Publicker Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1964

145 N.L.R.B. 820 (N.L.R.B. 1964)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Distilling Sales Company, a Division of Publicker
Industries , Inc. and International Union of United Brewery,
Flour, Cereal , Soft Drink & Distillery Workers of America,
AFL-CIO and Production and Miscellaneous Workers Union
of Chicago and Vicinity, Independent,' Party to the Contract.
Case No. 13-CA-51992. January 7, 1964
DECISION AND ORDER
On July 5, 1963, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the General
Counsel and all the parties herein filed exceptions to the Intermediate
Report and supporting briefs. The General Counsel also filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made at the hearing and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in this proceeding, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner,' with the following modifications .3
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following changes :
1. The Recommended Order is hereby amended by substituting for
the first paragraph therein, the following paragraph:
i Herein called PW.
2 The Respondent's request for oral argument is hereby denied as the record , exceptions,
and briefs in our opinion adequately set forth the issues and positions of the parties.
a we agree with the 'Trial Examiner's finding that the November 1962 discharges for
failure to join PW pursuant to the union -security clause in the Respondent 's contract with
PW violated Section 8 ( a) (3) of the Act because said contract signed in early October
1962 was unlawful . Accordingly, we do not deem it necessary to pass upon the Trial
Examiner ' s additional finding that , even if the union -security agreement had been valid,
the discharges would still have been unlawful under the recent Supreme Court decision
in the General Motors agency shop case , 373 U.S. 734 , as the Respondent included for
termination those employees who authorized a checkoff of dues and initiation fees for PW.
145 NLRB No. 85.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 821
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ent, Continental Distilling Sales Company, a division of Pub-
licker Industries, Inc., its officers, agents, successors, and assigns,
shall :
2. The seventh paragraph of the notice is amended as follows :
(a) Replace "to those employees listed in paragraph 9(a), as
amended, of the complaint" with "to the employees listed below".
(b) Insert after above-mentioned paragraph in the notice the names
of the employees listed in paragraph 9(a), as amended, of the
complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed on October 10 and 15, November 20
and 26, and December 21, 1962, by International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, herein called the
Brewery Workers, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued his
complaint, dated December 21, 1962, against Continental Distilling Sales Company,
a division of Pubhcker Industries, Inc., herein called the Respondent. With respect
to the unfair labor practices, the complaint, as subsequently amended, sets forth
the specific respects in which the Respondent is alleged to have engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2 ), ( 3), and (5) and
Section 2(6) and (7) of the National Labor Relations Act, as amended, herein
called the Act. In their duly filed answers, as subsequently amended, the Respondent
and Production and Miscellaneous Workers Union of Chicago and Vicinity, In-
dependent, the Party to the Contract and herein called the Production Workers,
denied the unfair labor practice allegations.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin
at Chicago, Illinois, at various intervals between March 5 and April 18, 1963. All
parties were represented by counsel, appeared at the hearing, and were given full
opportunity to examine and cross-examine witnesses, to introduce relevant evidence,
to argue orally, and to file briefs
On June 3, 1963, I received from the General Counsel a motion to amend tran-
script of evidence in certain specified respects. No objections thereto having been
received from any of the parties, all of whom were served, said motion is hereby
granted and will be placed in the folder of official exhibits as General Counsel's
Exhibit No. 24. At the same time I also received from the General Counsel a motion
to correct General Counsel's Exhibit No. 14, already in evidence, in certain specified
respects indicated by Respondent and the General Counsel As this motion has been
submitted pursuant to the agreement of all parties before the close of the hearing
and no objections thereto having been received from any of the parties, said motion
is hereby granted and will be placed in the folder of official exhibits as General
Counsel's Exhibit No. 14A. On June 3, 1963, all parties filed briefs, which I have
fully considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Continental Distilling Sales Company, a Delaware corporation, main-
tains and operates a plant at Lemont, Illinois, where it is engaged in the bottling of
whisky, other beverages, and similar products. From on or about September 24,
1962, when it opened business operations at the plant, to December 21, 1962, the
date of the complaint in the instant proceeding, Respondent manufactured, sold,
and distributed from its Lemont plant products valued in excess of $50,000 directly
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to States other than the State of Illinois. During the same period, Respondent has
purchased goods and materials, valued in excess of $50,000, which goods and ma-
terials have been transported to its Lemont, Illinois, plant directly from States
other than the State of Illinois.
Upon the above admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answers admit, the record shows, and I find, that
International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Work-
ers of America, AFL-CIO, herein called the Brewery Workers, and Production and
Miscellaneous Workers Union of Chicago and Vicinity, Independent, herein called
the Production Workers, are each labor organizations within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
As previously noted, Continental Distilling Sales Company will be referred to
herein as the Respondent; the Union which is designated in the caption as the Party
to the Contract will be referred to herein as the Production Workers; and the Inter-
national Union which is the Charging Party and which also appears in the caption
will be referred to herein as the Brewery Workers. In September 1962, Respondent
opened a new plant in Lemont, Illinois, where it engaged in the bottling of alcoholic
beverages. Frank Reuter, a business representative of the Production Workers,
stationed himself at the gate of the wall outside Respondent's office and solicited
signatures to authorization cards from employees as they left the office where they
had been interviewed for hire. On the basis of these cards, Respondent granted
exclusive recognition to the Production Workers on September 28, 1962, and executed
a union-security contract on October 2. Thereafter, during the months of October
and November, Respondent and the Production Workers asked employees at the
plant to sign membership application and dues checkoff cards for the Production
Workers, pursuant to the terms of the union-security clause in the agreement On
October 5 and November 8, the Brewery Workers informed Respondent of its
majority representation claim and of its desire to engage in collective bargaining.
Respondent made no reply. On October 4, 5, 6, and 9 and November 3 and 10,
1962, Respondent discharged certain named employees.
The main issues litigated in this proceeding are whether: (1) Respondent rendered
unlawful assistance and support to the Production Workers in violation of Section
8(a)(2) and (1) of the Act; (2) Respondent executed a union-security contract
which did not satisfy the statutory requirements and thereafter maintained said
contract in effect, in violation of Section 8(a)(1), (2), and (3) of the Act; (3)
Respondent made the October discharges because of the employees' union and con-
certed activities on behalf of the Brewery Workers and made the November dis-
charges because of the employees' failure to become members of the Production
Workers pursuant to the union-security clause in the alleged unlawful agreement,
and thereby violated Section 8(a) (1), (2), and (3) of the Act, and (4) Respondent
refused to bargain with the Brewery Workers in violation of Section 8(a) (5) and
(1) of the Act.
B. Background'
Respondent is a wholly owned subsidiary of Publicker Industries, Inc., herein
called Publicker, which maintains its home office and a bottling plant in Philadelphia,
Pennsylvania. Employees of Publicker's Philadelphia plant are and have been rep-
resented by Local 263 of the Brewery Workers, and collective-bargaining agreements
have been in effect between Local 263 and Publicker. Prior to July 1962, Local 263
had admittedly engaged in a number of unauthorized strikes. In July 1962, there
was in effect between Local 263 and Publicker a collective-bargaining agreement
which did not expire until August 10. On July 10, Local 263 went out on strike
over new contract terms, which strike was unauthorized until the termination of the
contract on August 10. The strike, which caused a stoppage of production at the
Philadelphia plant, continued until October 4, when a new contract was executed
between Local 263 and Publicker.
i Unless otherwise Indicated, the findings in this section are based on admissions or un-
denied credited testimony.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 823
During a meeting held in the office of the Federal Mediation Service in Phila-
delphia in the latter part of August in an effort to settle the Publicker strike, counsel
for Publicker informed Morris, the president of Local 263, that they were building
a bottling plant in Lemont, Illinois. Morris acknowledged awareness of the Com-
pany's plans and expressed disinterest. No officers or representatives of the Inter-
national, the Brewery Workers, were present at this meeting.2
On September 6, 1962, Carl Feller, president of the Brewery Workers, attended
a meeting in Philadelphia at the apartment of Simon Neuman, chairman of the
board of Publicker, to try to resolve the differences causing the Publicker strike.
Also present were other officers of Publicker and its labor relations director, Jack
London. During the course of the meeting, Neuman verified the fact, in response
to Feller's question, that the Company was building a plant in Lemont, Illinois.
Neuman added that it was part of a decentralization move to remain competitive
in the industry. Feller pointed out that the new plant in Lemont would probably
affect production in Philadelphia and the membership of the Brewery Workers,
and asked Neuman if he would consider giving some of the key production workers
who might be displaced in Philadelphia an opportunity to work in Lemont. Neuman
rejected the suggestion, stating that there was an ample labor supply in the Chicago
area. Feller replied that under the circumstances the Brewery Workers would
attempt to organize the Lemont plant. During the course of another meeting held
on September 8 at Neuman's home near Philadelphia in a further effort to settle the
Publicker strike, Feller asked Neuman whether he had given any further considera-
tion to Feller's suggestion concerning the Lemont plant. When Neuman replied
that he would not consider it under any circumstances, Feller repeated that the
Brewery Workers would then make every effort to organize the Lemont plant 3
About September 7, Plant Manager Joseph Sarno had a meeting in Philadelphia
with Neuman and his assistant, Fred Stewart. Sarno had been manager of a bottling
plant at Terre Haute, Indiana, which had been leased temporarily by Publicker
during the Philadelphia strike, and was made manager of the Lemont plant. Dur-
ing this meeting Sarno was informed of Publicker's plans to open a bottling plant
in Lemont, Illinois, for economic reasons as well as to take the pressure off the
Philadelphia plant where production had ceased because of the strike. They also
discussed with Sarno what management hoped would be part of any labor contract
that might be executed with a union to cover the employees at Lemont. Among
the points raised by management was that such a contract should contain lower wage
rates and fewer job classifications than were contained in the Philadelphia contract
because the Lemont plant was not located in the Metropolitan Chicago area. Sarno
credibly testified that it was the general "feeling" or "sentiment" among management
personnel to have the Lemont plant operate either without a union or with a union
other than the one at the Philadelphia plant, and that to operate the plant with
the employees represented by the same union which was on strike in Philadelphia,
a Brewery Workers local, would be "like walking into a stone wall."
On September 25, Feller had a long-distance telephone conversation with Neuman.
During the course of the conversation, Feller again raised the question about the
Lemont plant. Neuman stated that a bottling line was starting that day and that
another line would start on September 28. Feller replied that the Brewery Work-
ers' organizer, Bruno Myskowski, was organizing the Lemont plant.
2 Lemont is about 30 miles from Chicago The locals of the Brewery Workers which are
located in the Greater Chicago area are Locals 18, 121, and 248, each local representing a
number of plants.
3 The findings in this paragraph are based on the credited testimony of Carl Feller Re-
spondent did not call Simon Neuman as a witness and made no claim of unavailability.
