Joseph E. Seagram & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1941

32 N.L.R.B. 1056 (N.L.R.B. 1941)

In the Matter of JOSEPH E. SEAGRAM & SONS, INC. AND CALVERT DIs-'
TILLING COMPANY and UNITED DISTILLERY WORKERS - LIU #914,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS and
AMERICAN FEDERATION OF LABOR, ACTING FOR AND ON BEHALF OF
DISTILLERY WORKERS' LOCAL UNIONS, No. 20270; No. 21449; AND No.
21635, PARTIES TO THE CONTRACT and DISTILLERY WORKERS' LOCAL
UNION No. 20270, AFFILIATED WITH THE AFL, PARTY TO THE CON-
TRACT and DISTILLERY WORKERS' LOCAL UNION No. 21449, AFFIL-
'IATED WITH THE AFL, PARTY TO THE CONTRACT and DISTILLERY
WORKERS' LOCAL UNION' No. 21635, AFFILIATED WITH THE AFL,
PARTY TO THE CONTRACT and AMERICAN FEDERATION OF DISTILLERY,
RECTIFYING AND WINE WORKERS, NATIONAL COUNCIL, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR, PARTY TO THE CONTRACT
Case No. C-1699.-Decided June 23,1941
Jurisdiction : whiskey distilling industry.
Unfair Labor Practices
In General: employers not responsible for activities of supervisory employees,
although of kind normally attributable to employer and found to be unfair
labor practices, where evidence indicates that such activities do not reflect
desires of employers.
Interference, Restraint, and Coercion: charges of, not sustained.
Discrimination: discharges pursuant to valid closed-shop contract held not
discriminatory. -
Practice and Procedure : complaint dismissed.
Mr. Herbert O. Eby and Mr. Lester M. Levin, for the Board.
White cf Case and Mr. Thomas Kiernan, of New York City, Mr.
Morris Rosenberg, of Baltimore, Md., Mr. Sidney Wurmser, of Louis-
ville, Ky., and Mr. Leonard Gordon, of Relay, Md., for the respond-
ents.
Mr. Joseph A. Pathway, by Herbert S. Thatcher, of Washington,
D. C., and Mr. Hugh Gormley, of Indianapolis, Ind., for the A. F. of
L. and the A. F. of L. locals.
Mr. Joseph Gillis and Mr. W. M. Porter, of Baltimore, Md., for
the Relay local.
Mr. Joseph Kovner, of Washington, D. C., for the United.
Mr. Eugene R. Thorrens, of counsel to the Board.
32 N. L. R. B, No. 166.
1056
JOSEPH E. SEAGR.AM & SONS, INC. 1057
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the Congress of
Industrial Organizations, herein called the C. I. 0., and by United
Distillery Workers Local Industrial Union #914, affiliated with the
C. I. 0., herein called the United, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Fifth Region (Baltimore, Maryland), issued its complaint dated
June 29, 1940, against Joseph E. Seagram & Sons, Inc., herein called
Seagram, and Calvert Distilling Company, herein called Calvert,'
and the American Federation of Labor, herein called the A. F. of L.,
acting for and on behalf of Distillery Workers' Local Unions Nos.
20270, 21449, and 21635, parties to the contract, herein collectively
referred to as the A. F. of L. locals, and Distillery Workers' Local
Union No. 20270, party to the contract, herein called the Relay local,
and Distillery Workers' Local Union No. 21449, party to the contract,
herein called the Lawrenceburg local, and Distillery Workers' Local
Union No. 21635, party to the contract, herein called the Louisville
local, and American Federation of Distillery, Rectifying and Wine
Workers, National ' Council, party to the contract, herein called the
National Council, alleging that the respondents had engaged in and
were engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act,'49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of hearing were duly
served upon the respondents, the United, the A. F. of L., the A. F. of
L. locals, and the National Council.
With respect to the unfair labor practices, the complaint alleged,
in substance, (1) that since on or about November 1, 1937, Calvert
has engaged in a continuous plan and course of action of interference
with the self-organization of its employees at its plant at Relay,
Maryland; (2) that this plan and course of action (a) was intended
to encourage and has encouraged membership in the Relay local, (b)
was intended to discourage and has discouraged membership in the
United, and (c) was intended to interfere and has interfered with
the freedom of choice of its Relay, Maryland, employees concerning
representatives for purposes of collective bargaining; (3) that in
furtherance of the plan and course of action as alleged above, the
Seagram and Calvert jointly are referred to herein as the respondents
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondents, at the Relay, Maryland, plant, have by their officers,
agents, and employees, and particularly by the superintendent, man-
ager, and foremen, openly encouraged membership in the Relay local
and discouraged membership in the United by numerous acts includ-
ing, but not limited to, the following: (a) notifying and encouraging
their Relay employees to attend meetings of the Relay local, particu-
larly from on or about January, 1, to May 1, 1938; (b) threatening
their Relay employees with the loss of their jobs unless they at-
tended meetings of, and joined, the Relay local; (c) directing their
Relay foremen to attend meetings of the Relay local; and (d) de-
nouncing the United, its leaders and members, before the Relay em-
ployees; (4) that in furtherance of the afore-mentioned plan and
course of action, the respondents, on or about April 15, 1938, nego-
tiated an agreement with the A. F.-of L., acting on behalf of the
A. F. of L. locals, requiring, as a condition of employment at the
respondents' Relay, Louisville, and Lawrenceburg plants, membership
in the respective locals; (5) that on May 4, 1939, the respondents
renewed the afore-mentioned contract with the National Council,
successor to the A. F. of L., acting on behalf of the afore-mentioned
locals; (6) that by reason of the afore-mentioned acts and other acts
of interference by the respondents at the Relay plant, the Relay local,
on or about January 1, 1938,' and at all times thereafter, has been a
labor organization aided, promoted, and assisted by the respondents,
and therefore is not and,never'has been the representative of the
respondents' employees within the proviso of Section 8 (3) of the
Act; and (7) that by reason of the matters set forth above, the
agreement made by the respondents and the A. F. of L., acting on
behalf of the A. F. of L. locals, in 1938 and the renewal thereof en-
tered into on May 4, 1939, are illegal and invalid in their entirety.
