The Brescome Distributors Corp.

National Labor Relations Board - Board Decisions

Dec 2, 1969

179 N.L.R.B. 787 (N.L.R.B. 1969)

THE BRESCOME DISTRIBUTORS CORP.
The Brescome Distributors Corporation and Wine &
Liquor Salesmen & Allied Workers Local Union
195, a/w Distillery, Rectifying, Wine & Allied
Workers International Union of America,
AFL-CIO' and The Brescome Distributors
Employees Association , Inc.' Cases 1-CA-6027 and
I-RC-9643
December 2, 1969
DECISION-AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND BROWN
On August 21, 1968, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended dismissal of these allegations.
Thereafter, the General Counsel and Respondent
filed exceptions, and the Charging Party filed
cross-exceptions to the Trial Examiner's Decision,
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations 'Board has delegated its
powers in -connection with this case to a
three-member panel.
The Board has, reviewed the rulings of the Trial
Examiner made at -the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the
exceptions and briefs,3 and the entire record in this
proceeding, and hereby adopts the findings,4
conclusions ," and recommendations of the Trial
Examiner, except as modified below.
1. We agree with the Trial Examiner that within
the period of the '10(b) limitation Respondent
' Hereinafter referred to as the Union.
'Hereinafter referred to as the Association.
'The Union's request for oral argument is denied because, in our
opinion, the record , exceptions , and briefs adequately set forth the issues
and positions of the parties
'As did the Trial Examiner , we find no merit in Respondent's contention
that the Regional Director had no authority to consolidate the hearing on
objections in Case 1-RC-9643 with the hearing in this proceeding Inland
Empire District Council et al v. Harry A Millis et al. 325 U S 697,
707, N L R B v Dixie Shirt Co . 176 F 2d 969, 970-971, and cases cited
therein This is the customary and proper procedure used to avoid
unnecessary costs or delay. See National Labor Relations Board Rules and
Regulations , Series 8, as amended , Sec 102 33
'Respondent ' s exceptions to the Trial Examiner 's Decision are in large
part directed to the credibility resolutions of the Trial Examiner We will
not, however, overturn a Trial Examiner's resolution of credibility issues
unless the party excepting to such findings demonstrates by a clear
preponderance of the relevant evidence that they are incorrect Standard
Drv Wall Products, Inc. 91 NLRB 544, enfd 188 F 2d 363 (C A 3)
Respondent, in our opinion , has not sustained that burden here
787
violated Section 8(a)(1) and (2) by a course of
conduct which included, among other conduct,
individually interrogating its salesmen concerning
their interest in the Union while impressing upon
them its favor for their continued representation by
the Association; coercively expressing its antagonism
to the Union; instigating and directing the holding
of meetings by its salesmen for the purpose of
securing their authorization of further representation
by the Association; and executing a contract, not
negotiated by the Association's officers or
bargaining representatives, providing substantial
benefits for its drivers and warehousemen, for the
purpose of further demonstrating its beneficence
toward employee representation by the Association.
We likewise agree that Respondent violated Section
8(a)(1) and (2) by the continued membership in the
Association during this period of two supervisors,
one as vice president.
2. We further agree with the Trial Examiner that
Respondent violated Section 8(a)(1) and (5) by its
rejection of the Union's request for recognition as
the salesmen's bargaining representative.6 Like our
dissenting colleague, we have considered as
background the history of Respondent's relationship
with the Association prior to the statutory 6-months
limitation period, for the assistance that it may
provide in evaluating the events which occurred
within that period We differ with him, however, as
to the significance of that history. Thus we note,
first of all, that the certification of the Association
in 1952 was pursuant to a "consent" election,
conducted under Board auspices but by agreement
of the parties and without a hearing or other formal
investigation by the Board of possible underlying
issues involved.'
The record now before us in this proceeding
discloses that one of Respondent's supervisors
participated in the initial organization of the
Association, became its first treasurer, and in 1956
participated as a member of the Association's
bargaining committee in bargaining with the
Respondent. Other supervisors also became
Association officers or members. Although the
Association met yearly and collected dues,' its
dealings with Respondent, with the single exception
of the year 1960, were never incorporated in a
written and signed agreement. And even the later
amendments and additions to the 1960 agreement
were never embodied in a formal contract, and
Respondent appears to have regarded at least some
of these as benefits which it voluntarily bestowed.
'Adhesive Products Corporation , 117 NLRB 265
'Although the Board does not normally permit litigation of unfair labor
practices in a representation proceeding , it will nevertheless not knowingly
conduct an election upon the petition of an unlawfully assisted union such
as one whose showing of interest has been obtained through the
participation of supervisors in its organizing campaign See, for example,
Desilu Productions , Inc, 106 NLRB 179
'Like the Trial Examiner we note the fact that two of Respondent's
supervisors were successively treasurers of the Association and find this to
be not without significance in evaluating the somewhat anomalous
179 NLRB No. 137
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
Particularly when viewed against this background
Respondent's assertion of refuge in the Midwest
Piping doctrine9 further loses significance. As shown
by a recent Board decision,1° the doctrine of the
Midwest Piping line of cases, while a valid one, is
not to be construed and applied so mechanically as
to defeat its basic purpose. That principle is
designed to serve as a shield and not as a sword. An
employer, faced with a competing representation
claim, quite properly should be protected from a
union's refusal-to-bargain charge, even where that
union is able to demonstrate a card majority, in a
situation where he evidences his neutrality by
maintaining the status quo while the question
concerning representation is being determined by the
Board. But it is foreign to the basic concept of the
rule to invoke it as justification for a refusal to
bargain in a situation where, as here, the employer,
instead of remaining neutral, takes sides, and
engages in unfair labor practices aimed at assisting
and supporting the union he favors, and utilizes this
as a means of dissipating the majority of the rival
union to which he is opposed. In this situation, to
excuse the refusal to bargain and deny the remedial
relief of a bargaining order could serve only to exalt
the letter of the rule while stultifying its purpose,
and would leave the victimized union without a truly
effective remedy.
Since the recent decision of the Supreme Court in
the Gissel case," the legal touchstone for a
bargaining order is whether the employer has
engaged in unfair labor practices of such a character
as to preclude a fair election and to permit a finding
that a majority established by cards is more reliable
that an election as the indicator of employee desires.
In this case the Trial Examiner found that the
nature and effect of Respondent's unlawful
demonstration of its favoritism to the Association,
coupled with its dire prediction of adverse
consequences which might be expected if the Union
should be selected and attempt to bargain with
Respondent,'2 was such as to prevent the possibility
of a fair election. We agree, and upon the basis of
the Union's demonstrated card majority find that
Respondent violated Section 8(a)(5).
disclosure that Respondent' s salesmen kept paying dues to the Association
year after year although they themselves had received little benefit from its
representation.
'Midwest Piping and Supply Co, Inc. 65 NLRB 1060, wherein the
Board established the principle that when faced with the competing
recognition demands of rival unions , and a genuine question of
representation exists, the employer should not himself resolve that question
by recognizing one of the unions but should leave the issue to be resolved
by the process of a Board election
"The Sinclair Manufacturing Company, 178 NLRB No 29 The Board,
in the light of the particular facts of that case, found no violation by the
Employer in executing a contract with a rival union to which the
employees had transferred their allegience during a course of bargaining
negotiations
"N L R.B v. Gissel Packing Company, 395 U S 575
"Such as, for example, the assertions of Mervin and Samuel Lentz that
if the salesmen should select the Union and it should attempt by strike to
force a change in the order of things, affairs had been so arranged that
Respondent could do without the salesmen altogether
3. We also further find upon a consideration of
the entire record," and in agreement with the Trial
Examiner, that, apart from the violation of Section
8(a)(5), an order directing Respondent to bargain
with the Union, upon request, is necessary to
remedy the effects of its other unfair labor practices.
The record establishes that the Union had a
majority when the Respondent began its course of
unfair labor practices directed at destroying this
support. The subsequent diminution of support, as
revealed by the Union's loss in the election, can only
be attributed to Respondent's unlawful conduct.
Therefore, we shall order Respondent to bargain,
upon request, with the Union not only to remedy its
violation of Section 8(a)(5) but also its violations of
Section 8(a)(1) of the Act. 14
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, with
the following modification, and hereby orders that
Respondent, The Brescome Distributors
Corporation, Hartford, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified.
Delete paragraph 1(b) in its entirety and
substitute the following:
"(b) Recognizing or contracting with the Brescome
Distributors Employees Association as the
representative of any of its salesmen for the purpose
of dealing with said organization concerning
grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of
employment until after it has first complied with the
provisions of this order requiring it to bargain with
Wine & Liquor Salesmen & Allied Workers Local
Union No. 195 a/w Distillery, Rectifying, Wine &
Allied Workers International Union of America,
AFL-CIO, and thereafter unless and until Brescome
Distributors Employees Association shall have been
certified as such representative pursuant to a
Board-conducted election among Respondent's
employees.-
Delete in its entirety the first indented paragraph
of the Notice to All Employees which begins with
"WE WILL NOT recognize" etc; and substitute the
following:
"The Board has held, with court approval, that in fashioning an
appropriate remedy it is proper for the Board to consider not only the
particular conduct occurring within the 10(b) limitations period but also
conduct prior to that period as background evidence for the purpose of
enabling the Board to determine what measures are necessary to expunge
the effects of the unfair labor practices which occurred within the
limitations period Lundy Manufacturing Corporation, 136 NLRB 1230,
1233-34, enfd 316 F 2d 921 (C A 2), cert denied 375 U S 895
"Bryant Chucking Grinder Company. 160 NLRB 1526, Heck's Inc 172
NLRB No 255
THE BRESCOME DISTRIBUTORS CORP.
WE WILL NOT recognize or contract with the
Brescome Distributors Employees Association as
the representative of our employees for the
purpose of dealing with said organization
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions
of employment until after we have first complied
with the provisions of this order requiring us to
bargain with Wine & Liquor Salesmen & Allied
Workers Local Union 195 a/w Distillery,
Rectifying, Wine & Allied Workers International
Union of America, AFL-CIO, and thereafter
unless and until Brescome Distributors Employees
Association shall have been certified as such
representative pursuant to a Board-conducted
election among our employees.
MEMBER BROWN, dissenting in part:
I dissent from my colleagues' 8(a)(5) finding
herein.
For 15 years before the Union requested
recognition for the salesmen in June 1967, the
Association was the certified bargaining
representative for all Respondent's employees,
including the salesmen, who comprised a majority of
the bargaining unit. It appears that the Association
was not at all times vigorous in its representation of
the employees but its membership continued to be
loyal to it, especially the salesmen, almost all of
whom are shown by the record to have paid their
dues regularly and to have attended the
Association's annual meetings. Even when a
majority of the salesmen signed designation cards
for the Union in 1967, they did not resign from the
Association, and it cannot be found, nor does the
majority find, that the Association was defunct
when the Association appeared to claim that a
majority of the salesmen had designated it as their
bargaining agent.
In these circumstances, I cannot find that the
Union presented to the Respondent, or possessed,
such indisputable proof of majority as to preclude
even a colorable claim by the Association to the
employees involved. This being so, there existed a
question of representation which the Respondent
could not, under the Midwest Piping line of cases,'
itself resolve; had it- proceeded to resolve it in the
Union's favor without uncontestable evidence of
majority, that would have been unlawful.16 A
fortiori, its refusal to extend such recognition should
not now be condemned as a violation of Section
8(a)(5).'7
The Trial Examiner and my colleagues think
differently because Respondent gave illegal
"Midwest Piping and Supply Co, Inc. 63 NLRB 1060
"Retail Clerks Union . Local 770 v N L R 8, 370 F 2d 205, 207 (C A
9), N L R B v Air Master Corporation . 339 F 2d 553, 557 (C A. 3),
N L R.B v Indianapolis Newspapers , Inc.. 210 F 2d 501, 503-504 (CA
7)
"Nor do the designations of the Union in the circumstances mentioned
support my colleagues' issuance of a bargaining order on the basis of the
8(a)(I) violations found
789
assistance to the Association. But as of the time
when Respondent was confronted with the Union's
claim in the face of the Association's incumbency,
the only 8(a)(2) assistance found is the fact that two
supervisors not in the bargaining unit were members
of the Association and one of them served as
treasurer; both played inactive roles. I do not believe
that this assistance to the Association is of such
degree or character as to warrant our disregarding
its established status as a certified and still viable
labor organization, and still claiming to represent
Respondent's employees.
Accordingly, I would not find the 8(a)(5) or order
Respondent to bargain with the Union. Rather, I
would remedy the 8(1) and (2) violations in the case
and, when the time is appropriate, I would hold an
election so that the employees may make their own
final choice of a bargaining representative.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner These matters were
heard before Trial Examiner Sidney J. Barban at
Wethersfield and Hartford, Connecticut, on 21 trial days
between January 8 and February 27, 1968. The charge in
Case 1-CA-6027 was filed on July 27, 1967, and a
complaint in that case together with an order
consolidating that case with a hearing on objections in
Case 1-RC-9643, was issued by the Regional Director on
October 5, 1967. The complaint alleges that The
Brescome Distributors Corporation (herein referred to as
the Respondent), by various acts and conduct, (1)
interfered with, restrained and coerced employees in the
exercise of rights under Section 7 of the Act, (2) initiated,
formed, sponsored, and promoted the above-named
Intervenor (herein called the Association) in 1952, and
from on or about June 7, 1967, assisted, dominated,
contributed to the support of and interfered with the
administration of the Association, and (3) from on or
about June 6 refused to bargain with the above-named
Charging Party-Petitioner (herein referred to as the
Union), in asserted violation of Section 8(a)(1), (2), and
(5) of the Act. Objections to the election conducted in
Case I-RC-9643 were duly filed by the Union on July 27,
1967, as hereinafter considered
Respondent's motion to sever the cases was denied,
prior to the hearing, by Trial Examiner Sidney Lindner,
which ruling was affirmed at the hearing Respondent's
answer to the complaint denies the commission of any
unfair labor practices
The complaint alleges and the answer admits facts
sufficient to warrant the assertion of jurisdiction over this
matter under current standards of the Board and to
support the finding that the Association and the Union
are labor organizations within the meaning of the Act.
