Morand Brothers Beverage Co., et al.

National Labor Relations Board - Board Decisions

Sep 25, 1950

91 N.L.R.B. 409 (N.L.R.B. 1950)

In the Matter Of MORAND BROTHERS BEVERAGE CO., ET AL. and DIS-
TILLERY, RECTIFYING AND WINE WORKERS INTERNATIONAL UNION
OF AMERICA , A. F. L.
Case No. 13-CA-250.Decided September 25, 1950
DECISION AND ORDER
On September 21, 1949, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled, proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the Act,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Respondents filed exceptions to the In-
termediate Report and a supporting brief. Briefs were also filed by
the Union ' and the General Counsel in support of the Intermediate
Report, and by the National Beer Wholesalers Association?
All parties participated in oral argument before the Board on
March 9, 1950.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed 2 The
rulings. are hereby affirmed. The Board has considered the Inter-
1 The Association was granted leave by the Board to file a brief amicus curiae.
The Respondents except to the action of the Trial Examiner in sustaining the General
Counsel's motion to strike paragraph 9 of the amended answer, which alleged that Local 62
of the Union had unlawfully restrained and coerced the Respondents in the selection of
their bargaining representative by seeking to negotiate individual contracts with each of
the Respondents , contrary to the previous practice of association -wide bargaining, and by
calling a strike against Old Rose. We find that the Examiner 's ruling was not prejudicial,
inasmuch as the contention set forth in paragraph 9 of the amended answer was , in fact,
considered on its merits in the Intermediate Report, and is likewise considered on its merits
in this Decision and Order . Moreover , except as noted below , the Respondents were per-
mitted to adduce evidence in support of the allegations stricken from the amended answer
by the Examiner.
The Respondents except, also , to the Trial Examiner 's rejection of offers of proof relating
to the history of bargaining between Local 62 of , the Union , on the one hand, and the
Illinois Wholesale Liquor Dealers Association and the Chicago Wholesale Liquor Dealers
Association ( hereinafter called the Associations), acting for the Respondents , on the other
hand. We find , however, that the Respondents were not prejudiced by the Trial Examiner's
rulings, as considerable evidence was, in fact , received relative to this bargaining history,
and the rejected evidence was in essence merely cumulative . In any event , the Intermediate
Report contains comprehensive findings concerning this bargaining history which are con-
sistent both with the evidence in the record and the offers of proof.
91 NLRB No. 58.
409
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the briefs and exceptions, the contentions advanced
at oral argument, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Ex-
aminer, with the following additions and modifications :
We find, in agreement with the Examiner, that since 1943 Local 62
of the Union had bargained with the Respondents on behalf of their
salesmen , through a joint negotiating committee consisting of repre-
sentatives of the Local on the one hand, and representatives of both
Associations, on the other. On March 16, 1949, after unsuccessful
negotiations in the joint committee for a new contract, the Local sent
directly to each of the Respondents for signature a proposed contract
embodying the same terms as had been rejected by the representatives
of the Associations in the joint committee. This contract was not
accepted by any of the Respondents. The joint negotiations were
thereafter resumed, but on April 6, 1949, after an impasse was reached,
the Local called a strike limited to the salesmen of Old Rose Distrib-
uting Co., one of the Respondents.
On the next day, April 7, 1949, although none but Old Rose had
been struck, every Respondent sent to its respective salesmen a letter,
reading in pertinent part as follows :
A strike against one house or small group of houses is not just
a strike against one individual wholesaler, but it is a strike against
our house and all the other wholesalers in Chicago. If we per-
mitted the Union to do this, it would be merely a question of time
until each house would be compelled to sign this unfair contract
[requested by Local 62] or to close its business doors . . . since
the salesmen of your Union walked out on one of these houses it
is our position that you have decided to strike every wholesaler
who has been a party to the industry-wide negotiations.
Accordingly, we ask you to turn over to us immediately any
records, papers, credentials, or monies that you have belonging
to us, and come and see us immediately so that we may settle the
financial differences that exist to date between us.