Jack London , Publicker ' s labor relations director who was present at both meetings , testi-
fied that the only reference to the Lemont plant at these meetings was in the form of a
question by Feller , asking Neuman , "How about giving us the Lemont contract "' London
further testified that Neuman made no response to Feller ' s query Feller denied that he
at any time asked Neuman for the Lemont contract . London impressed me as not being
a trustworthy and straightforward witness. For example , he testified that on October 3 he
informed Paridise , counsel for the Brewery Workers, that he knew nothing about a contract
being negotiated for the Lemont plant Yet , Attorney Freeman , Respondent's own counsel,
testified the very next day that on October 2 he had had about six telephone conversations
with London concerning the terms of the Lemont contract which he was negotiating for
Respondent with the Production Workers, and that the contract was executed by Respond-
ent by the end of that day. Under all the circumstances , including the demeanor of
London and Feller while testifying and the failure of Neuman to testify , I do not credit
London 's testimony and credit the denial of Feller I further find that Feller and Neuman
made the statements set forth in the text.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent's unlawful conduct with respect to the Production Workers
1. Solicitation of employees to sign Production Workers authorization cards
Actual bottling operations did not begin at the Lemont plant until September 24,
1962, when the first bottling line was started. However, hiring interviews and the
hiring of employees began about September 10. To assist in the interviewing and
hiring of employees, Arron Gold, personnel director of Publicker by whom he had
been employed since 1945, came to the Lemont plant on September 10. He re-
mained there until Friday, June 21, when he left for the airport about 2 p.m. to
return to Philadelphia. On September 19, Gold hired Robert Wirth as office man-
ager of the Lemont plant. Gold admitted that during his stay at Lemont he did
the interviewing and hiring himself, except that Wirth might have been broken in
with respect to a few of the applicants toward the end of Gold's stay. Plant
Manager Sarno admitted that after Gold's departure, the matter of interviewing and
hiring was left to Wirth and Clarence Newman, an office supervisor who had the
authority to and did hire employees.
In the latter part of August Frank Reuter, business representative of the Produc-
tion Workers, first learned that the Respondent was going to open a bottling plant
in Lemont. He thereupon visited the plant to find out its potential and in Septem-
ber began visiting the premises for the purpose of organizing His procedure was
to station himself at the wall in front of the plant, where there was an opening
to enter the premises to the Respondent's office, a location where admittedly he
could be observed by company representatives. As the individuals left the office
where they had been interviewed, he asked them if they had been hired. If he re-
ceived an affirmative reply, he then solicited them to sign authorization cards for
the Production Workers. This card authorized the Production Workers to act
as the "collective Bargaining Agency" of the person who signed it. Respondent
and the Production Workers admit that it was on the basis of these authorization
cards that Respondent granted the Production Workers exclusive recognition on
September 28 and then executed a union-security contract with it on October 2
About 40 individuals credibly testified, in substance, that on specific dates during
the period from September 11 through 28, they visited Respondent's plant seeking
employment, that they were interviewed individually by either Gold or Wirth or a
person whose name they could not recall. that during the course of their interview
they were informed that they were hired and were told either to report to work on
a certain date or that they would be informed when to report. that before the
interview ended they were informed about a union or a union man outside in the
manner hereinafter detailed, and that immediately upon leaving the plant office
they were solicited by Reuter and at that time signed Production Workers' authoriza-
tion cards which they identified at the hearing and which are in evidence .4 An
additional individual credibly testified in the same manner but refused to sign an
authorization card when solicited by Reuter The nature of the statements made
to these individuals follows:
a. Statements made by Personnel Director Gold
Mary Novicki was told that "there would be a union man standing outside there"
and that she "shouldn't be afraid to sign a union card " Novicki asked if she would
get into trouble by signing the card: Gold replied, "No."
Clara Povalisk was told that "there was a union man on the outside representing
the company" and "to sign the card "
Veronica Zydorczak was told that "there is a union man outside" and to "sign a
card for him."
Darlene Carlson was told that "the Company would have a union" and that when
she got outside there would "probably be a man from the union with cards."
Delores Johnson was told that "there was a union man outside" and that if she
"wanted to sign" a card, she "could sign it."
Clara Lanedren was told that "there would be a union man" outside at the gate
approaching her "about a union "
Maxine Funkhouser was told that "there was some talk about starting a union"
and that "there would be a man outside" as she went out.
Victoria Underwood was told that there would be a union man outside at the
gate and, if she wished, "to sign a union card."
' In the case of about four or five of these individuals. Renter did not solicit them until
a day or so after their hiring interviews. at which time they signed the authorization cards
which they also identified at the hearing and which are in evidence
CONTINENTAL DISTILLING SALES COMPANY, ETC. 825
Kay Edmaiston was told that "there was a man out by the gate that was a union
representative , waiting for [ her] to sign."
Anna Suida was told that a "union man" was standing outside, that she should
not "worry" or get "excited" when he asked her to sign the union card, and that
eventually there would be a union in the plant.
Leo Rogalski asked Gold if there was going to be a union in the plant. Gold
replied, "Yes," and added that "there would be a man outside" waiting for him.
Fern Snow was told, "You know you will have to join the union," and that the
union dues would "run around $4.00 a month."
Bernadine Wojnowski was told that there was a union man outside.
Douglas Habercorn was told, in response to his question, that there would be a
union in the plant.5
Adeline Domagalski was told that "there will be a union man outside" and that
she should "make sure [to] sign the union card."
Margaret Dobroszczyk was told that "there will be a union man approach you
as you leave the building." Gold then looked out the window and said, "Well,
evidently he isn't here yet." 6
Bonnie Finnicum was told that there was a man from a union outside and that
he would probably want to talk to her.
Doris Kucer was told that she would probably be approached by a union man
and that she could sign a card if she wanted to.
Helen Sakowicz was told that she would be approached by a union representative
outside by the gate.
Margaret Allison was told that there was a union man that would approach her
outside the gate and that she should listen to what he had to say.7
b. Statements made by Office Manager Wirth
Frank Juricic was told that "there was a union man outside" and "to go out there
and see the union man."
Dorothy Reisser was told that "there would be a union." Reisser asked if she
had to join. Wirth replied in the affirmative, explaining that they had to ioin
because it was going to be a union shop. The interview ended with Wirth telling
Reisser that there would be a union man outside and that she should sign.
Mary Cavitt was told that "there's a union man outside." When she asked if she
should sign with him, Wirth said nothing but "kind of laughed." Cavitt explained
that she had never had anything to do with unions before.
Elizabeth Overby was told that this is a new plant and that "we'll have a union
here." Wirth asked if Overby knew anything about unions. When Overby replied
in the negative, Wirth stated that the union man was out in front and asked if
Overby had seen him when she came in. Overby explained that she saw a man
there but did not know who he was. Wirth then stated that maybe Overby will see
him when she goes outs
Robert Higgenbotham was asked if he was paid a union wage at his last place
of employment When he replied in the affirmative, Wirth stated that "there was
going to be a union in the plant" and at that time "the company was in talks with
the union on a contract " Wirth added that when Higgenbotham went outside he
might run into the union man.9
Frances Counts was asked if she ever belonged to a union. When she replied in
the negative, Wirth told her that "there was a union guy at the gate" and that she
"was to sign one of the cards that be would give" her.
6 Hahrcorn testified that his hiring interview occurred on September 13 and that he did
not remember the name of the man who interviewed him. However, as Gold admitted that
he did the interviewing and hiring himself, extent during the last few days of his stay when
Wirth also did some, and as Wirth was not hired until September 19, it is obvious and
I find that Habercorn was interviewed and hired by Gold Habercorn was approached out-
side the plant by Reuter on September 28, at which time he signed the authorization card.
6 She signed the authorization card on a later day when she was approached by Reuter
outside the plant
'Of those who testified, Allison was the only one who refused to sign a card when
solicited by Reuter after she left the plant office
s When Overby left the office, she did not see Reuter. However, Reuter approached
Overby in front of the plant on September 28, at which time she signed an authorization
card
e When Higgenbotham left the plant, he did not see Reuter However, he was approached
by Reuter 2 days later, on September 27, at which time Higgenbotham signed an authoriza-
tion card.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frieda Hulsey was told that "there would be a union" and that "when it got in,
we would be making more money."
Marge Kovalcik was told that there was a union man standing outside.
Veronica Brandt was told that there was a union man outside and that he would
see her.
Carol Stelzer was told that she should stop outside and see the union man who
was there.
Freda Blahut was told, "Freda, there is a union man outside."
Betty Stewart was told that there was going to be a union, that Wirth did not
know what would be in the contract, and that there would be a union man outside
with whom Stewart could sign up.
Janet Podner was told that there was a man outside the gate, that he was the
union man for this Company, and that he will talk to her about the union when
she went outside.
Helen Cichy was told that there would be a union man outside and that she could
talk to him.
Helen Piquard was told that Respondent did not have a union in the plant but
that they were trying to get one in.10
Marilyn Randolph was told that "it would be a union plant and that everyone
would have to sign for the union." Wirth added that he "believed the fellow was
there on the premises at the time" and that if Randolph happened to see him she
"could sign up that day."
Delores Michalek was told that "a union man was waiting outside the plant" and
that she should "go ahead and sign now."
Helen Earnest was told that "there was a union man outside who wanted to talk
to her."
c. Statements made by either Gold, Wirth, or Office Supervisor Newman
Lucille Kocielko was told that "there was a union man outside" and that she
"could sign the card when [she] went out."
Iola Moore was told that "there is a man at the gate and he will have a card for
you to sign."
Both Kocielko and Moore testified that the hiring interview at which the afore-
said statements were made occurred on September 21, 1962, and that they could
not recall the name of the man who interviewed and hired them on that day. As
the undisputed and admitted testimony shows that the only persons who could have
been engaged in interviewing and hiring on that day were Gold, or Wirth, or Office
Supervisor Clarence Newman, I find that the aforesaid statements were made by one
of these three persons.
2. Credibility resolutions
a. As to the statements previously detailed
The foregoing findings as to the nature of the statements by Gold, Wirth, and
Newman are based on the credited testimony of the involved individuals, as pre-
viously detailed Despite a long and vigorous cross-examination to which most of
these witnesses were subjected, their testimony was not shaken in any significant
respect. And their trustworthiness and reliability as truthful witnesses were further
evidenced by their demeanor and the manner in which they testified.
With respect to most of the individuals who attributed the aforementioned state-
ments to Gold in the hiring interviews, Gold testified that he did not remember
the named individuals; as to the others, he testified either that he did not remember
the interview or that he remembered the interview but denied making the statements
attributed to him. Gold denied generally ever telling anybody that there will be a
union in the plant or that there would be a union man outside. In fact, he denied
ever making any reference to a union. With respect to the individuals who at-
tributed statements to Wirth in the hiring interviews, Wirth testified that he did not
recall the interviews in most of the cases. or that he did not remember making the
alleged statements, or that in any event he denied making the alleged statements.
He denied generally ever telling anyone that he believed the man from the union
was on the premises. He testified that several of the applicants asked if there was
a union in the plant and that he replied that he did not know He also testified
that when some applicants asked him about fringe benefits, he told them that such
matters usually came in a union contract and that they had no union at that time.
Clarence Newman did not testify and Respondent made no claim of unavailability.
11 As she was leaving the plant the next day, September 28, she was approached by
Reuter and signed an authorization card for him.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 827
Gold and Wirth did not impress me as candid witnesses by the manner in which
they testified and by their demeanor on the witness stand. In discrediting their
denials and finding, as I do, that they did in fact make the statements attributed to
them, I have also considered the following additional factors to be significant:
(1) The credited and undemed testimony of Respondent's witness, Nancy Heeg,
who worked in the office with personnel and payrolls. Nancy Heeg reluctantly
admitted on cross-examination that when she was hired by Gold about Septem-
ber 18, Gold told her that there would be a union in the plant. She further credibly
testified that once or twice she overheard Wirth tell some of the applicants about
a union during their hiring interviews but never heard any of the applicants say
anything to Wirth about a union.
