Medley Distilling Co., Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 755 (N.L.R.B. 1971)

MEDLEY DISTILLING CO. 755
Medley Distilling Company, Inc. and Distillery, Recti-
fying; Wine and Allied Workers, International Un-
ion of America, AFL-CIO. Case 25-.CA-3935
August 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On April 27, 1971, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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. He
also found that Respondent had not engaged in
certain other unfair labor practices and recommend-
ed that those allegations of the ' complaint be
dismissed. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a, supporting
brief, and the General Counsel and Charging Party
filed cross-exceptions and briefs in support thereof.
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 case 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 , cross-excep-
tions and briefs, and the entire record in Ythe case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
charge filed on September 8, 1970 . The complaint alleges
that Medley Distilling Company, Inc., herein called
Respondent, (1) ordered its employees at its facility
involved herein on April 27, 1970, to stop and refrain from
talking about Distillery, Rectifying, Wine and Allied
Workers , International Union of America, AFL-CIO,
herein called the Union, in violation of Section 8(aXl) of
the Act; and (2) for union-connected reasons and because
of their filing charges against Respondent , or giving
testimony under the Act, (a) refused employee Wendell
Bennett,' about the second week in March 1970, the
privilege of crediting his accumulated vacation to a period
of sick leave which he had taken , although it has extended
the same privilege to others, and (b) transferred employee
Joseph C. Trodglen on August 10, 1970 , to a less desirable,
lower rated and lower paid job, ally in violation of Section
8(aX ), (4), and (1) of the Act. Respondent 's answer denies
has violated the Act in any respect alleged herein.
U n the entire record, including my observation of the
witnesses and their demeanor while on the witness stand,
and after due consideration of the briefs of the General
Counsel, the Union, and Respondent, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OP RESPONDENT
The complaint alleges, and Respondent admits, that it is
a Kentucky corporation engaged in the business of
distilling, storing, selling, and distributing alcoholic spirits
and has its principal offices and place of business at its
Owensboro, Kentucky, facility; that during the 12-month
period antedating the complaint, which period is represent-
ative of all times material herein, it manufactured, sold,
and shipped from this facility to points outside Kentucky
finished products valued in excess of $50,000; and that,
during the same period , it made purchases of-goods and
materials valued in excess of $50,000, which, were trans
ported and delivered to it from points outside-Kentucky. I
find, upon the foregoing, as Respondent also admits, that
Respondent is engaged in commerce within the meaning of
the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Medley _Distill ing Company,
Inc., Owensboro, Kentucky, its officers , agents,
successors, and assigns, shall take the act'gn set forth
in the Trial Examiner's recommended. Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY-H. Kusxnr, Trial Examiner : This proceeding was
heard at Owensboro , Kentucky, on February 2,1971. The
complaint herein issued on October 30, 1970, based on a
if. THE LABOR ORGANIZATION INVOLVED
Respondent further admits, and I find , that Distillery,
Rectifying, Wine and Allied Workers, International Union
of America, AFL-CIO, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The period spanned by the unfair labor practices alleged
herein dates from tllee second week in Match 1970 to
August 10, 1970. Just prior to this period, namely, on
January 13 through 16, and on February 2 and 3, 1970, a
hearing was held before Trial Examiner Thomas A. Ricci
on a consolidated complaint against Respondent involving
r The complaint has misspelled the first name as Wendell.
192 NLRB No. 113
756 DECISIONS OF NATIONAL LABOR , RELATIQNS BOARD
this facility, in" Cases 25-CA--3452, 25-CA-3516, and'
25--RC-4113. The first two mentioned cases derived • from
charges on July 22 and September 19, 1969, respectively,
while the last mentioned case was concerned with,the
objections filed by the Union to a Board-conducted
election on August 28, 1969, among the production and
maintenance employees at this facility which the Union
lost, and as to which objections the Regional Director for
Region 25 had ordered a hearing. The three employees
called by the General Counsel as witnesses at the instant
hearing, Joseph C. Trodglen, Wendell Bennett, and John
Carroll, testified in the earlier proceeding on behalf `of the
General Counsel. That proceeding resulted in a decision by
Trial Examiner Ricci on April 21, 1970, in which he found
that Respondent (1) had refused to bargain collectively
with the Union in violation of Section 8(a)(5); (2) had
discharged two employees in violation of Section 8(a)(3);
and (3) had made coercive threats to its employees,
interrogated them, made promises of benefits of them,
spied upon them and told them that agents of management
are surveying their union activities, and established a no-
distribution and no-solicitation rule for the purpose of
interfering with self-organizational activities-all in viola-
tion of Section 8(a)(1) of the Act., On December 8, 1970,
about 4 months after the period of the unfair labor
practices alleged herein,, the Board issued its decision in
187 NLRB No. 12, in which it adopted all the ultimate
unfair labor practice findings of the Trial Examiner, made
two additional ' 8(a)(l) findings,, and ordered that; ,the
election held on Case 25-RC-4113 be set aside. In the
course of entering a bargaining order, which the Trial
Examiner had predicated on Respondent's violation of
Section 8(aX5) of the Act, the., Board said, " In response to
the Union's organization efforts . . . the Respondent
engaged in extensive violations of Section 8(axl) and
discharged two employees in violation of Section 8(a)(3).