After the close of the hearing, the Union, on May 1,
1968, filed a motion to reopen the record to take the
testimony of two witnesses with respect to the accuracy of
certain testimony given by a witness for Respondent at the
hearing This was opposed by Respondent. The motion to
reopen the hearing was denied by an order of the Trial
Examiner dated May 8, 1968, which also made the
motion, the opposition and the order part of the record as
Trial Examiner's exhibits Thereafter on May 13, 1968,
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union requested permission from the Board to appeal
the Trial Examiner's order. The request to appeal was
denied by the Board on May 15, 1968, without prejudice
to renewing the motion in exceptions filed to the Trial
Examiner's decision The Union's request and the Board's
order are hereby numbered Trial Examiner's exhibits 5
and 6 and are received as part of the record
Upon the entire record in this case,' from observation
of the witnesses, and after due consideration of the briefs
filed by the General Counsel, the Respondent and the
Union on June 4, 1968, 1 make the following-
FINDINGS AND CONCLUSIONS
I Alleged violations of Sections 8(a)( I) and ( 2) of the
Act
A Background Facts
The origin and activities of the Association'
Since about 1949, Respondent, which is engaged in the
sale and distribution of wines and liquors to restaurants,
taverns, and other customers, has been controlled by
Samuel Lentz (sometimes herein called S Lentz), and, in
recent years, by his son Mervyn Lentz (sometimes herein
called M. Lentz) Respondent is located at Hartford,
Connecticut, where, at times material herein, it has
employed warehousemen who receive, store and prepare
goods for delivery, drivers who deliver to Respondent's
customers, and salesmen who sell for Respondent (some
of whom work in outlying areas and come to Hartford
only at intervals, usually about once a week, on Fridays).
During 1952, there was some unrest among the drivers
and, apparently, an attempt was made by the Teamsters
Union to organize them. During this period the drivers
also engaged in a strike. The salesmen were concerned by
these developments, and there seems no doubt that this
unrest among the drivers was the immediate cause for the
action taken by Respondent's sales force to initiate the
organization of the Association in the summer of that
year.
While the drivers and warehousemen (often collectively
referred to herein as the drivers) have been the chief
beneficiaries of the Association's activities, through the
years, they seem to have participated very little in the
organization. Indeed, it appears that they originally were
not eligible for membership and were only later admitted.
(See G.C. Exh. 41.) Though almost all of the salesmen
appear to have paid dues rather regularly and to have
attended the regular annual (and normally the only)
meeting of the Association, the drivers do not seem to
have done so. However, one driver, Kucka, was at times
an officer of the Association and on at least one occasion
a member of a negotiating committee. After 1963, there is
no evidence of participation in Association affairs by
drivers at all, except possibly in 1967, as discussed
hereinafter.
'Respondent ' s motion to correct the transcript in this matter has been
dealt with in a separate order
'Respondent and the Association objected generally to the receipt of
evidence of events occurring prior to 6 months before the filing of the
charge in this matter, on July 27, 1967, on the basis that, under Sec. 10(b)
of the Act, conduct occurring before that time may not be found to be an
unfair labor practice Such evidence was received only as background for
whatever light it might shed on events occurring during the period
following January 27, 1967
There is a conflict as to whether the Association was
organized by the salesmen on their own initiative, or
whether they were sent by the management of Respondent
to the offices of certain attorneys in Hartford, Schatz &
Schatz, to establish that organization. On the record as a
whole, however, the memories of those who testified to the
events was too vague to justify a finding that they were
sent to the lawyer's offices by Respondent, as contended
by the Union. Nevertheless, it is clear that one of the
organizers of the Association was Sales Supervisor
Edward D. Horowitz, who was a supervisor within the
meaning of the Act, as hereinafter discussed. Horowitz
was also thereafter elected treasurer of the Association,
met with its Board of Trustees, and was a member of its
negotiating committee in 1956, and appears to have been
generally active in its affairs. Horowitz was succeeded as
treasurer of the Association by Morris Tarre, who was
successively Sales Supervisor and Sales Manager of
Respondent's liquor operations, and also a supervisory
employee. During 1966-1967, Sales Manager Bernard
Sandler and Wine Sales Manager Frank Amoroso, both
supervisory employees, as discussed hereinafter, were
members of the Association, the latter occupying the
position of vice president. Both of these men, however,
were expelled from the Association after the Respondent,
the Association and the Union agreed, at a Board hearing
on the Union's representation petition, in 1967, that they
were supervisors within the meaning of the Act and not
eligible to vote in the Board election held on July 21,
1967
Previously, the Association had been certified by the
Board, in 1952, after an election agreed to by the
Association and the Respondent in a unit of "all
employees including salesmen and warehousemen,"
excluding clerical employees, guards, professional
employees and supervisors. During the succeeding 15
years, to 1967, the Association normally met once a year
(no meeting seems to have been held in 1954), at which
time the members elected officers for the coming year,
admitted new members in the organization, and usually
noted little else to do. It would appear that no grievances
were handled by the organization during this period and
that it engaged in no activities other than the occasional
meetings referred to above, the collection of dues, and the
matters considered below.
In 1952, after the Association was certified by the
Board, it is asserted that, as a result of discussions
between Respondent and the Association, an oral
agreement was reached on terms and conditions of
employment of salesmen, drivers and warehousemen.
Much of the testimony as to these discussions was given
by Leo Maynard, one of the Respondent's oldest
employees. His testimony, which generally tended to be
vague, uncertain and sometimes inconsistent, is credited
only to the extent specifically indicated herein.
While it would appear that the drivers and
warehousemen received increases in the 1952 negotiations,
Maynard's testimony rather clearly indicates that little or
nothing was gained by the salesmen.'
The next discussions between the Association and
Respondent with respect to terms of employment occurred
'Maynard did not recall any change in salesmen 's commissions that
year. While he states that, at that time , "we were given a week 's vacation
with pay," it is noted that this was still a matter in issue in the 1967
negotiations Maynard, after saying that holidays, advertising and
promotional matters, and collection of monies was discussed , ended by
stating that no change was made in these matters
THE BRESCOME DIST R'MIORS CGR^?
in 1956, when, according to Mervyn Lentz, "some
members of the Association came to us and talked about
some dissatisfaction among the drivers." While it is not
easy to determine the course of events that year, the
record does establish the following:
On September 21, the Association held its annual
meeting, at which membership cards were distributed, new
officers elected, and the meeting adjourned for lack of
other business A week later, however, on September 28,
there was a special meeting of the Board of Trustees, at
which it was stated that there had been considerable
bargaining with Respondent concerning truckdrivers' pay,
followed by a discussion of the terms agreed upon, and a
general indication of acceptance of the terms by the Board
of Trustees. Sales Supervisor Horowitz actively
participated in these discussions.
Although there is no evidence of any other formal
action by the Association with respect to this agreement,
the record is clear that the drivers, apparently informally,
decided that the terms were not satisfactory and rejected
them. The testimony is that the Association thereafter
obtained better terms from the Respondent which the
drivers accepted. Again this action by the drivers seems to
have occurred outside the ambit of the Association, for
there is no evidence of it in the Association minutes for
that year.
The minutes show that another meeting of the Board of
Trustees was held that same year, on November 9, at
which time, the Trustees decided to seek a written
agreement from the Respondent. The Association
thereafter requested and the Respondent agreed to
negotiations for a written contract. On November 17,
another meeting of the Board of Trustees was held at
which there was discussion of the proposed written
contract and "what was to be included in the contract in
regards to the salesmen, truck drivers and
warehousemen." A bargaining committee was named,
composed of Horowitz, salesman Sposito and driver
Kucka. Although there is no evidence of any other formal
action by the Association, the testimony is that the terms
agreed upon were recorded upon two sheets of paper, one
for the salesmen and one for the drivers and
warehousemen, which were thereafter used by the
Respondent in the operation of its business. These sheets,
which were received in evidence, were not signed or
initialed by the parties, and do not contain any reference
to the Association. According to Maynard's testimony,
there was no change in 1956 from the 1952 terms with
respect to the salesmen's conditions of employment.
In 1960 negotiations were again had between the
Association and the Respondent. Again, the discussions
principally concerned improvement of the conditions of
the drivers and warehousemen. As stated at a special
meeting of the Association, on November 28, 1960, the
agreement reached involved "no change in the terms of
employment for the salesmen." It appears that the drivers
again rejected the terms negotiated, and an addendum was
added in December, 1960, increasing their benefits
This agreement, which was signed by representatives of
the Association and the Respondent, was for a term of 2
years, automatically renewable for one year periods,
"unless notice of change, additions or deletions shall be
given in writing by either party to the other party at least
'A representation petition was filed with the Board by the Teamsters
Union in Case I-RC-6279, about this time. General Counsel suggests that
it was filed prior to the day that the addendum covering drivers and
warehousemen was signed , but this is not established
791
sixty days prior to" November 15. Respondent's
contention that this agreement continued in effect in 1967,
so as to constitute a bar to a question concerning
representation, is considered hereinafter
By letter dated October 17, 1962, the president of the
Association wrote Samuel Lentz, asserting that the 1960
contract was "coming to a close," and requesting
bargaining on "additional life insurance coverage" and
"mayor medical insurance coverage," "with a view to
entering into a new contract "
By letter dated October 25, 1962, Samuel Lentz wrote
the Association confirming that, pursuant to the
Association's letter of October 17, the parties had met and
agreed upon $5,000 life insurance coverage and a major
medical health and accident policy with coverage to
$7,500 for each member of the Association Lentz
concluded with the request that the Association have its
counsel "prepare and submit a new contract incorporating
these new terms and we will be pleased to execute same in
behalf of management." This was discussed at the regular
annual meeting of the Association, held on October 26,
1962, as shown by the minutes, and it was noted that all
other terms of employment were to remain the same. It
was formally voted that these terms be incorporated in a
new written contract to be executed by management and
the Association. This was never done. However,
Respondent secured the insurance agreed upon and
policies of insurance were issued.
Respondent contends that there were further
negotiations with the Association in 1963, in regard to a
pension plan for Respondent's employees This is disputed
by Frank L Smith, the salesman who was principally
involved in these discussions with Respondent, which
resulted in the plan currently in effect.
Comptroller Goldstein testified that Samuel Lentz
showed him a letter dated July 11, 1963, bearing the
signature of Zingeser, the president of the Association,
asking for a meeting to discuss a pension plan, and states
that S Lentz later showed him a letter addressed to
Zingeser agreeing to meet with the bargaining committee
of the Association for this purpose. Although these letters
were not otherwise properly authenticated (and thus were
received on a limited basis), Goldstein's testimony
establishes that Zingeser and Smith meet with Respondent
on two occasions, in 1963, as a result of which
Respondent had its accountants set up a written plan,
which is entitled in the record, "Brescome Distributors
Corp. Employees' Welfare Association Effective August 1,
1963 " This plan was subject to approval by the Internal
Revenue Service. When the original plan was disapproved,
Respondent had further discussions with Frank Smith
with respect to changing the plan. This resulted in the
"Brescome Distributors Corp. Profit Sharing Plan,"
effective July 31, 1965, established pursuant to a trust
agreement, under which Goldstein, M. Lentz, and Smith
were the original trustees
Smith contends that his participation in these matters
was an outgrowth of an employees welfare group,
administered by the employees alone, for which he had a
principal responsibility, and was not on behalf of the
Association There is no mention of these matters in the
Association minutes in evidence, and it appears to be
conceded that there is no signed agreement between the
Association and Respondent with respect to the benefits
involved. Study of the documents placed in evidence with
respect to the two plans reveals no mention of the
Association in them. Further, there are a number of
references which would seem to negate any participation
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Association in establishment or administration of
the plans. Thus, inter alia, the Profit Sharing Plan (G.C.
Exh. 34) provides in its preamble that the plan was
inaugurated at the desire of the Respondent, article III
provides the "Administrative Committee" of the plan
shall be designated by the Board of Directors of the
Respondent, with no provision for participation by the
Association; and article VII, par. 1, states, in part, "It is
the intention of the Company to establish this Plan as a
permanent Plan, but in view of possible changing
conditions and the fact that this Plan has been
gratuitously established by the Company for the benefit of
the employees, the Board of Directors of the Company
reserves the right to change the terms of the plan or trust
agreement ... at any time . or to terminate the plan
. at anti time . .."
The employees were notified of the new plan in 1935.
by a letter from Comptroller Goldstein (which had been
suggested by Respondent's accountants) advising them
that "the Company has introduced a profit sharing plan
and will contribute $12,560 for the current fiscal year
ending July 31, 1965." The letter also advised that the
Employees' Welfare Association, stated to have been
superseded by the profit sharing plan, would be continued
for the purpose of making loans as in the past.
The General Counsel and the Union also contend that
during the period, the Respondent gave the Association
financial assistance. In this respect, Frank Smith testified
that when, upon becoming treasurer of the Association in
1964, he advised Samuel Lentz that the Association was
without funds to pay its counsel, Lentz told Smith to get
$300 from his secretary, at the time (who is also
Respondent's treasurer). Lentz advised Smith to credit
this money as dues from the members including the
drivers from whom Smith did not otherwise collect dues.
Respondent asserts that this money was an "advance,"
which has not been repaid. The Union's further
suggestion, based upon an analysis of the Association's
financial records, that Respondent gave other financial
support to the Association has been considered, but need
not be discussed herein.
The Union also suggests a tie-in between the
Respondent and Schatz & Schatz, which, through Joseph
Adinolfi, then associated with the law firm, represented
the Association from its inception. It would appear that a
son of a member of the law firm was a friend of Mervyn
Lentz in 1952, when the firm became counsel to the
Association, that this friendship developed through the
years, and that in 1956, Respondent itself engaged the law
firm in respect to its corporate affairs. On
cross-examination , Mervyn Lentz testified to his
recollection that Adinolfi, who continued to represent the
Association, had severed his connection with Schatz &
Schatz several years before.
