the law, there had to be an election." Had Millay said
anything "about the rumor"? "No; he didn ' t say nothing
about that."
Clark also told of having attended a union meeting. His
first recollection was that the man-apparently a union
agent--said the cards "really didn't mean anything; they
wanted to see how many they could get signed." And then
again came the question-had the man talked of an
election ? "He said the cards didn ' t mean too much; that
there definitely would be an election ." On cross-examina-
tion Clark then said that at a first union meeting ". . . it
seemed like he [the union agent] didn 't talk too much about
the election that I can remember . It was just more or less
benefits , and stuff like that," and that it was at the second
meeting-necessarily after he had signed the June 9
card-that an election was mentioned.
Millay testified all he told the man was that the purpose
of the card was "To let Local 31 represent us." Clark
vacillated too much as a witness for his uncertain
testimony , in its totality, to constitute probative evidence
that he was told the card had any definitive purpose other
than what was plainly wntten on its face . I credit Millay
and find Clark's card was a valid one.
Larry Bartley signed at the request of Vincent Payne,
when a group of employees were gathered together. His
testimony, intended to invalidate his card , is unpersuasive.
Bartley said Horn , also present in the group , had pressed
him to sign "four or five days," kept after him "from
Monday to Friday," but the card , in Bartley 's handwriting,
is dated the 9th, Monday , only 3 days after any cards
appeared . Bartley said that finally , "towards the end of the
week . . . [H ]e [Horn ] said it was to have an election. And
so he gave me the card , and I read it. And that's what I got
out it, so I went ahead and signed the card ." But as his card
is dated Monday, it is clear that any talk of an election
could not have come until several days after he signed, and
therefore can in no event invalidate his card.
Employee V . I. Johnson was one of the effective
organizers ; he authenticated eight cards other than his own.
He testified that after the first meeting with the union
organizer someone mentioned the fact 30 percent of the
employees' signatures were necessary for an election and
that there was talk the cards were being signed for the
Union "to be our representative ." He added that later
someone-he could not remember who-asked him was it
necessary to have an election "since we had so many cards
signed ," and that he promised to check with McKiernan,
the union agent , and to report later. Johnson also said there
was no talk about an election when the men signed the
cards for him, either by him or by them.
Mickey Conkright was one of the men who signed for
Johnson , and he was called by the Respondent for the
purpose of invalidating his own card . He said he signed it
for Johnson before heanng anything at any union meeting,
and that when he did sign-the card entirely filled in by
himself-Johnson said nothing to him about an election.
Conkright was asked to tell what he later heard at the union
meeting; all he could recall was that the union agent had
"talked about we needed to all stay together , stay with the
union . . . those that hadn 't signed the card ought to sign
.. . some of the reasons was that better wages, possibly
... nobody would ever see the cards except the N.L.R.B.
and the union ." He repeated several times he could recall
nothing else . "Q. Did he say anything about what the cards
would be used for? A. No, sir." At this point his testimony
became confused , almost unintelligible : "He said ... if we
didn ' t vote for the election , if we didn 't want the election,
then those that voted for the election , or had anything to do
with the election would possibly be fired or dismissed, he
said ." He repeated nothing had been said about the cards
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"being used for an election," and then added the agent said
that they had enough cards, "the election was supposed to
have been guaranteed" with the cards that they already had
signed.
In its brief the Respondent joins this almost incoherent
testimony by Conkright to Johnson's statement at the
hearing "I think it was in our minds that we had to have an
election," and argues it therefore must be found all the
employees who signed were told the sole purpose of the
cards was to go to an election. But the testimony of the
witness does not so read. Rather, Johnson's testimony,
taken in totality, is consistent with what is shown by other
evidence, that at the start of the campaign no one could be
sure how the Employer would react to the Union's
campaign, and whether or not a majority could be achieved
so as to demand exclusive recognition. Both less than a
majority of cards and refusal by the Employer to deal with
the Union were eventualities that had to be reckoned with,
and, if there was talk of such possibility, it supplies no
reason now for rejecting perfectly valid cards signed in the
absence of any misleading inducement.
I find that both on June 13, 1969, when the Union
demanded recognition, and on June 17, when the
Respondent refused to recognize it, the Union was the
representative for the purposes of collective bargaining of a
majority of the employees in the appropriate unit, 101 out
of a total of 162, and by virtue of Section 9(a) of the Act has
been and is now the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
Demand and Refusal
On June 13 the Union wrote the following letter to the
Respondent:
This letter will serve to officially advise that the
employees of your Company have designated this
Union to represent them as their bargaining agent and
have also authorized this Union to negotiate with the
Company a Labor Agreement relating to all matters of
wages, hours and other conditions of employment.
An early reply in this matter will be appreciated.
On June 17 the Company responded; in pertinent part it
said only:
In response to your letter, be advised that we take
note of the fact that you claim that some of our
employees have designated your union to represent
them as their bargaining agent.
In its answer the Respondent denied that it refused to
bargain on request, and at the hearing its counsel
tangentially suggested the demand letter fell short of a
direct request for immediate recognition and negotiations.