After receipt of this letter, many of the Respondents' salesmen,
construing the letter as a notice of discharge, failed to report for work.
Others reported for work but were told by their employers that they
were discharged, and they were not permitted to work.
In view of all these circumstances, we find that the Respondents.
discharged 3 their salesmen on or about April 8, 1949. Accordingly,
8 We disagree with the contention in the arniens brief , and the view of our dissenting col-
league, that the letter of April 7 was intended merely as a notice of layoff pending settle-
ment of the Respondents ' dispute with Local 62 . We agree with the General Counsel that
that contention is not supported by the record, and it is , in fact, contrary to statements in
the Respondents ' brief to the Trial Examiner , characterizing the action of the Respondents
as a discharge of their salesmen , and contrary to the testimony of the president of Old Rose
that the purpose of the April 7 letter was to "dismiss " the salesmen.
MORAND BROTHERS. BEVERAGE1 CO., ET AL. 411
it is not necessary to pass on the question whether the Respondents
were privileged to lay off their salesmen pending settlement of the
contract dispute with the Local.
The Board and the courts have held that- discharges, whether of
individuals or groups of individuals, to combat or discourage concerted
activities of employees,4 are unlawful.
As to the Old Rose strikers, their discharge could have, had no pur-
pose other than to punish them for striking, and -was reasonably cal-
culated to deter them, as well as other employees of Old Rose, from
engaging in any future strike activity. Reprisals against employees
for strike activity have been uniformly held by the Board and the
courts to be unlawful.5
We find, therefore, in accordance with the General Counsel's con-
tention, and in agreement with the Trial Examiner, that the Old Rose
strikers were unlawfully discharged, in violation of Section 8 (a) (1)
and (3) of the Act. . .
As to the salesmen of the other Respondents, they were discharged
as stated in the letter of April 7, because in the opinion of such Re-
spondents they had decided to strike. Viewed as a measure of reprisal
against these salesmen for threatening to strike, or as a reprisal against
them for the strike by members of the same union against Old Rose,
their discharge is unlawful for essentially the same reasons as was
the discharge of the Old Rose salesmen.
The Respondents contend, however, that, at least insofar as the
discharges of the nonstriking salesmen are involved, the instant case
is distinguishable from the ordinary case of a discharge to discourage
concerted activity; they assert that the action of April 7, with respect
to these salesmen was not intended to undermine the Local, or as a
measure of reprisal for concerted activity, but was "a purely defensive"
measure necessary to protect the Respondents' bargaining position
vis-a-vis the Local. Citing the Examiner's finding that the Local
intended to strike other Respondents if the Old Rose strike was suc-
cessful, the Respondents allege in their brief that no Respondent,
standing alone, could withstand the pressure of this piecemeal strike
strategy, and that in this sense a strike against one Respondent was a
N. L. R. B. v. Electric Vacuum Cleaner Co., Inc., 315 U. S. 685,693; N. L. R. B v.
Piedmont Cotton Mills , 179 F. 2d 345 ( C. A. 5, Jan . 30, 1950 ), enfg . as mod ., 79 NLRB
1218; N. L. R. B. v. Cape County Milling Co., 140 F. 2d 543, 545 (C. A. 8) ; N. L. R. B. v.
Hopwood Retinning Co., 98 F. 2d 97, 100 (C. A. 2) ; Scott Paper Box Company, 81 NLRB
535, 544 ; M. M. Jo flee Company, 74 NLRB 1568 ; N. L. R. B. v. Algoma Net Co., 124 F. 2d 730
(C. A. 7).
,I N. L. R. B. v. Mackay Radio d Telegraph Co., 304 U. S. 333 , 346-7; Moanalua Dairy,
Limited, 65 NLRB 714, 717 ; Carter Carburetor Corp. v. N. L. R . B., 140 F. 2d 714, 718
( C. A. 8) ; N. L. R. B. v . Barrett Co ., 135 F. 2d 959 ( C. A. 7).