(2) Plant Superintendent Sarno's admission that he knew there was a union man
outside the plant when they first started interviewing applicants and that during
the second week in September he became aware of the name of the union represented
by this man.
(3) Reuter's testimony that about September 10 he telephoned Respondent's
plant, introduced himself to someone who said he was the personnel manager, and
claimed to represent a majority of the employees; and Gold's admission that he
had a telephone conversation either with Reuter or the girl in Reuter's office during
the first 2 or 3 days that he was at the Lemont plant.
(4) Gold's admission that he had a telephone conversation with Reuter a few
days before September 20, in which Reuter told him about the union he repre-
sented, explained that he was the man who was out on the sidewalk getting people
to join the Union, and arranged a luncheon meeting for September 20. Gold
further admitted that both prior to and after that telephone conversation he saw
Reuter stationed outside the entrance gate from his office window. Wirth also
admitted that at least by about September 26 he became aware of and saw a union
representative standing outside by the gate. And Reuter admitted that company
representatives could and possibly did observe him standing out at the gate.
(5) Gold's admission to Sarno prior to the luncheon meeting that he had met
Reuter and had seen some cards which indicated that Reuter had signed up a major-
ity of the people employed up to that time. This finding is based on the credited
and undemed testimony of Sarno, a completely candid and forthright witness.,,
(6) The luncheon meeting held with Reuter about September 20. Also present
at this meeting were Millbauer, president of the Production Workers, Gold, Sarno,
and Howard Rickert, who was Sarno's superior and had been temporarily sent from
Publicker's Philadelphia plant to help get the Lemont plant going. Only Reuter,
Gold, and Sarno testified concerning the subject matters discussed at this meeting.
Of the three, I regard Sarno as the only neutral and disinterested witness, as he was
no longer employed by Respondent or by Publicker at the time of his testimony in this
proceeding. Accordingly, where the testimony of these three witnesses is in conflict,
I accept as true Sarno's version of what was discussed at this meeting. According
to Sarno's credited testimony, during the course of the luncheon meeting Reuter
brought out "what looked like" a contract proposal, read a few different articles
from it, and then a comparison was made of the wage rates and the number of
job classifications mentioned in Reuter's proposal with those in the Philadelphia
contract with the Brewery Workers' local i2
(7) Gold's admission to Sarno, made after the luncheon meeting but before
Gold's return to Philadelphia on September 21, that he thought some negotiations
with the Production Workers were going on. This finding is based on the credited
and undenied testimony of Sarno.
(8) Sarno's admission, as previously found, that before the opening of the Lemont
plant it was the general "feeling" or "sentiment" among management personnel of
Publicker that if the Lemont plant were to operate with a union representing the
employees it should be a union other than the Brewery Workers which was at the
Philadelphia plant, and that to operate the Lemont plant with the employees being
represented by the same union which was on strike in the Philadelphia plant would
be "like walking into a stone wall."
"Both Reuter and Gold testified that they had never met face to face prior to the day
of the luncheon meeting
In this connection it is significant that, as previously found, during the September 7
Philadelphia meeting which Sarno had with Board Chairman Neuman and his assistant,
Sarno was informed of management's hope that any labor agreement consummated with a
union for the Lemont employees should contain lower wage rates and fewer classifications
than were contained in the contract covering the Philadelphia plant.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. As to additional statements
Two additional employees also testified to statements made during their hiring
interviews by Gold and Wirth.
Grace Crutchfield testified that she was interviewed by Gold on September 21,
and that during the interview Gold told her that she would have to join a union if
she were hired and that when she went outside there will be a man out there who
would want to see her. However, on cross-examination she was shown her pre-
trial affidavit and then admitted that what Gold said was to ask her if she were
willing to join a union. On redirect examination, she again testified that Gold told
her she would have to join a union and then asked her if she were willing to do so.
Gold testified that he did not remember interviewing her.
In view of Crutchfield's vacillating testimony as to the precise nature of Gold's
statements to her, I find that, while Gold did make a reference to a union, her
testimony is not sufficiently reliable to enable me to make a finding as to the
nature of Gold's statement with reference to a union
Dorothy Zilonka testified that she was interviewed by Wirth on September 26,
and that during the interview Wirth told her that there were two unions "fighting
to get into the plant" and that he did not know which union was going to get in
but that there was a union man at the gate with whom she could sign up. Wirth
testified that he did not recall interviewing Zilonka or making these statements
However, the record shows that the organizational campaign of the Brewery
Workers had not yet gotten underway by September 26. Also, in connection with
Zilonka's testimony on another aspect of this case, in which she attributed some
damaging statements to Supervisor Larry Semple relative to the reason for the dis-
charge of Joyce Bruno, she admitted that she had decided to testify because her
testimony would help Joyce Bruno, an employee alleged to have been unlawfully
discharged, get her job back. After careful consideration, I am not convinced that
Zilonka is a sufficiently reliable witness. Accordingly I will base no findings on her
testimony relating to statements made by Wirth in her hiring interview.
3. Recognition of Production Workers and execution and enforcement of
union-security contract 13
About September 26, Reuter telephoned Lee Freeman, Respondent's attorney in
Chicago, Illinois, claimed to represent a majority of the employees at the Lemont
plant, and requested recognition. Reuter agreed to bring the authorization cards to
Freeman's office on Friday, September 28, for Freeman's inspection. About 10 a.m.
on September 28, Reuter left 94 authorization cards with Freeman which Reuter
had obtained at the wall outside the plant in the manner previously described and
which were received in evidence 14 That same morning, Bernard Sabreen, chief
engineer for Publicker, brought to Freeman's -office in Chicago about 130 to 140
of Respondent's personnel files from Lemont Freeman checked the authorization
cards against these files and concluded that they represented a substantial majority
That same afternoon he informed Reuter, by telephone, that he had made such a
check and that he was sending him a letter of recognition. They agreed to meet
the next day to commence negotiations on a contract.
On Saturday, September 29, the parties were in Freeman's office all day, engaged
in negotiating the terms of an agreement. The Production Workers was represented
by Reuter and President Milbauer; the Respondent was represented by Attorney
Freeman. By the end of the day, agreement was reached on all but two or three
issues. A draft of the contract was typed on Sunday, and on Monday, October 1,
Is The findings in this section are based on exhibits in evidence, stipulations, and on
credited testimony which is admitted or undisputed.
14 These cards were first identified as General Counsel's Exhibits Nos 3A through 3QQQQ
for Identification. Forty-four of these cards were thereafter offered by, and received in
evidence as exhibits of, the General Counsel. The remaining 50 were offered by, and re-
ceived in evidence as exhibits of, the Party to Contract, herein called the Production
Workers These 50 were then re-marked "Party to Contract Exhibit No. 9," with the
General Counsel's original Identifying designation remaining unchanged. One additional
card, dated October 1, 1962, and bearing the name of Rose Wojtanowski and the identify-
ing designation of General Counsel's Exhibit No. 3-0000, erroneously appears in the
exhibit folder as part of exhibit No. 9 of Party to Contract. However, the stipulation in
which the Production Workers offered the authorization cards in evidence specifically
excludes this card from its offer. Accordingly, this card was never received in evidence
and the record is hereby corrected in this respect.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 829
Reuter and Milbauer presented Freeman with the formal contract in a blue folder,
signed by Carlo, a trustee of the Production Workers. In about an hour and a half,
final agreement was reached on all issues.
Freeman immediately mailed four copies, signed by the Production Workers, to
Philadelphia. On Tuesday, October 2, Lang, president of Publicker and of Re,
spondent, signed all four copies in Philadelphia. On October 3, Freeman received
from Philadelphia three of the signed copies, one of which he gave to Reuter.
The contract provides that it shall become effective on October 1, 1962, and
shall remain in full force and effect until June 30, 1965. It contains, among other
things, clauses providing for union security and for the collection of union dues
and initiation fees. Employees who were already members were required to remain
members in good standing as a condition of employment; all others and new em-
ployees were required, as a condition of employment, to join after 31 days and to
remain members in good standing. The checkoff clause required Respondent, "upon
receipt of the written authorization of any employee," to deduct dues and initiation
fees from the pay of union members and to transmit such deductions to the Produc-
tion Workers. This contract is still in full force and effect, and dues deductions
have been made from employee members' wages and transmitted to the Production
Workers, all pursuant to the terms of said agreement.
4. Respondent's conduct after the execution of the union-security contract 15
On October 3, Reuter went to the Lemont plant and showed a copy of the signed
contract to Plant Superintendent Sarno, who thereupon granted Reuter's request to
talk to the employees and to solicit them during working hours to sign all three
parts of a three-part union membership application and checkoff card.15 Sarno
gave Reuter similar permission on October 4 and also instructed Bottling Supervi-
sor Dean to shut the line down during working hours and to assemble the em-
ployees so that Reuter could address them. These instructions were carried out and
Reuter spoke to the assembled employees.
On the foregoing occasions during October 3 and 4, Reuter told the employees
at the plant about the contract which had been executed, explained its features,
including the union-security clause, and solicited them to sign the three-part mem-
bership application and checkoff cards which he distributed. He admittedly told
them that they would lose their jobs after the 30-day waiting period, if they did
not sign these cards. Reuter also told employees that seniority started from the
time an employee signed the union cards and not from the time they were hired.
Some of the employees asked pointed questions, such as why the employees had not
been consulted about, or had not been given an opportunity to vote on, the terms
of the contract. After the meetings, Reuter talked to the employees in groups of
two at the plant during working hours. Dean made arrangements to have the em-
ployees sent to Reuter in pairs. On these occasions, Reuter solicited the employees
to sign the three-part membership application and checkoff cards, pointing out that
their seniority started from the day they signed the cards and that the sooner
they signed the sooner their seniority would begin. When one employee asked
Office Manager Wirth about waiting 30 days before signing, Wirth replied, "Why
wait, your insurance and your seniority will start now." This employee then
signed.
It is admitted that whenever new employees were hired after the execution of the
contract, Wirth or Personnel Manager Tonet informed the new employees of the
union-security clause of the contract, gave them the three-part membership applica-
tion and checkoff cards, and informed them that they could sign then or take their
30-day waiting period. About October 31, Sarno told Wirth and Tonet to bring
to the attention of those employees who had not yet signed the three-part member-
ship application and checkoff card that the union-security clause of the contract
required them to become members within a designated time. Pursuant to Sarno's
instructions, Wirth admittedly thereafter read a portion of the union-security clause
11 Unless otherwise indicated, the findings in this section are based on exhibits and
credited testimony which is either admitted or undenied.
3' This consisted of three cards which were joined in a vertical position to form it single
card but which could be separated by tearing along a perforated line. The top card was
an application for membership in the Production Workers ; the middle card was an in-
surance beneficiary card ; and the bottom card was a dues and initiation checkoff card,
authorizing the Employer to make these deductions from the employees' wages and to
turn them over to the Production Workers. Signatures were required on each of the
three cards
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees who were summoned to his office. On October 31, a number of
employees, acting upon the suggestion of Brewery Workers Representative
Myskowski, went to Respondent's office where they signed the three-part card and
wrote the words "under duress and protest" on each card. During the next few
days, the employees were summoned individually or in pairs to the office where they
were told by Wirth and Tonet that they could not accept the cards on which the
employees had written the words "under duress and protest," and solicited them to
sign new cards without these words. Many employees refused to do so. Other
employees who had signed only one part of the three-part card were also sum-
moned to the office and solicited by Wirth and Tonet to sign the remaining two
parts.11 Many of them also refused. On November 3 and 10, a total of 31
employees, named in the complaint, as amended, were discharged because of their
refusal and failure to sign all three parts of the three-part membership application
and checkoff card, as hereinafter found.