The complaint further alleged that Calvert discharged nine named
employees,2 on or about December 27, 1998, and refused and continues
to refuse to reinstate them because of their membership in and affilia-
tion with'the United, and-because they engaged in concerted activities
with other employees for purposes of collective bargaining.
On July 16, 1940, the respondents filed a joint answer to the com-
plaint, denying the commission of any unfair labor practices, and
alleging affirmatively that on or about April 15, 1938, a closed-shop
contract was negotiated with the A. F. of L. acting on behalf of the
A. F. of L. locals; that the closed-shop contract was concluded upon
proof submitted by the A. F. of L. that the locals represented a ma-
jority of the respondents' employees in a bargaining unit consisting
of the production employees of all three plants; that the contract
2 Lester Arnold, Lee L. Baker, John Blasey, Kenneth Elliott, William Fosler, Mae
Harding, Florence Zuck, Charles Peddicord , and William Riedel
JOSEPH E. SEiAG'RAM & SONS, INC. 1059
was not negotiated in pursuance of a plan or course of action of inter-
ference as set forth in the complaint; that Calvert discharged the
persons listed in the complaint pursuant to the closed-shop contract
upon the request of the Relay-local, and cannot reinstate them because
that local has not advised it that it would be proper to do so. - '
On July 16, 1940, the A. F. of L., the A. F. of L. locals, and the
National Council filed a joint answer denying the allegations of the
complaint in so far as it alleged that Calvert discouraged membership
in the United or encouraged membership in the Relay loc tl. The
answer admitted the execution of the afore-mentioned closed-shop
contract, but denied specifically that it was entered into in furtherance
of any plan or course of action as set forth in the complaint; admitted
the renewal of the contract as alleged in the complaint; denied that
the Relay local ever had been a labor organization aided, promoted,
and assisted by the respondents; denied the allegation that the Relay
local is not or 'never-has been a representative of the respondents'
employees within the meaning of the Act; on information and belief,
affirmatively alleged that the discharges were made at the request of
the A. F. of L., the A. F. of L. locals, and the National Council, pur-
suant to a valid closed-shop contract, and that the reason for the
request that the respondents discharge the named employees was that
they were engaging in dual organizational activities on behalf of a
rival labor organization; that over the bitter opposition of the re-
spondents and without any assistance from them, the A. F. of L. locals
obtained a majority of the employees in the respective plants of the
respondents and a majority of the employees in all plants of the re-
spondents even though A. F. of L. adherents at the Relay plant be
excluded from computation; that an appropriate bargaining unit is
one consisting of the production employees of the respondents at the
Louisville, Lawrenceburg, and Relay plants; and that the contract
of April 15, 1938, is valid, legal, and binding.
Pursuant to notice, a hearing was held in Baltimore, Maryland,
from July 18 to August 2, 1940, before Martin Raphael, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondents, the A. F. of L., the A. F. of L. locals, and the National
Council were represented by counsel and participated in the hearing.
Full opportunity was afforded all parties to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues.
-During the course of the hearing the respondents moved to strike
certain testimony given by Board witnesses. The Trial Examiner re-
served ruling thereon and denied the motions in his Intermediate
Report. At the close of the hearing, the Board moved to conform
the complaint, and the respondents, the A. F. of L., the A. F. of L.
448692-42-vo1 32--68
1060 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
locals, and the National Council moved to conform their respective
answers, to the proof. The Trial Examiner granted these motions.
After the close of the hearing, counsel for the A. F. of L. filed with
the Trial Examiner a letter in the nature of a brief, dated August
19, 1940.
Thereafter the Trial Examiner issued and duly served upon the
parties his Intermediate Report, dated October 4, 1940, finding that
the respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
Section 2 (6) and (7) of the Act, but had not engaged in 'and were
not engaging in unfair labor practices within the meaning of Section
8 (3) of the Act. More specifically, the Trial Examiner found that
the respondents had interfered with, restrained, and coerced employees
at the Relay plant in the exercise of the right to self-organization ;
he further found that the respondents discharged the nine employees
whose names are listed in the complaint pursuant to the provisions
of the closed-shop contract, dated April 15, 1938, with the A. F. of L.
and that such contract was valid, albeit the respondents assisted the
Relay local by unfair labor practices, ' on the ground that it was
made with the representatives of an uncoerced majority of employees
in an appropriate bargaining unit consisting of employees at the re-
spondents' three plants.' For the same reason the, Trial Examiner
found that the May 5, 1939, renewal of the 1938 contract was valid.
He recommended that the respondents cease and desist from engaging
in interference, restraint, and coercion and that the complaint be dis-
missed in so far as it alleged the commission of unfair labor practices
in violation of Section 8 (3) of the Act.
Thereafter the respondents, the United, the A. F. of L., the A. F.
of L. locals, and the National Council filed exceptions to portions
of the Intermediate Report and the respondents and the A. F. of L.
submitted briefs in support thereof. Pursuant to notice served upon
all parties, a hearing for the purpose of oral argument was held before
the Board in Washington, D. C., on December 3, 1940. The respond-
ents, the United, the A. F. of L., the A. F. of L. locals, and the National
Council were represented by counsel and participated in the argument.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and on objections to the admission of evidence and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Board has considered the exceptions to the Intermediate Report
and the briefs submitted by the parties, including the brief filed with
the Trial Examiner and, save as the exceptions are consistent with
the findings of fact, conclusions of law, and order set forth below,
finds them to be without merit.
JOSEPH E. SE'AGRAM, & SONS, n c. 1061
Upon the entire record -in the case, the Board'makes the following:
FINDINGS OF FAC,r
1. THE BUSINESS OF THE RESPONDENTS
Calvert Distilling Company, a Maryland corporation, owns and
operates a plant at Relay, Maryland, where it bottles, distills, barrels,
and distributes whiskies and kindred products." Joseph E. Sea-,
gram & Sons, Inc., an Indiana corporation, operates two plants,
one at Lawrenceburg, Indiana, the other, at Louisville, Kentucky.