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike against all.° However, assuming the truth of these assertions,
the Respondents' contention amounts only to this while an employer
may not discharge his employees for the purpose of undermining
their union, or in reprisal for concerted activity, he is justified in
taking any "economic action" necessary to counteract economic action
by a union. The General Counsel contends that there is no basis in
the Act for this distinction.7 We agree.
In our opinion, the Act does not permit a discharge to reduce, by'
anticipatory action, the effectiveness of an expected strike by a labor
organization." The Board has held, with judicial approval, that an
employer's economic interest in preventing a strike does not justify
him in engaging in conduct of the type proscribed by the Act .9 The
fact that the expected strike may be so timed or so directed as to
place severe economic pressure on the employer does not, in our judg-
ment, remove the strikers from the protection of the Act. Strike
activity, actual or threatened, is concerted activity, and concerted
activity does not cease to be protected merely because it is, or may be,
effective, or because it subjects the employer to economic hardship 1°
Any other view would not only be in derogation of the right of em-
ployees to,engage in concerted activities, but would also conflict with
the express policy of the Act to minimize industrial strife-as the
present case strikingly attests. Thus, if in the instant case we accepted
the Respondents' view, or that of our dissenting colleague, we would
be required to hold that a strike against one Respondent (Old Rose),
directly involving only about 60 of its employees, justified the other
34 Respondents in discharging about '700 of their employees, even
though they had not participated in the strike but had, in fact, re-
mained at work.
9 Obviously, the Old Rose strike was not a "strike" against the other Respondents within
the accepted meaning of the term, as there was no concerted cessation of work by the
employees of the other Respondents . To hold that employees in a multiemployer unit who
remain at work may be treated as strikers , solely because of a strike by other employees,
would involve the introduction of a new concept in labor relations-i. e., the vicarious or con-
structive strike. We know of no legislative or other warrant for introducing such a
concept. _
4 The General Counsel, in his brief, aptly characterizes this "economic action" argument
of the Respondents as a contention that "the use of economic strength necessarily implies
legal immunity."
8 In Duluth Bottling Association, 48 NLRB 1335, where a temporary shutdown by an
employer in the face of a strike threat was found to be lawful , the Board was careful to
point out that the shutdown was "intended solely to protect the respondents' property,"
and not "to interfere with or discourage union activity or to minimize the effectiveness" of
the threatened strike.
9 N. L. R. B. v. Star Publishing Co., 97 F. 2d 465, 470 (discriminatory transfers ) ; Good-
year Tire & Rubber Company of Alabama , 21 NLRB 306, 371 (discriminatory discharges) ;
Ward Baking Company, 8 NLRB 558, 567; Humble Oil & Refining Co., 16 NLRB 112,
113-1'20. Cf. Leugel-Fencil Company , 8 NLRB 988 , which is distinguishable on the facts.
so See N. L. R . B. v. National Broadcasting Co., Inc., 150 F. 2d 895, 900 (C. A. 2, 1945),
and cases there cited.
MORAND, BROTHERS BEVERAGE CO., ET AL. 413
As stated in the brief filed on behalf of the General Counsel in
support of the Intermediate Report :
In this case, the effect of granting immunity to the discrimina-
tory lock-out by 34 employers, in reprisal against the strike
against a 35th employer, would be to multiply the obstruction
to commerce. It would set a sweeping precedent for the con-
version of any single employer's dispute into an association-wide
or industry-wide dispute. An isolated skirmish would become a
civil war.
Furthermore, adoption of the Respondents' view, or that of our
dissenting colleague, would lead to other consequences clearly at
variance with the policy of the Act. If, as is contended, the Old
Rose strike justified the discharges in this case only because of the
peculiar effectiveness of the piecemeal strike strategy of the Local,
the same justification would presumably not have existed if the Local
had chosen to strike all 35 Respondents simultaneously. The logical
corollary of the Respondents' position is, therefore, that a union
seeking to negotiate a contract with a group of employers, however
large, must strike all or none. If it strikes less than all, its members
will be deprived of the protection of the Act; if it strikes all, they
will be protected. We cannot give such an incongruous construction,
to an Act designed to minimize industrial strife.