5. Concluding findings
The factual findings previously detailed makes it apparent that Respondent
rendered valuable assistance and support to Reuter, a Production Workers repre-
sentative, in obtaining employee signatures to authorization cards upon the basis
of which Respondent accorded exclusive recognition to the Production Workers.
This assistance occurred during the period from September 11 through 28, 1962,
when Supervisors Gold, Wirth, and Newman is told the applicants, whom they were
interviewing and hiring, about a union and the union man standing outside by the
gate who would solicit them to sign union cards when they left the office. Upon
leaving this interview and walking outside, these employees, with few exceptions,
were immediately approached by Reuter, who was stationed at the entrance to the
plant, and signed the authorization cards upon his solicitation.
As previously found, during the aforementioned hiring interviews, these supervi-
sors made various statements to employees to the effect that there would be a union
in the plant, that everyone would have to join the union, that there was a union
man waiting for them outside with union cards, that they should see the union man
on their way out, that they should not be afraid to sign the union card, and that
the union man outside was the Company's union man. Statements of this kind,
when made during the hiring process by the person who actually does the hiring,
assume greater significance to and have a stronger impact upon newly hired em-
ployees. Lemont is located about 30 miles from Chicago. Local residents in the
area preferred to work in Lemont or its vicinity but employment opportunities were
not too plentiful there Thus, some employees testified that they were so eager
to obtain work and so pleased when they were hired that they were not particularly
interested in the nature and conditions of their job during their hiring interview but
were willing to do anything. At such times and under such circumstances, em-
ployees tend to be more susceptible even to slighter suggestions from the person
responsible for their newly found employment. Thus, some employees to whom
these statements were made testified that they signed the authorization cards even
though they did not particularly care about a union or know anything about unions.
And of the 40 employees who testified about such statements having been made
during their hiring interviews, as previously set forth, only 1 refused to sign an
authorization card when solicited by Reuter. The 39 who did sign constituted
about 50 percent of the total signers in the appropriate unit on September 28, as
hereinafter demonstrated. I find that by the foregoing conduct of Gold, Wirth,
and Newman during the hiring interviews. Respondent rendered assistance and sup-
port to the Production Workers in obtaining employee signatures to the authoriza-
tion cards which formed the basis for according it exclusive recognition, and thereby
violated Section 8(a) (2) and (1) of the Act 19
Respondent rendered further illegal assistance and support- to the Production
Workers when it granted it exclusive recognition on September 28 on the basis of
the 94 authorization cards solicited by Reuter outside the plant gate. For, any
17I do not credit Tonet's testimony that the first time he saw the three-part member-
shin application and checkoff card was after the layoffs of November 3
is As all three admittedly had the authority to, and did. hire employees for Respondent,
I find that they are supervisors within the meaning of the Act and that Respondent is
liable for their conduct.
19 See e g, N.L R.B. v. Link-Belt Company, 311 II S 584, 588: Cam pro Plastics Com-
pany , a Division of Chicago Molded Prod4ets Corporation, 142 NLRB 1272, Salmirs Oil
Company, 139 NLRB 25; Bear Creek Construction Co., 135 NLRB 1285, 1286;
Masters-
Lake Success, Inc., 124 NLRB 580, 593.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 831
numerical majority which the Production Workers may have had was tainted by
the unlawful assistance and support hereinabove found to have been rendered by
Respondent in obtaining employee signatures to these authorization cards and there-
fore at no time reflected that complete freedom of choice of the signers which the
Act contemplates 20 Moreover , the Production Workers did not in fact have
a majority of valid authorization cards on September 28 and, hence , Respondent's
conduct in according it exclusive recognition was unlawful on that additional
ground.21 Thus , on September 28, there were only 101 persons physically em-
ployed at the Lemont plant, and an additional 54 card signers who were not yet
actually working , thus making a total of 155 employees . Of this number, 14 card
signers either were never employed or left Respondent 's employ before Septem-
ber 28 and an additional card signer (Linda Bromberek ) was employed as an office
clerical employee and therefore excluded from the stipulated appropriate unit.
When these 15 are deducted from the total number of authorization cards and em-
ployees, there are left 79 authorization cards out of a total of 140 employees in the
appropriate unit. After deducting the 39 cards which were obtained with the as-
sistance of Respondent , the Production Workers had only 40 cards. Assuming
that these 40 were valid authorization cards, this is far short of the 71 necessary to
constitute a majority.22 Furthermore , the Board has held, under circumstances
similar to those disclosed by this record, that, in determining a union 's majority,
only the cards of those actually carried on the payroll on the date of recognition
should be counted . 23 As previously noted, on September 28 there were only 101
employees on Respondent's payroll. Of this number, only 40 had signed the author-
ization cards . Assuming that all 40 were valid designation cards, this again is far
short of the 52 necessary to constitute a majority. In addition , 26 of these 40
cards were among those obtained with the assistance of Respondent in the manner
previously found. On each of the foregoing grounds, I find that Respondent
violated Section 8(a)(2) and ( 1) of the Act by granting exclusive recognition to
the Production Workers on September 28.
On October 2, 1962, Respondent executed a contract with the Production Workers,
which contained union-security and checkoff clauses and was effective from October 1,
1962. The proviso to Section 8(a)(3) of the Act prescribes the conditions under
which an agreement containing a union-security clause may be lawful. Among
these requirements are: (1 ) the union with whom the agreement is made must be
one which has not been assisted by unfair labor practices , and (2 ) the union be the
freely designated bargaining representative of a majority of the employees in the
appropriate unit. Neither of these requirements has been met in this case. As
the union-security agreement was made with the Production Workers after it had
been assisted by Respondent 's unfair labor practices , as previously found, the
agreement is unlawful for this reason alone.24 In addition , the agreement is also
unlawful because the Production Workers was not at that time the freely designated
bargaining representative of a majority of the employees in the appropriate unit,
also as previously found. I therefore find, in accordance with well-established
precedents , that by executing the union -security agreement on October 2, 1962, and
by thereafter maintaining said agreement in effect and enforcing it with respect to
the employees at the Lemont plant , Respondent has violated Section 8 ( a) (3) and
(1) of the Act and has rendered further assistance and support to the Production
Workers in violation of Section 8(a)(2) and ( 1) of the Act.
It is also clear , as I further find, that additional assistance and support , violative
of Section 8(a)(2) and ( 1) of the Act , was rendered to the Production Workers
after the execution of the union -security contract by the actions of Respondent in
permitting Reuter on company time and property to address the assembled employees
and to solicit their signatures to the three-part union membership application and
checkoff card, in making arrangements for and directing employees to see Reuter
on company time and property where they were solicited to sign the union cards
with warnings that their seniority would be counted from the time they signed the
20 See , e.g., Bryan Mfanufactnrinq Company, 119 NLRB 502 , 506, 507 ; and cases cited in
footnote 19, supra
6' International Ladies' Garment Workers ' Union (Bernhard-Altmann Texas Corp ) v.
NLRB, 366US 731
22 The computations in this paragraph are based on an examination of General Counsel's
Exhibits Nos 14 and 14A, the authorization cards , and the testimony of Lonita Weber, a
clerical employee who testified as a witness for Respondent concerning the clerical status
of Bromberek.
28 The Crossett Company, 140 NLRB 667
21 See cases cited in footnote 19, supra.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, in soliciting employees to sign this three-part card without writing on it the
words "under duress and protest," in discharging employees because of their failure
and refusal to sign all three parts of the said three-part card upon the expiration
of the 30-day waiting period,25 as hereinafter found, and in giving effect to the
checkoff authorizations in favor of the Production Workers.
D. Respondent's unlawful conduct with respect to the discharges
1. The October discharges
The complaint alleges that on specified dates in early October 1962, Respondent
discharged Dave Braverman, Frank Forillo, Jr., Robert Bambic, Robert Higgen-
botham, Veronica Brandt, and Dorothy Reisser because "said employees engaged
in union or concerted activities." Respondent denies the allegation and contends
that the employees were discharged for cause. The General Counsel's brief men-
tions and discusses only the case of Dorothy Reisser. While the failure to mention
or discuss the other five dischargees implies an abandonment of their cases, I will
nevertheless consider all of them, in the order in which they were discharged.
Dave Braverman: Braverman was employed on September 28. He operated a
labeling machine on the night shift, and was discharged on October 4 by Larry
Semple, the mechanical supervisor.
The testimony is in sharp dispute as to Braverman's competence and the circum-
stances surrounding his discharge. Thus, Braverman testified that on the second day
of his employment Semple told him that he was doing a good job and had a chance
fora promotion. He further testified that no supervisor ever complained to him about
his work. On the other hand, Semple testified that he had talked to Braverman
about the proper manner of operating his machine and had reprimanded him about
six times during the course of his employment William Mansfield, the bottling
floor supervisor on the second shift, also testified that he repeatedly instructed
and corrected Braverman concerning his work. Both Semple and Mansfield testified
to their belief that Braverman had been employed a much longer period than
actually was the case.
With respect to his discharge, Braverman testified that about 11:45 p.m. on
October 4, Semple came over to his machine, told him that he was laid off, and
walked away. On the other hand, Semple testified that he discharged Braverman
that night about 7 o'clock, that about an hour earlier he had warned Braverman
that he better pay attention to his job, pointing out that Braverman's job was at his
machine and not 10 or 15 feet away. Semple further testified that about an hour later,
he saw Braverman about 10 or 15 feet from his machine engaged in talking to the
girls who were capping bottles when he should have been at his machine, that
be thereupon called Braverman over and told him he was discharged. Braverman
did not deny Wirth's testimony that the next day Wirth asked Semple, in Braver-
man's presence, about the reason for Braverman's discharge, and that Semple replied
that Braverman spent more time with the girls than on his machine.
Upon consideration of the foregoing undenied testimony of Wirth, and the
demeanor of Semple, Mansfield, and Braverman while they were testifying under
oath, I credit the testimony of Semple and Mansfield with respect to Braverman's
work record and the reason for his discharge. Moreover, the General Counsel's
case cannot be sustained, even if the version most favorable to Braverman were to be
accepted. This is so because there is still nothing in the record to warrant a finding
that Braverman engaged in any form of union or concerted activity or that any of
Respondent's supervisors or agents believed or suspected that he engaged in such
activity. Indeed, the only evidence in the record which might even indicate any
interest or curiosity about a union is Braverman's testimony that while he was at
his machine on October 2 or 3 he asked Semple what kind of union was representing
the Company and who was the person passing out union cards at the timeclock,
referring to Reuter. Braverman further testified that Semple made no reply on that
occasion. Furthermore, Braverman admitted that he did not sign a membership
application card for the Brewery Workers until October 8, which was 4 days after
his discharge. On the other hand, Semple and Mansfield affirmatively testified that
they never saw or heard Braverman engage in any form of union activity.