The Union contends that Adinolfi's departure from
Schatz & Schatz was much more recent and requested
that the record be reopened to give it an opportunity to
develop further testimony on the point. The motion was
denied. However, the record shows that as of September
14, 1966, Adinolfi continued to give as his address (see C
P. Exh. 2), the address at which Schatz & Schatz was
located, and as of November 11, 1966, the Association
held its annual meeting at the address of Schatz & Schatz,
whereas in 1967, the activities of the Association were at
Adinolfi's new address. It is thus inferred that the move
was recent, rather than several years previous, as Mervyn
Lentz stated.
B. The Current Organizational Effort'
During 1967, Respondent employed, at times material
to this proceeding , 16 salesmen principally engaged in the
sale of liquor, 3 salesmen who sold wines, 2 men , Bernard
Sandler and Frank Amoroso , whom the General Counsel
contends are supervisors ( but whom the Respondent
asserts are salesmen ), and 15 employees engaged as
drivers and /or in warehouse operations.
Early in 1967, because of dissatisfaction with certain
working conditions , some of Respondent ' s salesmen
became interested in union representation , and through
the assistance of an employee of another company, had
the president of the Union , Ralph Canton , come to
Hartford to explain the Union to them.
The Union Meetings
Five salesmen, McEnroe, Paul, Smith, Leahy, and
Kowalczyk, attended the initial union meeting with
Canton on April 28, in a community near Hartford The
salesmen discussed their problems and asked questions
concerning the Union, what it could do for them and what
would be required to secure representation by the Union
Canton advised these men that in order to secure
representation by the Union, a majority of the salesmen
would have to designate the Union for that purpose. All
five men present signed authorization cards distributed by
Canton toward the end of the meeting.
A second meeting, held on May 5, was attended by
eight salesmen, including Shea, Deutsch and Goldman in
addition to the original five men who had been at the first
meeting. A discussion similar to that at the first meeting
was had for the benefit of the new men. Canton again
explained that authorization by a majority of the salesmen
would be required before the Union would represent them
and it would be necessary to continue to hold meetings
"until we do get a majority " Shea, Goldman and Deutsch
signed authorization cards which were handed out by
Canton. At one meeting, possibly this one, the men
discussed each of Respondent's salesmen and whether they
should be approached to attend meetings or sign cards
The men did not desire that their activities become known
to Respondent, and Canton, at one or more of these
meetings, advised the men that if questioned about union
activities or asked to support the Association, he did not
want them to stand alone and "be a hero," but that they
should deny any knowledge of the Union and go along
with whatever they were requested to do
A third meeting of the Union, on May 27, was attended
by approximately ten men, including salesmen Cohen and
Gasiorek for the first time Cohen signed an authorization
card Gasiorek had previously signed an authorization
card dated April It, which was mailed to the Union. On
June 3, another meeting was held, attended by ten
salesmen, all of whom signed another authorization card
as follows
[seal] DISTILLERY, RECTIFYING, WINE AND
ALLIED WORKERS' INTERNATIONAL
UNION OF AMERICA AFL-CIO
I hereby designate Local No.
Distillery, Rectifying , Wine and Allied Workers'
Interntional Union of America , AFL-CIO, or its
'All dates in this and in each succeeding section are in 1967, unless
otherwise specified
THE BRESCOME DISTRIBUTORS CORP. 793
representatives, as my sole collective bargaining agent,
and authorize them to represent me in any and all
proceedings involving my right to designate a collective
bargaining agent and also grant them the right to
negotiate with my employer an agreement relating to
wages, hours, and other conditions of employment.
the Union's letter.
On June 12, the Union sent a petition to the Regional
Office of the Board requesting certification as bargaining
representative of the salesmen, which was docketed the
next day as Case 1-RC-9643. Simultaneously, the Union
sent a mimeographed letter to the employees advising
them of its action
Date Signatures
Print Name Print Home Address
Print Employer's Name Print Employment Address
THE ABOVE INFORMATION IS
CONFIDENTIAL AND APPLICANT'S
EMPLOYMENT IS PROTECTED BY
LEGISLATION
At the suggestion of one of the salesmen, in order to
rebut statements which Respondent might ask them to
sign, each of the ten men present signed a separate paper
drawn up at the meeting agreeing "to affiliate with the
Wine and Liquor Salesmen Union Local 195 affiliated
with The Distillery, Rectifying , Wine and Allied Workers'
International Union of America , AFL-CIO "
During these meetings , according to the credited
testimony of Canton , he advised the men of the
procedures that would be followed in an effort to secure
recognition by Respondent of the Union as the bargaining
representative of the salesmen : that he would first "send a
demand letter to the company requesting recognition,"
and if a question was raised concerning the Union's
majority status , Canton said he would be willing to submit
cards signed by the employees to a check by a neutral
third party . However, " [ ijf I didn't hear within about four
or five days , then we would file a formal petition with the
National Labor Relations Board ," which, he explained,
would process the matter by consent agreement or by
means of hearing and decision to an election "
Three other salesmen , Maynard , Legate, and Sameloff,
also signed union cards, as discussed hereinafter , although
they did not attend the first four union meetings.
A fifth union meeting, occurring in July, will be
touched upon in the succeeding discussion of events.
The Demand for Recognition
On June 6, Canton sent Respondent a letter advising
that "we represent a majority of the salesmen in your
employ," who he asserted had designated the Union as
their collective-bargaining agent, and requested a meeting
on or before June 12, for the purpose of negotiating a
bargaining contract. Respondent consulted with its
attorney on this matter immediately, but did not answer
'All 10 salesmen testified to participation in these meetings No attempt
will be made to analyze the variations in the individual testimony of these
men, which is credited only to the extent consistent with the facts set out
above
Respondent's Meetings With Individual Salesmen
The following Friday and Saturday, June 16 and 17,
all, or nearly all, of the salesmen were scheduled by
Respondent to meet with Respondent's vice president,
Mervyn Lentz, and its comptroller, Stanley Goldstein, in
one of Respondent's offices In most cases, only one
salesman was involved at a time in these conferences,
although on occasion two or three were present in a single
meeting
Nine witnesses called by the General Counsel testified
to these office meetings. Most of them testified that
Respondent's comptroller, Goldstein, reviewed their past
earnings with them, with obvious emphasis on how well
they were doing It was asserted that M Lentz and
Goldstein discussed the Association and the Union with
the salesmen, generally referring to the advantage of
operating with the Association and the disadvantage in
bringing the Union into Respondent's operation. A
number of the witnesses testified that they were questioned
during these meetings about the Union, or Canton's letter,
or both
Alleged interrogation- Shea and Gasiorek were
interviewed together They state that they were asked
what they knew about the Union Gasiorek asserts that
they were also asked if they had received any letters. Shea
avers that he stated that he had not received a letter
Deutsch, who was called in alone, testified that he was
asked if he had received such a letter and states that he
said he had thrown it away. During his individual meeting
with M. Lentz and Goldstein, Leahy states that he was
told that the Union had sent a letter, to which he replied
that he had received a copy He indicated his opposition
to the Union Cohen, who was interviewed with Golaski
and Sameloff (with Amoroso also present), testified that
they were asked about their feelings toward the Union, to
which he replied that he was satisfied with conditions and
did not need anyone to represent him. He states that
during the meeting Sameloff and Golaski (incorrectly
called Gasiorek in the record) stated opposition to the
Union.
Among the other witnesses, Smith testified he was not
asked any questions; Paul agreed that he was not asked to
commit himself to either the Association or the Union;
Kowalczyk made no mention of any questioning, nor does
he say that he stated his position during the interview,
McEnroe asserts he said he was for the Association and
against the Union, Deutsch testified that Rosenbower,
who was with him at the meeting, but did not testify at
the hearing, was so incensed at the Union that he said,
during the interview, that he would punch Ralph Canton
on the nose if they met.
Other asserted discussion of the Association and the
Union- The testimony of Gasiorek, Leahy and McEnroe
was to the effect that during the meetings in which they
were involved, the management representatives asked
them to stick with the Association, asserting that there
was no need to bring an outside union in, for they would
be able to work their problems out together, through the
Association Kowalczyk stated that he was told that "the
794 DECISIONS OF NA!CINAL ! tO^c R f A i IONS BOARD
union wouldn't be able to help in any way [ W]e could
be happy. We could get together and scratch things out
ourselves."
Smith stated that he was reminded of what Respondent
had done for the salesmen and the advantages of being
able to work closely with the Respondent. In a similar
vein, Deutsch recalled that he was told that Respondent
was a close knit family which treated the employees'
problems as its own; that Respondent had always been
successful and there was no need to bring in someone
from the outside to tell them how to run their business.
Several witnesses testified that during these meetings
they were told that they had been able to earn as they had
because of the Respondent's past methods of operation,
which the Union could disrupt. Thus, Paul testified that
he was told that he had been able to earn so much
because Respondent was flexible and operated as a "big
happy family," that by operating in this way his income
was sure to grow; however, if the Union came in, "this
would not be possible, and that my earnings would not go
as they were."' According to McEnroe, he was told that
Respondent did not want the Union in because it would
hurt their business, assertedly because of difficulty with
suppliers, and that Respondent could be more flexible
without the Union. McEnroe further stated that he was
informed that he had earned a good sum of money, which
might be jeopardized by the Union which allegedly would
want more salesmen to be hired, thus possibly causing
McEnroe to lose part of his sales territory. Leahy asserted
that he was told that because of the men's "earning
ability" with Respondent, this was not an operation "for
the union to be involved in." Leahy further testified,
"Mervyn Lentz said that the Company already had its
own union. There was no need for another union to come
in. We could work our problems out without outsiders
running the Company. He said that outsiders could very
well put a lid on the earnings of the salesmen so that you
could not earn as much money as we had and we could
work our own problems out through our own Association.
More or less have a sort of - well, I don't know how he
described it, more or less showed a lack of confidence oin
the part of the men in management if they were to bring
in an outside union."'
Paul, Shea, and Smith assert that during these
interviews, they were told that bringing the Union in could
interfere with the present operation of the pension plan or
with the loan feature of the welfare plan. Thus, Smith
states that M. Lentz said he thought that the Union would
not permit the pension fund to be run the way it was
presently being operated; Paul testified that M. Lentz
stated that if the outside Union came in, the "credit
union" might no longer exist , that "there was a possibility
that the outside union wouldn't go for a credit union;"
Shea asserted that he was told that he wouldn't be able to
borrow money from "the company," as in the past, if the
Union came in, because in that event, Respondent would
have to treat all of the men exactly alike, and could not
lend to one without lending the same amount to all.
On the other hand, the testimony of M. Lentz and
Goldstein would indicate that no reference to the Union,
'On cross-examination, Paul admitted that he was told during this
meeting that it was important for the Respondent to maintain flexibility so
that it could grow, which it could do with its present operation , "but there
could possibly be a question if we had the Distillery Workers in "
'Leahy admitted that during this meeting , he discussed with M Lentz
and Goldstein his own experiences in California which showed him that a
union could "[plut a ceiling on the top earnings" of salesmen in this
industry
or only a very limited reference, was made by either of
them during these meetings with the men. M Lentz'
testimony would indicate no reference to the subject by
the management officials at all Goldstein at one point
stated flatly that he "did not discuss the Union with any
employees" during these interviews, but at another point
asserted that the only time the Union was mentioned in
these meetings was in connection with his asserted
statements to salesmen that he did not know if the
pension plan could continue if the Union opposed it, and
his question of the men as to whether the Union had a
loan feature such as that which the salesmen enjoyed with
Respondent. Goldstein specifically denied that the men
were told that "If a union comes in, we don't know if we
can continue these benefits."
Both Lentz and Goldstein assert that the main burden
of their talks dealt with the salesmen's good earnings and
fringe benefits under the present system of operations. It
would further appear from Lentz' testimony that there
was some emphasis in these meetings on the fact that
these benefits, or some of them, had been obtained
through the Association.' Goldstein denied discussion of
the Association with any of the men in these meetings.
In particular, M. Lentz denied that he asked Cohen's
opinion of the Union or inquired as to whether he was for
or against it; or that he asked Shea if he knew anything
about the Union; or that he told McEnroe that he could
lose part of his sales territory because the Union would
want more members; or that he told Leahy that "the
union would put a lid on his earnings", or that he told
Paul that the Union would impair his earnings growth, or
that "the credit union could not exist with an outside
union " However, Lentz states he did tell Paul, and the
others, "that we had a pension and profit sharing plan
that was favorable to the men, and there was a possibility
we might not be able to continue it in the same form."
Lentz testified that he does not recall asking any of the
men about Canton's letter of June 12, but admitted that it
was possible Leahy showed him the letter during the
meeting. Lentz stated that Leahy "assumed that we were
calling him in pursuant to the letter from the Union and
he voluntarily expressed his distaste for the Union in that
manner "
Goldstein also denied that Shea or any other employee
was questioned about the Union in these talks, or that
they were threatened, or given any promises with reference
to the Union. In particular, he denied that McEnroe was
told that the Union would keep his earnings down or that
Leahy was advised that the Union would put a ceiling on
his earnings.
Based upon all of the evidence, it is found that in these
interviews, Respondent interrogated the salesmen
concerning their receipt of the Union letter and their
feelings toward the Union and the Association, requested
the men to adhere to the Association, reminded them of
their previous personal success under the aegis of the
Association and advised that this favorable situation could
be continued in the future if the men continued to be
represented by the Association At the same time,
Respondent indicated that the opposite could well be the
'Lentz testified that he and Goldstein agreed that they would discuss
with the men, inter alia, "the benefits enjoyed by the men, some of which
had been obtained through the Association " In the course of describing
his talks with Leahy, Lentz stated, "We were talking about the benefits he
had derived through the Association " However, in reference to the
meeting with Shea and Gasiorek, Lentz stated that he did not recall
making any comment about the Association, except that the relationship
between it and Respondent "was a favorable one "
THE BRESCOME DISTRIBUTORS CORP.
case if the Union were brought in, that "the Union
wouldn't be able to help in any way," and that the
selection of the union might hurt the men in several ways,
though this was presented as a result of unionization,
itself, rather than by retaliatory action of the Respondent.