We find, therefore, in agreement with the Trial Examiner, and
in accordance with the position of the General Counsel, that all the
Respondents on or about April 8, 1949, discharged their salesmen, in
violation of Section 8 (a) (1) and (3) of the Act.
Defenses based on alleged violations of Section 8 (b) (1) (B) and
8 (b) (3)
The Respondents and our dissenting colleague contend that the
salesmen forfeited the protection of the Act because the Old Rose
strike and other conduct of the Local allegedly violated Section
8 (b) (1) (B) and S (b) (3) of the Act. It is true, of course, as
the General Counsel contends, that no complaint has been issued by
the General Counsel alleging such violations, but we agree with the
Respondents that this fact alone should not deprive them of the
opportunity to have their affirmative defenses considered on the merits
by the Board.
Section 8 (b) (1) (B)
The Respondents contend that the conduct of the Local, in seeking
separate negotiations with Old Rose, violated Section 8 (b) (1) (B)
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
of the Act, which makes it an unfair labor practice for a union or its
agents "to restrain or coerce an employer in the selection of his repre-
sentative for the purposes of collective bargaining. ..."
It is asserted that the employer representatives on the joint nego-
tiating committee had been designated by Old Rose as its bargaining
representatives, and that the purpose and effect of the strike against
Old Rose was to coerce Old Rose, in violation of Section 8 (b) (1) (B),
to bargain directly rather than through its designated representatives.
The General Counsel contends that there was not, in fact, any refusal
by the Local to meet with an agent of any of the Respondents.
The evidence indicates only that prior to the strike the Associations
had bargained for Old Rose and the other Respondents on an asso-
^ciation-wide basis ; that on April 6, after the collapse of these nego-
tiations, the Local called the strike against Old Rose ; that on the
following day the Local proposed to Frank, president of Old Rose,
that he enter into negotiations for a separate contract; that Frank
reserved decision on this proposal ; and that on the same day the dis-
charge letters were sent out to all the salesmen, including the strikers.
Section 8 (b) (1) (B) of the Act would have been violated, in our
opinion, if the Local had coerced any Respondent to designate, as its
agent to deal with the Local for a particular purpose, a representative
other than the one already selected or desired by such Respondent for
that purpose.
In this 'case, while it is clear that Old Rose had at the time of the
:strike designated the Associations to represent it in association-wide
bargaining, there is no evidence that Old Rose desired the Associations
to represent it in any separate negotiations for a contract with the
Local, should occasion therefor arise; nor is there any evidence that
at the time of the strike Old Rose had designated or desired any other
representative for such separate negotiations. As the Local's proposal
to Old Rose related only to separate negotiations, for which Old Rose
had not yet chosen any representative, we find that the strike, insofar
as it was designed to implement this proposal, could have had no
tendency to restrain or coerce Old Rose in the choice of a representa-
tive within the meaning of Section 8 (b) (1) (B).1 L
Moreover, even if we assume that Old Rose had designated the
Associations to represent it in separate, as well as joint, bargaining,
11 The Local ' s proposal included an invitation to Frank to act as the bargaining repre-
sentative of his firm. As the president , he was the logical person to deal with the Local
in the separate negotiations , and there is no reason to believe that if Old Rose had entered
into such negotiations , it would have wished to designate a different representative , or that
the Local would have refused to deal with a different representative . Chairman Herzog
does not join in the reasoning contained in the paragraph that immediately precedes this
footnote.
MORAND BROTHERS BEVER1AGEl CO., ET AL. 415
the Local's invitation to Frank to meet with it in separate negotiations
is not in itself sufficient evidence that the negotiators for the Asso-
ciations would have been unacceptable to the Local as the representa-
tives of Old Rose for the purpose of such separate negotiations. Such,
an invitation does not per se constitute restraint or coercion. So far-
as the record shows, the Old Rose strike was called, not because of any'
objection by the Local to dealing with the negotiators for the Asso--
ciations, but solely because of the inability of the local to obtain a.
satisfactory contract through joint bargaining. Under these circum-
stances, wishing to bargain further during the strike on the basis of
its demands, the Local had no alternative but to propose separate-
negotiations, and such negotiations were in fact proposed to Old Rose..
