New England Liqour Sales Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1966

157 N.L.R.B. 153 (N.L.R.B. 1966)

NEW ENGLAND LIQUOR SALES CO., INC. 153
New England Liquor Sales Co., Inc. and General Teamsters,
Chauffeurs, Warehousemen and Helpers , Building Materials,
Heavy and Highway Construction Employees Local Union No.
404, a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America , Charging Party. Cases
Nos. 1-CA-4934 and 1-RC-8301. February 25,1966
DECISION AND ORDER
On November 15, 1965, Trial Examiner Samuel M. Singer issued
his Decision in the above-entitled proceeding, finding that Respond-
ent 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 Deci-
sion. The Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices and recommended that
these allegations of the complaint be dismissed. In addition, the
Trial Examiner found merit in certain objections to the election filed
in Case No. 1-RC-8301 and recommended that the election be set
aside . Thereafter, Respondent filed exceptions to the Trial Exam-
iner 's Decision and a supporting brief ; the General Counsel filed a
brief in support of the Trial Examiner's Decision.
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 [Members Fanning, Brown, and Zagoria].
. 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, the briefs, and the entire record
in this consolidated case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order, and
dismissed the petition for certification of representatives filed in Case
No. 1-RC-8301 and vacated all prior proceedings held thereunder.]
I In addition to the authorities cited by the Trial Examiner, see Jas. H. Matthews & Co.
v. N.L.R.B., 354 F. 2d 432 (C.A. 8).
As we agree with the Trial Examiner's recommendation that the election held in Case
No. 1-RC-8301 be set aside, and a second election not be held , we shall dismiss the peti.
tion in that case and vacate all proceedings held in connection therewith.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No . 1-CA-4934 the General Counsel of the National Labor Relations
Board , by the Regional Director for Region 1, issued a complaint based on charges
157 NLRB No.16.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and amended charges filed by the Union. The complaint alleged that Respondent
Company unlawfully refused to recognize and bargain with the Union, and that by
this and other conduct, it interfered with, restrained, and coerced its employees in the
exercise of their self-organizational rights.
Case. No. 1-RC-8301 was consolidated by the Regional Director with the forego-
ing proceeding on June 10, 1965, by order of the Board dated June 3, 1965. The
Board therein adopted the Regional Director's finding that certain ,objections of the
Petitioner Union in that case to the election conducted on March 12, 1965, raised
issues identical to those in the complaint proceeding. The consolidated proceeding
was thereafter heard by Trial Examiner Samuel M. Singer on July 19 and 20, 1965.
All parties appeared and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evidence. Briefs were filed by
General Counsel and Respondent.
. Having considered the entire record in the case,' and the briefs, and -from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation with its principal office and place of
business in Holyoke, Massachusetts, is engaged in the sale and distribution of liquor,
wine, and beer at wholesale. It annually purchases and receives at its Holyoke facil-
ity products valued in excess of $50,000 directly from points outside Massachusetts.
I find that at all material times Respondent has been and is engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's personnel and sales force
Respondent distributes its liquor products through two facilities, located at Hol-
yoke and Pittsfield, Massachusetts. Gerald Laskin is president of the Company,
and Murray Solomon and Roy Mueller are co-sales managers supervising the. Hol-
yoke operation. Mueller is also in charge of the Pittsfield facility., Philip Nassif is
"sales and field representative," stationed at Holyoke? During the period here
involved Respondent employed 11: salesmen servicing the Holyoke area and 3 sales-
men servicing the Pittsfield area .3
i The transcript of hearing was corrected by my order dated August 25, 1965. .
2 Although in its original answer Respondent admitted the supervisory status of Nassif
(as well as of Laskin, Solomon, and Mueller) it denied this in its amended answer. The
credible evidence shows, and I find, that Nassif's duties include training and instructing
new salesmen , and evaluating their performance ; and accompanying and assisting older,
regular salesmen in meeting sales quotas. Like other salesmen , Nassif also has his own
accounts, but unlike others he is on salary, not commissions. He has no authority to
hire, fire, promote, and discipline. Although denying he is in charge of Respondent's
beer department (employing four men), Nassif admitted he was "in charge of [its]
sales." I find that Nassif, even if not a supervisor within the meaning of the Act, is a
managerial employee. That he is regarded as such by the salesmen Is evident from Nassif's
testimony that at the advent of -the Union, "the boys in the liquor department seemed to
shun me" and avoided talking to him about the Union,
8 Russell Decker, an additional salesman , handles sales to military installations, travel-
ing extensively in this country and overseas . Unlike other'salesmen in the- Holyoke-
Pittsfield area paid by commission, Decker is salaried , with an expense account. As
related infra, the Union and Respondent agreed to exclude Decker (and also Nassif) from
the bargaining unit. As the Union contends , Decker appears to be "more or less in [a]
classification of his own ," with interests significantly different from those of other sales-
men. I find that neither Decker nor Nassif belongs in' the same bargaining unit as Re-
spondent's other salesmen.
NEW ENGLAND LIQUOR SALES CO., INC. 155
B. The Union's request for recognition and bargaining
On Sunday, February 21,4 Russell Bellico, a union business representative, met
with, six of Respondent's salesmen 5 at the Howard Johnson Motel in Holyoke. , After
Bellico explained the benefits of self-organization and how to qualify -for union
membership, all signed membership application cards and made a $5 down pay-
ment toward the initiation fees ($31).e The union card reads:
I, the undersigned,, hereby apply for admission to membership in the above
Union of the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and voluntarily choose and designate it as my rep-
resentative for purposes of collective bargaining, hereby revoking any contrary
designations. If,admitted to membership, I agree to abide'by the Constitution
of the International as well as the Local Constitution and By-laws which are
not in conflict with the International laws. -
Three additional salesmen (Barnini, DuBois, and Scala) signed cards between Feb-
ruary 22 and 25, and a 10th (Skellings) on February 28.. I
On February 25 the Union wrote Respondent that it was the collective-bargaining
representative of a majority of its salesmen at Holyoke and Pittsfield, and requested
recognition and bargaining. The Union also stated: "Should you have any doubt as
to our representing a majority of your Employees- in the above-described bargaining
unit, we will be more than willing to submit the signed authorization cards of your
Employees to a neutral party, mutually agreed upon and to allow the third party to
compare these cards with your present payroll."
C. Respondent's rejection of the Union's recognition and bargaining request
Company President Laskin received the Union' s recognition and bargaining
request the next morning, Friday, February 26. When Laskin showed it to General
Manager Solomon, the latter remarked, '"I don't believe that they have-a majority."