At the Lawrenceburg and Louisville plants, Seagram bottles, dis-
tills, barrels, and distributes whiskies and kindred products. The
Iespondents are wholly owned subsidiaries of Distillers Corpora-
tion-Seagram's Limited of Montreal, Canada. Since 1934 the
three plants -have been operated, maintained, and controlled by a
common management.
The principal materials used by the respondents at all three
plants are the same,-and consist of corn, rye, and barley malt. Ap-
proximately 90 to 95 per cent of the grain is purchased outside the
States of Maryland, Kentucky, and Indiana. The annual gross sales
of the respondents amount to approximately $85,000,000. About
95 per cent by value of the total products of each plant is shipped
outside the States of Maryland, Kentucky, and Indiana to other-
States of the United States and to Canada
The normal complement of production employees at ' Relay,
Maryland, is about 500, at -Louisville, Kentucky, about 85, and at
Lawrenceburg, Indiana, about 550.
II. THE ORGANIZATIONS INVOLVED
United Distillery Workers LIU #914 is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees who work at the respondents' Relay, Mary-
land, plant.
The American Federation of Labor is a federation of labor
organizations.
Distillery Workers' Local Union No. 20270 is a labor organization
affiliated with the American Federation of Labor. It admits to
membership production workers employed at the respondents' Relay,
Maryland, plant.
Distillery Workers' Local Union No. 21449 is a labor organization
affiliated with the American Federation of Labor. It admits to
membership production workers employed at the respondents'
Lawrenceburg, Indiana, plant. .
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Distillery Workers' Local Union No. 21635 is a labor organization
affiliated with the American Federation of Labor. It admits to
membership production workers employed at the respondents' Louis-
ville, Kentucky, plant.
American Federation of Distillery, Rectifying and Wine Workers,
National Council, is a labor organization affiliated with the American
Federation of Labor. - The National Council acts on behalf of dis-
tillery workers' locals affiliated with the A. F. of L.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events
The*A. F. of L. at its 1934 convention adopted a plan to organize
distillery workers throughout the United State's. Pursuant to this
resolution, in February 1935, Joseph Gillis, a national representative
of the A. F. of L., endeavored to organize employees at the respond-
ent's Relay plant. Meeting with little success, this organizational
drive was terminated in 1935, and was not resumed until the late
summer of 1936, when William Green, president of the A. F. of L.,
instructed Francis Dillon, president of A he National Council, to
-resume efforts to organize distillery workers on a national scale.
Accordingly, employees at the Relay plant were, during the
summer of 1936, again solicited to join the A. F. of L.
The Relay local was chartered on July 24, 1936. Its attempt to
obtain members met with strong opposition by Calvert. On August 10,
1936, Calvert discharged 11 members of the Relay local. On August 12,
Calvert initiated an Employee Representation Plan. Two days later,
the Relay local called a strike and in September, the Baltimore Federa-
tion of Labor, affiliated with the A F. of L., instituted a boycott of
Calvert products. On October 22, 1936, Calvert and the A. F. of L.
entered into a written agreement which provided, among other things,
for the settlement of the strike, the reinstatement of employees, and
for the discontinuance of the boycott. However, Calvert failed to
reinstate all employees covered by the agreement.
As a result, the A. F. of L. filed a charge with the Board claiming
that the afore-mentioned Employee Representation Plan was a com-
pany-dominated union and that Calvert had unlawfully discharged
11 employees. The Board issued a complaint based on these charges,
and a hearing was held, resulting In a Decision and Order by the Board
dated August 2, 1937.3 The Order directed Calvert, among other
things, to reinstate certain employees and disestablish the Employee -
Representation Plan.
'Matter of Maryland Distillery, Inc., et al, and Distillery Workc) s Union 20270, et al,
3 N. L. R. B. 176.
JOSEPH E. SEAGRAM & SONS, INC. 1063,
Meanwhile, during 1937, the A. F. of L. had continued its efforts
to organize the Relay plant, but was unsuccessful in obtaining a foot-
hold there. The Employee Representation Plan, though informally
"disestablished" after the issuance of the Intermediate report on Feb-
ruary 23, 1937, in the first proceeding against Calvert, was followed
on or about, May 19, 1937, by the establishment 'of another union, the
Calvert Distilling Company Employees Association of Relay, Mary-
land, Inc., which, about that time, obtained from Calvert a 1=year
contract containing a check-off provision." The C. 1.0. made its first,
appearance at the Relay plant about June 1937. On three occasions,
in June, September, and December 1937, C. I. O. organizers distributed
literature and application blanks for membership `.outside the, gates.
There was "C.. I. O. talk" in the plant and about 15 Relay employees
joined the C. I. O. By January 1, 1938, however, neither the C. I. O.
nor the Relay local had in excess of 15 or 20 members among the
approximately 500 Relay employees.