I find that the General Counsel has not sustained the allegation that Braverman
was discharged because of his union or concerted activities.
a See , e g, Campco Plastics Company, a Division of Chicago. Molded Products Corpora-
tion, 142 NLRB 1272.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 833
Frank Forillo, Jr.: Forillo was employed as a utility man on October 3, and was
discharged on October 5 by Office Manager Wirth, on the instructions of Bottling
Floor Supervisor Dean. With respect to Forillo's union activities, the record shows
that he signed a membership application card for the Brewery Workers at Matt's
Inn on October 4, that during lunch hour and outside the plant he passed out to
employees about 10 or 15 Brewery Workers cards, some of which were returned to
him with employee signatures, and that on the day of his discharge he refused to
sign the cards for the Production Workers but told Reuter he wanted to take his
30-day waiting period to think it over. Dean denied ever seeing Forillo pass out
union cards or recruit or attempt to recruit employees in a union.
Forillo did not deny the following testimony of Dean concerning the circumstances
of Forillo's discharge: Forillo was assigned to a dumper, which takes the cases of
empty bottles from the skid and dumps them onto a dumping table for the girls to
work on. The dumping table is at the beginning of the line and the line cannot
operate without the bottles on it . Dean testified that he discharged Forillo for
being off his job too many times. Whenever the labeling machine was down for
some reason or other, Forillo would disappear somewhere; whenever they were
ready to start up again, they would have to go looking for him and get him back
to his job.
Upon consideration of all the foregoing, I find that, even assuming that Dean
was aware of Forillo's interest and activities on behalf of the Brewery Workers, the
preponderance of the record evidence does not support the allegation that Forillo
was discharged because of his union or concerted activities.
Robert Bambic: Bambic was employed on October 3 and, like Forillo, was also
discharged on October 5 by Wirth, on Dean's instructions. Dean testified, with-
out contradiction, that he discharged Bambic because he was an unsatisfactory
worker, that Bambic would spit on the floor around the maintenance shop, and that
outside contractors working in the area complained about it.
Bambic did not testify and the General Counsel offered no explanation for his
failure to call him as a witness. Other than the fact that Bambic signed a member-
ship application card for the Brewery Workers at Matt's Inn on October 4, there is
no evidence of any union or concerted activity on the part of Bambic. Nor does
the record warrant an inference that any supervisor or agent of Respondent be-
lieved or suspected that Bambic engaged in any such activities. Dean affirmatively
denied such knowledge or suspicion.
I find that the General Counsel has not sustained the allegation that Bambic was
discharged because of his union or concerted activities
Robert Higgenbotham: Higgenbotham was employed as a utility worker on
September 27. After a few days, he was assigned to operate a bottling machine
on the line, replacing a sick employee. He was discharged on October 6 by
Wirth, on Dean 's instructions.
With respect to Higgenbotham's union activity, the record shows that he signed
a union authorization card for the Production Workers on the first day of his em-
ployment, that he signed a membership application card for the Brewery Workers
on October 1, that during the next day or two he distributed some Brewery Work-
ers cards to employees in the plant , and that on October 4 he refused to sign the
cards for the Production Workers but told Reuter that he would prefer to take his
30-day waiting period. Dean denied ever seeing Higgenbotham pass out union
cards or recruit or attempt to recruit employees in a union.
Dean testified that when he discharged Higgenbotham, he merely told him to go
to the office without giving him any reason but that he told Wirth the reason was
unsatisfactory work. The undisputed evidence shows that this was Dean's normal
procedure whenever he sent an employee to the office to see Wirth. Although
Higgenbotham testified that he was never reprimanded by Dean, he did not deny
Dean 's testimony that Higgenbotham was always away from his bottling machine
and that it was necessary to go after him to get him back to start the bottling
machine in order to get the bottles down the conveyor belt to the labeling machine,
which was the next operation on the line.
I find that, even assuming that Dean was aware of Higgenbotham's interest and
activities on behalf of the Brewery Workers, the preponderance of the record evi-
dence does not support the allegation that Higgenbotham was discharged because
of his union or concerted activities
Veronica Brandt: Brandt was employed on the day shift from October 3 to 9.
About quitting time on October 9, Bottling Floor Supervisor Dean told her to go
to the office to see Wirth. In the office, Wirth told Brandt that she was being
discharged because her work was unsatisfactory. Brandt admitted that she replied,
"Well, I guess I just can't satisfy Mr. Dean."
734-070-64-vol 145-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brandt had signed a union authorization card for the Production Workers after
her hiring interview on September 26. On October 4 she signed a membership ap-
plication card for the Brewery Workers in the washroom and returned her signed
card to another employee. She admitted that she did not believe that anyone saw
her on this occasion.
I find that the General Counsel has not sustained the allegation that Brandt was
discharged because of her union or concerted activities.
Dorothy Reisser: Reisser was employed as a line girl on the day shift from
September 27 to October 9, when she was discharged by Wirth, on Dean's instruc-
tions. Floorlady Marge Domagalski, who admittedly was not a supervisor within
the meaning of the Act, credibly testified that her job was to see that the girls on
the line did their work, that Reisser was one of the girls on her line and normally
worked at the front of the line, that Reisser did her job well, and that she had
found no fault with Reisser's work.
Reisser had signed a union authorization card for the Production Workers after
her hiring interview on September 21. On September 28, the second day of her
employment, she signed a membership application card for the Brewery Workers.
She was the first employee at the Lemont plant to sign such a card. She was also
the first employee to pass out Brewery Workers' membership application cards to
other employees and to solicit their signatures. Thus, after October 1 she passed
out about 30 such cards during break and lunch periods and in the washroom,
and received signed cards back from some employees. She also attended the umon
meetings of the Brewery Workers on October 1, 3 or 4, and 8. Dean denied ever
seeing Reisser pass out union cards or recruit or attempt to recruit employees in
a union.
During the meeting of the assembled employees at the plant on October 4, when
Reuter spoke to them about the Production Workers' contract at Lemont, as pre-
viously found, Reisser asked Reuter why the employees had not been given an op-
portunity to discuss the contract terms with the Union, explaining that she thought
employees represented by a union had something to say about what went into a
contract. She also asked Reuter how he could sign a contract without the em-
ployees' knowledge. Later that day Reuter solicited Reisser at the plant to sign
the cards for the Production Workers. Reisser refused to sign at that time, stating
that she would take her 30-day waiting period to think it over. About an hour
later, Reuter came over to Reisser again while she was working, asked for her name,
and wrote her name down on a pad.
On October 9, the day of Dorothy Reisser's discharge, Reisser was doing her
normal work at the front of the line, when Dean "hollered" to Floorlady Domagalski
to "take Dorothy and move her to another job" on the line. Domagalski followed
Dean's instructions and rotated Reisser with another girl on the line. However,
when the girl who replaced Reisser did not perform the work as well as Reisser had
done, Domagalski put Reisser back on her front-line job. Later that morning, Dean
again "hollered" to Domagalski to take Reisser off that job and to put her on
another job. Domagalski again followed Dean's instructions. Reisser was dis-
charged by Wirth at the end of the shift that day, upon Dean's instructions. When
Domagalski learned the following morning that Reisser had been discharged, she
asked Dean why he had discharged Reisser. Dean told Domagalski not to bother
him with questions, but just to do her own work and to let him decide what to do
with the girls 26
Dean testified that the floorladies had been instructed to rotate the girls on the
various jobs on the line so that each girl would learn every operation on the line,
and that he discharged Reisser because she resented being moved to other jobs on
the line. He further testified that Domagalski had told him a few days earlier
that Reisser had complained to her about being moved and that she did not want
to be moved, that on October 9 he overheard Reisser objecting to Domagalski and
stating that she resented being moved from the front of the line where she was
inspecting labels to the end of the line to do the packing, and that Reisser's com-
plaint at that time prompted him to decide to discharge her. He further testified
that about a half hour later Reisser also complained to him about being moved
around, stating that she did not like the idea of being moved from the top of the
line, and that he told her they were all there to learn each other's jobs on the line.
It is the General Counsel's contention, as stated in his brief, that "Reisser was
discharged on October 9, 1962, because she joined and materially assisted the
[Brewery Workers] Charging Party." While Reisser's case presents a stronger basis
for upholding the General Counsel's contention than do the other five already
26 The findings in this paragraph are based on the credited and undisputed testimony of
Domagalski
CONTINENTAL DISTILLING SALES COMPANY, ETC. 835
treated in this section, there are certain factors which in my mind just as strongly
militate against a finding of a discriminatory discharge. In the first place, no
significance may be attached in this case to the fact that Reisser was summarily dis-
charged without any prior warning. The record shows, without any contradiction,
that Dean acted precisely the same way in all discharge cases. It was his normal
practice to give no prior warnings but merely to tell an employee to go to the office
or to see Wirth, while at the same time informing Wirth that the employee was to
be discharged and the reason therefor. Wirth testified that in this case Dean had
told him that Reisser was to be discharge because she raised a "fuss" about being
changed on the line. Then too, Reisser herself did not deny having complained
to Domagalski or to Dean about being changed on the line or having voiced her
resentment over such changes. Finally, there is the testimony of Domagalski, a
friendly witness called by the General Counsel and a member of the Brewery Work-
ers. She testified that Reisser's normal station was at the front end of the line
but admitted that Dean would occasionally instruct her to rotate the girls on the
various jobs on the line. She further admitted that when she moved Reisser from
the front end of the line on the two occasions in question on October 9, Reisser
each time wanted to know why she was being moved. Nor did Domagalski deny
Dean's testimony that a few days earlier she had reported to him that Reisser had
complained to her and had expressed resentment about being moved from the front
end of the line. While I am convinced that Dean exaggerated the extent of
Reisser's complaint to Domagalski, I am equally convinced that Domagalski under-
played it.
Dean impressed me as a gruff and brusque person who was concerned with run-
ning an efficient operation Whatever might be thought of the wisdom or business
judgment of summarily discharging an employee for questioning the floorlady about
the latter's action in moving her to another job, nevertheless, the right of Dean to
make just such a decision must be respected. While not entirely free from doubt,
I am not persuaded that, even assuming Dean's awareness of Reisser's interest and
activities on behalf of the Brewery Workers, the preponderance of the record evidence
warrants a finding that Reisser was discharged because of her union membership
and activities on behalf of the Brewery Workers.
2. The November discharges
Paragraph 9, as amended, of the complaint alleges, and the General Counsel
contends, that Respondent discharged 31-named employees in November 1962 for
failure to become members of the Production Workers in good standing pursuant
to the union-security clause of the agreement which became effective October 1.