In the afternoon of the same day (February 26), Salesmen DuBois and Scala told
Laskin in his'of ice that althdiigh they had sighed union' cards and paid $5'initiation
fees, they wanted him to know that they were-not in favor of the Union. ' Later in
the day, Laskin contacted his attorney, Edward B. Cooley, to ascertain his "rights:"
Cooley advised him that he "could enumerate the benefits" which the Company had
given its employees' in the past. Laskin testified that the question of union recogni-
tion and card' check was not discussed with Attorney Cooley because 'he had already
determined not to 'recognize the Union "because I had a good faith doubt" of its
majority status.7' He testified that he had already "evaluated in [his]-mind" that 10
of the 16 salesmen he considered to be part' of 'the 'bargaining unit "we're for man-
agement," basing this on Scala's and DuBois' "unsolicited" visits and his feeling that
the men were "friendly" and loyal-to management. Laskin named the following in
addition to Scala and' DuBois as promanagement: Gaberman, 'Steinberg, Decker;
Nassif, Josephson, Lenkowski, Skellings, and Barnini. He admitted that he had "no
evidence" on this and that his "conclusions" were "merely" based on-opinion.
Also on the same day (February 26), Laskin instructed Solomon and Mueller
what'fo say if the salesmen talked to'them about company benefits.s' '
- On Mohday, March 1', employee' Skellings` informed Laskin that he had signed' a
union card. Skellings told him that "he was not in favor of the Union"' 9
4 All dates are'1965. ,
5McGinity,' Burke, Haggins , Maguire, Oleksak,'and Vickery
'O Employee McGinity credibly testified that although he and the other ' salesmeii 'signed
their cards on February 21, they dated them February 19, because February '21 was a
Sunday. February 19 also appears ' on "cards signed after Febr4ary - 21'so that: 'according
to•the credible testimony of Union Agent 'Gorman , " no particnlar ' caid 'would'show that
someone had signed prior to another-and thus reveal the leaders of the iuiion ' movement.
7 Laskin stated : "I knew how' many ' men I felt were in favor of management . 'There
was no discussion of a card check . . . . I'wasn 't Interested I had 'a good faith ' doubt"
'5At one point , Laskin -testified that his ' instructions to Solomon were given'even be-
fore he spoke to Attorney, Cooley about his rights However , the testimony of Mueller
and Solomon fixes the time as later in the day ' According to Mueller, 'Laskin repeated
his instructions the next morning.
•0 Skellings Could ' not' recall making ' this statement ' but stated he "might have told' him
that." I find Laskin 's recollection on this point more reliable . ' ' ' ) ; I "I
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Solomon testified that immediately after Skellings' visit, he and Laskin discussed
the Union's recognition demand. Solomon stated, "We came up with what we
thought we had nine votes if there was an election" plus the vote of Barnini who,
"being a manager of the Pittsfield office, so to speak? we felt we had his vote." 11
Solomon 'named Gaberman, Steinberg, Decker, Nassif, Josephson, and Lenkowski
as the ones who volunteered the information on February 27 that they wanted "no
part of the Union." 12
According to Solomon, "It was, I think, about this time [March 1] that Mr. Las-
kin dictated" his letter rejecting the Union's February 25 recognition and bargaining
request. Laskin told the Union, "For your information, I do have a genuine good-
faith doubt that your union represents a majority of my employees in the above-
described bargaining unit, which doubt could only be satisfactorily resolved through
an election conducted by the National Labor Relations Board.' The results of such
a properly conducted election would be the only way that I could satisfy myself
beyond doubt as to how my employees felt about the request of your union for
recognition as their exclusive bargaining representative."
D. Sales Manager Solomon's alleged coercive remarks on March 2
1. The conflicting testimony
'On Tuesday, March 2, Respondent held one of its periodic'sales meetings in Hol-
yoke. Present were employees from Pittsfield as well as from Holyoke. Sales Man-
agers Solomon and Mueller spoke to the group. It is undisputed that company bene-
fits, as well as general sales matters, were discussed. There is conflicting testimony,
however; 'as to whether Solomon made certain statements which, General Counsel
alleges, constituted interference, restraint, and coercion.
Employee, McGinity, General Counsel's witness, testified that in the course of his
remarks,Solomon referred to existing benefits and stated "that if conditions should
arise,- which -they possibly might, we could lose our profit-sharing plan, we could
lose our vacation pay, we could lose our Christmas gift, and we would not be com-
petitive -in the Calvert line." Employee Oleksak, another General Counsel's witness,
quoted, Solomon as saying, "if there was any change in the Company policy that
there's a good chance that we would not .be competitive with the Calvert line, and
we could, with the sales we had a good chance of losing the line in the next few
months. ; He also remarked that the profit sharing plan in his estimation-the profit-
sharing plan would stop, and a good chance of losing our vacation pay and also our
Christmas bonus." Two other witnesses for General Counsel (Burke and Maguire)
testified to substantially the same effect.
The record shows, and I find, that although company benefits were discussed in
prior sales meetings, this was done only infrequently and never were all company
benefits discussed at one time. Solomon testified that the last time benefits were
mentioned was in October 1964. He also stated that the Union's organizational
campaign prompted his decision to take up this subject at the March 2 sales
meeting.13
Salesmen's vacation benefits during the period here involved consisted of 2 weeks'
paid vacation-$75 each week plus commissions earned on their route by the substi.
tute salesman (usually Nassif in Holyoke) during vacation. The Christmas gift
consisted of a $100 bond. Under the profit-sharing plan, a portion of company
gross profits was set aside for distribution among employees and officials. (One
salesman testified that his share amounted to $700 or $800 last year.) According
to both company and General Counsel witnesses , remaining "competitive" means
1O Barnini 's position and duties are described infra, footnote 8.
"Laskin fixed the date of this conversation as February 26. It is clear, however, that
if the conversation took place at all, it occurred on March 1, as Solomon testified.
Laskin's recollection of the dates and times of events here relevant was poor and un-
reliable . See, e.g., supra, footnote 8 ; infra, E, 2.
"All named individuals-witnesses for Respondent-(except Josephson, who did not
testify), generally corroborated Solomon's testimony , with some variance in details. For
example, Lenkowski 'testified that he reported his refusal to sign a union card on Monday,
March 1 , not on February 27.
13 Mueller , on the other hand, , stated that the advent of the Union did "not particularly"
enter into that decision.
NEW ENGLAND LIQUOR SALES CO., INC. 157
remaining "flexible" in dealings with- retailers so as to afford them "the best deal,"
in face of competition. Respondent's competitor on the Calvert line, one of the
leading brands, is McKesson-Robbins, a nonunion distributor.14
Solomon denied stating in his March 2 talk that any existing benefits "would be
lost" in the event of a change in company "policy or conditions." Solomon and
other company witnesses testified in effect that Solomon merely enumerated company
benefits; they could not recall his making any "threats." Several company witnesses
admitted hearing Solomon use the words "flexible" and "competitive in the Calvert
line" and one company witness (Decker) quoted him as saying that the Company
"should be competitive and stay competitive if we are going to enjoy the benefits."
