Medley Distilling Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 18, 1971192 N.L.R.B. 755 (N.L.R.B. 1971) Copy Citation MEDLEY DISTILLING CO. 755 Medley Distilling Company, Inc. and Distillery, Recti- fying; Wine and Allied Workers, International Un- ion of America, AFL-CIO. Case 25-.CA-3935 August 18, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On April 27, 1971, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain .affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommend- ed that those allegations of the ' complaint be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a, supporting brief, and the General Counsel and Charging Party filed cross-exceptions and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner"s Decision, the exceptions , cross-excep- tions and briefs, and the entire record in Ythe case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER charge filed on September 8, 1970 . The complaint alleges that Medley Distilling Company, Inc., herein called Respondent, (1) ordered its employees at its facility involved herein on April 27, 1970, to stop and refrain from talking about Distillery, Rectifying, Wine and Allied Workers , International Union of America, AFL-CIO, herein called the Union, in violation of Section 8(aXl) of the Act; and (2) for union-connected reasons and because of their filing charges against Respondent , or giving testimony under the Act, (a) refused employee Wendell Bennett,' about the second week in March 1970, the privilege of crediting his accumulated vacation to a period of sick leave which he had taken , although it has extended the same privilege to others, and (b) transferred employee Joseph C. Trodglen on August 10, 1970 , to a less desirable, lower rated and lower paid job, ally in violation of Section 8(aX ), (4), and (1) of the Act. Respondent 's answer denies has violated the Act in any respect alleged herein. U n the entire record, including my observation of the witnesses and their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel, the Union, and Respondent, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OP RESPONDENT The complaint alleges, and Respondent admits, that it is a Kentucky corporation engaged in the business of distilling, storing, selling, and distributing alcoholic spirits and has its principal offices and place of business at its Owensboro, Kentucky, facility; that during the 12-month period antedating the complaint, which period is represent- ative of all times material herein, it manufactured, sold, and shipped from this facility to points outside Kentucky finished products valued in excess of $50,000; and that, during the same period , it made purchases of-goods and materials valued in excess of $50,000, which, were trans ported and delivered to it from points outside-Kentucky. I find, upon the foregoing, as Respondent also admits, that Respondent is engaged in commerce within the meaning of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Medley _Distill ing Company, Inc., Owensboro, Kentucky, its officers , agents, successors, and assigns, shall take the act'gn set forth in the Trial Examiner's recommended. Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY-H. Kusxnr, Trial Examiner : This proceeding was heard at Owensboro , Kentucky, on February 2,1971. The complaint herein issued on October 30, 1970, based on a if. THE LABOR ORGANIZATION INVOLVED Respondent further admits, and I find , that Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The period spanned by the unfair labor practices alleged herein dates from tllee second week in Match 1970 to August 10, 1970. Just prior to this period, namely, on January 13 through 16, and on February 2 and 3, 1970, a hearing was held before Trial Examiner Thomas A. Ricci on a consolidated complaint against Respondent involving r The complaint has misspelled the first name as Wendell. 192 NLRB No. 113 756 DECISIONS OF NATIONAL LABOR , RELATIQNS BOARD this facility, in" Cases 25-CA--3452, 25-CA-3516, and' 25--RC-4113. The first two mentioned cases derived • from charges on July 22 and September 19, 1969, respectively, while the last mentioned case was concerned with,the objections filed by the Union to a Board-conducted election on August 28, 1969, among the production and maintenance employees at this facility which the Union lost, and as to which objections the Regional Director for Region 25 had ordered a hearing. The three employees called by the General Counsel as witnesses at the instant hearing, Joseph C. Trodglen, Wendell Bennett, and John Carroll, testified in the earlier proceeding on behalf `of the General Counsel. That proceeding resulted in a decision by Trial Examiner Ricci on April 21, 1970, in which he found that Respondent (1) had refused to bargain collectively with the Union in violation of Section 8(a)(5); (2) had discharged two employees in violation of Section 8(a)(3); and (3) had made coercive threats to its employees, interrogated them, made promises of benefits of them, spied upon them and told them that agents of management are surveying their union activities, and established a no- distribution and no-solicitation rule for the purpose of interfering with self-organizational activities-all in viola- tion of Section 8(a)(1) of the Act., On December 8, 1970, about 4 months after the period of the unfair labor practices alleged herein,, the Board issued its decision in 187 NLRB No. 12, in which it adopted all the ultimate unfair labor practice findings of the Trial Examiner, made two additional ' 8(a)(l) findings,, and ordered that; ,the election held on Case 25-RC-4113 be set aside. In the course of entering a bargaining order, which the Trial Examiner had predicated on Respondent's violation of Section 8(aX5) of the Act, the., Board said, " In response to the Union's organization efforts . . . the Respondent engaged in extensive violations of Section 8(axl) and discharged two employees in violation of Section 8(a)(3). Respondent's course of unlawful conduct has demonstrat- ed, we believe, a propensity to engage in violations of the Act by their nature designed to undermine the Union's support among the