While the C. I. O. confined its efforts to. the Relay plant, the A. F. of
L. spread its drive, sometime in July 1937, to the Lawrenceburg plant,
where organizational activities were conducted under the direction,
first of Hugh Gormley and later Arnold Nahand. Throughout the
summer and fall of 1937, the respondents opposed the A. F. of L:'s
attempt to obtain members, and i_ the early part of January 1938 the
Lawrenceburg local called a strike and instituted a boycott to prevent
the union from "becoming demoralized." On or about- January 15,
1938, Nahand requested a conference with Reed, the Lawrenceburg
plant manager, to negotiate a contract; on or about January 22, 1938,
Reed sent Nahand a telegram refusing this request. On February 12,
1938, the Lawrenceburg local filed a charge with the Board alleging
that Seagram had engaged in unfair labor practices in violation .of
Section 8 (1), (3), and (5) of the Act.,' '
Late in 1936 or in the early part of 1937, Dillon began organiza-
tional activity amoung Seagram employees at Louisville. At that
time there existed at the Louisville plant an inside organization
known as the Seagram Protective Association which continued to
function until, about January 1, 1938. Dillon made slow progress
in organizing the Seagram employees. By spring of 1937 only four
or five employees at the Louisville plant belonged to A. F. of L. Local
20560 which embraced employees of companies, including ' Seagram,
' The A. F. of L. filed a charge alleging that the employees ' association at the Relay
plant was employer -dominated but withdrew . it in November 1937. -
5In March 1938 , just prior to the negotiations leading to the closed -shop contract, the
A. F. of L. terminated the boycott , withdrew the pickets, and the strikers returned to
work. The charges relating to the Lawrenceburg plant ,were dismissed by the Board's
Director for the Eleventh Region in September 1939.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating distilleries in the Louisville area.6 In the latter part of
1937, Dillon conferred with Harry Bronfman, Louisville plant man-
ager, concerning the reinstatement of employees discharged because,
according to Dillon, the management suspected that they belonged to
the A., F. of L. Apparently Dillon failed to obtain satisfaction.
At his request, the Central Labor Union of Louisville, affiliated with
the A. F. of L. instituted against Seagram products a boycott which
continued in effect until the beginning of bargaining negotiations in
April 1938 which led to the making of the closed-shop contract.
By April 1938, however, the A. F. of L. claimed to represent a
majority of the production employees at the three plants. On or
about April 15, 1938, after a series of conferences beginning on April 1,
1938, the. respondents entered into a closed-shop contract with the
A. F. of L. on behalf of the A. F. of L. locals.7
Thereafter, a substantial number of Relay employees, beginning
in July 1938, shifted their affiliation to the C. I. O. which established
Local #914 for them in November 1938. In December 1938 the Relay
local expelled from membership the nine employees, whose names are
listed in the complaint, for dual unionism and requested Calvert to
discharge them. Leonard Gordon, the personnel manager at the
Relay plant, conferred with William M. Aicher, the Board's Regional
Director for the Fifth Region, concerning the request of the Relay
local, and asked whether Calvert was compelled under the contract
to comply with it. Aicher advised Gordon that the C. I. O. had filed,
under Section 9 (c) of the Act, a petition with respect to the Relay
plant, and that if the Board dismissed the petition Calvert could
lawfully discharge the nine employees. On December 27, without
further advice from Aicher, Calvert discharged them. On the follow-
ing day Aicher notified Gordon that the Board had dismissed the
petition filed by the C. I. O. On December 29, 1938, the C. I. O.
filed the charges which give rise to the complaint in this proceeding.
The complaint alleges in substance that the closed-shop contract,
and its renewal on May 5, 1939, were invalid because Calvert assisted
the Relay local during the period from November 1937 to May 1938,
6 Because of intra-union difficulties, the-A.'F of L. suspended the charter of Local
20560 Local 21635, which was chartered about May 14, 1938 absorbed into its ranks
Seagram, employees who had belonged to Local 20560
7In the contract the respondents recognized the A. F. of L. locals as the sole collective
bargaining representatives for all production employees of the respondents and by its terms
the contract provided , among other things , that all production employees should be, or
within 60 days become , members of such locals. The contract was to expire June 1, 1939,
automatically renewable in default of notice . On May 5, 1939 , the respondents and the
National Council, successor to the A. F. of L. locals, renewed the contract with modifica-
tions not here material . Except for the substitution of the National Council for the
locals, the renewal contract , however, in substance retained the exclusive recognition and
the closed-shop provisions of the original contract.
JOSEPH E. SIEiAGRAM & SONS, INC. 1065
and that by discharging the nine employees named in the complaint,
the respondents discriminated against them because of their union
membership and activities. The respondents deny giving 'assistance
to the Relay local and rely upon the closed-shop contract as justifica-
tion for the discharges.
B. Alleged interference, restraint, and coercion
The activities alleged to constitute interference, restraint,'and co-
ercion took place only at the Relay plant, and principally during
January 1938. The evidence of it consists, for the most part, of state-
ments by foremen to employees that they should join the Relay local
if they wanted to retain their jobs.
In the latter part of December 1937, Daniel Garlock, plant superin-
tendent and chief engineer at the Relay plant, in the presence of Fore-
men Raymond Wright, Adam Gregoski, and Walter Johnson, warned
L. W. Cassell, a maintenance-department employee, according to Cas-
sell's testimony, that he would lose his job unless he joined the A. F. of L.
Prior thereto, Superintendent Garlock had openly opposed the A. F.
of L. Cassell further testified that when he expressed surprise over
Garlock's change in attitude toward the A. F. of L., Garlock disclosed
that
Mr. Willkie s belonged to the A. F. of L. and it would be better
if we would join because he thought we would get more out of
it . . . [that Willkie] belonged to the A. F. of L. . . . Boiler-
makers Union . . . that he was coming in [with-the company]
or was already there .. .
Wright and Gregoski asserted at the hearing that they did not recall
that Garlock made such statements and Johnson testified that he did
not hear Garlock make such, statements. Garlock did not appear as
a witness. We find that Garlock made the statements above attributed
to him by Cassell.
William Fosler was employed by Calvert in the labor department
where he worked under Ed Nugent, a "strawboss" from whom Fosler
took orders. Fosler testified that he was called aside on the afternoon
of January 18 shortly before quitting time by Nugent who told Fosler
that there was going to be a meeting at 1222 St. Paul Street 9 that night -
at 8 o'clock and, in I+osler's words, if I'thought anything of my job
8 Robert T . Willkie became associated with the respondents as the assistant to the vice
president in charge , of production in the latter part of 1937 . While employed as a youth
by the American Sheet and Tin Company he had belonged to the Amalgamated Associa-
tion of Sheet and Iron Workers , then affiliated with the American Federation of Labor,
and- later , at an unstated time, he had held a working card in the "cook 's union." Sub-
sequent to the execution of the closed -shop contract of April 15, 1938, the A. F. of L
boilermakers ' union conferred upon Willkie an honorary membership cird.