2. Credibility resolution
Based on the entire record and comparative demeanor of witnesses, I credit the
version of General Counsel's witnesses. McGinity and Oleksak impressed me as
careful and credible witnesses, each testifying in a fair and forthright manner in
accordance with his best recollection, and their testimony jibed with that of the
other two General Counsel witnesses. Since all four witnesses are still employed by
Respondent, they testified at the risk of incurring their employer's displeasure. On
the other hand, some of Respondent' s witnesses-three managerial officials (Solo-
mon, Mueller, and Nassif) and two relatives (Steinberg and Gaberman, Laskin's
first cousin and nephew by marriage, respectively) -appeared to betray pronounced
procompany basis. Another company witness (Decker) impressed me as intensely
loyal and anxious to testify in any manner he deemed helpful to his employer. Skel-
lings, the only other' company. witness testifying on this matter, was a basically cred-
ible witness, but his testimony here is entitled to little weight because, according to
his own account, he missed portions of Solomon's talk and paid but scant attention
to it.
Furthermore, the testimony adduced by General Counsel was, as hereafter found,
consistent in tenor and with, the pattern of Company President Laskin's March 10
conduct. Respondent admittedly opposed the organization,of its -liquor salesmen.l5.
As Laskin stated at the hearing;-"If I could prevent it,*of course I wanted to prevent
it." According to employee Skellings, Solomon commented in similar'vein in Janu-
ary or February 1965, when,,in response to Skellings' observation that the climate in,
Springfield appeared 'to be pro-Union, Solomon said, "If they're crazy enough, let
them fight for it." And McGinity credibly testified that around the same time (Feb-
ruary 1), he overheard Solomon tell another employee (Lenkowski)-in reply to,
the latter's observation that "there is talk of Union in the trade"-that "if the sales-
men form a Union at New England Liquors, Mr. Laskin will immediately withdraw-
the profit-sharing plan they have there." 16 , ' ,, --
Accordingly, based on my assessment of the probabilities in the light of all the evi-
dence , as well as the demeanor of the witness, I find that on March 2 Solomon made
the remarks attributed to him by General Counsel 's'witnesses.
On March 5 Bellico, the Union 's business representative, telephoned Company
Attorney Cooley and, protested the "threats" uttered by Solomon at the March 2
meeting. After checking with company officials,- Cooley conveyed to him Solo-
mon's denial that they were made. Cooley told Bellico that "If this thing happened,
which I do not believe that it did, then you can be assured of this, that on the basis
of what I've said to Mr. Laskin, certainly it won't happen again." 17
E. Company President Laskin's alleged threats on March 10
As previously noted , Respondent employs three salesmen in Pittsfield. One of
these, Barnmi, has been with the Company for 15 years, and serves as a sort of con-
HAs salesman Olansky testified , there's "always a nip and tuck battle" between Re-
spondent and this competitor and there always is the "threat " of losing the account to
an exclusive agency "if we don't do a proper job." All witnessses , including Company
President Laskin , agreed that Respondent was fully competitive on March 2.
w Respondent 's truckdrivers have been organized for years.
is Since the complaint did not allege that the last -quoted statement was a violation of
Section 8 ( a) (1) of -the Act, I make no finding that it did This and the other statements
attributed to Solomon . and Laskin , recited in the above paragraph , are considered only as
background.
17 The foregoing finding is based on the statement of Attorney Cooley at the hearing,
accepted by General Counsel in lieu of oral testimony . To the extent that Bellico's
version of the incident is inconsistent with Cooley 's, it is rejected.
158 DECISIONS O.F NATIONAL: LABOR RELATIONS BOARD
duct in relaying instructions from his superior. in Holyoke 4o the other two salesmen
in Pittsfield.ls
A witness for General Counsel, Barnini, testified :that on Wednesday, March 10,
he had a conversation with Company President Laskin in which the latter made
antiunion and coercive ktatements. :Laskin denied making the statements attributed
and disputed both the date of his meeting with Barnini and the 'topics discussed.
The following points up the conflict in their testimony.
1. The conflicting testimony
Barnini testified that on Friday, March 5, in Pittsfield in the presence of Sales
Manager Mueller, he telephoned Laskin in Holyoke. He told Laskin that he had
spoken to Vickery (one of the two other employees at Pittsfield) about "the merit
of the Company, about the profit-sharing and the insurance policies and what have
you ... all the good points versus the Union." 19 Laskin said that he would see him
in Pittsfield next week. According to Barnini, early Wednesday morning, March 10,
Mueller informed him on the telephone that he (Mueller) was coming to Pittsfield.
Mueller also asked Barnini if he was going to a union meeting in McGinity's house
that night. When Barnini inquired, "What meeting?" Mueller remarked, "Well,
maybe they didn't tell you about it.
Barnini further testified that after Mueller arrived in Pittsfield, the latter informed
him that Laskin was coming to see him at 3 p.m. Laskin arrived around then and,
after indicating that he wanted to talk to him privately, it was agreed to meet at a
nearby Howard Johnson restaurant. Barnini quoted Laskin as telling him at this
meeting that "we are not a country club house [the Country Club Soda Company in
the area, which recently signed a contract with the Union], meaning this is a competi-
tive house, a business house"; that whereas on the few occasions the Country Club
Company runs promotions it gives a discount of 80 cents a case , Respondent's pro-
Motional discounts run as high as $3 a case plus 2 percent; and that "with this in
mind, he [Laskin ] says a Union could force me out of business ." According to Bar-
nini, Laskin went on to say that within 4 or 5 months "I would be forced to close
the Pittsfield branch, and within a year's time I would have to close the Holyoke
branch"; and that "we would lose our insurance policy, our profit-sharing." Laskin
told him, however, that he was not telling him (Barnini) how to vote, but indicated
that the "balance of power, meaning that the votes . was in Pittsfield ." Barnini
told Laskin that he would relay the information he just received to the other men
in Pittsfield.
Laskin conceded asking Mueller to make an afternoon appointment for him with
Barnini and that they thereafter met at the Howard Johnson. As already noted,
he disputed the date of the meeting and the subjects discussed. According to Laskin,
he conferred with Barnini on March 3 (exactly a week before the date fixed by Bar-
nini) about a liquor inventory shortage and credit problems in Pittsfield and that at
the same time he discussed. with him. company benefits. According to Laskin, he
19 Barnini 's duties include checking on delinquent accounts . . ( Under Massachusetts law,
the credit period for liquor dealers may not exceed 90 days. ) In addition , he attends
to other routines , such as. assuring that shipments tally with invoices . He also assists
his two coworkers with sales and promotions . Although company officials occasionally
referred to Barnini at the hearing as "manager," Respondent does not claim that he is a.
supervisory employee. Barnini spends 75 percent of his time selling to his own accounts
for which he is paid the usual commissions (he receives an additional weekly salary,
presumably for administrative work ), and he has the same fringe benefits ( e.g., vacation
pay at $75 . per week plus commissions ) as other employees.