employees. Its unfair labor practices were so flagrant and coercive in nature as to require, even in the absence of a Section 8(aX5) violation, a bargaining order to repair their effect. But we find, in any event, that Respondent's unfair labor practices -were of such a pervasive character as to make it unlikely that their coercive -effects would be neutralized by conventional remedies so as to produce a fair election." As already noted, the last day of the hearing in the prior proceeding was February 3, 1970, and the unfair labor practices alleged herein date from the second week in March 1970. There is testimony by employee Carroll in the instant proceeding that, during the interval, Foreman Zarn spoke to him twice on the matter of talking union in the plant. Although what occurred antedated the 6-month period before the filing of the charge, herein on September 8, 100, and was not made, and could not be made, consistently with Section 10(b) of the Act, the basis of unfair labor practice charges, the testimony of Carroll 2 See Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Co.) v. N.LR.B., 362 U .S. 411, in which the Supreme Court pointed out that "earlier events may be utilized to shed thereon, if credited, is nevertheless available _tothe General Counsel as background to,ethe events occurringduring the statutory limitation period.2 According to Carroll,, Zarn approached him on a night shift during the third week in February, while he was in the paint house washing his brush and changing paint, and said, "John I wish you would stop this union talk . every time you do this it gets me in hot water . . . you're getting me in between in the middle." At_ this, he sought to assure Zarn that he was not talking union and said that. -"as, far as we are concerned, this thing is over with until we hear something final from the National Labor Relations Board." Also according,to Carroll, ,Zara approached employees Billy Thomas, Bill McCoy, ,Joseph Evans, and him n, 4, night shift around the first of March, while they were= on a break, and said that he,,Zarn, "had been told by the Company to keep the pressure on Billy Thomas and [him I,", adding that he, Zarn, had been called back to the plant from his vacation during the'last year and told by Joel High, the vice president and assistant, manager of Respondent, to stop Thomas and him from "talking or participating in any type of union activities at all." With respect to the_ above, Zarn admitted that he had warned _Carroll and ,others under his supervision several .times on the subject, of talking to people other than painters while: at, work, but denied that he had occasion since the " prior hearing to tell any employee to stop talking union. I note,` however, that ?earn did not specifically" refer to the above "iepisodes testified to by Carroll, nor did he specifically deny Carroll's testimony' to the effect that'he, Zarn, admitted-on both occasions that management was pressuring him to'put an end to any further talk concerning the Union by the painters under his supervision and, that, during the second episode, he named Carroll and Thomas as the ones he was to pressure. Accordingly, in light of the above,, and as Carroll impressed me as a more reliable witness than Zarn, I credit Carroll-and find,that Zarn made all the above remarks attributed to^him by Carroll. B. ' The Alleged , Violation of Section 8(a)(1) Carroll testified as follows concerning the setting and substance of three conversations between Zarn and him, which Zarn initiated : Thomas and he were painting new window frames at'tlwsouth end of "C" warehouse on April 27, when employee Frank Montgomery of the yard crew approached them and engaged ,them in conversation about the job they , were then doing. At this 'juncture, Jerry Koonce,3 the superintendent of the bottling house and the son-in-law of John Medley, the personnel director, walked by and looked in their direction. Shortly thereafter, Koonce engaged Zarn in conversation in the corner of °"C" warehouse. From there , Zarn approached him and said, "John, I warned you and warned you about stopping people, calling them off their jobs and 'talking about union" When he protested that he did not know what Zarn was talking about , Zarn ' informed him of having learned from Koonce that he had called-Montgomery over to his work station and had a ,conversation. To his,answer light on the true character of matters' occurring within the limitation period:' See also Axelson Manufacturing Company, 88 NLRB 761,-766. 3 The name is spelled Kuntz in the priorproceeding. MEDLEY DISTILLING CO. that Montgomery had come over on his own, Zam replied, "Well, you've been warned over and over about union activities"; and to his further reply that Montgomery and he had not said anything about union activities but were talking about painting the windows, Zarn asked him, "how long have you -been, employed here?" and when he answered that he had been there almost 10 years, Zam continued with, "I hate to have to fire someone that's been employed here that long" The next conversation occurred the following morning and dealt with the above episode. At that time, Zam approached Thomas and him, while they were doing some -painting in the dryhouse and said to him, "John, don't let 'them catch you all goofing off like you were yesterday!' He again entered his denial but Zarn did not believe him, pointing out that such conduct put him, Zarn, in' the middle -between management and the employees, with the, result that he was getting blamed and he had to blame them in turn. When he mentioned that Zam should have asked him before taking Koonce's word for what had occurred, Zara, replied, "I'm tired. I warned you the last time. Don't let it happen again." The next conversation occurred around 12:30 p.m. in the paint house. Prior, thereto, about 11:45 a.m., Thomas and he were on their way back to work, after having gotten a drink of water, and came upon employee George Blandford as he was taking some readings from controls on a panel board. He pinched Blandford on the elbow, said "how are you," and proceeded on Copy with citationCopy as parenthetical citation