The record shows that 26 of these employees were discharged on November 3 and
the remainder on November 10 27
a. As to the November 10 discharges
Respondent conceded at the hearing that the employees terminated on November
10 were in fact terminated for the reason alleged in the complaint. Thus, Plant
Manager Sarno admitted that the Production Workers had insisted that Respondent
live up to the terms of the union-security clause of the agreement and that the
employees who were terminated on November 10 were those who had not yet signed
up with the Production Workers.28 Sarno further testified that, on the advice of
his superiors, the Respondent prepared and gave to the employees terminated on
that date a copy of a card which explained the reason for their termination. This
card, a copy of which is in evidence as General Counsel's Exhibit No. 9, bears the
date of November 10, 1962, and states that "your employment is terminated as of
the close of today's business due to your failure to abide by the Union Security Clause
of the Production Workers Contract with your employer."
b. As to the November 3 discharges
In its answer to the complaint, Respondent admits the discharges, denies that the
reasons were as alleged in the complaint, and avers that the employees "were dis-
27Although Eva Kiethyka is listed in the complaint as having been discharged on
November 3, undisputed testimony and documentary evidence based on Respondent's pay-
roll shows the correct date to be November 10
28 Sarno testified that after November 10 Anna Suida was the only employee left who had
not signed up with the Production Workers, and that the Respondent and the Production
Workers agreed to consider her as a special case because she lived on property involved in
the purchase of the Lemont plant.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged because of a reduction in production activities and the elimination of the
night shift ." In its brief, Respondent gives the following three reasons for the dis-
charges; ( 1) the "first and primary reason " was the establishment of an additional
production line, which enabled Respondent to eliminate the night shift; (2) the
"general manager . . . discharged these individuals because of their failure to
fulfill employment requirements"; and (3 ) "the general manager gave passing con-
sideration to the question of whether or not the individual had signed up with the"
Production Workers "in determining who to lay-off ." In connection with the last
reason , Respondent further points out in its brief that "it was evident to the manage-
ment that one of the issues that would have to be faced is to discharge those em-
ployees who failed after 30 days to sign up with the union [Production Workers]."
Plant Manager Sarno testified that because Respondent had reached the point
where an additional production line would be available on the day shift , it became
economically feasible to eliminate the night shift and to "reduce the force to a
number of people necessary to operate about five production lines." He further
testified that he was the one who decided which employees should be selected for
discharge . He admitted that in making this selection he relied in part on the fact
that employees had failed to sign the union membership cards for the Production
Workers and in part on the recommendations of Supervisors Semple, Mansfield, and
Liming concerning the employees ' unsatisfactory work performance . He testified
that it was impossible for-him to remember the motivating factors for his selection
of any specific employee. ' He further admitted, however, that all the employees who
were discharged on November 3 had not signed up with the Production Workers at
the time of their discharge. Wirth testified that on November 2 he had a conversation
with Sarno in the latter 's office, during which it was decided to reduce the work force,
and that he later received from Sarno the names of the employees who were ter-
minated at the end of the shift on November 3. Tonet testified that Sarno gave him
a list of the employees who were to be terminated , together with information con-
cerning the reasons for the termination of each , and that he recorded this informa-
tion on the employee's personnel records which he left in the employee's personnel file-
Assuming the economic feasibility for reducing the work force , the issue still
remains as to the real motivating reason for the selection of the dischargees, rather
than other employees . Upon consideration of all the relevant evidence , I am con-
vinced and find that it was the dischargees ' failure to sign the union cards for the
Production Workers, pursuant to the union-security provision, which weighed more
heavily in Sarno's decision to select them than did any alleged deficiencies in their
work performance . In reaching this conclusion , I have been motivated primarily by
Respondent 's aforestated admissions and by the following facts and circumstances: 29
(1) Supervisors Semple, Mansfield , and Liming , who admittedly were the only
ones at that time who had firsthand knowledge of the work performance of the
employees , did not testify concerning the work performance of the dischargees or
as to what recommendations , if any, they had made to Sarno in that regard.30 Nor
did Respondent produce the personnel files which , according to Tonet, contained a
report of the reason for the employee 's termination . Under these circumstances,
the inference is warranted that the testimony and the records would have been un-
favorable to Respondent . Interstate Circuit , Inc. v . U.S., 306 U.S. 208, 226.
(2) Not a single dischargee was told that dissatisfaction with the work perform-
ance was a reason for his or her selection . Those who inquired as to the reason for
their selection were told by Wirth that their names had been selected "at random.
At least one employee (Lucille Bradley) was affirmatively told by Wirth that it was
not on account of her work ; another employee (Naome Anderson ) was told by him
that she was one of Respondent 's best workers; and still another employee (Douglas
Habercorn ), who on the following workday inquired as to the reason for his dis-
charge, was told by Plant Manager Sarno that Respondent had a contract with the
Union which required Habercorn to join within 30 days and that failure to join
would cause him to "be laid off because the union had pressure on him."
29 The findings which follow are based on admissions , exhibits in evidence, and the
credited testimony of both dischargees and employees who were not discharged either on
November 3 or 10. Statements attributed to Plant Manager Sarno were not denied by
him. To the extent that statements attributed to Wirth and Tonet were denied by them,
as they were in some instances , I do not credit such denials.
su Semple and Mansfield, whom I have previously found to be credible witnesses for Re-
spondent , were not questioned on these matters . Respondent did not call Liming as a_
witness and made no claim of unavailability.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 837
(3) Respondent had begun to take steps to enforce the union-security provisions
of the Production Workers' contract, which was effective from October 1, 1962.
Thus, about October 31, Plant Manager Sarno admittedly told Supervisors Wirth
.and Tonet that it would be to Respondent's "best interest" to bring the umon-security
provision to the attention of employees who had not yet signed the three-part
membership application and checkoff card. Acting upon these instructions, Wirth
told Nancy Heeg, an office girl, to summon employees into the office to see him
and Tonet and to sign the three-part membership application and checkoff card.
At the same time, Wirth also told Nancy Heeg, according to the latter's undented
and credited testimony, that this was the last day for joining the Union, referring to
the Production Workers. During October 31 and November 1 and 2, Heeg admittedly
made about six trips into the plant to summon employees into the office. When
the employees came into the office, Wirth or Tonet read the union-security clause
,to them, and solicited them to sign the three-part membership application and check-
off card for the Production Workers. At least 12 of the dischargees had previously
signed all 3 cards, writing the words "under duress and protest" on each card. Upon
'being told by Wirth or Tonet that the cards could not be accepted in that form, they
refused to sign new cards without these words on them. Another dischargee, who
had never signed before, refused to sign the three cards unless she were permitted
to write on each card the words "under duress and protest." About eight other dis-
chargees who had previously signed only the checkoff portion of the three-part card,
refused to sign the other two portions when solicited to do so by Wirth or Tonet.
The remaining dischargees refused to sign any portions of the three-part card. On
the other hand, over 40 employees credibly testified that they signed all parts of the
3-part union card without writing the words "under duress and protest," and were
not terminated on November 3 or 10.
(4) Wirth's admission that prior to the November 3 termination he had informed
Sarno of the employees' recalcitrant attitude toward signing the union cards.
(5) All the dischargees had refused to sign the three parts of the three-part mem-
bership application and checkoff card. On the other hand, no employee who had
signed these union cards was terminated either on November 3 or 10.
(6) Statements made to dischargees by Respondent's supervisors with respect to
signing the three-part membership application and checkoff card. Thus on November
2, the day before the discharges were effected, Wirth told Dolores Johnson that if
she did not sign the cards, "necessary steps according to the contract would be taken";
asked Christine Majetech to "sign all three cards, because you don't have any time
left"; told Mary Zaletel that she "had to sign the cards right away," that it "wasn't
any good" to sign only the bottom card which was the checkoff portion, and to
"make up [her] mind by Saturday," which was the next day; and told Lucille
Bradley that he (Wirth) was "getting into a lot of trouble over those people not
signing these union cards" and that "they were on his back about it." Also on
November 2, Tonet told Lois McCann that if she did not sign the union cards,
"serious steps" would be taken; told Adeline Domagalski that he wanted her to
sign the union cards because "they are pressing [him] for union dues"; and told
Eleanor Bernatowicz that if she did not sign the union cards, "further steps would be
taken." And Plant Manager Sarno told Douglas Habercorn, when the latter inquired
the following workday as to the reason for his discharge, that under Respondent's
contract with the Union, Habercorn's failure to join after 30 days would cause him
to "be laid off because the Union had pressure on him."
(7) Statements made by Respondent's supervisors to employees who were not
terminated either on November 3 or 10. In the latter part of October, when Bernadine
Wojnowski was being solicited by Wirth to sign the three-part membership applica-
tion and checkoff card, Wojnowski asked Wirth if she had to sign the union cards.
Wirth replied that if Wojnowski "really wanted [her] job, to go ahead and sign it."
Wojnowski signed and was not terminated. On November 2, Wirth asked Flannagan
if he had signed the union card. When Flannagan replied in the negative, Wirth
warned him to sign the cards "or else walk out the door." Flannagan thereupon signed
and was told by Wirth that his job "was safe." Flannagan has not been terminated.
On November 5, the next workday after the discharges, Tonet told Janet Podner that
if she would sign the union card, she would not be laid off. Podner signed and
was not terminated in November About the same time, Tonet also told Helen
Earnest, who a few days earlier had requested time to think it over, that under the
contract she had to sign the union cards if she expected to work. Earnest signed
and was not terminated in November.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8) The case of Darlene Carlson , who had signed all three parts of the three-part
union card about the middle of October. When Carlson reported for work on
Monday morning, November 5, she went into the office and asked Wirth whether
she still had a job in view of the Saturday terminations. Wirth replied, "Darlene,
you will have to make up your mind." In response to her question, Wirth admitted
that he was referring to the union. Carlson thereupon explained that she bad already
signed the union cards. Wirth then asked someone in the office to check for Carlson's
union card. When the office employee reported back to Wirth that "she's okay,"
Wirth told Carlson that it was "all right" and "to go and punch in and work on the
line." Carlson returned to work and was not terminated.
(9) The reinstatement of dischargee Clara Langdren upon the signing of the three-
part union membership application and checkoff card. On October 31, Langdren
signed the three-part union card, writing the words "under duress and protest" on
each card. On November 2 Tonet solicited her to sign the cards without the words
"under duress and protest." Langdren did not sign and was terminated with the
others on November 3. About 2 weeks later, she returned to the plant and spoke
to Wirth about getting her job back. Wirth told her that he did not know what could
be done about it but would look into it. On Saturday, October 17, she spoke to Reuter
on the telephone, explained her need for work, and asked if he could help to get her
job back. Reuter asked why she had not signed the union cards in the first place.
Langdren replied, "Well, you just live and learn." Reuter then told Langdren to re-'
port back to work the following Monday morning When Langdren reported to the
plant on the morning of November 19, Wirth gave her the three-part union member-
ship application and checkoff card, which she signed, but this time without writing
the words "under duress and protest" on it. Langdren was then permitted to return
to work.
(10) Although it was the night shift which was eliminated, the record shows that
over half of the dischargees had been employed on the day shift, and the night-shift
employees who were retained were transferred to the day shift. With the terminations
on November 10, the only employee left in the plant who had not signed the three-
part membership application and checkoff card was Anna Suida, whom the Production
Workers and Respondent had agreed to treat as a special case outside the union-
security agreement because she lived on property involved in the lease or purchase-
of the plant.
c. Concluding findings
The discharge of an employee for failing to become a member in a union violates
Section 8 (a) (3) and (1) of the Act unless there is in effect an agreement containing
a union-security clause which satisfies the requirements of the proviso to Section
8(a)(3). As previously found, the union-security clause in Respondent's agreement
with the Production Workers, which Respondent asserts as an additional defense to
the discharges, failed to satisfy these requirements and hence may not serve as a valid
defense to the discharges of November 3 and 10. Moreover, the Supreme Court has
recently held that, under the proviso to Section 8(a) (3) of the Act, an employee who
is willing to pay his union dues and fees may not lawfully be discharged for non-
membership in a union pursuant to a union -security agreement 31 There is no
showing in the instant case that the dischargees were unwilling to pay the uniform
dues and initiation fees. Indeed, there is affirmative evidence to the contrary.