IA. F of L. headquarters in Baltimoi e
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I should go there." Fosler further testified to the effect that in
the conversation Nugent indicated that he was acting on orders received
from Garlock that afternoon. Fosler's testimony was not denied and
we find that Nugent made the statements and acted as Fosler testified.
According to the testimony of Lee Baker, who was employed in
the maintenance department and in the labor gang, in the first part
of January 1938, Foreman Adam Gregoski came 'to the storeroom at
the Relay'plant where most of the maintenance employees reported for
work in the morning and told them that he
had just left the chief's office (referring to Daniel Garlock, the
plant superintendent and chief engineer) . . . and that he was
instructed to tell the men that they would have to go in the
A. F. of L. union if they thought anything of their jobs.
Gregoski denied making thin statement. • The Trial Examiner ob-
served in his Intermediate Report that Baker appeared to be a
credible witness while Gregoski was evasive. We find, as did the
Trial Examiner, that Gregoski made the statement above attributed to
him by Baker.
Baker further testified without contradiction and we find that
about January 14, 1938, Mash Foreman James O'Connor, under whose
direction Baker sometimes worked, talked to him about the A. F. of L.
during working hours in the still house and told Baker that if he
"wanted to continue working [he would] have to go in."
Later during the same month, according td the testimony of Baker,
he was instructed by Raymond Wright, millwright foreman, to re-
port to O'Connor in the still house. When Baker reported, he was
told by O'Connor to collect A. F. of L. membership applications and
initiation fees from men working on the night shift in the still house,
take a company automobile, and deliver the applications and money to
Lithuanian Hall, A. F. of L. headquarters in Baltimore. Baker
further testified that, pursuant to these instructions he collected
seven applications and $14 in initiation fees from employees Leppo,
Ray, and others, and, after obtaining permission from Foreman
Wright to use the company car, took the applications and the
money during his working hours to Lithuanian Hall. When Baker
reached the curb outside the Hall, he found Foremen Wright, John-
son, and Gregoski stationed there. One of them unidentified in the
record, stepped forward as Baker emerged from the car, and said :
"Well, I see you arrived, Bake." Baker entered the hall, deposited
the money and applications,, including his own, with an A. F. of L.
representative,, and returned to' the plant. He was not docked in
pay for the time so spent. While in his testimony Wright denied
sending Baker to O'connor, he failed to deny specifically that he
JOSEPH E. SEAGRAM & SON'S!, INC. 1067
gave Baker permission to use the company car for A. F. of L. pur-
poses; and O'Connor, Leppo, and Ray, did not testify. In their
testimony Wright, Johnson, and Gregoski, who were working fore-
men and A. F. of L. members, admitted attending the A. F. of L.
meeting in Baltimore;- they were not interrogated, 'however, with
respect to their presence outside the hall when Baker arrived there
that night. Under these circumstances, we do not credit Wright and
find, as did the Trial Examiner, that Baker's testimony as set forth
above is substantially accurate.
Florence B. Zuck worked in the bottling department at Calvert.
During January 1938, seven lines were running in that department,
each under the supervision of a line leader. About,30 to -40 girls
worked on each line. Zuck testified without contradiction that on
January 18, 1938, after lunch, her line leader, Nellie Forgan, went
"down each line" and told each girl to go to the A. F. of L. meeting
that night and join the union if they thought anything of their
jobs, and that she had been instructed so to advise them at a meet-
ing of foreladies held that day before lunch. May Harding corro-
borated this testimony. She testified that on the morning of January
18, she heard Jack Slusher, foreman of the male employees in the
bottling department, tell Line Leader Erby that there was to be a
meeting of line leaders in the dressing room ; and that all the line
leaders, including Erby, went to this meeting at about 11 a. m. Upon
returning from lunch, Harding and six other girls who had gathered
near her were told by Erby that they were supposed, to join the
A. F. of L. at 1222 St. Paul Street at 8 o'clock that night. This is
not denied. We credit' the testimony of Florence B. Zuck and May
Harding, as did the Trial Examiner, and we find • in conformity
therewith.
A similar round-up of male employees took place on January 18,
1938. William Riedel testified that on the morning of January, 18
his foreman, Charles Weigand, called all the men in one corner of 'the
rectifying building and told them that if they wanted to retain their
jobs they had better join the A. F. of L.' that night. Then he ap-
pointed Riedel to go to the bottling and shipping departments and
get in touch with Hopkins,10 foreman of the bottling department,
and Elmer Wagner, foreman of the shipping department, so that
he could advise the employees in those departments to go to the
A. F. of L. meeting that evening. Acting on these instructions,
Riedel left his work and went to the bottling house, where he asked
Forelady Blanche Watson, supervisor of the line leaders, for per-
mission to speak to the female employees about joining the A. T. of L.
"Hopkins' first name is not disclosed by, the record.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watson told Riedel that she had already been instructed "to that
effect" but that he should come back in the afternoon. When Riedel
returned to his work immediately thereafter, Weigand asked him
how he had "made out." He reported to Weigand that he was sup-
posed to return to the bottling house after lunch. When he returned
to the bottling house and spoke to Watson, she told him to see Line
Leader Forgan. Riedel spoke to Forgan, who advised him that "they
had been instructed they all had to go to the A. F. of L., and she
informed all the,girls." Riedel then went to the shipping depart-
ment, where he spoke to two men who worked under Wagner but,
.Riedel testified, they too had been "instructed" to.join the A. F. of L.
Riedel then went back to work. Weigand denied making the state-
ments attributed to him by Riedel. Neither Watson, Forgan, Hop-
kins, nor Wagner testified. William C. Freburger, who worked with
Reidel under Weigand, corroborated Riedel's testimony respecting
the statements alleged to have been made by Weigand. In view of
the corroboration of Riedel's testimony by Freburger and the positive
character of the testimony of each, we are not persuaded by-Wei-
gand's denials, and find, as did the Trial Examiner, that Weigand
made the statements attributed to him by Riedel and that Riedel's
-activity described above was carried out at Weigand's instructions.