In its brief, however, the Respondent quarrels only with the
General Counsel's contention that, in the event a valid
majority was not shown, there should issue an order to
8 The amendment is a very precise one, limited to the refusal to pay a
certain amount assertedly due Trodglen that particular Sunday, it reads.
Respondent , by its supervisor and agent, Charles Medley, on or
about late August, 1969, at its Owensboro, Kentucky facility,
suspended certain privileges of employee Joseph Trodglen, TO WIT
bargain predicated upon the violations of Section 8(a)(l)
and (3) of the Act. The Respondent's true defense is that
the Union never represented a majority of employees in an
appropriate unit.
Despite the perhaps inartful wording of the demand
letter, there is no question but that the Respondent fully
understood the Union was requesting immediate recogni-
tion and collective bargaining. More than once the
personnel director, while talking with individual employees,
equated their May activities-when they sent elected
representatives to management to press economic
demands-with pure unionism. That the employees turned
to the Union as another way of dealing with the Company
to achieve the money improvements they had previously
sought was common knowledge. In any event there is
nothing to indicate the letter meant to convey any other
thought to the Company. I find that on June 17, 1969, the
Respondent refused to bargain with the Union as
requested.
I also find that by such refusal the Respondent violated
Section 8(a)(5) of the Act. However the matter be
phrased-rejection of the principle of collective bargaining,
denial to the employees of their statutory rights to self-
organization, or a planned strategy to gain time in which to
intimidate the employees so as to make a fair and open
election impossible-the Respondent's purpose was clearly
to flout the statutory duty resting upon it to bargain with
the majority representative of its employees, regardless of
the employees' desire and regardless of the Union's
numerical representative strength. If the phrase "bad faith
refusal to bargain" has any meaning, this is the case. And
that, in the total circumstances revealed by the record as a
whole, the only appropriate remedy is an affirmative order
to bargain with the Union now is beyond question. See
N. L. R. B. v. Gissel Packing Co., supra.
The case in support of the complaint is even stronger if
the activities of William Medley, a foreman, be considered.
He is the son of the personnel director, a blue card man,
and the evidence suffices to prove him a supervisor. The
Company had him on its side of the table when
management met with the employee spokesman to consider
their joint economic demands before the employees started
signing union cards. But there is a point beyond which no
useful purpose would be served by belaboring testimony
over and above that which is already more than sufficient.
The Trodglen Incident
Joseph Trodglen is the boilerrootn maintenance man; it is
sometimes necessary for him to return to the plant on
Sundays to make repairs or adjustments of one kind or
another that cannot be made while the machines are in
operation. At the start of the hearing the General Counsel
added an amendment to the complaint, charging that for
certain Sunday work performed on October 12, 1969, the
Respondent withheld 2 hours' pay from Trodglen as
punishment for his union activities.8
the payment of four hours Sunday call-in time because said employee
had become or remained a member of the Union or had given
assistance and support to it
In his brief the General Counsel points to the fact Trodglen did less
Sunday work after the October incident than before, but there was no
MEDLEY DISTILLING COMPANY 99
Trodglen's story is that he regularly came in Sundays,
about three times each month, and that sometimes his
foreman directed him to come and sometimes he came on
his own; he was free to use his ownjudgment. He added he
had always been paid a minimum of 4 hours' call-in pay,
even when he did less work. He made out his own timecard
on Sundays. He went to the plant on his own on October
12, worked 2-3/4 hours, and noted 4 hours' of work on the
card. The next day the plant superintendent, Charles
Medley, told him to remove the excess time, that he would
be paid only for time actually worked. Trodglen protested
the past practice, but was only paid the lesser amount .9
Then came that testimony by Trodglen which the
General Counsel contends proves the illegal motive. When
Trodglen argued the matter that day, Medley asked why
did he not quit, and Trodglen went on:
"You can fire me but I won't quit." I said, "I've always
had the feeling that you had the feeling that I was too
strong for the union, and that's the reason why you have
done me like you have."
And he said, "Well, I've always told you that."
I said, "Charlie, you're a damn liar. You never did
tell me that I was strong against the union or for the
union for any time before."
All relevant matters consider--d, I find the evidence in its
totality insufficient to prove this pinpointed allegation now
added to the complaint. This Company was so determined
to put a stop to the union activities and its coercive
techniques reached so many individual employees, it would
be difficult to find a single prounion man to whom some
kind of illegal statement was not made. If the effort were
made, it could probably be proved the personnel director
knew the identity of each and every union adherent. But
this does not mean that every incident in the normal course
of business when a union-minded employee came out
second best economically is ipso facto an unfair labor
practice. Carefully appraised, Trodglen's testimony of what
Medley told him that day does not quite reflect admission
of illegal motivation. He admitted having once told
Trodglien he was very strong for the Union, but he did not
admit the Sunday work pay had been made more strict for
that reason. The man had not been instructed by his
foreman to come in that Sunday, he had made his own
decision, and Medley did tell him the foreman had reported
there was no need for Sunday work on that occasion.