19Although both Vickery and Barnini had earlier ( February 21 and 22 ) signed union
cards, after Solomon's March 2 address to the employees Barnini was apparently willing
to sway Vickery to the Company's side. Barnini's prounion outlook evidently crystallized
after his March 10 meeting with Laskin when , according to Barnini , he was for the first
time "really, really frightened" about his job security.
Mueller confirmed that Barnini made the March 5 telephone call to Laskin in his
presence, stating that he told Barnini that "it would be a good idea if he [Barnini] called
Gerry [Laskin] and made sure he had it straight as to what he could or couldn't say"
about company benefits to his coworkers in Pittsfield. According to Mueller, he suggested
the call after Barnini mentioned that "he was planning to outline the Company benefits"
to his coworkers.
NEW ENGLAND LIQUOR SALES CO., INC. 159
told Barnini that there had been liquor shortages for 7 months, that this "bothered
me to no end," that the Company's accountant "kept calling my'attention to -[this]
fact ... month after month," and that "this thing had to be stopped." Laskin also
called attention to "big losses" because of the "deplorable" credit situation in Pitts-
field 20 He stated that he then told Barnini that "if the men should ask him anything
concerning the Union that we had received a letter and-I wanted him to' be enlight-
ened as to what he's'to say to these men"-specifically, "to elaborate on the benefits
that we have been giving the employees over the years." Laskin denied threatening
to close the Pittsfield or Holyoke operations He also denied being in Pittsfield on
March 10, the date fixed by Barnim.
2. Credibility resolution
Although, as counsel for Respondent notes in his brief, Barnini's testimony is
marked with some confusion • and contradiction, L credit his testimony rather than
Laskin's. To begin with, Barnini's testimony to which Respondent refers pertains to
minor details (e.g., whether Barnini initiated or Mueller suggested the March- 5 call
to Laskin) and not to the substance of his testimony concerning his conversation with
Laskin, as to which Barnim withstood vigorous 'and able cross-examination. More-
over, as pointed out below, Barnini's testimony. appears more consistent with the
inherent probabilities than Laskin's. 1. I ,
According to Laskin, his primary reason for going to Pittsfield (allegedly on
March 3) was to take up the liquor shortage there; yet, he admitted that this shortage
was not Barnini's responsibility but that of Wetzel, the Pittsfield warehouse manager
then on vacation. Further, although the shortage allegedly continued "month after
month" (for 7 months), Laskin conceded that the March trip was the first he took
on this matter. It is hard for me to believe that Laskin chose personally to discuss
the alleged shortages with a person admittedly not in control over the situation before
hearing out the person (Wetzel) who was. I prefer to believe, as Barnini testified,
that Laskin did not discuss shortages with Barnini but that, as Barnini recalled,
Mueller (the managerial official in charge of the Pittsfield 'operation) discussed the
shortages with the person responsible therefor (Wetzel) on March 10, after the Tat-
ter's return from vacation.
The second reason Laskin gave for the Pittsfield trip-to discuss the credit situa-
tion for which Barnini was responsible-likewise -appears implausible. No satisfac-
tory explanation has been advanced for the alleged necessity for Laskin to make a
special trip for this purpose when Mueller, the company official to whom Barnini was
answerable, was there already; particularly since there is no evidence that Mueller
had previously discussed this matter with Barnini.
Laskin's remaining alleged reason for the March 3 trip-to instruct Barnini • 'what
he's to say" to his Pittsfield coworkers concerning company benefits-appears ever
more specious. It will be recalled that only the preceding day (March 2), Sales
Manager Solomon outlined those benefits to Barnini (and other salesmen) in Holyoke.
Further, if Laskin deemed it necessary to give Barnini special and individual instruc-
tions, why did he not arrange to talk to him about this (as well as the alleged short-
ages and credit problems) while Barnini was in Holyoke? 21
In the light of all the circumstances, I cannot credit Laskin's testimony either as
to the date or substance of his conversation with Barnini in Pittsfield. I credit Bar-
nini's testimony to the effect that Laskin visited him on March 10, asked to speak
with him privately, and then went with him to a nearby Howard Johnson restaurant,
where Laskin explained to him (1) the, competitive conditions facing Respondent,
(2) the possibility that a union could force it'out of business, (3) the likelihood of
his closing the Pittsfield and Holyoke offices, and (4) the possible loss of employee
benefits. That Laskin chose to confide Respondent's antiunion attitude in Barnini
is not surprising, since he had at that time regarded him as one of his trusted employ-
ees. That Laskin chose March 10 to talk to Barnini about the consequences of
unionism is understandable since Respondent and `the Union only the preceding day
(March 9) entered into an agreement for an election to be held on March 12 (infra,
section F).
20 Barnini denied any discussion of inventory shortages and could not recall' discussion
of credit problems.
=Mueller's testimony establishes that Laskin was in Holyoke the day before (March 2),
although Laskin did not personally attend the sales meeting held on that day.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the inherent probabilities, as well as the demeanor of the witnesses, I
credit Barnini 's version of his meeting with Laskin.22 _
F. The representation proceeding
After receiving Respondent's March 1 letter rejecting its recognition and bargain-
ing request, the Union on March 5 filed its petition for an election. The Union and
Respondent met on March 9 and entered into a stipulation for certification upon
consent election (approved the same day by the Regional Director), scheduling an
election for March 12. The appropriate unit was stipulated to be:
All beer, wine and liquor salesmen at the Employer's Holyoke and Pittsfield,
Massachusetts establishments, excluding all other employees, office clerical
employees, guards, professional employees and supervisors as defined in the Act.
On the same day (March 9), the parties also discussed the voting eligibility list.
Respondent proposed 16 names, including Nassif and Decker, for the unit. The
Union opposed the inclusion of Nassif on the ground that he was a supervisor and
"part of management" (supra, footnote 2); it wanted Decker excluded because he
sold only to the military and not in the Holyoke-Pittsfield area (supra, footnote 3),
and, further, because he was salaried. After discussion of the duties and work of
the two men and the Union's admonition that if Decker were included in the unit,
the Union (if it won the election) would insist that he be paid on the same basis
(by commission) as other salesmen, the Company agreed to reconsider its position.
After conferring with its attorney (Respondent's chief spokesman at the meeting),
the Company accepted the Union's position, giving as its reason the fact that it
wanted to "expedite" the election 23
The Union lost the election of March 12 by a 7 to 7 vote. As earlier noted, it filed
objections to the election on the ground, inter alia, that Respondent threatened and
coerced its employees for the purpose of affecting the election results.