Preelection Activities of the Association
There is no evidence of any Association activity in
1967, prior to the latter part of June, except for the
collection of dues from salesmen. On June 23, according
to Al Paul, the president of the Association, salesman Leo
Maynard approached Paul in the early afternoon, and
advised Paul that Samuel Lentz had instructed Maynard
to have Paul call the Association's counsel, Adinolfi, to
arrange a meeting.'" Somewhat later, Paul, who had not
acted on the message given him by Maynard, was
accosted by Samuel Lentz who asked if he did not "have
a phone call to make?" When Paul stated that he had
been busy and the sales meeting scheduled for that
afternoon was about to begin , Lentz suggested that Paul
immediately call Adinolfi on a telephone in one of
management 's offices.
Paul called Adinolfi . Because of the sales meeting that
day, they agreed that it would not be convenient for the
salesmen to meet with Adinolfi before the following
Friday and a meeting was set for that date , at 10 o'clock
in the morning. Shortly thereafter, when Maynard
inquired whether Paul made the phone call, Paul told him
of the arrangements that had been made. According to
Paul, after the sales meeting had begun, he was called out
by Mervyn Lentz who advised him to call Adinolfi's office
again and arrange for a meeting that same day at 5:00
p.m.; Lentz stated he would take care of bringing the sales
meeting to a conclusion for this purpose , and instructed
Paul to direct the men to attend the meeting in Adinolfi's
offices that evening ." Paul stated that when he advised the
salesmen of the meeting , they were reluctant to go
apparently because of the time of the day,12 but, after he
told them that he was only doing as he had been directed,
all of the salesmen present went down to Adinolfi's office
where they met with Attorney Kelly, an associate of
Adinolfi's. Paul's testimony as to these events is credited.
His testimony concerning Samuel Lentz was not denied.
For reasons previously given Maynard's testimony as to
these events is not considered reliable. Paul's testimony
"Maynard 's testimony as to this incident , which varies somewhat from
that of Paul , is not credited . In essence Maynard testified that he had just
that noon received Canton's letter of June 12 in the mail ( announcing that
the Union had filed a petition for election ), which assertedly perturbed him
because he did not see how the men could have another union since they
already had one . Maynard states he immediately went to Samuel Lentz for
"clarification" of the point and Lentz suggested that he see the
Association 's attorney , and it was for this reason that he asked Paul to
arrange a meeting with Adinolfi . This explanation , assigning to Maynard
the initiative for this Association meeting , conflicts with almost every other
fact in the record Other facts, set forth hereinafter , show Respondent's
keen interest in and initiative in behalf of the meeting that ensued A
meeting of the Association attended by all the salesmen hardly conformed
with Maynard 's personal need for clarification , and it does not appear that
Maynard ever personally followed through on his asserted request for
information . Further, it seems almost certain that Maynard received the
June 12 letter the preceding week , and unquestionably knew about it on
the previous Friday, when the letter figured prominently in the personal
interviews with the salesmen . In addition , on June 6, 2 weeks previous to
his asserted upset over Canton 's letter announcing that an election was
being sought , Maynard had signed a card on behalf of the Union, at which
time he says he was told that this was "for an election" Maynard's
testimony on these events cannot be accepted
795
that M. Lentz insisted on accelerating the date of the
meeting is consistent with the evidence that the meeting
was hastily called, without any prior notice, at an unusual
and inconvenient time, and, as discussed below, was
largely inconclusive. To the extent that Mervyn Lentz'
testimony may conflict with that of Paul, Paul's version,
as heretofore noted, is credited
All of the salesmen (except Leahy and the wine
salesmen ), together with Sandler and Amoroso, attended
the meeting in the Association counsel's office that
afternoon. It was stated by the attorney, Kelly, that the
notice sent by the Union was probably a bluff instigated
by one or two salesmen, and he suggested that the
salesmen vote on authorizing the Association to continue
as their bargaining agent Some of the men present
demurred, possibly because salesmen were absent, and one
of the salesmen asked to see a copy of the Association's
contract with Respondent. Kelly said that the contract
was being brought up to date and would be presented at a
later time. They were told that they would be advised of
another meeting time.
Paul was thereafter notified by Adinolfi's office that
another meeting with the salesmen would be held at
Admolfi's office at 10 o'clock in the morning, on Friday,
June 30, and he instructed Respondent's switchboard
operator to so notify the other salesmen Seventeen
salesmen, and Amoroso and Sandler, were present at this
meeting. A copy of the 1960 Association contract was
available and was seen by at least some of the salesmen
(It does not appear that documents or writings
memorializing the 1962 and 1963-5 benefits were made
part of this presentation). It would also appear that, prior
to this period, this contract was either not known to the
salesmen who testified, or had not been seen for a
considerable period of time. At this meeting a vote was
taken on the question of continuing the Association as
collective- bargaining representative. Ballots were handed
out, which were apparently numbered. The final vote was
16 to 3 in favor of the Association.
On July 5, counsel for the Association, Respondent and
the Union, at a hearing on Case I-RC-9643 in the Board's
Regional Office, signed an agreement for the conduct of
an election by the Board, in a unit of Respondent's
salesmen, to be held July 21, with both the Association
and the Union on the ballot."
"With respect to these matters , in response to direct inquiry, Mervyn
Lentz testified that he did not recall an instance in June when Paul asked
him when the sales meeting would end , that he did not recall discussing an
Association meeting with Paul during this period , or offering Paul the use
of his telephone to call Adinolf â–º Lentz stated he learned of an Association
meeting which occurred on a Friday in June after it was over from a
source he could not recall Lentz denied telling Paul to direct the salesmen
to go to Admolfi's office, or that he directed employees to call a meeting
of the Association , or that he suggested to or directed the Association's
attorneys that a meeting be called
"It was indicated in the record that Friday was a day frequently devoted
to office work and sales meetings Association meetings were often held on
Friday, but , so far as the minutes show, normally in the early morning or
early afternoon on that day As noted above, Paul's original arrangement
with Adinolfi was to meet at 10 a in , the following Friday
"Respondent offered to prove that Respondent 's counsel and the
Association ' s counsel were misled by the Board's hearing officer in
agreeing that the 1960 contract was not a bar to an election In essence the
offer was that the hearing officer gave his opinion that the contract was
not a bar, and counsel deferred to it The Trial Examiner ruled that, while
he would pass on whether the 1960 contract might constitute a bar under
the rules of the Board, insofar as that affects the issues in this proceeding,
the question of whether counsel was in error in waiving the issue in the
representation proceeding (whether misled or not ) was not material or
relevant to the issues in the present matter
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this time, as previously noted, the parties agreed
that Sandler and Amoroso were supervisors within the
meaning of the Act and ineligible to participate in the
election. As a result Sandler and Amoroso were thereafter
excluded from Association affairs and Amoroso was
replaced as Association vice president.
Very shortly after the date of the meeting at the
Board's Regional office, Respondent's salesmen, in
response to messages conveyed by Respondent's
switchboard operator, or because of calls directly from
Adinolfi, went to Adinolfi's office where, at his request,
they signed papers authorizing the Association to act as
their collective-bargaining representative It would appear
that these were signed during the salesmen's normal
working day Fourteen of these authorizations, dated from
July 7 through July 19, were received in evidence In
addition one other salesman signed an application for
membership in the Association on June 30, 1967
However, during this same period, 10 salesmen at a
meeting of the Union signed a document favoring the
U nion.1
On the Monday prior to the election, which took place
on Friday, July 21, according to the uncontroverted
testimony of Paul, the president of the Association, he
received instructions from Adinolfi to tell Respondent's
warehouse manager, Geraci, to have the drivers come to
Adinolfi's office that same morning. After being assured
by Geraci that he would take the drivers to Adinolfi's
office, Paul confirmed this to Adinolfi, who advised that it
would not be necessary for Paul to come with them
On the next day, Tuesday, Paul was instructed by
Adinolfi to come to his office that evening. When Paul
arrived, Geraci and the drivers were present. He was given
a contract covering the drivers' terms of employment to
read and was told by Adinolfi to sign it, which he did,
agreeing with the statement made at the time that "it was
a very nice contract." The contract (actually two
contracts, one for the drivers and another for the
warehousemen), stated to be between the Respondent and
the Association, runs for a term of 3 years, from July 20,
1967 to July 20, 1970. Paul testified that he had not
known of the negotiation of the agreement, and there is
no evidence of any approval of it by formal action of the
Association, other than that set forth above
Respondent's preelection group talks
It would appear that Mervyn Lentz addressed the
salesmen in a group concerning representation by the
Union on at least three separate occasions. On some of
these occasions Samuel Lentz spoke and on at least one
occasion, Stanley Goldstein, Bernard Sandler, and Frank
Amoroso spoke. Although these events were extensively
litigated, General Counsel, in his complaint and brief
asserts only that certain alleged remarks of Mervyn Lentz,
said to have been made the day before the election, were
violative of the Act, the Union's brief does not seem to
mention these matters at all. Therefore, no attempt to
"It appears that at a union meeting held on July 13, 10 salesmen signed
a document asserting pressure upon them to adhere to the Association
during this period . The document, which was the center of considerable
controversy at the hearing in this matter, was finally admitted solely in
connection with the credibility of Salesman Legare, who was one of the
signatories to the document , but at the hearing testified to the effect that
he was induced to sign a union authorization card merely to get an
election, and denied expressing himself as favoring the Union As noted
hereinafter, it is not necessary to the decision of the issues herein that these
matters be resolved
discuss all of these matters in detail will be made Suffice
it to say that the record is convincing that the purpose and
effect of these speeches generally was to discourage
adherence to the Union and to persuade the salesmen to
continue the existing conditions of operation
Leahy testified that the day before the election, Mervyn
Lentz spoke to the salesmen in a group, again reminding
them of how the Respondent had progressed and how the
business had grown since it had been taken over by
Samuel Lentz. Mervyn Lentz is asserted to have further
stated that "after all of this, we [the salesmen] would be
showing a lack of confidence in management to allow
outsiders to come in and run the company and that if they
were to come in . ., the only thing they could do for us
was have a strike because even though the men may have
wanted to have a union represent them, the company did
not have to go along with the contract and sign the
contract, and all that would produce would be a strike."
On cross-examination, Leahy stated, "The language that I
remember was even if the union were to get in doesn't
mean that the company has to agree to a contract and all
that could mean would be a strike " Leahy also testified
that, on this occasion, Mervyn Lentz further stated that
"we [the salesmen] have our own Association that we can
work through, and we don't need any outsiders."
Inasmuch as Mervyn Lentz was unable to recall with
any degree of certainty what remarks he made on these
subjects in any specific talk to the employees, there was
no specific contradiction of Leahy's testimony on these
matters, except that Lentz recalled that he mentioned the
subject of strikes on only one occasion, and at that time
stated, in effect, that if the Union came in, he would
discuss the issues with it, and "if we could not come to an
understanding, that the alternative might be to strike " At
another point Lentz stated that he told the salesmen that
Respondent did not anticipate that this "would happen "
Except in the area of emphasis, there is not a great deal
of difference in the accounts given by the witnesses.
However, on the basis of the whole record, I doubt that
Lentz' statements to the salesmen were expressed as
moderately as his statements in the record indicate, and,
in particular, his assertion that he affirmatively advised
the salesmen that Respondent did not anticipate a strike
as the result of disagreement over a contract if the Union
came in, is not credited.
Thus, 3 months later, in a letter to the employees,
dated October 17, answering certain Union assertions, M
Lentz' position is stated, in part, as follows
4. It is unfortunate if any union attempts to stir up
conflict and to create problems so it can get dues
income
Some unions may try to sell you on what they can do
for you But remember this - in the final analvsis the
company has to run the business and no union can
protect an employee from being relieved for
insubordination or inefficiency for failure to do a good
selling job or any other good cause
Ultimately no union can do any more than tell you to
go on strike if the Company refuses to go along with its
demands, and if that were to happen no union can get
you jobs or keep you from being replaced. So take any
union's promises with a grain of salt - and any threats
that they may make should be reported to me
immediately.
5 Meanwhile, union or no union, as you already know,
unions can't provide job security - job security comes
from working closely together to build a future that will
THE BRESCOME DISTRIBUTORS CORP.
be a profitable one and happy one for all of us.
[Emphasis supplied.]
It is unlikely that the message conveyed to the salesmen
on the day before the election - in an effort to defeat the
Union - was any less forceful . Leahy's testimony is
therefore credited
Additional preelection activities of the Respondent
In the early part of the week following the personal
interviews of June 16 and 17, salesman Leahy was called
into a private office where Samuel Lentz spoke to him
about the Union's organizational effort. Lentz stated that
he would like to keep the Union out. In this respect, he
suggested the formation of a committee of three or four
salesmen to assist management in running the business,
Lentz stated that his son, Mervyn Lentz, was destined to
take over the business , and if the men selected the Union,
this would be "a slap in the face" to Mervyn Lentz.
Samuel Lentz did not testify and Leahy' s testimony as to
the incident is credited.
A number of events occurring within a few days of the
election, some of which have previously been noted, are
asserted to support the allegations of the complaint. In
one of these, two or three nights before the election,
Daniel Shea received a telephone call at home from
Stanley Goldstein and Mervyn Lentz (on separate
extensions ) in which, according to Shea, they told him
that persons close to the Union had reported to
Respondent that Shea was leaning to the "outside union,"
but that Respondent wished the salesmen (and thus Shea)
to continue with the Association . Shea states that he
asked who the informants against him were and said he
would rather not vote at all, so that he could avoid
subsequent accusations with respect to the way he voted,
to which Lentz and Goldstein replied that they wanted
him to vote.