John Meyers, a still-house employee, testified without contradic-
tion, and we find, that about January 17, 1938, his superior, Head
Foreman Steffen," told several night-shift employees as they were
leaving work that "if we thought anything of our jobs we had better
get off and get into the A. F. L." Instead of attending the meeting
on the night of January 18, these employees promptly went to
A. F. of L. headquarters and joined the Relay local. Similar state-
ments were made to employees on or before January 18, 1938, by
Elmer Wagner, head foreman of the shipping department, S. B.
Shaw, head foreman of the labor department, Supervisor Goodwin '12
captain of the guards, and by Gregoski, Johnson, and Wright.
Before and after the meeting of January 18, 1938, notices appeared
on bulletin boards at the Relay plant advertising A. F. of L. meetings.
W. M. -Porter, financial secretary and treasurer of the Relay,local
from August 1936 to January 1939 and the business representative
of the local at the time of the hearing, admitted in his testimony that
he prepared two or three notices for the January 18 meeting and
posted them on the morning of the 18th in the rack house, and that
during the period of his membership in the Relay local and prior
to April 1938, he "put up" a considerable number of notices, without
protest from the management.
n Steffen ' s first name is not disclosed by the record.
11 Goodwin's first name is not disclosed by the record.
JOSEPH E. SIEiAGRAM, & SONS, INC. .1069
Widespread solicitation for members on behalf of the A: F: of L.
also took place in the Relay plant during working hours. Between
January 4 and 18, 1938, the A. F. of L. distributed about 1,000 appli-
cation blanks, many of them in the plant. George Wellschlager, an
A. F. of L. representative of the accounting department, solicited
members for the Relay local during the first 3 months of 1938 in the
office during working hours in the presence of Office Manager N.
Whitmore, and obtained' signed applications from about 75 per cent
of the 45, office employees. Edward Young, another A. F. of -L.
representative of office workers; also solicited memberships in the
office. Porter, who was employed in the maintenance department,
"gave out quite a few applications" during "working time," including
a "handful" to an employee who worked in another department.
Foreman Gregoski saw two or three employees from departments of
the plant other than his own, soliciting memberships in the plant
and he signed an application for ,membership in the Relay local at
their instance.
,There is also evidence that foremen made derogatory statements
about the United shortly after the C. I. O. had distributed literature
at the Relay plant in December 1937. In commenting upon the liter-
ature, according to L. W. Cassell, his superior, Walter Johnson, a
working foreman in charge of the machinists and member of the
A. F. of L., stated that "there never would be a C. I. O. around
here," told Cassell not to joint the C. I. 0., and warned him that he
would lose his job if he joined. Cassell further testified that Adam
Gregoski, a working foreman who had charge of the welders, burners,
and coppersmiths, and member of the A. F. of L., made similar
statements to him on two or three occasions in the latter part of
December 1937-. Johnson and Gregoski denied making such state-
ments. We are not persuaded by their denials and find that John-
son and Gregoski made the statements attributed to them by Cassell.
In addition, foremen were active on behalf of the Relay local
after January 18. Lester Arnold, a still-house employee, testified
without contradiction, and we find, that about January 24, his
superior, Foreman Chris Loper, told a group of four or five em-
ployees, including Arnold, as they were going on shift, "Well boys,
you have a limited time to join the A. F. of L., so you better go
up, and pay your dues." Kenneth Elliott, a warehouse employee,
testified that he joined the Relay local on January 24, 1938, shortly
after he heard his foreman, Joseph Wunder, tell a gang of warehouse
employees who were awaiting orders at the time that "if we thought
anything of our jobs . . . to go down to the [A. F. of L.] union
meeting at Lithuanian Hall . . . and join the A. F. of L." The
statement attributed to Wunder was not denied and we find that he
made it.
1070. DECISIONS " OF NATIONAL LABOR RELATIONS BOARD
• In the latter part of December 1 937 word had circulated through
the Relay plant that the existing management would be replaced
and beginning in the early part of January 1938 a rumor spread that
the new management , intended to supplant current employees with
college men. Edwin , M. Fleischman , the president of Calvert , called
a meeting of about 25 supervisors about 2 o'clock on January 18,
1938, and announced the retirement of -the existing management,
including Fleischman , Vice-President Herman, and Garlock. That
night about 500 Calvert employees attended the meeting at A. F. of
L: headquarters in Baltimore and joined the Relay local. At the
hearing many of Ahem testified that they joined the Relay local
to protect themselves against replacement by college men and that
they did not fear discharge at the hands of -the supervisors at whose
instance they affiliated with the Relay local.
C. Conclusions
As described ,above, foremen and foreladies took part in the mem-
bership drive of the Relay local in January 1938. Although super-
visory employees are eligible to membership in a labor organization,
the Act forbids them, in their capacity as the employer's agents, to
interfere in the selection of employee bargaining representatives.