Thus, as previously found, at least eight dischargees had in fact signed the bottom
portion of the three-part application card, which portion authorized Respondent to
withhold the dues and initiation fees from their wages and to transmit said payments
to the Production Workers. It would have been an exercise in futility for the remain-
ing dischargees to have signed the checkoff portion of the three-part application card
in view of the undisputed evidence that Respondent's supervisors made it clear to the
employees that the three-part application card could not be accepted unless each of
the three parts were signed. I therefore find that, even if there had existed a valid
union-security agreement, it still could not legalize the November 3 and 10 dis-
charges for failure to sign all parts of the three-part union membership application
and checkoff card.
It is admitted, as previously found, that the discharges on December 10 were
effected solely because of the dischargees' failure to sign the three-part union-
membership application card for the Production Workers pursuant to the union-
security contract. As I have previously found, that was also the dominant motive in
Plant Manager Sarno's selection of the specific employees to be terminated on
November 3. And it is immaterial that permissible contributing motives may also
11 N L R.B. v. General Motors Corporation, 373 U S 734 , and cases cited in footnote 10
CONTINENTAL DISTILLING SALES COMPANY, ETC. 839
have existed.32 Accordingly, I find that by terminating the employees listed in
paragraph 9(a), as amended, of the complaint on November 3 and 10, 1962, Respond-
ent discriminated with respect to their hire and tenure of employment, thereby dis-
couraging membership in the Brewery Workers and encouraging membership in
the Production Workers in violation of Section 8(a)(3) and (1) of the Act.
E. Respondent's unlawful conduct with respect to the Brewery Workers
The complaint as amended at the hearing alleges that, upon the Brewery Workers'
request on October 5 and November 8, 1962, and at all times thereafter, the Re-
spondent has refused to bargain collectively with the Brewery Workers which repre-
sented a majority of the employees in the appropriate unit, and thereby violated
Section 8(a) (5) and (1) of the Act. Respondent's answer denies that a majority of
its employees designated the Brewery Workers as their collective-bargaining repre-
sentative and avers that the allegations "are irrelevant since Respondent has a valid
and binding collective bargaining agreement" with the Production Workers.
1. The appropriate unit and the Brewery Workers' status as exclusive bargaining
representative therein
All parties stipulated at the hearing that the production and maintenance unit
set forth in the contract between Respondent and the Production Workers is an
appropriate unit . Accordingly, I find that all production and maintenance em-
ployees at Respondent's Lemont, Illinois, plant, excluding truckdrivers, superintend-
ents, foremen, salesmen , office employees, clerical employees, executive administra-
tive 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 record shows that on October 5, 1962, Respondent had at its plant 199 produc-
tion and maintenance employees within the appropriate unit.33 On the same date,
the Brewery Workers had valid signed authorization cards from 105 of the 199
employed in the unit, a clear majority 34 The record further shows that on No-
vember 8, 1962, Respondent had at its plant 191 employees in the appropriate unit.
This number excludes the six employees previously found to have been lawfully
discharged in October but includes the employees found to have been unlawfully
discharged on November 3. On the same date, the Brewery Workers had valid
signed authorization cards from 114 of the 191 employees in the unit, also a clear
majority. I therefore find that at all times on and after October 5, 1962, and
specifically on October 5 and November 8, the Brewery Workers was designated as
the collective-bargaining representative by a majority of Respondent's employees
in the appropriate unit.35
33 Numerous authorities bold that an employer violates Section 8(a) (3) and (1) of the
Act in any case where employees are discharged partly because of an unlawful motive and
partly because of a lawful motive. N.L R B. v Whitin Machine Works, 204 F. 2d 883, 885
(C.A. 1) ; N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C A. 2). Accord:
Butler Brothers v. N.L.RB., 134 F. 2d 981, 985 (C.A. 7), cert denied 320 U.S. 789;
N L.R.B. v. Minnesota Mining & Manufacturing Company, 179 F. 2d 323, 327 (C.A. 8) ;
and see N.L.R.B. v. Dixie Shirt Company, 176 F. 2d 969, 973-974 (CA 4) ; N.L R B. v.
A. B. Swinerton, et at., d/b/a Swinerton and Walberg Company, 202 F. 2d 511, 515-516
(C.A. 9), cert. denied 346 U S. 814
33 This number excludes Dave Braverman, previously found to have been discharged for
cause on October 4.
34 Even excluding the two employees (Frank Forillo, Jr , and Bambic) who were previ-
ously found to have been lawfully discharged at the end of their shift on October 5, there
was still a majority of 103 out of 197.
35 The majority computations for October 5 and November 8, 1962, are based on an ex-
amination of the employment records (General Counsel's Exhibits Nos 14 and 14A) and
the authorization cards in evidence (General Counsel's Exhibits Nos. 10A through
1OQQQQQ). Except for eight of the authorization cards included in the count for Octo-
ber 5 (consisting of those signed by Bradford, Cherry, Hargis, Irwin, McDaniel, Mitchell,
Rigor, and Ruguone) and 14 of the authorization cards included in the count for Novem-
ber 8 (consisting of the 8 already listed and those signed by J. Bennett, Bridgeman,
Juricic, McClanahan, McCure, and Roach), virtually all of the cards were identified by
the signers. In a few instances, the card was identified only by a credited witness who
saw the card being signed. The 14 cards signed by those listed in this footnote were in-
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their briefs, the Production Workers, but not the Respondent, contends that the
Brewery Workers' authorization cards should not be accepted as an indication of
the signer's free choice because of the fact that some of them had previously also
signed authorization cards for the Production Workers. However, as previously
found, the authorization cards for the production Workers were obtained with the un-
lawful assistance of Respondent and did not reflect that complete freedom of choice
of the signers which the Act contemplates. All authorization cards for the Brewery
Workers were signed after the Production Workers had been recognized by Respond-
ent on the basis of prior authorization cards obtained with Respondent's assistance.
The Brewery Workers' authorization card states that it is authorized to act as the
signer's exclusive representative for purposes of collective bargaining with the
Respondent and that "any such authorization previously granted by [the signer]
is hereby revoked." The record amply demonstrates, as previously found, that any
signers who also may have subsequently signed the three-part union-membership
application and checkoff cards for the Production Workers were compelled to do
so in order to retain their jobs pursuant to the illegal union-security contract. That
employees signed the authorization cards for the Brewery Workers despite the prior
and contemporaneous unfair labor practices committed by Respondent in favor of
the Production Workers is eloquent proof of the fact that the authorization cards
reflected the signer's free choice. I find no merit in, and reject, the contention of
the Production Workers .36
I find that at all times on and after October 5, 1962, and specifically on October
5 and November 8, the Brewery Workers has been and is the exclusive representa-
tive of all the employees in the aforestated appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
2. The requests and the refusals
It is not disputed that on October 5, 1962, Respondent received a letter from
the Brewery Workers, advising that the Brewery Workers represented a majority
of Respondent's production and maintenance employees, requesting recognition as
the bargaining representative for said employees with respect to wages, hours, and
working conditions, and asking for a reply within 5 days with respect to a time and
place for a meeting. It is further undisputed that on November 8, 1962, Respond-
ent received a telegram from Paridise, general counsel for the Brewery Workers,
reiterating the Brewery Workers' demand that Respondent recognize and bargain
with it as the representative of Respondent's production and maintenance employees
because the Production Workers represent "an overwhelming majority." The tele-
gram closed with a request for a "prompt reply." Respondent concedes that it
at no time made any reply, in any form, to the Brewery Workers' letter and
telegram.
The only defense asserted by Respondent in its brief to its refusal to bargain with
the Brewery Workers is that "the collective bargaining agreement duly executed
on October 2, 1962, effective October 1, 1962, was a contract bar to the representa-
tion demands of the Brewery Workers." Needless to say, this defense obviously
falls with the findings, previously made, that the execution and enforcement of this
contract was violative of Section 8(a)(1), (2), and (3) of the Act.
The Production Workers, but not the Respondent, contends in its brief that it was
lawful for Respondent to refuse to act upon the Brewery Workers' majority repre-
sentation claim without an election. However, Respondent had no absolute right to
eluded in a group which was received in evidence after the General Counsel qualified them
in the manner accepted by the Board in Irving Taitel, et at., d/b/a I. Taitel and Son, a
partnership, 119 NLRB 910, 912, enfd 261 F. 2d 1 (C.A. 7), cert denied 359 U.S. 944.
Respondent and the Production Workers had ample opportunity to check the authenticity
of the signatures on these cards by comparing them with Respondent's payroll. No con-
tention has been made that the signatures were not genuine. Under all the circumstances,
I am satisfied that these 14 cards are also valid designations and should be counted to-
gether with the other cards in determining the Brewery Workers' majority status on
October 5 and November 8 In any event, even if these 14 cards were excluded, the
Brewery Workers still had valid authorization cards signed by 100 of the 191 employees
in the appropriate unit on November 8, a clear majority
ae See, e.g, such cases as Daniel Crean and Joseph Messore d/b/a The Grand Food
Market, 139 NLRB 73, and Greystone Knitware Corp. and Donwood, Ltd, 136 NLRB 573,
where the Board's majority finding was based on authorization cards despite the fact that
the employees had also designated another labor organization which was the beneficiary of
the employer's unfair labor practices.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 841
an election; unless the Respondent entertained a good-faith doubt concerning the
Brewery Workers' representative status, Respondent was required by Section 8(a) (5)
of the Act to bargain, upon request, with the Brewery Workers 37 This is not a case
where, without any employer interference, employees simultaneously signed two sets
of union authorization cards and the employer is then confronted with majority
representation claims by rival unions. Here, before the organizational campaign of
the Brewery Workers was fully underway, the Respondent had already unlawfully
assisted the Production Workers in obtaining authorization cards upon the basis of
which Respondent unlawfully accorded the Production Workers exclusive recogni-
tion and executed an invalid union-security contract, all as previously found. The
Respondent then continued to engage in further unlawful conduct in favor of the
Production Workers during the height of the Brewery Workers' campaign and even
after the Brewery Workers had obtained a majority of the signed authorization cards,
also as previously found. On the other hand, at no time did Respondent inform the
Brewery Workers that it entertained any doubt as to the Brewery Workers' majority
status; at no time did Respondent demand proof of the Brewery Workers' majority
representation claim ; and at no time did Respondent contend that the representation
claims should be resolved by an election. On the contrary, Respondent contends
in its brief that the contract executed with the Production Workers is "a contract
bar . to further representation proceedings." In view of all the foregoing, I find
that Respondent did not entertain any good-faith doubt concerning the Brewery
Workers' majority representative status but ignored the Brewery Workers' demands
for recognition and collective bargaining solely in reliance on the invalid union-
security agreement which it had previously executed with the Production Workers.