G. Conclusions respecting the alleged 8(a) (1) violation
Respondent admittedly opposed unionization of its liquor salesmen. As Company
President Laskin frankly stated at the hearing, "If I could prevent it, of course, I
wanted to prevent it." Sales Manager Solomon demonstrated a similar antiunion
attitude. Thus, in commenting on the Union's general drive to organize the industry
in Respondent's area, he told one employee, "If they're crazy enough, let them fight
for it." To another employee he said, "If the salesmen form a union at New England
Liquors, Mr. Laskin will immediately withdraw the profit-sharing plan they have
there." As found, on March 2, Solomon told the' assembled salesmen in Holyoke,
that "if conditions should arise" or "if there was any change in Company policy,"
the salesmen "could lose" or had "a good chance of losing" their vacation benefits,
profit-sharing plan, Christmas gifts, and their. competitive position on the Calvert
line . Although Solomon did not explain what he meant by change in "conditions"
or "policy," the coercive implication of the remarks was evident from, the timing of
the remarks, the occasion for uttering,them, and the, fact that there were no dis-
credible changes in the offing other than the specter of unionization ,of the business.
Finally, as further found, on March 10 Laskin warned employee Barnini in Pittsfield
that the Union could force Respondent out of business and close both its Holyoke
and Pittsfield operations within a matter-of months or a. year; and that the salesmen
would lose their existing benefits, including profit-sharing and insurance. Barnini,
as Laskin expected, repeated this warning to, his two coworkers in Pittsfield.
22 Both Respondent and General Counsel adduced, evidence purporting to corroborate
the testimony of their respective principal witnesses , Laskin and Barnini , concerning the
date of.their meeting . Respondent's witness Mueller testified that, in accordance with
Laskin 's instructions,.be arranged the meeting between . Laskin and Barnini for March 3.
General Counsel's witness Maguire testified that he and. Vickery (his Pittsfield coworker)
met with Barnini on March 11 ' (the day after they attended a March 10 union meeting)
at which time Barnini recounted his experience with Laskin on the preceding day. For
,reasons already stated , I find Mueller's testimony, incredible .,: In this connection,,it should
be noted that I have already discredited Mueller on another material matter herein issue
(supra, section D , 2)., , {.;; .
29 The above findings are based, on the composite testimony of Bellico ( the, Union's
business agent ) and Company President Laskin.
NEW ENGLAND LIQUOR SALES CO., INC. 161
I find that the statements by, Respondent's top officials on March 2 and 10, shortly
after the Union signed up Respondent 's employees and within a few days of the
scheduled (March 12 ) Board election, tended to interfere with , restrain , and coerce
Respondent 's employees in the exercise of their self-organizational rights, in violation
of Section 8(a)(1) of the Act. They conveyed the message to the employees that
unionization constituted a threat to their economic security-their jobs as well as
economic benefits. The "[e]mployees [were] not likely to miss the inference that the
source of benefits now conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged." . N.L.R.B. V. Exchange Parts Com-
pany, 375 U.S. 405, 409. Respondent's statements were violative of Section 8 (a) (1)
even if, as Solomon's March 2 remarks, not explicit threats. The statute con-
demns implied or veiled threats , as well as express threats of reprisal . See N.L.R.B.
v. Steam Radiator Corp., 321 F. 2d 733, 736 (C.A. 6); Lloyd A. Fry Roofing Company
v. N.L.R.B., 222 F. 2d 938, 941 (C.A. 1). "The test is whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere with the free exercise
of employee rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811,
814 (C.A. 7). As Justice Harlan, speaking for the Supreme Court, said in Exchange
Parts Co., supra, 375 U.S. at 409:
The broad purpose of § 8(a)(1) is to establish "the right of employees to
organize for mutual aid without employer interference.", ... We have no doubt
that it prohibits not only intrusive threats and promises but also conduct imme-
diately favorable to employees which is undertaken with the express purpose of
impinging upon their freedom of choice for or against unionization and is rea-
sonably calculated to have that effect.
I cannot agree with Respondent's contention that Laskin's and Solomon's state-
ments were mere "predictions" or "prophecy" of probable consequences from unioni-
zation, privileged by Section 8(c) of the Act. It is quite true, as the cases cited by
able counsel illustrate, that the dividing line between coercive threats and privileged
predictions is often difficult to determine. International Union of Electrical, Radio
and Machine Workers, AFL-CIO v. N.L.R.B., 289 F. 2d 757, 762 (C.A.D.C.). How-
ever, the Board and courts have held that "When statements such as these are made
by one who is a part of ... management, and who has the power to change prophecies
into realities, such statements, whether couched in language of probability or cer-
tainty, tend to impede and coerce employees in their right of self-organization, and
therefore constitute unfair labor practices." N.L.R.B. V. W. C. Nabors, d/b/a W. C.
Nabors Company, 196 F. 2d 272, 276 (C.A. 5), cert. denied 344 U.S. 865. See also
N.L.R.B. v. Teamsters Local 901, etc., 314 F. 2d 792, 794 (C.A. 1); Suprenant Manu-
facturing Co. V. N.L.R.B., 341 F. 2d 756, 761 (C.A. 6). This is particularly true
where, as here, "the utterer ... [failed to] show that he had such reasonable basis for
his statements." International Union of Electrical Workers v. N.L.R.B.,'supra, 757;
N.L.R.B. v. Harold Miller, et al., d/b/a Miller Charles & Co., 341 F. 2d 870, 872-873
(C.A. 2). Furthermore, it has been held that "statements on the part of management
to employees that it might be necessary to close the plant, made during a period when
unionization of its employees was sought to be effected, must be regarded as coercive,
notwithstanding sincere belief that such result would follow." United Fireworks
Mfg., Co., Inc. v. N.L.R.B., 252 F. 2d 428,'430 (C.A. 6)'. See also N.L.R.B.1v. Parma
Water Lifter Co., 211 F. 2d 258, 262 (C.A. 9), cert. denied 348 U.S. 829.
I conclude that Solomon's remark's'of March 2 and Laskin's statements of March 10
were "threat[s] disguised as ... prediction[s]" (N.L.R.B. v. Miller, supra, 341 F. 2d
at 873 ) and constituted interference , restraint, and coercion within the meaning of
Section 8 (a)( I) of the Act 2a
9+ In addition to alleging illegal threats of reprisal, the 'complaint alleged : that:
(a) On or about March 10 Respondent ( through Laskin and Sales Manager Mueller)
engaged in surveillance of employee union activities; and (b ) on or about February 26
Respondent (through Nassif, herein found to be a managerial employee supra, footnote 2)
unlawfully interrogated employees concerning their ' union membership and activities.