We are satisfied from the record , however, that the foremen and fore-
ladies did not aid in the enlistment of A. F . of L. members as agents
of the respondents and that the employees did not regard them, in
so doing, as acting in such capacity. As we have noted above, with
the initiation of the , organizational drive of the Relay local in
July 1936,-the respondents opposed the A. F. of L. Discharges and
the establishment of an employee representation plan were followed
by .a strike, picketing, and a boycott of the respondents' products;
and in August 1937, the. Board, in a proceeding based on charges
preferred ' by the A. F. of L., found that the discharges were dis-
criminatory , and among other things , ordered the disestablishment
of the employee representation plan. In May 1937, after the Trial
Examiner had issued his Intermediate Report in the prior case
recommending disestablishment of the employee representation -plan,
an employees ' association came into being and obtained from Calvert
a 1-year contract containing a check-off provision . At the Lawrence-
burg plant , where the A. F. of L. initiated organizational activity
in the summer of 1937, employees belonging to the A. F. of L. con-
ducted an unauthorized strike in September to protest against em-
ployer interference with self -organization ; alleged discriminatory dis-
charges occurred in November and December 1937; in the early part
of January 1938, the A.'F. of L. struck the plant and picketed; after
the Lawrenceburg plant manager , on January 22, 1938, refused to
JOSEPH E. SEAGRAM & SONS, INC. 1071
meet with A. F. of L. representatives to negotiate a contract, the
A.Y. of L. renewed its boycott and, in February 1938, filed charges
that Seagram had engaged in unfair labor practices within the mean-
ing of Section 8 (1), (3), and (5) of- the Act. Similarly, at the
Louisville plant, an inside organization functioned during 1937. and in
the latter part of that year an A. F. of L. central body in Louis-
ville instituted a boycott against Seagram products. Furthermore,
beginning in the early part of January 1938, a rumor to the effect
that an incoming new management planned to replace the employees
with college-trained persons spread at the Relay plant, and about
January 18, 1938, the president of Calvert announced his retirement
and that of other-' plant officials. Moreover, the slight degree of
C. I. 0. activity at the Relay plant in January 1938 does not con-
vince us that it provided a motivation for employer favoritism toward
the A. F. of L.13 Rather, we believe, as the respondents, and the
A. F. of L. contend, that the supervisory employees who joined the
Relay local and participated in its organizational drive at the Relay
plant, were motivated in -engaging in such conduct solely by a desire
to obtain protection against the new management's supposed favor-
itism for college-trained employees and that the employees who joined
at the behest of the supervisors, were likewise so motivated. Since
the employees knew of the prospective change in management, it is
not unlikely that they anticipated the retirement of Superintendent
Garlock and that they, therefore,,no longer regarded Garlock as a
genuine spokesman for management.
While we normally hold an employer responsible for conduct of
supervisory employees of the character involved herein, we think
that the Relay employees did not regard the activities of the super-
visors, taken in their setting, as a reflection of the'wishes of manage-
ment, and that the respondents did not interfere with, restrain, or
coerce the employees in their choice of representatives. We so find.
We further find that- the Relay local was not assisted by any action
of the respondents defined in the Act as or constituting thereunder
an unfair labor practice.
The record establishes, as the respondents maintain, that the re-
spondents discharged the nine employees listed in the' complaint in
performance of the terms and conditions of the closed-shop contract.
However, the requirement of membership, in a particular labor or-
ganization as a condition of employment constitutes an unfair labor
practice within the meaning of Section'8 (1) and (3) of the Act unless
the imposition and enforcement of the condition are excused by the
"In this connection , it is important to note , that the United filed a petition under
Section 9 (c) of 'the Act with respect to the Relay plant on September 10, 1938, and
that the United apparently did not consider these actibities at the Relay plant as unfair
labor practices until December 29, 1938, when it first filed such charges in this proceeding.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proviso clause of Section 8 (3). Accordingly we must inquire whether
the respondents, in carrying out the terms and conditions of the closed-
shop contract with the A. F. of L., proceeded within the framework of
immunity-afforded by the proviso clause. The proviso to Section 8 (3)
of the Act permits an employer to make an agreement requiring mem-
bership in a labor organization if that labor organization has not been
established, maintained, or assisted by any action defined in the Act as
an unfair labor practice and if such labor organization is the represent-
ative of a majority of the employees in the appropriate bargaining unit
covered by such agreement when made. The complaint alleged that
the closed-shop contract was invalid because the A. F. of L. was as-
sisted by unfair labor practices of the respondents which we found
above was not sustained. The complaint did not allege that the
A. F. of L. did not represent a majority of the employees in the
appropriate bargaining unit at the time of the making of the closed-
shop contract. We find therefore that the closed-shop contract with
the A. F. of L., dated April 15, 1938, and its renewal fall within the
proviso clause of Section 8 (3) of the Act. • We further find that by
discharging the nine employees listed in the complaint in performance
of the terms and provisions of the contract, the respondents did not
discriminate in regard to their hire and tenure of employment within
the meaning of Section 8 (3) of the Act. We will therefore dismiss the
complaint in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLIISIONS OF LAW
1. The American Federation of Labor, the Distillery Workers' Local
Unions Nos. 20270, 21449, and 21635, each, respectfully, affiliated with
the American Federation of Labor, and American Federation of
Distillery, Rectifying and Wine Workers, National Council, affiliated
with the American Federation of Labor, and United Distillery Workers
LIU #914, affiliated with the Congress of Industrial Organizations,
are labor organizations within the meaning of Section 2 (5) of the Act.
2. The operations of the respondents, Joseph E. Seagram & Sons,
Inc., and Calvert Distilling Company, occur in commerce within the
meaning of Section 2 (6) of the Act.
3. The respondents, have not interfered with, restrained, or coerced
their employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
4. The respondents have not discriminated in regard to hire and
tenure of employment or any term or condition of employment, within
the meaning of Section 8 (3) of the Act.
JOSEPH E. SEiAG1AM & SONS, INC. 1073
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the complaint'
against Joseph E. Seagram & Sons, Inc., and Calvert Distilling Com
pany, be, and it hereby is, dismissed.
MR. EDWIN S. SMITH , dissenting :
I dissent from the decision to dismiss this complaint. The major-
ity opinion finds that the respondents' supervisory employees openly
engaged in solicitation in behalf of the A. F. of L., that employees
were herded into membership in the Relay local by the warnings
and threats of their supervisors, and that management representa-
tives, without restraint by the respondents, made plain to the work-
ers that their continued employment could be insured only through
their affiliation with the A. F. of L. I concur in these findings.
Upon such findings, however, to conclude, as the majority does, that
the respondents did not interfere with their employees' freedom of
self-organization seems to me without warrant either in the facts or
the law.