Goldstein testified that the telephone call had been
made because he could not recall whether, during his
individual interview , Shea had been reminded that he had
been able to collect a large amount of money, in the past,
from the major medical policy which Respondent
provided. M. Lentz denied that there was any discussion
of the Union, or mention that Respondent had learned
Shea was "for the Union ," stating that the only thing he
could recall that was discussed with Shea was "the major
medical " Thus Respondent 's testimony of the incident
would indicate that this was a conversation about
employee benefits totally unrelated to the representation
contest, then approaching a climax. However, no other
reason appears for bringing up this past incident (clearly
well known to Shea ) just at this time. All of the other
evidence, as well as logic and reason, impels the
conclusion that the call was part of Respondent's
campaign to have the salesmen vote for the Association
and against the Union, as Shea's account manifests.
Shea's testimony is credited.
Shea further testified that when he called his orders in
on the day before the election , the switchboard operator
told him that Samuel Lentz wanted to talk to him. At
that time S. Lentz told Shea that he understood Shea was
on the fence , which Shea denied , and stated he wanted
Shea "to vote number one ballot" (which Shea apparently
understood to be for the Association , the Association
having the first position , on the left, on the ballot) Lentz
then told Shea that another employee wanted to talk to
him, and Maynard was put on the phone . Maynard then
made arrangements to drive down with his wife and have
797
dinner with Shea and his wife that evening. It is
considered unnecessary to consider the dispute over
whether Maynard had other reasons for driving to that
area that night, or whether , in fact, S. Lentz sent him to
speak to Shea, since the matters involved are , at most,
similar to other conduct of Respondent considered herein,
and thus cumulative
On the day before, or shortly before the election, a
number of the salesmen were interviewed separately by
Samuel Lentz in Respondent ' s offices The following
accounts , which are undenied , are credited
1. As Frank Smith was leaving the offices, S. Lentz
stopped him and queried him as to his attitude with
respect to the election the following day Smith answered
that he had signed for the Association in Adinolfi's office.
S. Lentz asked if he would call the other salesmen and
ask them to vote for the Association , which Smith
declined on the ground that the other employees would
resent it.
2. Albert Paul was called into Samuel Lentz' office,
where S. Lentz said that they should continue as "one big
happy family," as in the past , that "there were some
things we could do presently the way we were that we
would be unable to do if an outside union came in, such
as the credit union, such as outside loans from Mr.
Lentz," and that, since Respondent now had the
truckdrivers signed up (as Paul was, of course, aware),
Respondent could do without the salesmen if necessary,
and take orders over the telephone instead . S Lentz said
that he had "never lost a fight in his life and wasn't about
to lose this one " Paul replied that considering the 16 to 3
vote already had, Respondent had nothing to worry about,
that he was his own man and knew how he intended to
vote.
3. William McEnroe testified that in a private
conversation Samuel Lentz told him that Lentz was
turning the business over to his son, and didn't want him
to be "choked or affiliated " with the Union, and asked
McEnroe, as an older salesman , to talk to some of the
younger men to "see if we couldn ' t keep what we had and
keep the Distillery Workers Union out." McEnroe states
that Lentz was very determined to keep the Union out,
and told him that Lentz had just spent $10,000 to have
certain legislation passed to assist the liquor industry,
which he supported by a statement from an attorney, and
was thus embarrassed for funds to do other things, saying
that if Respondent had that money "to work with," it
could have avoided its present trouble by using the money
to keep the Union out. He told McEnroe that if the
Union came in, McEnroe would lose money because "we
couldn't operate the way we do," and asked him to call
some of the men and explain this to them. McEnroe
agreed with Lentz and said that he favored the
Association
4. Anthony Kowalczyk was called in S. Lentz' office
where Lentz told him that the business would probably be
turned over to Lentz' son and Lentz didn't want "a yoke"
attached to his son. Lentz showed Kowalczyk a paper
showing that " it cost them a lot of money to do what he
wanted to do to keep things going the way they should be
going."
5. Joseph Leahy was called into an office by S. Lentz,
who discussed with Leahy the reasons he wanted to keep
the Union out. Lentz showed Leahy a statement showing
$10,000 which Respondent had spent in connection with
legislation in the interest of industry, and spoke of money
which had to be spent to promote sales , apparently saying
(though the transcript is not clear ) that the salesmen
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participate in the results of this. Lentz continued that he
had signed the drivers to a new contract guaranteeing
them $8,500 a year, that they were happy and would
deliver to the customers even if the salesmen went on
strike, in which event Respondent would take orders for
its products over the phone. Leahy replied that he knew
nothing about the Union and had no interest in it. During
this conversation Lentz said Respondent "wanted to keep
the Association and keep the setup as it had been "
Postelection Events
At the election conducted on Friday, July 21, all 19 of
the eligible salesmen cast ballots, 10 for the Association
and 9 for the Union. Immediately thereafter Mervyn
Lentz addressed the salesmen as a group, expressing the
view that the closeness of the vote indicated that there was
dissension among the men, and suggested that they form a
bargaining committee to work more closely with
Respondent in ironing out their problems. Adinolfi, who
was present at Respondent's premises during the election,
stated, according to Leahy, that he wanted to meet with
the salesmen the following Friday to start work on a new
contract.
On Monday, July 24, however, the salesmen were
informed that there would be a meeting that night at
Adinolfi's office. Alfred Cohen testified that as he was
leaving the Respondent's offices on Monday, Sanuel Lentz
asked him, if possible, to nominate "Sonny Sposito and
Leo Maynard for the bargaining committee." Cohen
assented to this. (Though these two were later named to
the bargaining committee, Cohen did not nominate them.)
At the meeting that night, Adinolfi advised the men
that it had been necessary to call the meeting on such
short notice because Sam Lentz wanted the contract
signed before the vacation period, beginning the first week
in August.' ° A bargaining committee consisting of Paul,
Maynard, Sposito, Smith and Goldman were elected, with
instructions to compile a list of grievances from the
salesmen which were to be the basis of negotiations with
Respondent. Such a list containing 14 points was
compiled.
On the evening of Thursday, July 27, the five
committeemen met with Respondent at a dinner meeting.
Appearing at the meeting for Respondent, or at its
invitation, were Samuel Lentz, Mervyn Lentz, Goldstein,
Office Manager Mandell, Sandier, and Milton Rubin,
who it was explained might be connected with Respondent
in the near future. The 14 points presented by the
salesmen were discussed, without commitment by
Respondent.
The following morning, Respondent presented the
committee with a completed contract, which did not meet
with the approval of the salesmen. During the course of
several hours that day, the committee negotiated with
Respondent, periodically reporting to and receiving the
advice of the salesmen who were standing by in another
part of the premises. At the end of that day, the
Association and the Respondent were in agreement on a
3-year agreement. As a result of these negotiations,
Respondent agreed to pay the salesmen $100 vacation
pay, and, in the first year of the agreement, to pay one
half of the men's Blue Cross and Connecticut Medical
"While hearsay as to S. Lentz, this statement came into the record
without objection. The record as a whole shows that Respondent desired to
have this matter concluded before the vacation period, and, as shown
hereinafter, the salesmen did not demur
Service (CMS) premiums It thereafter agreed to pay all
of these premiums.
At a meeting of the salesmen in Adinolfi's office the
following Monday, Paul signed the agreement on behalf of
the Association Just before the men went on vacation,
Mervyn Lentz announced that the contract could not be
signed because of the pending litigation (as noted above
the charges in Case I-CA-6027, and the objections to the
election in Case I-RC-9643 were filed on July 27), but
assured the salesmen that Respondent would live up to
their commitments on vacation pay, and payments for
Blue Cross and CMS. It is clear that Respondent has paid
these benefits.
On October 13, 1967, the Association met and voted to
suspend collection of dues and the election of officers
pending the resolution of these proceedings.
C Supervisory Issues
The General Counsel and the Union assert that Bernard
Sandler, Frank Amoroso, Edward Horowitz and Morris
Tarre were supervisors within the meaning of the Act
during their employment by Respondent at times material
to this proceeding. Horowitz, Tarre, and Sandler are no
longer employed by Respondent. Amoroso is Respondent
vigorously insists that these men, at the times in question,
were salesmen, not supervisors
There does not seem to be any doubt that Respondent
held these men out to the public and to the men as part of
the management of Respondent, nor is there any question
that the men so regarded them.'s Respondent's sales force,
as previously mentioned, is divided between a larger group
who are assigned to liquor sales, and a smaller group who
take care of wine sales. Horowitz was designated Sales
Supervisor with respect to liquor sales. Tarre, whose
employment overlapped that of Horowitz, was first
designated sales supervisor and then sales manager
Sandier, who was employed in 1955, was hired as Sales
Manager with respect to liquor sales, and was so
introduced to the salesmen and so publicized in industry
publications Amoroso testified that business cards
supplied by Respondent identify him as wine consultant
and wine sales manager
The circumstances of Sandier's employment by
Respondent, itself, seems inconsistent with a contention
that he was no more than another salesman. Prior to
coming with Respondent, Sandler was Connecticut State
Manager for Schenley, having supervision over other men.
Respondent sought him out. He was advised that Samuel
Lentz was about to retire and Respondent wanted Sandler
to come with its organization, to be in charge of sales and
to arsist Mervyn Lentz. Sandier was given a written
2-year contract at a fixed salary. He was also assigned a
small number of accounts, known as "house accounts,"
which he personally sold. He received no commissions on
these sales, whereas the regular liquor salesmen were paid
commissions on sales to their accounts and received no
salary 17 It does not appear that any salesman had a
"Salesmen witnesses for the General Counsel testified to this effect It is
also noted that Respondent's witness Maynard described the organizers of
the Association as salesmen, "all, but Mr Horowitz He was a sales
supervisor" Maynard also said that, in 1952, the Association did not
negotiate for Horowitz because he "was in a supervisory capacity "
Maynard's testimony, and the record as a whole, establishes that
Horowitz, Tarre, and Sandler occupied substantially the same position
with Respondent
"Mervyn Lentz testified that Sandler's salary was related to his sales to
the "house accounts " However since only one working day of Sandler's
THE BRESCOME DISTRIBUTORS CORP. 799
written or other contract with Respondent for a certain
term of employment. Other than the benefits which flowed
from his salaried status, and a more liberal expense
account, it appears that Sandler's fringe benefits were the
same as those of the salesmen . (M. Lentz stated at one
point that he did not know the insurance coverage, that
Sandler's was possibly higher than the others' Later he
testified that it was the same.) Respondent's top
management, however, have somewhat different benefits.
There is a dispute as to whether Sandier also had a
written contract by which Respondent granted him $2500
a year for the education of his children (M. Lentz
asserting the fact; Sandler denying it), but it is not
necessary to resolve that issue.
The testimony of Mervyn Lentz and Stanley Goldstein
was to the effect that Sandier was without authority or
discretion in the sales operation or in the direction of sales
personnel, except as directed by Mervyn Lentz. The
record as a whole, however, is convincing that, while the
ultimate authority rested with the Lentzes, Sandler had
considerable authority and discretion with respect to the
day-to-day operation of Respondent's liquor sales. Thus, it
seems clear that, with respect to liquor sales, Sandler was
the only supervisor, other than Amoroso, who normally
operated in the field, visiting customers, investigating their
complaints about Respondent's salesmen and other
matters. Sandier concededly accompanied salesmen, in the
course of their work, using his own discretion, normally,
as to the area in which he worked, going where he thought
the salesmen required assistance, and gave advice and
instructions to the salesmen in the performance of their
duties.1e Since there is no evidence that Mervyn Lentz or
Stanley Goldstein normally checked on these operations in
the field, they must of necessity have had to rely on
reports brought back by Sandier, Amoroso, Tarre, and
Horowitz, who were assigned to guide the salesmen in
their work. Thus, on an occasion when Respondent wished
to check up on a wine salesman, both Amoroso and
Sandler were asked to investigate Amoroso reported to
Mervyn Lentz and Sandler to Goldstein (apparently
because money matters were involved) Both
recommended that the salesman be discharged. After an
interview by Mervyn Lentz the man was discharged.
Sandler testified that on occasion he recalled one
specific occasion he was asked about his opinion of a
salesman's performance in the field. Mervyn Lentz agreed
that he would discuss with Sandier how the salesmen
conducted themselves in their operations, where Sandler
worked with the man involved, and stated that he would
rely on Sandler's opinion and judgment," [iln conjunction
with other information I might receive."
It would also appear that the Sales Manager may
interview applicants for employment and that his
recommendations were followed. Sandler made such a
recommendation with respect to salesman Rueben
time was devoted to the house accounts out of a rather varied 5- and
sometimes 6-day workweek, it is difficult , in the absence of further
explanation , to grasp the relationship.
"Horowitz, whose attitude at the hearing did not appear antagonistic to
Respondent , stated that his duties as Sales Supervisor included checking on
the performance of the liquor salesmen. If the salesman was not meeting
his quota, Horowitz would talk to the salesmen about this and make
recommendations to the salesman for the improvement of his performance
Horowitz would also report his findings on the salesmen 's performance to
Mervyn Lentz and might comment on the reasons for the salesmen's
failure to meet assigned quotas. Horowitz stated that he would discuss
such problems with Lentz " because I would be on the street and I would
be knowledgeable about it "
Deutsch whom Mervyn Lentz hired, after also talking to
Deutsch, himself." It is noted that Horowitz also testified
that he interviewed applicants for employment, when he
was Sales Supervisor with Respondent.
In the sales room at Respondent's offices, both Sandler
and Amoroso had private desks, as did Horowitz and
Tarre before them. Sandier had a phone for his use (which
was also available to the salesmen) and was assisted by an
administrative assistant who had a desk nearby. The
salesmen performed their paper work at tables, each of
which was used by two salesmen. There is considerable
conflict in detail as to what part the Sales Manager (or
the Sales Supervisors) played in the assignment of quotas
to the men, the assignment or transfer of accounts, the
conduct of sales meetings and the like. From the manner
in which the testimony was given, as well as the record as
a whole, I am convinced that the testimony of Mervyn
Lentz and Stanley Goldstein tended to underplay the
authority and position of the Sales Manager and the Sales
Supervisor. The testimony of both Horowitz and Sandler,
neither of whom are presently employed by Respondent,
indicate that they occupied a much more responsible
position, as has been noted above The testimony of
Tarre, who also is not employed by Respondent, was
consistent with that of Horowitz and Sandler, although
he, himself, was not an impressive witness. Amoroso, who
is employed by Respondent, in his testimony as a whole,
appeared to ascribe more importance to his position than
was indicated by Lentz and Goldstein.