Neither allegation is supported by the record . General Counsel in his brief points to'ao
evidence , and I could find none, to support (b). As to ( a), the only evidence bearing on
that point appears to be.Barnini 's testimony that in apprising him of his intention to'go
to Pittsfield on March 10 , Mueller asked 'him if he Was "going to the Union meeting at
McGinity 's house tonight." Barnini testified that when he asked "What meetingT" Muel-
ler replied, "Well, maybe they didn't tell you about it," and that was it. Mueller's remark
appears to be too casual and routine to base a finding of violation thereon
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H Conclusions respecting the alleged 8(a) (5) violation
1 The appropriate unit
As previously noted , on March 9 Respondent and the Union entered into a stipu-
lation for certification upon consent election Among other things , the parties stipu-
lated the following as the appropriate unit for collective bargaining
All beer, wine, and liquor salesmen at the Employer's Holyoke and Pittsfield,
Massachusetts establishments, excluding all other employees, office clerical
employees, guards, professional employees, and supervisors as defined in the Act
In its answer to the complaint, Respondent also admitted appropriateness of that unit
I find that the above-described unit is appropriate for collective bargaining within
the meaning of Section 9(b) of the Act
2 The Union's majority status
The facts found establish that on February 25, the date of the Union's recognition
and bargaining request, Respondent employed 14 salesmen in the bargaining unit
This also is the number the parties stipulated as eligible to vote in the March 12
election As found, 9 of the 14 signed union cards by February 25, and a 10th signed
a card on February 28 The cards clearly and expressly stated that the signatory
"voluntarily choose[s] and designate[s]" the Union "as my representative for purposes
of collective bargaining " Respondent formally rejected the Union's request on
March 1
I find that the Union at the tune of its request for recognition and bargaining, and
Respondent's denial thereof, represented a majority of the employees in the appro-
priate unit 25
3 The "good-faith doubt" defense
The legal principles here applicable are well settled An employer is under a legal
obligation to recognize and bargain with the majority representative of his employees
in an appropriate unit where such majority is established by union authorization
cards, unless he has a good-faith doubt of the reliability of the cards United Mine
Workers of America v Arkansas Oak Flooring Co, 351 U S 62, 71-72, Joy Silk
Mills, Inc v NLRB , 185 F 2d 732, 741 (C A D C ), cert denied 341 U S 914 2s
If he genuinely entertains such doubt he may insist on resolving it in a Board-
conducted election Ibid However, the asserted doubt must rest on more than
unfounded assertions or speculation A good-faith doubt presupposes "a rational
basis in fact " (NLRB v The Howe Scale Company, 311 F 2d 502, 504 (C A 7) )
See N L R B v Whitelight Products Corporation, supra, 14-15, N L R B v Piqua
Munising Wood Products Co, 109 F 2d 522, 526 (C A 6), NLRB v Economy
Food Center, Inc, 333 F 2d 468, 472 (CA 7) Moreover, "This question of good
faith is one , which, of necessity , must be determined in the light of all relevant facts
as One company witness (Scala) gave conflicting testimony which, if credited in a certain
aspect, could throw doubt upon the validity of his authoriation card Scala at one point
stated that the card solicitor (McGinity) told him that his signature was needed ' in
order for me to vote" or "to get a vote" Cf Englewood Lumber Company, 130 NLRB
394 In its brief to me Respondent does not raise this issue However, Scala also
testified that he wee told that he was signing a "membership card" and that this was
"needed for a majority " Scala's testimony is so shifty, self contradictory, and
evasive that I cannot credit it Rather, I credit the forthright testimony of McGinity
that he did not represent to Scala ( or others ) that the cards were needed for a vote It
stretches credulity to suppose that Scala would ( as he did) fill out a "membership'
application, make a $5 downpayment on initiation fees, and obligate himself to an adds
tional balance of $26 fees , in order to enable him merely to cast a vote in an election
811 See also N L R B v Whitelight Products Division of White Roiling i Stamping
Corporation , 298 F 2d 12 , 14-15 (C.A 1) , N L R B v Samuel J Kobrsto d/b/a Star
Beef Company, 193 F 2d 8, 14 (C A 1) , N L R B v Gorbea, Perez & Moreil, S en C
300 F 2d 886 , 887 (C.A 1) N L R B v Phiiamon Laboratories Inc 298 F 2d 176 179
(C A 2), cart denied 370 U S 919 , N.L R B v Elliott Williams Co Inc, 345 F 2d
460,468-464 (C A 7)
NEW ENGLAND LIQUOR, SALES CO., INC. 163
in the case, including any unlawful conduct' of the employer." -Laabs, Inc., 128
NLRB 374.27
The Union requested Respondent to recognize, and bargain- with it on February 25,
offering Respondent an opportunity to check its authorization cards by an impartial
person if it entertained "any doubt as to representing a majority" of the unit}employ-
ees. Respondent received the Union's request on February 26. Two of the sixteen
salesmen it believed to be in the bargaining unit 28 informed Company President
Laskin on that day (February 26) that they did not favor the Union, even though,
as they said, they had signed cards and paid $5 initiation fees29 Laskin thereupon
concluded without further basis that 10 of his 16 salesmen were promanagement and
he decided not to recognize the Union. As Laskin testified, he arrived at his con-
clusion on the basis of opinion and belief, not upon "any evidence," and, as he indi-
cated, he did not even bother to discuss the Union's recognition and card-check
requests with his attorney whom he.promptly consulted about his right to speak on
company benefits. However, in the 3-day interval between his receiving and answer-
ing the Union's letter (February 26-March 1); 7 salesmen in addition to the 2
already named (or 9 out of 16) did tell Laskin or Sales Manager Solomon that they
did not want the Union.
I need not decide to what extent, if any, a reasonable employer would discount
employee statements of this sort as prompted by fear of possible employer reprisals
or a desire to curry favor with his employer. Reassurances on this subject by employ-
ees to employers under similar circumstance are not novel in, the industrial rela-
tions field. They must be evaluated appropriately as the particular congeries of
circumstances require. It may be assumed, for purposes of this case, that absent
other circumstances reflecting on good-faith doubt, an employer may ordinarily take
such employees assurances at face value and test any ensuing doubts in an election.
But other circumstances present here-Respondent's contemporaneous coercive con-
duct-impugn its motive for insisting upon an election. Cf. N.L.R B. v. Stow Manu-
facturing Co., 217 F. 2d 900, 904-905 (C.A. 2).
As found, on the very day after its election request (March 2), Sales Manager
Solomon subtly, but effectively, threatened the assembled salesmen that they could
stand to lose their vacation benefits, profit-sharing plan, Christmas gift, and competi-
tive business position, in the event of unionization. About a week later (March 10),
the day after he agreed to an election, Company President Laskin bluntly warned a
union adherent (Barnini)-with the avowed purpose of transmission to other employ-
ees-that the salesmen could lose these benefits and that the Company could shut
down its Pittsfield and Holyoke facilities and go out of business because of the
Union, a warning Barnini relayed to his coworkers. It may be assumed that such
statements by top company officials are uttered in order to be taken seriously by
employees and therefore have a direct effect upon employees' willingness to adhere
to, or defect from, a union. As Barnini testified, he was "really, really frightened"
2r Accord: Hammond h Irving, Incorporated, 154 NLRB 1071, 1073 ("The Board has
long held that an employer may insist upon a Board election as proof of a union's
majority if it has a reasonable basis for a bona fide doubt as to the union 's representa-
tive status. . . . In determining whether the employer's action was taken to
achieve . . . Invalid purposes , the Board considers all the surrounding circumstances as
well as direct evidence of motivation. . . . Whether the conduct involved reflects on-the
good faith of the employer requires an evaluation of each case.").