I find that on October 5 and November 8, 1962, and at all times thereafter, Re-
spondent has refused to bargain with the Brewery Workers in violation of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(1) and (2) of the Act by
assisting the Production Workers in obtaining signed authorization cards and by
granting exclusive recognition to the Production Workers on the basis of such
authorization cards, and violated Section 8(a)(1), (2), and (3) of the Act by
executing an agreement with the Production Workers, which contained union-
security and checkoff provisions , and by maintaining and giving effect to said agree-
ment, including the union-security and checkoff provisions. I will recommend that
Respondent withdraw and withhold recognition from the Production Workers as the
representative of any of Respondent's employees unless and until the Board shall
certify it as such representative. I will further recommend that Respondent cease
giving effect to the checkoff cards and to the collective-bargaining agreement, exe-
cuted by it on October 2, 1962, or to any modification, extension , renewal, or supple-
ment thereto.38
The record further shows that employees paid dues and fees to the Production
Workers only because of the existence of the invalid union-security agreement.
There were no employee members of the Production Workers prior to the execution
of the invalid union-security agreement on October 2, 1962. As previously found,
employees were thereafter informed of the provisions of the union-security clause in
the agreement with the Production Workers; were solicited to sign the three-part
union membership application and checkoff card pursuant to said union-security
clause; were informed that, unless they did sign after the 30-day waiting period,
further steps would be taken pursuant to the union-security clause; and were in fact
a" See, e g, United Butchers Abattoir, Inc, 123 NLRB 946, 957.
International Ladies' Garment Workers' Union, APL-CIO (Bernhard- Altmann Texas
Corp. ) v NLRB., 366 U.S 731: Campco Plastics Company, a Division of Chicago
Molded Products Corporation, 142 NLRB 1272.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged on November 3 and 10 for not signing these cards in accordance with
the union-security provision of the agreement. Under the circumstances disclosed
by this record, I find that dues and fees were paid by employees under coercion and
that a reimbursement order is necessary to effectuate the policies of the Act even
though every individual employee was not specifically demonstrated to have been
coerced. I will therefore further recommend that Respondent reimburse each of its
present and former employees for all initiation fees, dues, and other moneys, if any,
exacted pursuant to the terms of the union-security agreement executed by Respond-
ent on October 2, 1962, or the checkoff authorization executed by said employees in
favor of the Production Workers 39 An allowance for interest shall be included in
these reimbursements, such interest to be computed in the manner set forth in
Seafarers International Union of North America, Great Lakes District, AFL-CIO,
138 NLRB 1142.
Having further found that Respondent has refused to bargain with the Brewery
Workers as the exclusive representative of its employees in an appropriate unit and
thereby had violated Section 8(a)(5) and (1) of the Act, I will recommend that,
upon request, Respondent bargain collectively with the Brewery Workers concerning
rates of pay, wages, hours, and other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
Having further found that Respondent violated Section 8(a) (1), (2), and (3) of
the Act by the discharges effected on November 3 and 10, 1962, I will recommend
that Respondent offer to those employees listed in paragraph 9(a), as amended, of
the complaint who have not been reinstated or have not been offered reinstatement
subsequent to their discharge on November 3 and 10, as the case may be, immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them and the
employees who already have been reinstated or have been offered reinstatement
whole for any loss of earnings they may have suffered by reason of the discrimina-
torily motivated discharge by payment to each of a sum of money equal to that
which each normally would have earned as wages from the date of the discharge to
the date of reinstatement or offer of reinstatement, as the case may be, less the net
earnings of each during such period, with backpay and interest thereon computed in
the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.49
In view of the nature and extent of Respondent's unfair labor practices, I am con-
vinced and find that there exists the danger of the commission of similar and other
unfair labor practices Accordingly, I find it necessary in order to effectuate the
policies of the Act to recommend that Respondent cease and desist from infringing
"in any other manner" upon the rights guaranteed to its employees by Section 7 of
the Act, in addition to those rights found to have been violated herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees at Respondent's Lemont, Illinois,
plant, excluding truckdrivers, superintendents, foremen, salesmen, office employees,
clerical employees, executive administrative employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
2. On October 5 and November 8, 1962, and at all times thereafter, the Brewery
Workers has been the exclusive representative of all the employees and in the afore-
stated appropriate unit for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
3. By refusing on October 5 and November 8, 1962, and at all times thereafter,
to bargain collectively with the Brewery Workers as the exclusive representative of
its employees in the aforestated appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (5)
of the Act.
80 See , e.g, Campco Plastics Company and Salmirs Oil Company cases, supra; N L R B.
v. Teamsters and Allied Workers, Hawaii Local 996, etc. , et al. (20th Century Fox),
313 F. 2d 655 (C A. 9) , N L R.B. v Cadillac Wire Corp., 290 F. 2d 261, 263 (C.A 2).
40 The possibility that Respondent may have been required to reduce its work force for
nondiscriminatory reasons shall be taken into consideration in determining the amounts of
backpay due to the employees reinstated under the terms of the Recommended Order
herein. Cumberland Farms Dairy Products, Inc, 139 NLRB 1445.
CONTINENTAL DISTILLING SALES COMPANY, ETC. 843
4. By the conduct set forth in section C, supra, the Respbndent has rendered un-
lawful assistance and support to the Production Workers and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (2)
of the Act.
5. By executing an invalid union-security agreement with the Production Workers,
by maintaining said agreement in effect and enforcing it with respect to the employees
at the Lemont plant, and by discriminating in regard to the hire and tenure of em-
ployment of the employees listed in paragraph 9(a), as amended, of the complaint
for failure to sign the membership cards for the Production Workers, thereby dis-
couraging membership in the Brewery Workers and encouraging membership in
the Production Workers, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) of the Act
6. By the foregoing conduct, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices by the October dis-
charges of Dave Braverman, Frank Forillo, Jr., Robert Bambic, Robert Higgen-
botham, Veromca Brandt, and Dorothy Reisser.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Respondent, Continental Distilling
Sales Company, a division of Publicker Industries, Inc., Lemont, Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving assistance or support to Production and Miscellaneous Workers Union
of Chicago and Vicinity, Independent, or to any other labor organization
(b) Recognizing the above-named labor organization as the representative of
any, of its employees for the purpose of dealing with Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other terms and
conditions of employment.
(c) Giving any force or effect to the collective-bargaining agreement, executed
with the above-named labor organization on October 2, 1962, or to any modifica-
tion, extension, renewal, or supplement thereto, provided, however, that nothing
herein shall require the Respondent to vary or abandon any wage, hour, seniority,
,or other substantive feature of its relations with its employees which has been estab-
lished in the performance of this agreement, or to prejudice the assertion by em-
ployees of any rights they may have thereunder.
(d) Giving effect to the checkoff cards executed by its employees in favor of the
above-named labor organization.
(e) Encouraging membership in the above-named labor organization and dis-
couraging membership in International Union of United Brewery, Flour, Cereal, Soft
Drink & Distillery Workers of America, AFL-CIO, or in any other labor organiza-
tions, by discriminatorily discharging or laying off its employees, or by discriminat-
ing in any other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(f) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment with International
Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America,
AFL-CIO, as the exclusive representative of its employees in the following ap-
propriate unit:
All production and maintenance employees at Respondent's Lemont, Illinois,
plant, excluding truckdrivers, superintendents, foremen, salesmen, office em-
ployees, clerical employees, executive administrative employees, guards, and
supervisors as defined in the Act.
(g) In any other manner interfering with, restraining, or coercing its 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,
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain fiom any or all such activities, except to the
extent that such right is affected by the provisos in Section 8(a) (3) of the Act.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is necessary to effectuate the policies.
of the Act:
(a) Withdraw and withhold all recognition from Production and Miscellaneous
Workers Union of Chicago and Vicinity, Independent, as the collective-bargaining
representative of any of its employees for the purpose of dealing with Respondent
concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other terms or conditions of employment, unless and until the Board shall certify,
said labor organization as such representative.
(b) Upon request, bargain collectively with International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, as the exclusive
representative of the employees in the aforestated appropriate unit, with respect to,
rates of pay, wages, hours of employment, or other terms and conditions of employ-
ment, and, if an understanding is reached, embody such understanding in a signed
agreement.
(c) Reimburse each of its present and former employees for all initiation fees, dues,
and other moneys, if any, exacted pursuant to the terms of the union-security agree-
ment executed by Respondent on October 2, 1962, or the checkoff authorizations
executed by said employees in favor of Production and Miscellaneous Workers Union
of Chicago and Vicinity, Independent, in the manner set forth in the section of this
Intermediate Report entitled "The Remedy."
(d) Offer to those employees listed in paragraph 9(a), as amended, of the com-
plaint who have not been reinstated or have not been offered reinstatement subsequent
to their discharge on November 3 and 10, 1962, as the case may be, immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them, and the
employees who already have been reinstated or have been offered reinstatement, whole
for any loss of earnings they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of this Intermediate Report entitled "The
Remedy."
(e) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay and reimbursement due under the terms of this Recommended
Order.
(f) Post at its plant in Lemont, Illinois, copies of the attached notice marked
"Appendix A." 41 Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region (Chicago, Illinois), shall, after being duly signed by an
authorized representative of the Respondent, be posted by it 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 the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.42
It is further recommended that the complaint, as amended, be dismissed insofar as
it alleges that the Respondent engaged in unfair labor practices by discharging Dave
Braverman, Frank Forillo, Jr., Robert Bambic, Robert Higgenhotham, Veronica
Brandt, and Dorothy Reisser.
11 In the event that this Recommended Order shall 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. In the further event that the Board'a Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
42 In the event that this Recommended Order is 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 the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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:
CONTINENTAL DISTILLING SALES COMPANY, ETC. 845
WE WILL withdraw and withhold all recognition from Production and
Miscellaneous Workers Union of Chicago and Vicinity, Independent, as the
collective-bargaining representative of any of our employees, unless and until
so certified by the National Labor Relations Board.
WE WILL NOT give effect to the collective-bargaining agreement executed by
us on October 2, 1962, with the above-named labor organization or to any
modification, extension, renewal, or supplement thereto, or to any checkoff in
favor of the above-named labor organization.
WE WILL NOT give any assistance or support to the above-named or to any
other labor organization.
WE WILL NOT encourage membership in the above-named labor organization
and discourage membership in International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, or in any other
labor organizations, by discriminatorily discharging or laying off our employees,
or by discriminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL, upon request, bargain collectively with International Union of
United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America,
AFL-CIO, as the exclusive representative of our employees in the bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The bargaining
unit is:
All production and maintenance employees at our Lemont, Illinois,
plant, excluding truckdrivers , superintendents , foremen, salesmen, office
employees, clerical employees, executive administrative employees, guards,
and supervisors as defined in the Act.
WE WILL reimburse each of our present and former employees for all initia-
tion fees, dues, and other moneys, if any, unlawfully exacted from them pursuant
to the terms of the aforesaid union-security agreement executed by us on Octo-
ber 2, 1962, or the checkoff authorizations executed by said employees in favor
•of Production and Miscellaneous Workers Union of Chicago and Vicinity,
Independent.
WE WILL offer to those employees listed in paragraph 9(a), as amended, of
the complaint who have not been reinstated or have not been offered reinstate-
ment subsequent to their discharge on November 3 and 10, 1962, as the case
may be, immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and
privileges, and make them, and the employees who already have been re-
instated or have been offered reinstatement, whole for any loss of pay suffered
as a result of the discrimination against them.
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 the above-named or any other labor organizations, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right is affected by the provisos in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or
Temaining , members of any labor organization.
CONTINENTAL DISTILLING SALES COMPANY, A DIVISION
OF PUBLICKER INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-designated 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 of 1948, as amended, after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
.question concerning this notice or compliance with its provisions.