There does not appear to be any reason to explore all
of the details of this testimony. From the record as a
whole it is clear that final decision on all operations of the
business rested with Mervyn Lentz and Samuel Lentz. It
is also quite evident, and it is found, that the Lentzes, and
particularly Mervyn Lentz, regularly consulted with the
sales managers, Sandler and Amoroso, (and the sales
supervisors before them) with the respect to the salesmen
and operations of the business, including the establishment
of quotas, the reasonableness and fairness of quotas, the
assignment of accounts to the salesmen and the transfer of
accounts among them, the performance of the salesmen,
the agenda of sales meetings and the manner of
conducting them, and other policy matters. I am also
convinced from the positions held by the managers, and
their acknowledged expertise, from their intimate and
daily contact with the salesmen and knowledge of their
activities, and from the record as a whole, that
Respondent relied upon the managers' advice and
assistance and gave substantial weight to their
recommendations.
In the course of normal operations, Sales Manager
Sandler would also give directions and instructions to the
administrative assistant and to display personnel, as well
as to the salesmen, and made assignments to cover
accounts when salesmen were absent The Sales Manager
also presided on occasion the frequency of which is in
dispute over sales meetings, effectuating the agenda set
up in advance, introducing suppliers, calling upon
"Although on sur-rebuttal, Mervyn Lentz testified, in effect, that
Deutsch was hired independently of Sandler's recommendation, and
specifically denied that Sandler was present during Lentz' meetings with
Deutsch, during his previous testimony, he specifically stated that Sandier
was present during "some of the interviews" Lentz had with Deutsch It is
also noted that although Lentz originally stated that Sandler participated
in interviewing Deutsch, since "He had known Deutsch before He worked
for the Schenley House," Lentz later modified this to assert Sandler only
knew Deutsch was with Schenley, but that Lentz was unaware of the extent
of Sandler's knowledge about Deutsch, himself
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesmen to speak, and the like. As previously noted,
Sandler attended the July 27 negotiations at the invitation
of the Respondent, at a time when Respondent had agreed
he and Amoroso were supervisors.
While Amoroso' s responsibilities with respect to wine
sales involved a smaller number of men (who were paid
somewhat differently from the liquor men) and a
somewhat different operation, his authority with respect to
those operations appears substantially similar to that of
Sandler in respect to the liquor sales
From the above facts, and the record as a whole, it is
found, that Sandler, Amoroso, Horowitz and Tarre were
supervisors within the meaning of the Act. In addition it is
found that Respondent held these men out as persons who
had authority to speak for Respondent concerning the
employment relationship of the salesmen to Respondent,
and were so accepted by the salesmen. In the
circumstances, Respondent may properly be held
responsible for the activities of these men affecting the
employment relationship of the salesmen with the
Respondent. N.L.R.B. v. Des Moines Foods, Inc., 296
F.2d 285 (C.A. 8); N.L.R.B. v. Solo Cup Co., 237 F.2d
521 (C.A. 8); N.L.R.B v. Fiore Brothers Oil Co., 317
F.2d 710 (C.A. 2); See N.L.R.B. v. Mississippi Products,
Inc., 213 F.2d 670, 672-673 (C.A. 5) Respondent's
contention that under cases such as Nassau and Suffolk
Contractors Assn., Inc., et al, 118 NLRB 174, its
responsibility would be quite limited will be considered
hereinafter.
D. Conclusions
1 Alleged domination and support of the Association
and related interference with the employees' right of
free choice of representatives
Respondent, through its supervisors, assisted in the
formation of the Association, took an active part in the
administration of that organization, and, on occasion,
apparently sat on both sides of the bargaining table, as
when Horowitz was a member of the Association's
bargaining committee. The fact that Horowitz and Tarre
were treasurers of the Association for so many years may
also account for the established habit of the salesmen,
difficult to understand otherwise, of paying dues into the
organization year after year although they received little
or no benefit from it. The record is also clear that
Respondent gave substantial financial assistance to the
Association, whether the money be considered a gift or an
indefinite advance. However, all of this occurred prior to
January 1967, and may not in and of itself be found to be
an unfair labor practice.
There is, however, evidence within the period after
January 27, 1967, which establishes Respondent's
continued interference in the affairs of the Association and
assistance to it. The continued membership in the
Association of two supervisors, one of whom, Amoroso,
was an officer of the organization, in light of the
background of the organization, would necessarily serve to
emphasize the status of the Association as an agency
favored by the Respondent. While these two supervisors
may not have had occasion to play very active roles in the
Association in 1967, the employees were entitled to be
entirely free of such influences upon them to join and
maintain their membership in or otherwise support the
Association (whose asserted contract, it is noted, did not
compel membership).20 The presence of the supervisors at
the June 30 straw vote constitutes a particular, and
substantive extension of this influence.
Further, Respondent's use of the Association as an
instrument with which to defeat the Union's
organizational effort after June 6, 1967, is evidence of
Respondent's interference with, and assistance to the
Association. Quite plainly, the Association's June 23
meeting in Adinolfi's office was held at the direction of
Respondent. There is no indication that the Association
anticipated any independent campaign against, or even
resistance to the Union, prior to the insistence of the
Lentzes that an immediate meeting be set up on that day.
Respondent additionally asserted a willingness to assist in
this project by concluding its sales meeting then in
progress. Though the attempt to take a straw vote at the
meeting was abortive, under the effective stimulus of
Respondent' s earlier insistence , a meeting was held a week
later, at which the straw vote was carried out.21
Respondent further assisted the Association by its
precipitate action in entering into asserted contractual
arrangements with the Association providing substantial
benefits (it is asserted that Respondent granted an $8,500
guaranteed annual wage in these documents) to the drivers
and warehousemen. By any standard of normal labor
relations, the manner in which this asserted agreement
was reached was manifestly unusual: There is no evidence
of a request by the Association for such an agreement, no
evidence of any negotiations, and no evidence that the
Association, as such, was aware of what was going on or
approved of the result In fact, the evidence is that the
matters involved were kept secret from the officers and
active members of the Association, and the resultant
document was presented as a fait accompli to the
Association's president for signature.
No reason for this amazing action taken just before the
election is suggested by Respondent. However, the record
as a whole, and Samuel Lentz' activities, in particular,
plainly indicate that this arrangement with the drivers and
warehousemen was designed to coerce the salesmen in
their choice of a bargaining representative, and it is so
found. The message conveyed by the action was obvious
30Respondent cites Nassau and Suffolk Contractors ' Association, Inc ,
etc , 118 NLRB 174, in support of the argument that participation in a
labor organization by minor supervisors does not necessarily constitute a
violation of the Act for which Respondent is responsible However, as that
case illustrates, where such supervisory activity has been held permissible,
the involvement has not only been on a limited basis , but has had a normal
relation to a union which represented the supervisor in respect to his own
working conditions The Association , however, never has , and did not in
1967, represent the Respondent 's supervisors , who have made their own
individual agreements with the Respondent for their personal working
conditions , thus eliminating the usual legitimate justification for
supervisory membership and limited participation in such an organization
Other cases cited by Respondent, such as The Powers Regulator Company,
149 NLRB 1185, relate to situations in which it has been held that an
employer is not responsible, under certain conditions, for supervisors
previously included in the bargaining unit by agreement of the parties,
which is quite distinguishable from the present case
"However, it is not found that Respondent was responsible for the
subsequent individual trips of the salesmen to Adinolfi's office to sign
authorization cards for the Association, as contended by the General
Counsel and the Union There is no evidence that the Respondent directed,
encouraged or ratified those visits The salesmen ' s time was not closely
regulated Though the messages to go to Adinolfi's office were transmitted
by the Respondent 's switchboard operator , it appears that the salesmen
were accustomed to receive personal messages in this fashion On the
whole record , however , as noted hereinafter , it is found that the execution
of authorizations for the Association, during this period, resulted from
Respondent ' s encouragement of adherence to the Association , and was not
a free and voluntary act on the part of the salesmen
THE BRESCOME DISTRIBUTORS CORP. 801
that those who adhered to the Association could expect to
benefit from Respondent's favor. At the same time
Respondent made plain to the salesmen that those who
opposed Respondent's desires could expect an adverse
result.
This contrast was emphasized by Samuel Lentz in his
talks with the salesmen the afternoon before the election.
On the one hand, he indicated to several of them that
Respondent would be willing to spend a considerable
amount of money to keep the Union out, though it had
been unable to do so up to that point because it was short
of funds. On the other hand (following upon the assertion
of M. Lentz that the only way the Union could force
concessions from the Respondent was by striking), S
Lentz threatened that if the salesmen did select the Union
and attempt by strike to force him to alter the present
order of things, he had so arranged his affairs with the
drivers that the Respondent could do without the salesmen
altogether, a rather pointed indication of the purpose of
the hasty preelection arrangements with the drivers and
warehousemen. As S. Lentz stated to Leahy, in the course
of one of these conversations, Lentz had "never lost a
fight in his life and wasn't about to lose this one."
McEnroe also recalled from his conversation with Lentz
that evening that Lentz was determined to keep the Union
out, as, indeed, the record as a whole confirms.
Respondent, however, argues, in effect, that it may not
be held responsible for this conduct, inasmuch as its
action in "agreeing to negotiate a new contract with the
Association for the warehousemen and truck drivers" was
taken "in reliance on the representation of [the Board's
agent]." (br. p. 10). Respondent's theory, in effect,
appears to be that but for the assertedly erroneous advice
of the Board agent that the 1960 contract was not a bar to
a present election, the Respondent would not have agreed
to an election, and the conduct complained of would not
have occurred. However, as hereinafter discussed, the
Trial Examiner finds that the 1960 Association contract
was not a bar to a present election in 1967, on the facts of
this case. In any event, having agreed to an election to be
conducted under the rules of the Board, Respondent did
not have the right to unilaterally abrogate its agreement
by creating a situation in which a free and fair election
was impossible.
Following the election, and in a similar pattern,
Respondent suggested and encouraged immediate
collective bargaining for the salesmen, sought to interfere
with the selection of the Association's bargaining
committee, negotiated with the Association for terms of
employment of the salesmen, and, within about one week
after the election agreed to substantial additional benefits
for the salesmen. Though Respondent thereafter refused to
sign the agreement, stating that it had been advised that
this was illegal , it nevertheless reaffirmed and put into
effect the benefits agreed upon, even though objections to
the election were already on file
Respondent's brief does not mention these postelection
events. However, these actions obviously reaffirmed the
favored position of the Association, and gave it added
assistance, providing substantive proof of the benefits
flowing from adherence to the Association, which had
been foreshadowed by Respondent's prior conduct The
haste with which this matter was carried out shows scant
respect for the election process which had not been
completed. Moreover , since, as discussed hereinafter, the
Union's objections to the election were meritorious,
Respondent's conduct additionally interfered with the
employees' rights under the Act and further served to
prevent a free and fair election in which representation of
its employees might be decided See Midtown Service Co ,
Inc., et al, 171 NLRB No. 161
An issue is also raised with respect to the support
rendered to the Association prior to the election by
Respondent's statements of preference for the Association,
urging employees to vote for and maintain allegiance to
the Association, disparaging the Union, and soliciting
employees to persuade other employees to adhere to and
support the Association.
Respondent, citing Rold Gold of California, Inc., 123
NLRB 285, and other cases, argues that Respondent may
legally indicate its preference in a situation where two
unions are competing for the right to represent its
employees. However, this issue cannot be decided as an
abstract principle of law, but must be determined in its
context. See, i.e , Builders Supply Co. of Houston, 168
NLRB 163 (holding a statement of preference not to
violate the Act in the absence of a context of coercion).22
Where, as in this case, such preference is given one of the
competing unions in a pattern of other, substantial
assistance, accompanied by the pressure of individual
interviews in Respondent's private offices, cf Agway
Petroleum Corp., 170 NLRB 680, and other coercive
conduct, it becomes part of the warp and woof of a fabric
of repressive conduct designed to prevent a free choice of
representatives by the employees and is thus violative of
the Act. Integral to this course of conduct were the
preelection efforts of Samuel Lentz to solicit Leahy,
Smith and McEnroe to assist him in his efforts to have
the employees reject the Union and adhere to the
Association, see Bourne v. N L R B, 332 F.2d 47 (C.A.
2); NLRB v. Firedoor Corp, 291 F 2d 328 (C.A. 2)
and Respondent's course of interrogation of the salesmen
about union activities and their voting intentions, which
was clearly coercive within the standards of the Court's
Bourne and Firedoor decisions.