28
,
As previously found, Respondent actually had 14 employees in the unit. However,
since the propriety of excluding from the unit two additional individuals ( Decker and
Nassif ) was unclear (both performed some of the duties of unit employees , supra, foot-
notes 2 and 3), I cannot say that Respondent's belief (on February 26) that the two men
belonged in the unit was unreasonable . Cf. Clermont's Inc., 154 NLRB 1397 . I there-
fore find merit in Respondent ' s contention that in determining whether it had a good-
faith doubt concerning the Union' s majority , the figure 16 should be used.
20One 'of the employees , Scala, signed his card ' the preceding day,' (February 25) and
the other (DuBois ) on February' 24 or 25 . There is no evidence that either of them (or
any card signer ) ever revoked his designation of the Union.'
221-374-66-vol. 157-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Laskin's threats 30 Under the circumstances , it matters not that Respondent
agreed to a "quick" election . An employer bent on destroying a union through
threats does not require an extended period to achieve his objective, particularly
where, as here, the bargaining unit comprises but 14 (or 16) employees: As it
turned out, the shift in allegiance from union to employer of only one employee
,made the difference between union victory and defeat.
In the light of the entire record, I find that Respondent' s insistence on an election
was not motivated by any genuine doubt of the Union's majority which it was entitled
to resolve by an election, but "by a desire to create the opportunity to dissipate the
Union's majority." Bernel Foam Products Co., Inc., 146 NLRB 1277, 1283-1284.
-I find that Respondent sought an election to gain time within which it could reach
its employees by its coercive antiunion message and thereby defeat the Union at the
polls.
Furthermore, the aroma of coercion generated by Respondent's unlawful conduct
.has destroyed the efficacy of the very machinery (Board election) by which it
allegedly sought to dissipate its doubts.31 Respondent cannot now be heard to com-
plain that the authorization cards signed before the election are a less reliable method
for determining the employees' union sentiment than a new election. Over a decade
ago in a somewhat analogous factual context, my colleague, Trial Examiner Somers,
observed:
... the unfair labor practices engaged in by Respondent . . . defeat the right
to an election which a doubt, if any existed in fact, would otherwise have given
it; the contention that an election is a truer gauge of employee sentiment is sound
only as long as the measuring capacities of the election machinery are not
impaired by unfair labor practices. The Respondent by its unlawful acts .. .
has reduced it to a less, not a more, reliable gauge of employee sentiment than
the cards, which the employees signed before Respondent intruded itself into
the picture. Respondent, by its conduct, has thus made necessary the use of the
cards, which it now deplores; having destroyed the utility of what it urges as
best, it must accept what has been recognized to be good and adequate. (Ben
Corson Manufacturing Co., 112 NLRB 323, 342.)
,See also Irving Air Chute Co., Inc. v. N.L.R.B., 350 F. 2d 176 (C.A. 2); Bauer Weld-
ing & Metal Fabricators, Inc., 154 NLRB 954.
Having found that the Union, representing a majority of Respondent 's employees
in an appropriate unit, made a proper request for recognition and bargaining, which
Respondent declined, and having also found that Respondent's refusal to recognize
and bargain with the Union was not based on a good-faith doubt of the Union's
majority, but in order to dissipate that majority, I find that Respondent has refused
-to bargain collectively in good faith, in violation of Section 8(a)(5) and (1) of the
'Act. I further find that-the Union' s loss of. majority, as evidenced by the Board
election results (7 to 7 tie vote), is attributable to Respondent's unfair labor prac-
tices, including its threats of economic reprisals and its refusal, to recognize and bar-
gain with the Union. Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 704; Ray
Brooks v., N.L.R.B., 348 U.S. 96, 102-103; N.L.R.B. v. Whitelight Products Division
of White Rolling & Stamping Corporation, 298 F. 2d 12, 15 (C.A. 1); cert. denied
369 U.S. 887.
90 Contrary to Respondent's contention, the fact that the'Board will not consider con-
duct offered as an objection to an election if it occurred before the filing of the election
petition (The Ideal Electric and Manufacturing Company, 134 NLRB 1275), does not
preclude consideration of Respondent's March 2 (prepetition) conduct for purposes of
determining whether it committed an unfair labor practice. In any event, the March 2
conduct is relevant background evidence for assessment of its March 10' (postpetition)
conduct.
u "[E]xperience has demonstrated that a vast majority of the rerun elections' results
favor the party which interfered with the original election. This clearly :demonstrates
the lingering effect of unacceptable electioneering conduct. Thus, in a majority of the
cases another election can hardly,be said to be an adequate remedy for the employer's
unlawful refusal to recognize the employees' designated majority representative which
was followed by conduct which interfered with the employees" freedom of choice." ' Bernel
Foam Products Co., Inc., 146 NLRB 1277, 1281.
NEW ENGLAND LIQUOR SALES CO., INC. 165
IV. CONDUCT AFFECTING THE RESULTS OF THE MARCH 12 ELECTION
As stated at the outset of this Decision, the Board in its order of June 3, in Case
No. 1-RC-8301, adopted the Regional. Director's recommendation that the repre-
-sentation case be consolidated with the complaint case for disposition of identical
issues (acts of interference, restraint, and coercion) involved in both proceedings.
As noted, I have found that Respondent violated Section 8(a) (1) of the Act because,
among other things, it unlawfully threatened a union adherent on March 10 that the
employees could lose their existing benefits and that it could close its facilities and
go out of business in the event of unionization-a warning given for the purpose of
being relayed, and which was in fact relayed, to two other employees in the unit.32
I conclude that such conduct also interfered with the exercise of a free and untram-
meled choice in the election held herein.33 I accordingly find merit in and sustain
the objections on which a hearing was directed, and it is recommended that the elec-
tion be set aside. However, in view of my finding of Respondent's refusal to bargain
as violative of Section 8(a)(5) and my recommended order in that connection, I do
not recommend that a new election be held. Freeport Marble & Tile Co., Inc., 153
NLRB 810.34
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act. Since I have found that Respondent unlawfully refused to recognize and
bargain with the Union, the Recommended Order will require Respondent, upon
request, to bargain collectively with the Union and, if an understanding is reached,
to embody such understanding in a signed agreement.