Respondent's course of unlawful conduct has demonstrat-
ed, 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 a Section 8(aX5) 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."
As already noted, the last day of the hearing in the prior
proceeding was February 3, 1970, and the unfair labor
practices alleged herein date from the second week in
March 1970. There is testimony by employee Carroll in the
instant proceeding that, during the interval, Foreman Zarn
spoke to him twice on the matter of talking union in the
plant. Although what occurred antedated the 6-month
period before the filing of the charge, herein on September
8, 100, and was not made, and could not be made,
consistently with Section 10(b) of the Act, the basis of
unfair labor practice charges, the testimony of Carroll
2 See Local Lodge No. 1424, International Association of Machinists,
AFL-CIO (Bryan Manufacturing Co.) v. N.LR.B., 362 U .S. 411, in which
the Supreme Court pointed out that "earlier events may be utilized to shed
thereon, if credited, is nevertheless available _tothe General
Counsel as background to,ethe events occurringduring the
statutory limitation period.2 According to Carroll,, Zarn
approached him on a night shift during the third week in
February, while he was in the paint house washing his
brush and changing paint, and said, "John I wish you
would stop this union talk . every time you do this it
gets me in hot water . . . you're getting me in between in
the middle." At_ this, he sought to assure Zarn that he was
not talking union and said that. -"as, far as we are
concerned, this thing is over with until we hear something
final from the National Labor Relations Board." Also
according,to Carroll, ,Zara approached employees Billy
Thomas, Bill McCoy, ,Joseph Evans, and him n, 4, night
shift around the first of March, while they were= on a break,
and said that he,,Zarn, "had been told by the Company to
keep the pressure on Billy Thomas and [him I,", adding that
he, Zarn, had been called back to the plant from his
vacation during the'last year and told by Joel High, the
vice president and assistant, manager of Respondent, to
stop Thomas and him from "talking or participating in any
type of union activities at all." With respect to the_ above,
Zarn admitted that he had warned _Carroll and ,others
under his supervision several .times on the subject, of
talking to people other than painters while: at, work, but
denied that he had occasion since the " prior hearing to tell
any employee to stop talking union. I note,` however, that
?earn did not specifically" refer to the above "iepisodes
testified to by Carroll, nor did he specifically deny Carroll's
testimony' to the effect that'he, Zarn, admitted-on both
occasions that management was pressuring him to'put an
end to any further talk concerning the Union by the
painters under his supervision and, that, during the second
episode, he named Carroll and Thomas as the ones he was
to pressure. Accordingly, in light of the above,, and as
Carroll impressed me as a more reliable witness than Zarn,
I credit Carroll-and find,that Zarn made all the above
remarks attributed to^him by Carroll.
B. ' The Alleged , Violation of Section 8(a)(1)
Carroll testified as follows concerning the setting and
substance of three conversations between Zarn and him,
which Zarn initiated : Thomas and he were painting new
window frames at'tlwsouth end of "C" warehouse on April
27, when employee Frank Montgomery of the yard crew
approached them and engaged ,them in conversation about
the job they , were then doing. At this 'juncture, Jerry
Koonce,3 the superintendent of the bottling house and the
son-in-law of John Medley, the personnel director, walked
by and looked in their direction. Shortly thereafter,
Koonce engaged Zarn in conversation in the corner of °"C"
warehouse. From there , Zarn approached him and said,
"John, I warned you and warned you about stopping
people, calling them off their jobs and 'talking about
union" When he protested that he did not know what
Zarn was talking about , Zarn ' informed him of having
learned from Koonce that he had called-Montgomery over
to his work station and had a ,conversation. To his,answer
light on the true character of matters' occurring within the limitation
period:' See also Axelson Manufacturing Company, 88 NLRB 761,-766.
3 The name is spelled Kuntz in the priorproceeding.
MEDLEY DISTILLING CO.
that Montgomery had come over on his own, Zam replied,
"Well, you've been warned over and over about union
activities"; and to his further reply that Montgomery and
he had not said anything about union activities but were
talking about painting the windows, Zarn asked him, "how
long have you -been, employed here?" and when he
answered that he had been there almost 10 years, Zam
continued with, "I hate to have to fire someone that's been
employed here that long" The next conversation occurred
the following morning and dealt with the above episode. At
that time, Zam approached Thomas and him, while they
were doing some -painting in the dryhouse and said to him,
"John, don't let 'them catch you all goofing off like you
were yesterday!' He again entered his denial but Zarn did
not believe him, pointing out that such conduct put him,
Zarn, in' the middle -between management and the
employees, with the, result that he was getting blamed and
he had to blame them in turn. When he mentioned that
Zam should have asked him before taking Koonce's word
for what had occurred, Zara, replied, "I'm tired. I warned
you the last time. Don't let it happen again." The next
conversation occurred around 12:30 p.m. in the paint
house. Prior, thereto, about 11:45 a.m., Thomas and he
were on their way back to work, after having gotten a drink
of water, and came upon employee George Blandford as he
was taking some readings from controls on a panel board.
He pinched Blandford on the elbow, said "how are you,"
and proceeded on