The activities of supervisory employees, as fully disclosed in the
majority opinion, are of a character which both the Board and the
courts have consistently proscribed as violative of the Act and de-
structive of the employees' right to a free choice of representatives 14
To hold that the supervisory employees were not acting in their ca-
pacity as management representatives and that the employees gen-
erally understood that their supervisors had assumed the role of
fellow employees and equals requires, in my opinion, both a distortion
-of the plain evidence in the record and the equally plain realities of
employer-employee relationships. The majority finds that the em-
ployees had knowledge that the ranking management of the Relay
plant was being displaced and that therefore the activities of all the
supervisory staff could not be considered coercive ; that the employees
were impelled to join the A. F. of L. not by their supervisors, but
by a rumor to the effect that the new management intended to sup-
plant current employees with college graduates. The record, I be-
lieve, warrants no such conclusion. The evidence shows that the
14 See International Association of Machinists , et al v. National Labor Relations Board,
311 U. S. 72, aff'g 110 F. (2d) 29 (App D. C ), enf'g Matter of The Serrick Corporation
and International Union, United Automobile Workers of America , Local No. 459, 8 N. L.
R B 621 ; National Labor Relations Board v Link-Belt Co , 311 U S 584. rev'g 110 F (2d)
506 (C. C. A. 7) and enf'g Matter of Link Belt Company and Lodge 1604 of Amalgamated
Association of Iron, Steel and Tin Workers of North America, through the Steel 'Workers
Organizing Committee affiliated with the Committee for Industrial Organization, 12
N. L. R. B. 854.
1074 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
rumor of a change in management had been initiated in the latter
part of December 1937 and the rumored plan to use college-trained
persons as replacements had come to the attention of the employees
in the •forepart of January 1938. Although the Relay local had
started an intensive drive for members on January 4, not a single
employee was recruited as a member until January 17 or 18. It is
unlikely-that the great mass of production workers, including such
employees as bottlers and common laborers, feared replacement by
college-trained people, and it is significant that the Relay employees
flocked to join the A. F. of L. only after-the supervisors had inter-
vened. Indeed, the far-reaching consequences of the activities of
the supervisors can plainly be seen by a comparison of attendance
of Calvert employees at meetings of the Relay local on January 4
and January 18. Only 5 employees attended the January 4 meeting.
On the night of January 18, however, approximately 500 Calvert
employees crowded the Baltimore meeting hall of the A. F. of L. and
joined the Relay local. Accordingly, the existence of the rumor
played no substantial part in inducing the employees to join the
Relay local. Even if it be assumed, moreover, that the prospective
change in management induced a belief in the minds of the employees
that their jobs were thereby jeopardized and that they thereupon
searched for some means of protecting their jobs, these facts or infer-
ences do not absolve the respondents from the coercive effect of the
statements and conduct of the supervisory employees. While the
rumor of the intention to hire college men may have stimulated the
desire of the employees to join the A. F. of L., the statements and
conduct of management representatives were plainly coercive to the
same end. In view of the coercive conduct of the respondents' su-
pervisors, it is immaterial that other factors played a part in induc-
ing the employees to take the same course of action.15
The reasoning advanced by the majority in reaching its conclusions
seems to me both insubstantial and disingenuous. Moreover,' it
affords a dangerous precedent whereby the Board seeks to read the
minds of employees in order to discover whether the acts and words
of supervisors are more likely to be interpreted by employees as per-
sonal or official. The step here taken by the majority of the Board
opens the road to future exploration of highly speculative inferences
rather than continued acceptance of the now firmly established prin-
ciple that indications by the employer to his employees as to what
their choice of a labor organization should be are a clear interference
with self-organization. This legal principle is not to be dissipated
by a supposed haziness in the employee's mind in the given situation
as to whether the supervisory cloak has been shed and the man rather
11 See National Labo Relations Boa) d Y. Link-Belt Co, 311 U. S. 584
JOSEPH Fa. SEIAGRAM & SIONSl, INC. 1 1075
than the supervisor is the speaker. Certainly, where the interference
takes place in the working place, is indulged in by numerous super-
visors in no uncertain fashion, as in the present case, for the Board
to find that the employees would hold that such interference was not
managerial in its character but rather individual, seems to me pre-
posterous. I would find, that the respondents, by the activities of
supervisory employees, as set forth in the majority opinion, interfered
with, restrained, and coerced the employees at the Relay plant in
the exercise of the rights guaranteed in Section 7 of the Act and that
the respondents thereby aided, promoted, and assisted the Relay local
of the A. F. of L.
The respondents and the A. F. of L. have advanced the contention
that a closed-shop contract made with an employer-assisted labor
organization may operate under the proviso clause of Section 8 (3)
of the Act as a defense to otherwise discriminatory discharges, pro-
vided that the assistance accorded the labor organization had no effect
upon the acquisition of the majority representation by such labor
organization. In this connection the A. F. of L. sought to show that
it represented a sufficient number of 'employees at the Lawrenceburg
and Louisville plants 16 to confer upon it majority status with respect
to the three plants even if all A. F. of L. adherents at the Relay
plant be excluded from the .1 7 The position urged is un-
tenable. Since the respondents interfered with, restrained, and
coerced the Relay employees in the exercise of the rights of self-
organization and since the membership of the Relay local is attrib-
utable to the respondents' unfair labor practices, the closed-shop
contract was made with a labor organization assisted by action de-
fined in the Act as an unfair labor practice. The effect or extent of
the assistance upon the majority status of the A. F. of L. is clearly
not relevant in considering whether the- closed-shop contract was
.made with an unlawfully assisted union. Since the A. F. of L. was
assisted by the respondents' unfair labor practices, I would accord-
ingly find that by making the closed-shop contract with the A.,F. of
L., the respondents did not proceed within the framework of
immunity afforded by the proviso clause of Section 8 (3) of the Act
and that the discharges which were made pursuant to the contract
were discriminatory. I would issue an appropriate order invali-
dating the original contract and the renewal thereof, and reinstating
the employees discriminated against with back pay.
11 The complaint contains no allegation that the respondents engaged in any unfair labor
practices at the Lawrenceburg or Louisville plants
17 A review of the evidence shows that the A. F. of L. did not in fact have such majority.
I assume, however, for the purposes of this opinion, that the A. F. of L. represented a
majority of the employees in the appropriate collective bargaining unit covered by the
closed-shop contract when made.
448692-42-vol 32--09