Also running through the evidence is the recurrent
theme that the employees could accomplish more with the
Respondent if the Respondent could continue as in the
past and was not "yoked" to, or rendered inflexible by the
Union, that the salesmen would do less well, and might
lose benefits if the Union came in, possibly because the
Union might object to benefits which the employees had
or seek conditions inimical to the employees;23 that the
men could work out their problems through the
Association and did not need the Union; and that bringing
the Union in would constitute a "slap in the face" or
indicate a lack of confidence in management. The General
Counsel and the Union seem to urge that these matters be
considered as separate violations of the Act In the
aggregate, this campaign against the Union bears
considerable resemblence to the situation found violative
of the Act in N L R B v Beatrice Foods Co , 183 F.2d
726 (C A. 10); however, the Trial Examiner considers
these matters are fairly included within the course of
conduct herinbefore considered, and sees no reason to pass
on them as separate violations of the Act
"But see Levi Strauss & Co, 172 NLRB No 52, fn 10, where, citing
prior Board and Court decisions, the Board reaffirms the doctrine that
where an employer is faced with "a two-union situation," "the employer
must be strictly neutral - he cannot give any form of support to one of
the rival unions , if he does he violates Sec 8(a)(2) of the Act "
"It is noted that though it appears that M Lentz and Goldstein, in their
interviews , indicated that the earnings of the men, their pension plan and
loan privileges would be threatened by action of the Union, S Lentz, in his
talks with the men, asserted that the men would endanger their earnings
and their benefits by bringing the Union in, without such qualification
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By the above acts and conduct, and upon the record as
a whole, it is found that Respondent interfered with,
restrained and coerced employees in the exercise of their
rights under the Act and interfered with the
administration of the Association and furnished that
organization assistance and support, in violation of
Section 8(a)( I) and (2) of the Act." However, as
Respondent well argues, the proof presented by the
General Counsel, falling within the 6-month period prior
to the filing of the charge, does not support his contention
that the Association was dominated by the Respondent
and it is so found See Coca-Cola Bottling Company of
Sacramento, etc , 146 NLRB 1045 In this connection, the
Union's argument that Respondent's employment of
Schatz & Schatz as their attorneys, beginning in 1966,
indicates control of the Association, since one of counsel
in that firm had been counsel to the Association from its
inception, has been considered, and is found quite
unpersuasive.
2. Alleged violation of Section 8(a)(5) of the Act
a The appropriate unit
Respondent's warehousemen, drivers and salesmen
perform functions normally associated with those
classifications The warehousemen, who work at the
Respondent's premises in Hartford receive goods, store
them, and prepare the products for delivery to
Respondent's customers as their normal functions. The
drivers may assist the warehousemen, but their principal
function is the delivery of the product from Respondent's
warehouse to the premises of the customer. It appears
that these operations are carried on in more than one
shift These men punch a time clock and are hourly paid
Some of their fringe benefits are the same as those
enjoyed by the salesmen.
Respondent's salesmen visit customers within a certain
territory, or in accordance with assignments made by
Respondent. Thus, the great majority of their time is
spent away from the Hartford plant. In addition to
persuading the customer to buy the products distributed
by the Respondent, the salesman has certain
responsibilities in assisting the customer with the
promotion of those products. There is some variation
between the efforts of those primarily considered wine
salesmen and that of the liquor salesmen, although the
ultimate sales and promotion objectives appear to be the
same. The liquor salesman is paid on the basis of a
commission on the sales to the customers assigned to him.
The wine men are paid a guarantee, but can earn more if
they exceed the assigned level of sales As has been noted,
at the Hartford plant, the salesmen have assigned tables in
the sales room, which is physically separated from the
warehouse area in which the warehousemen and drivers
perform their in-plant functions. Not all of the salesmen
work out of the Hartford plant, some of them, in outlying
areas, working from their homes and occasionally coming
in to the Hartford location. The others apparently check
in each morning before going out in their territory to visit
"Allegations in the complaint that Respondent permitted officers and
representatives of the Association (1) to conduct business of the
Association in Respondent 's offices and (2) to leave Respondent 's premises
during working hours to conduct Association business are found to be
without merit and it will be recommended that they be dismissed
Allegations that Respondent refused the Union equal privileges with the
Association to solicit membership on its premises were dismissed, on
motion, at the hearing.
their customers . On Friday , the salesmen frequently come
into the office to do paperwork and attend scheduled sales
meetings, at which they discuss, or are instructed , often by
outside suppliers , in sales promotions , contests , or similar
sales techniques
On occasion , as in taking inventory , salesmen may help
in the warehouse . Also on occasion , when an emergency
delivery is necessary , the salesmen may take the product
from the warehouse , put it into his personal car and
deliver it himself . The salesman normally uses his own
personal car in visiting his customers , for which he is not
normally reimbursed He also makes collections from his
customers in payment for products sold. On occasion,
when a salesman is absent , a warehousemen or a driver
may be assigned to cover his accounts . In such case, and
when a driver may pick up an order from a customer, the
salesman receives the commission on the sales made Also
on occasion , the salesman may have direct contact with
the drivers , or possibly with the warehouseman with
respect to particular deliveries, although it appears that
orders which are executed by the warehousemen and
drivers are turned in by the in-town salesmen, or called in
by the out -of-town salesmen , and are processed through a
regular procedure Men originally employed in the
warehouse area have become salesmen in this operation,
but this does not seem to have occurred recently.
The warehousemen and drivers are supervised by
separate supervisors who are responsible to Comptroller
Goldstein. The salesmen , as has been found , were at times
material herein , supervised by Sales Manager Sandler and
Wine Manager Amoroso, who were responsible directly to
Mervyn Lentz It does not appear that Goldstein had any
direct supervisory duties with respect to the sales force
Respondent argues ( br. p. 38 ) "that the only
appropriate unit includes warehousemen , truck drivers,
and salesmen , since there is an interchange and
overlapping of functions , a close dependence on each
other, an important cooperative effort which is aimed at
serving the customer efficiently , and a j oint collective
bargaining history which commenced with a Board
certification in 1952." The General Counsel and the
Union argue that a unit of salesmen , excluding other
employees should be found an appropriate unit on the
facts of this case
The prior Board certification , as the cases have
consistently held, is not necessarily binding in this
situation, since it was originally established by consent of
the parties . Coca- Cola Bottling Co of Baltimore, 156
NLRB 450 Nor is the collective - bargaining history which
followed upon that certification persuasive that the
Association , by joint bargaining on behalf of the salesmen
as well as the warehousemen and drivers , has achieved a
stable and on-going collective - bargaining relationship with
the Respondent in an overall unit Aside from the fact
that no written contractual relationship resulted from the
certification of the Association until 1960, even that
relationship soon lapsed into inactivity Though the
evidence is that the Association , in 1962, initiated and
negotiated improvements in life insurance and major
medical benefits , these were never incorporated in a
written collective - bargaining agreement . Moreover, after
1962, there is no mention on the Association's minutes of
any meeting with the Respondent prior to the events of
July 1967. No grievances were handled . The only asserted
contact between the Respondent and the Association
during that period , and that is disputed, related to the
establishment of a pension program And the record is
clear that the Respondent regarded the establishment of
THE BRESCOME DISTRIBUTORS CORP.
the pension plan as a unilateral , gratuitous grant on its
part, and so expressed the matter, in effect, to the
employees in 1965. These benefits were not included in a
collective-bargaining contract signed by the Association.
In 1967, even those employees who remembered the 1960
contract, had not seen a copy for a long time; indeed, the
Association's counsel was at a loss to readily produce a
copy. In these circumstances, it cannot be said that the
bargaining relationship involved, or the 1960 contract, has
created that real stability in industrial relations which
fulfills the purposes of the Act and which should be
accorded weight under the decisions of the Board. Cf
Vangas, Inc., 167 NLRB 805; Raymonds, Inc., 161
NLRB 838; Local 1098. International Hod Carriers, etc.
(Bernard Card & Sons, Inc.), 140 NLRB 1147.:5
While there are factors, including the 1952 certification
of the Association, which indicate that a unit including
salesmen, drivers and warehousemen may be appropriate,
the record is far from convincing that this is the only
appropriate unit. The record, indeed, shows a considerable
diversity of interest between the salesmen and the other
employees. They have quite different conditions of work,
hours, methods of compensation and supervision. Indeed,
the Respondent agreed that the salesmen might compose
an appropriate unit which could be represented separately
from the other employees, in consenting to an election in
the representation case. This also accords with the policy
of the Board in situations such as presented here. See, i.e ,
Plaza Provision Company (P.R.), 134 NLRB 910. For
these reasons, the Trial Examiner finds that the following
constitutes an appropriate unit for the purposes of
collective bargaining, on the facts of this case: All
wholesale salesmen employed by the Respondent at its
Hartford, Connecticut facility, excluding warehousemen,
deliverymen, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
b. The Union's majority status
At the times material herein, Respondent employed 19
salesmen at the Hartford plant within the appropriate unit
set forth above. When the Union made its request of
Respondent for recognition and bargaining on June 6, the
Union held authorizations designating it as the
collective-bargaining representative from 12 of the
salesmen, and within 3 days thereafter, and at times when
Respondent refused to recognize the Union and bargain
with it, the Union held 13 authorizations.
Respondent contends that authorization cards, as such,
are unreliable evidence and therefore should be given no
weight in determining whether the employees wanted the
Union to represent them; that, even if they are to be given
weight, the fact that Canton stated that they might be
used as evidence of employee interest in the Union in
support of a petition for an election should be considered
to invalidate them; and particularly that the authorizations
of Maynard, Goldman, Sameloff and Legare should be
invalidated. The General Counsel and the Union, of
course, argue that all of the authorizations are valid.
With respect to the claim that authorization cards are
an unreliable means of proof of majority status, there can
"The General Counsel and the Union also argue that the bargaining
history prior to 1967 should be considered tainted because of the
participation of supervisors Horowitz and Tarre and other assistance given
the Association by the Respondent . The Trial Examiner does not think it
necessary to pass on this point and therefore has given no weight to this
argument.
8 03
be no question but that a free and fair secret ballot
election is much to be preferred over any other type of
evidence of the desires of employees in regard to
representation. However, that does not mean that
authorization cards are not probative evidence of that fact
in these cases, as many decisions of the Board and the
Courts teach us. It is also a familiar rule of law that when
the party calling for the best evidence of a fact has itself
made the production of such evidence impossible, it
cannot complain of the proof of that fact by secondary
evidence. Similarly, where the employer, as here, has
prevented the ascertainment of the employees' desires as
to representation through a free and fair election, he may
not be heard to complain if that fact is ascertained
through other probative evidence, such as authorization
cards, which may form the basis for an appropriate
remedy. See NL.R.B v Gotham Shoe Mfg. Co., Inc.,
359 F.2d 684, 687 (C.A. 2), and cases cited.
The issue is one of fact --- the determination of the
purpose of the employee in his objective act of signing a
card bearing certain writing - and this must be
determined on the basis of the record as a whole, as in the
case of any other factual issue. In determining this issue,
the language of the card signed, particularly if
unambiguous, as is the case here, is entitled to
considerable weight As stated by the court in Jas H
Matthews & Co. v. N.L.R B, 354 F.2d 432, 438 (C.A. 8),
"(t)he very act of signing an authorization card by an
employee, absent real proof of fraud or deceit, calls for a
finding that the employee knew what he was doing." See
also Levi Strauss & Co , supra
In the instant case, we are dealing with men of some
substance and intelligence, who may well be held to have
known "what they were doing" when they executed such
authorizations. With respect to the ten men (Shea,
Gasiorek, Smith, Paul, Cohen, Kowalczyk, Leahy,
McEnroe, Deutsch, and Goldman) who attended union
meetings prior to June 6, as has been noted previously,
these men were told by Canton that, while an election
might be necessary as a final resort to prove the Union's
majority status, the Union's initial effort would be to seek
to have Respondent recognize the Union as the bargaining
representative of the salesmen on the basis of the
authorization cards In such circumstances, the
authorization cards signed by these men may be validly
counted. See N.L.R.B v Gotham Shoe Mfg. Co, Inc,
supra at 686.36
"At one point, salesman Norman Goldman testified , in response to a
leading question , that Canton told the men during these meetings that the
cards were only for an election ." This is not credited Not only is
Goldman the only witness who attended the Union meetings who so
testified , but his testimony as a whole indicates that this was not what
Canton said Thus, when asked if Canton stated, at the meeting at which
Goldman signed his card, that Canton would make a demand upon the
Respondent, Goldman answered , " He said if he could get enough
signatures on the cards, that would constitute a majority, that this is what
he would do " When asked if Canton did not say he would do this before
going to the NLRB for an election, Goldman stated that he could only
remember that Canton "mentioned both the NLRB and Brescome in the
same breath." Goldman also affirmed that Canton told the salesmen that
he was going to make a demand for recognition on Respondent if he could
get enough signatures from the men Not only does this testimony serve to
confirm Canton 's testimony which has previously been credited, but
Goldman's own testimony , and other evidence, shows that Goldman was
not interested in the procedures involved , but was interested in what the
Union could do for him, and was an ardent supporter of the Union at the
time he signed his card On the record as a whole, therefore , there is no
reason to find that Goldman was induced by fraud or deceit in authorizing
the Union to represent him
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salesman Bernard Sameloff, who did not attend these
union meetings , also signed a card in favor of the Union,
on June 5. However, Sameloff, who testified that the
signature and the date on the card are in his handwriting,
asserts that he had no present recollection of the
circumstances under which the authorization was
executed . This testimony accords with his statement given
to Respondent ' s counsel, prior to the hearing ( and prior to
being shown the card which he identified ), that he had no
recollection of having signed a card in behalf of the
Union. While it is possible that the execution of the card
may have slipped Sameloff's mind when he talked to
Respondent ' s counsel about it, I find it rather hard to
believe that his memory remained as blank as he asserted
when he was confronted with the card itself, which he
agrees he executed . Though the resolution of this point is
not critical to a determination of the validity of
Sameloff's card , it does bear on the question of
credibility.
There is no evidence that Sameloff was induced by
fraud or misrepresentation to execute the card involved,
which is an unambiguous designation of the Union as his
bargaining representative . Sameloff states he "must have"
read it . Nor does it appear that Sameloff was opposed to
the Union . To the contrary, he had been a member of the
Union when employed at another place, after which he
went into a business venture of his own before coming to
work for Respondent , sometime late in 1966 . Shortly after
his employment with Respondent , Sameloff had a
conversation about the Union with salesman Deutsch
Sameloff states, "I thought I had never left the Union,"
but when Deutsch told him that he needed a "withdrawal
card ," Sameloff sent the Union a $2 fee for such a card,
which he received , effective for one year from November
1, 1966. Sameloff described the card as providing that
upon his return to "this industry ," if the "house" he
worked for "was union , I was automatically union."
When Sameloff, at the end of 1967, realized that his
withdrawal card had expired , in January , 1968, he sent the
Union another $2 fee to have it renewed.