For reasons set forth, supra, section H, 3, I find that "the lingering effect" (Bernel
Foam Products Co., Inc., supra, 1281) of Respondent's preelection conduct renders
a free election within the reasonably foreseeable future impracticable. Under the
circumstances, an order merely requiring Respondent to cease and desist from any
further violations of Section 8 (a) (1) and directing a new election after a reasonable
passage of time, will not effectuate the purposes of the Act. See Irving Air Chute
Co. v. N.L.R.B., supra35
CONCLUSIONS OF LAW
1. By impliedly and directly threatening employees with discontinuing existing
benefits and closing its business because' of their union affiliation and activities,
Respondent has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a)( 1 ) of
the Act.
2. All beer, wine, and liquor salesmen at Respondent's Holyoke and Pittsfield,
Massachusetts establishments, excluding all other employees, office clerical employ-
ees, guards, professional employees, and supervisors as defined in the Act, .constitute
a unit appropriate for purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
52 While I have found that Respondent also -violated Section 8(a) (1) by threatening
economic reprisals on March 2, 1965, this conduct took place before the filing of the
representation petition on March 5, and, therefore, is not a proper basis for -setting the
election aside. The Ideal Electric and Manufacturing Company, 134 NLRB 1275.
as Playskool Manufacturing Company, 140 NLRB 1417, 1419 ; Dal-Teo Optical Company,
Inc., 137 NLRB 1782.
34 In view of these findings and, recommendations, it would follow that the petition for
certification of representatives filed by the Union in Case No. 1-RC-8301 should be dis-
missed, and that all proceedings held in connection therewith be vacated.
35 But see N.L.R.B. v. Flomatic Corp., 347 F. 2d 74 (C.A. 2), cited by Respondent, where
the court found a second election the "more appropriate remedy." However, that case is
factually distinguishable from this one in that there the unfair labor practice found by
the court was only a "borderline unaggravated 8(a) (1) violation" (supra, 79) and, fur-
ther, because as noted by the same court in Irving Air Chute, there never was a demand
and refusal to bargain in Flomatic, the union having asked "only for an election, as
a means of establishing its status as the' bargaining representative" (Plomatic,
supra, 76).• - '
1'66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union has been ' at all times material herein , and is now, the exclusive
representative of all employees in the aforesaid appropriate unit for purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
4. By'refusing on March 1, 1965, and thereafter to bargain collectively with the
Union'as such 'exclusive bargaining representative , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1)
of the Act. -
5. The foregoing unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and '(7) of the Act.
6. Respondent did not engage in unfair labor practices other than as herein found.
RECOMMENDED ORDER
- 'Upon the basis `"of the foregoing -findings and conclusions, and upon the entire
record in this case, and pursuant to Section 10(c) of the Act, it is recommended that
New England Liquor Sales Co:, Inc., its 'officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening, expressly or by implication, to discontinue existing benefits, to
close its operations, or to take any other economic reprisals, in order to discourage
union activity or affiliation.
(b)' Refusing to bargain collectively with General Teamsters, Chauffeurs, Ware-
housemen and Helpers, Building' Materials, Heavy and Highway Construction
Employees Local Union No. 404, a/w International Brotherhood of Teamsters,
'Chauffeurs, Warehousemen & Helpers of America as the exclusive representative of
its employees in the following appropriate unit:
All beer, wine, and liquor salesmen at Respondent's Holyoke and Pittsfield,
Massachusetts, establishments, excluding all other employees, office clerical employ-
ees, guards, professional employees, and supervisors as defined in the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive 'representative of all employees in the above-described bargaining unit, and, if
an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its facilities in Holyoke and Pittsfield, Massachusetts, copies of the
attached notice marked "Appendix." 36 Copies of such notice, to be furnished by
,the Regional Director for Region 1, shall, after being signed by a representaive of
Respondent,, be posted immediately upon receipt thereof, and be maintained by it
for a% period of 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not altered, defaced, or cov-
ered'by any, other material. .
(c), Notify the said Regional Director, in writing, within 20 days of the date of
the receipt of, this _Decision, what steps it has taken to comply herewith 37
It is further recommended that the objections to the election on which a hearing
was ordered be sustained, and that the election held in Case No. 1-RC-8301 on
March 12, 1965, be set,aside; and that the complaint be dismissed as to any alleged
violations not herein found.
w In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "a Decision and Order
37 In the event that this Recommended Order, be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply therewith
APPENDIX'
NOTICE TO ALL EMPLOYEES'
Pursuant to, the Recommended Order of a TrialExaminer of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten to discontinue existing benefits or to close our opera-
tions or to take any economic reprisals, in order to discourage union membership
and activities.
DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY. 167
WE WILL bargain collectively , upon request, with ;General Teamsters , Chauf-
feurs, Warehousemen and Helpers , Building Materials, Heavy and Highway
Construction Employees Local Union No. 404, a/w International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of America as the collective'
bargaining representative of all of our employees in the unit described As
follows:
All beer, wine , and liquor salesmen at the Company 's Holyoke and Pitts-
field, Massachusetts , establishments , excluding all other employees , office
defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist the above -named Union or any other 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 or all such activities , except to
the extent that such right may be affected by the provisions of Section 8(a)(3)
of the Act, as amended.
NEW ENGLAND LIQUOR SALES CO., INC.,
Employer.
Dated------------------- By---------------------------- ------- --------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its pro--
visions, they may communicate directly with the Board 's Regional Office , Boston
Five Cents Savings Bank Building , 24 School Street , Boston, Massachusetts, Tele-
phone No . 223-3358.
Dixie Cup, Division of American Can Company and International
Union of Electrical , Radio and Machine Workers, AFL-CIO.
Cases Nos. 9-CA-32 2 and 9-RC-5875. February 28,1966
DECISION AND ORDER
On July 15, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in and was not engaging in the. unfair labor prac-
tices alleged in the complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the attached. Trial Exam-
iner's Decision. Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief, and the Charging Party- filed
cross-exceptions and a brief in support thereof. The Respondent filed
a brief in support of the Trial Examiner's Decision, a. brief in answer
tothe General Counsel's exceptions, and a brief in answer to..the
Charging Party's cross-exceptions.'
'The Respondent in its answering brief moved to strike the Charging Party's cross-
exceptions on the basis that they were untimely in view of Section 10$.46(e)' of the
Board's Rules and Regulations , Series 8, as amended . General Counsel's exceptions herein
were filed on August 19, 1964 , and his brief in support thereof on August 31;1964:' The
Charging Party's cross-exceptions were received on September 20, 1964. We find that
the said cross-exceptions were untimely filed under the provisions of Section 102.46(e)
of the Board 's Rules. Accordingly , the Respondent's motion to strike 1s granted.
157 NLRB No. 9.
clerical employees , guards, professional employees , and supervisors as