Sunday time has always been paid at double the regular
rate. At one point Trodglen, a 13-year employee, said he
had been paid 4 hours although working less, "ever since
I've been here"; at another point he said it had happened
"maybe once or twice a year." It could not have been much
of an established practice. There is simply not enough
affirmative evidence of unlawful motivation, and I
therefore make no finding of a violation of Section 8(a)(3)
or (1) with respect to this incident.
THE REMEDY
Having found that the Respondent has engaged in an
litigated issue about subsequent denial of work opportunity The August
date in the amendment to the complaint was an obvious error, for the
record shows clearly the incident occurred in October
9 At one point the record indicates he was paid only for 2 hours , instead
unlawful refusal to bargain with the Union in good faith, I
shall recommend that it be ordered to do so upon request
and to cease and desist from further such unfair labor
practices. The Respondent must also be ordered to offer
full reinstatement and backpay to Payne and Boulds, both
of whom were discharged because of their union activity in
violation of the statute. In the light of the nature and extent
of the unfair labor practices found, I shall also order that
the Respondent cease and desist from in any other manner
interfering with the rights of its employees to enjoy the
statutory guarantees of self-organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the
Respondent's Owensboro facility, including all truckdri-
vers, power plant employees, cafeteria employees, working
foreman, crew leaders, line floor ladies, and laboratory
employees, but excluding all office clerical employees,
casual and seasonal employees, purchasing agents, profes-
sional employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Distillery, Rectifying, Wine and Allied Workers,
International Union of America, AFL-CIO, was on June
13, 1969, and all times thereafter has been the exclusive
collective-bargaining representative of Respondent's em-
ployees in the appropriate unit, within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain with the above-named labor
organization in good faith, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5).
6. By discharging Herman V. Payne and Herman
Boulds for engaging in protected concerted activities, the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in unfair
labor practices proscribed by Section 8(aX3).
7. By the foregoing conduct, by threatening to dis-
charge employees in retaliation for their union activities, by
of the 2-3/4 hours he worked , but no issue was raised on that question,
apparently because the record elsewhere states he was paid for whatever
time he actually worked
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening to contract away the employees' work because
they choose to be represented by a union, by questioning
employees about their umon affiliation and activities, by
establishing a no-distribution and no-solicitation rule for
the purpose of interfering with self-organizational activities,
by promising improvements in working conditions as
inducement for employees to assist the Company in
discouraging umon activities, by promising increases in
wages in return for discontinuance of union activities, by
spying upon the employees in their union activities, and by
telling employees that agents of management are surveying
their union activities, the Respondent has engaged in and is
engaging in unfair labor practices with the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Medley Distilling Company, Inc., Owensboro, Kentuc-
ky, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with the
Union as the exclusive representative of all employees in
the bargaining unit.
(b) Discharging employees or otherwise discriminating
against them in their employment because of their union
activities.
(c) Threatening to discharge employees in retaliation for
their union activities, threatening to contract away the
employees' work because they choose to be represented by
a union, questioning employees about their union affilia-
tion and activities, establishing a no-distribution and no-
solicitation rule for the purpose of interfering with self-
organizational activities, promising improvements in work-
ing conditions as inducement for employees to assist the
Company in discouraging union activities, promising
increases in wages in return for discontinuance of union
activities, spying upon the employees in their union
activities, or telling employees that agents of management
are surveying their union activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form,join, or assist any labor organization,
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Upon request, bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a signed agreement.
(b) Offer Herman V. Payne and Herman Boulds
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of Respondent's discrimination against them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and all
other rights under the terms of this Order.
(d) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(e) Post at its place of business in Owensboro, Kentucky,
copies of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.ii
io In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
ii In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 25, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Distillery, Rectifying, Wine and Allied Workers,
International Union of America, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL bargain collectively, upon request, with this
Union as the exclusive representative of all our
employees in the bargaining unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a sign agree-
ment. The bargaining unit is:
MEDLEY DISTILLING COMPANY 101
All production and maintenance employees,
including all truckdrivers , power plant employees,
cafeteria employees , working foreman, crew
leaders, line floor ladies , and laboratory employ-
ees, but excluding all office clerical employees,
casual and seasonal employees , purchasing
agents, professional employees , guards and super-
visors as defined in the Act.
WE WILL NOT discharge or otherwise discriminate
against our employees because of their union activities.
WE WILL offer Herman V. Payne and Herman
Boulds immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of pay they may have
suffered by reason of our discrimination against them.
WE WILL notify these employees if presently serving
in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL NOT threaten to discharge employees in
retaliation for their union activities , threaten to contract
away the employees' work because they choose to be
represented by a union , question employees about their
union affiliation and activities , establish a no-distribu-
tion or no-solicitation rule for the purpose of interfering
with self-organizational activities , promise improve-
ments in working conditions as inducement for
employees to assist the Company in discouraging union
activities , promise increases in wages in return for
discontinuance of union activities , spy upon employees
in their union activities , or tell employees that agents of
management are surveying their union activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form, join , or assist any
labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
MEDLEY DISTILLING
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 614
Ista Center , 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.