Sameloff, nevertheless , testified that, during this period,
he expressed himself to all his fellow employees as not
wanting anyone to talk for him "until I know whether we
are union or not ." He stated that, based on his experience
at his previous employer, he understood this would be
determined by a secret ballot election (though, in his
experience , this might be conducted by the employees
among themselves and did not require a Board election). I
do not credit Sameloff in these respects . Those objective
facts which have been set forth are clearly consistent with
a purpose to have the Union represent him both before
and after the Board -conducted election on July 21,
whereas his present testimony , not long after the events,
and in part subjective in character , would indicate an
attitude inconsistent with what he actually did at the time.
It is therefore found that Sameloff ' s card constitutes a
valid designation of the Union as bargaining
representative.
There is a conflict in the testimony as to the
circumstances in which Legare and Maynard signed cards
for the Union. Inasmuch as the l l cards heretofore found
valid constitute a clear majority of the 19 salesmen who
comprised the appropriate unit at times material herein, it
would unnecessarily lengthen this decision to discuss those
conflicts , except it may be noted, for reasons discussed, in
part , previously , that I do not find Maynard's account of
the events surrounding his execution of the union card
complete or convincing.
c The refusal to bargain
Respondent contends that, even if the Union held
authorizations from a majority of the salesmen,
Respondent had a good faith doubt that this was so, and
was therefore entitled, as a matter of right, to refuse to
bargain until the Union proved its status by an election.
Respondent points to the fact the men deliberately misled
it as to their intentions, that a majority of the men also
signed authorizations for the Association during the same
period, that it would have been improper for Respondent
to choose between the two contending unions after the
Union had filed a petition with the Board, which would
normally lead to an election; and that it was entitled to
rely on its 1960 contract with the Association
However, these contentions do not stand up under
analysis As noted above, I do not consider the 1960
contract, as a matter of law, to constitute a bar to the
selection by the salesmen of a new representative at the
times material to this matter To be a bar, such a contract
must serve at least two objectives: first it should
contribute to industrial ability by providing the parties an
accurate code by which their relations in the plant may be
guided, and, secondly, it should provide a ready reference
"to which employees and outside unions" may "look to
predict the appropriate time" when the prior bargaining
relationship may be challenged. See Union Fish Company,
156 NLRB 187, 191. In the present case, the 1960
contract had fallen into such a state of desuetude that it
could not be said to be in current use; there is no evidence
that the Association, in fact, had represented the
employees in collective bargaining or in the adjustment of
grievances for a number of years; major terms of the
employment relationship established by the Respondent
were not contained in a written agreement between the
Respondent and the Association; and the agreement itself
was not readily accessible to the employees or an outside
union In the circumstances of this case, it is found that
the 1960 contract was not a bar to the selection of a
collective-bargaining representative in 1967. See
Raymonds . Inc.. supra; Local 1098, International Hod
Carriers, etc , supra at 1153.
Respondent's asserted reliance upon the authorizations
executed in favor of the Association is likewise misplaced.
These were signed a month or more after the request for
bargaining and there is no evidence that Respondent was
aware of them (although it may have heard of the results
of the June 30 straw vote). They obviously played no part
in Respondent ' s decision not to recognize the Union as
the salesmen's bargaining representative. In any event,
those events could not serve as the basis of a good faith
doubt, since the June 30 straw vote and the employees'
acts of adherence to the Association was the direct result
of Respondent's illegal solicitation of the employees to
take such action, and thus was not the free and voluntary
action of the employees.
In effect, Respondent's main position is that, when
confronted by two contending unions it should not be
required, at its peril, to choose between them, but may
await a Board resolution of the problem. This position
may very well be valid where neither of the two unions is
illegally assisted by the Respondent and the Respondent
itself does not engage in conduct which serves to thwart
the Board processes which are designed to determine what
the employees want However, here Respondent actually
did choose between the two contending unions and give
illegal assistance to one of them, making a free and fair
election impossible, as has been found Since, in fact,
THE BRESCOME DISTRIBUTORS CORP. 805
Respondent 's refusal to bargain was, manifestly , for the
purpose of gaining time to destroy the Union' s majority
status, it is found that it had no good faith doubt of the
Union's majority . See N.L.R.B. v. Gotham Shoe Mfg.
Co., supra, 687. It is therefore found that by its refusal to
bargain, as set forth , the Respondent violated Section
8(a)(5) of the Act.
3. The Objections to the Election
Respondent first contends that the hearing on
objections in Case I-RC-9643 was improperly consolidated
with the hearing on issues raised by the complaint in Case
1-CA-6027. It is contended that the Regional Director
exceeded his authority under the Agreement for Consent
Election in the representation case in delegating to the
Trial Examiner the conduct of a hearing upon the
objections which, under the consent election agreement,
the Regional Director is authorized to hold; that the Trial
Examiner exceeded his authority by hearing the evidence
on the Union's objections to the election, and that
Respondent was denied due process because the rules of
evidence applicable to the two proceedings which were
consolidated are different, and, assertedly, the burden of
proof in supporting the objections should be borne by the
Union, while the burden of sustaining the allegations of
the complaint is upon the General Counsel Lastly,
Respondent contends that the objections should be
dismissed as lacking in merit
In passing upon Respondent's motion to sever the two
proceedings, for reasons stated on the record, the Trial
Examiner held at the hearing that the Regional Director
had authority to consolidate the two proceedings for
hearing and that the Trial Examiner had the authority to
hear evidence on the objections to the election and to pass
on the issues raised . Since the time of the hearing, the
Board has passed upon these issues and has confirmed the
conclusions which were reached at the hearing. See
Chelsea Clock Company, 170 NLRB 69.
Respondent points to no specific situation or evidence
in support of the claim that it was deprived of due
process So far as the Trial Examiner can see, if the two
matters had been severed, the same evidence would have
been received in the unfair labor practice proceeding under
the same rules of evidence as were applied here. Certainly
the evidence discussed with respect to the issues framed by
the complaint show that, within the period between the
filing of the representation petition and the date of the
election, Respondent improperly interfered with the
election and deprived the employees of a free choice It is
difficult to see how Respondent was prejudiced because
the evidence was taken in one hearing, rather than being
duplicated at two hearings.
For the reasons stated, it is found that Respondent's
contentions are without merit and that the election held
on July 21, 1967, should be set aside. It will therefore be
recommended to the Regional Director that the election
on Case No. I-RC-9643 be set aside, but that no new
election be directed pending final action by the Board
upon the recommendation hereinafter made that
Respondent be ordered to bargain with the Union upon
request.
2. The Union and the Association are labor
organizations within the meaning of Section 2(5) of the
Act
3. All wholesale salesmen employed by the Respondent
at its facility in Hartford, Connecticut, excluding office
clerical employees, warehousemen, deliverymen,
professional employees, guards and supervisors as defined
in the Act, constitute an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
4 On June 6, 1967, and at all times thereafter, the
Union was, and continues to be the exclusive
representative of the employees in the appropriate unit
found above for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By the acts and conduct herein found violative of the
Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1), (2), and (5) of the Act, which unfair labor
practices affect commerce within the meaning of Sections
2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Sections 8(a)(1),
(2) and (5) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Since it has been found that the Respondent has
violated Sections 8(a)(2) and (1) of the Act by various acts
and conduct giving aid, assistance and support to the
Association, it will be recommended that the Respondent
withdraw and withhold all recognition from the
Association as the collective bargaining representative of
any of Respondent's employees, and cease giving effect to
any collective bargaining contract with the Association, or
to any modifications, extensions, supplements, or renewals
of such contract or contracts, unless and until the
Association shall have been certified as the exclusive
bargaining representative pursuant to a Board-conducted
election among Respondent's employees in a unit or units
appropriate for the purpose of collective bargaining.
Nothing in the Recommended Order set forth hereunder,
however, shall be construed to require the Respondent to
vary or abandon any wage, hour, seniority, or other
substantive feature of the relationship between the
Respondent and its employees which may have been
established pursuant to any such contract, or to prejudice
the assertion by the employees of any rights they may
have under such contract or any established practice in
regard to wages, hours of employment, or conditions of
employment
Because of the pervasive nature of the violations found,
and in order to make effective for the employees of the
Respondent the guarantee of rights contained in Section 7
of the Act, it will be recommended that the Respondent
cease and desist from, in any manner, infringing upon the
rights guaranteed in that Section.
RECOMMENDED ORDER
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and
(7) of the Act.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that-
Respondent, the Brescome Distributors Corporation,
Hartford, Connecticut, its officers, agents, successors, and
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigns , shall:
1. Cease and desist from:
(a) Assisting, supporting, or interfering with the
administration of the Brescome Distributors Employees
Association, or any other labor organization, by
(1) Participating in the activities of such organization,
or attempting to influence, or influencing the designation
of its officers or committees, or directing the time or
manner of conduct of its meetings or affairs, or otherwise
interfering in such matters.
(2) Coercively urging, soliciting, or directing employees
to vote for, or support such organization, or participate in
its activities.
(b) Recognizing or contracting with The Brescome
Distributors Employees Association as the representative
of any of its employees for the purpose of dealing with
said organization concerning grievances , labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor
organization shall have been certified as such
representative pursuant to a Board-conducted election
among Respondent's employees.
(c) Giving effect to, performing, or in any way
enforcing in favor of the Brescome Distributors
Employees Association any collective bargaining contract,
in whole or in part, relating to grievances, labor disputes,
wages, hours of employment, rates of pay or other
conditions of employment, unless and until said labor
organization shall have been certified as representative of
the employees covered by such contract pursuant to a
Board-conducted election among such employees, in
accordance with the provisions of the section of this
decision entitled "Remedy."
(d) Making express or implied threats of reprisal if its
employees join, support, or select as their bargaining
representative a labor organization not favored by the
Respondent.
(e) Making express or implied promises of benefit to
employees if they join, support, or select as their
bargaining representative a labor organization favored by
the Respondent.
(f) Granting benefits to employees to discourage
support or assistance to a labor organization not favored
by the Respondent, or to encourage support or assistance
to a labor organization favored by the Respondent
(g) Urging, soliciting, or directing employees to urge or
solicit other employees not to support or assist a labor
organization disfavored by Respondent, or to support or
assist a labor organization favored by Respondent.
(h) Refusing to bargain collectively with Wine &
Liquor Salesmen & Allied Workers Local Union 195,
affiliated with Distillery, Rectifying, Wine and Allied
Workers International Union of America, AFL-CIO, as
the exclusive bargaining representative of employees in the
appropriate unit set forth herein.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Withdraw and withhold all recognition from The
Brescome Distributors Employees Association as the
collective bargaining representative of any of their
employees unless and until such organization shall have
been certified as such representative pursuant to a
Board-conducted election.
(b) Upon request, bargain collectively with Wine &
Liquor Salesmen & Allied Workers Local Union 195
affiliated with Distillery, Rectifying, Wine and Allied
Workers International Union of America, AFL-CIO, as
the exclusive representative of the employees in the unit
herein found appropriate, with respect to rates of pay,
wages, hours of employment or other terms and
conditions of employment, and, if an agreement is
reached, embody such understanding in a signed
agreement.
(c) Post at its plant in Hartford, Connecticut, copies of
the attached notice marked "Appendix."27 Copies of said
notice, on forms provided by the Regional Director for
Region 1, shall, after being signed by a duly authorized
representative of Respondent, be posted by it immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily displayed. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith .21
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any alleged violation not found herein.
ORDER SEVERING AND REMANDING CASE
1-RC-9643
Pursuant to the terms of the order consolidating cases
issued by the Regional Director of Region 1 in Case
I-RC-9643, it is ordered that Case I-RC-9643 be, and it
hereby is severed and remanded to the Regional Director
for Region l for further action in accordance with Section
102.62(a) of the Board's Rules and Regulations.
271n the event that this Recommended Order is 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 ' s Order is 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
Decision and Order "
..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, of the steps which
Respondent has taken to comply herewith "
APPENDIX
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT recognize, or deal with The Brescome
Distributors Employees Association as the
representative of any of the company's employees in
respect to terms or conditions of employment, or enter
into a collective bargaining contract with The Brescome
Distributors Employees Association, or give effect to
any collective bargaining contract with that
organization, until and unless the National Labor
Relations Board certifies that it is proper for us to do
so.
WE WILL NOT support or assist The Brescome
Distributors Employees Association.
THE BRESCOME DISTRIBUTORS CORP. 807
WE WILL NOT try, by -coercive means, to get you to
support or assist The Brescome Distributors Employees
Association, or any labor organization.
WE WILL NOT attempt to discourage you from
joining or helping a labor union , or selecting a labor
union of your choice as your representative --
by promising or granting employee benefits for that
reason, or
by threatening that you will suffer harm at the
company's hands if you do, or
by trying to get you to support or vote for a labor
union which the company may prefer, or
by interfering with (or permitting company
supervisors to interfere with) the operation or affairs
of any labor union in which company employees are
interested or involved, or
by trying to get any of you to urge or solicit other
employees to join , support, or assist a labor union
which the Company wants, or to have you not join,
support or assist a labor union which you may want.
WE WILL NOT in any other way interfere with your
right to -
Organize yourselves, or form, join or help unions.
Bargain for your working conditions through a
representative freely chosen by a majority of workers
in the plant.
Act together for mutual aid or protection of your
working conditions.
Refuse to do any or all of these things.
WE WILL, upon request , bargain with Wine & Liquor
Salesmen & Allied Workers Local Union 195, affiliated
with Distillery , Rectifying , Wine and Allied Workers
International Union of America, AFL-CIO, for the
working conditions of the employees in the appropriate
unit set forth below-
All wholesale salesmen employed by the company at
its Hartford , Connecticut operations , excluding office
clerical employees , warehousemen, deliverymen,
professional employees , guards and supervisors as
defined in the National Labor Relations Act.
THE BRESCOME
DISTRIBUTORS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board 's Regional Office, John F.
Kennedy Building, 20th Floor, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3300.