Viewed in the light of these facts, such proposal could not reasonably
be construed by Old Rose as having any object other than to secure-
a satisfactory contract. 12
There is, accordingly, no basis in the record, in our opinion, for
finding that the strike was designed to restrain- or coerce Old Rose-
in the selection of a representative for separate negotiations.
The Respondents and our dissenting colleague contend, however,.
that even if the Local did not restrain or coerce Old Rose in the choice-
of a particular individual or group as its bargaining representative,,
the Local violated Section 8 (b) (1) (B) by seeking separate bargain-
ing rather than joint bargaining. This contention is completely
refuted by our finding below that such conduct by the Local would;
not constitute a refusal to bargain within the meaning of Section.
8 (b) (3) of the Act. As we find that this conduct of the Local con
stituted an appropriate attempt to engage in collective bargaining-
within the meaning of the statute, it necessarily follows that the same-
conduct may not be regarded as violative of 8 (b) (1) (B).
Moreover, even assuming the validity of our dissenting colleague's:
contention that legislative history indicates that one of the aims of
Section 8 (b) (1) (B) was to prevent unions from coercing "an em-
ployer into joining or resigning from an employer association which,
negotiates labor contracts on behalf of its members," we are unable,-
on this record, to agree that the Local in this case sought to, or did,
coerce any of the Respondents to resign from their Associations or to
revoke their designations of the Associations as their bargaining,
12 While the Local did state to Old Rose that "it seems as though a little clique is run-
ning that association now," this was offered, we believe, only as an explanation of the
failure of the joint negotiations and, in our opinion , falls short of expressing adamant
opposition to further dealings with the persons who acted as negotiators for the Associations..
It is significant, in this connection, that about 3 weeks after this conversation, the Local:
resumed joint negotiations with the Associations which resulted in settlement of the.
contract dispute.
'416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents. The action of the Local in seeking to bargain on a single- '
employer basis was not inconsistent with retention by the Respondents
of their membership in their Associations not, indeed, with the resump-
tion of association-wide bargaining at an appropriate time. As we
have already pointed out, the Local was not concerned with the Re-
spondents' membership in the Associations; it was interested only in
securing a satisfactory contract.
In urging the applicability of the provisions of Section 8 (b) (1)
(B) to this case, the dissenting opinion's reliance on congressional
minority reports relating to entirely different provisions is, in our
opinion, misplaced. These minority views, taken in their context, do
not constitute appropriate evidence of congressional intent with
respect to Section 8 (b) (1) (B). Failure to pass proposed legisla-
tion banning industry-wide or multiemployer bargaining does not, in
our opinion, reflect a congressional intent to foster and promote such
bargaining in preference to individual employer bargaining, but only
an intent to leave undisturbed the status quo which made such a prac-
tice permissible. Nothing which we have decided today runs counter
'to that intent.
Finally, the Respondents contend for a construction of Section 8
(b) (1) (B) which would preclude a union from seeking to enter into
separate negotiations, in lieu of joint negotiations, even after joint
negotiations have collapsed. Such a view is inconsistent with the basic
policy of the Act to encourage the practice and procedure of collective
bargaining, as it would prevent the parties to a labor dispute from
exhausting the possibilities of settling their dispute by collective bar-
gaining rather than economic attrition. We do not believe, and are
not prepared to hold, that Congress intended Section 8 (b) (1) (B)
to curtail collective bargaining in this fashion.
Accordingly, upon the present record, we find, in agreement with
the Trial Examiner and the General Counsel, that the Local's conduct
would not be violative of Section 8 (b) (1) (B) of the Act.
Section 8 (b) (3)
Section 8 (b) (3) makes it an unfair labor practice for a labor
organization or its agents "to refuse to bargain collectively with an
employer, provided it is the representative of his employees subject
to the provisions of Section 9 (a)." Section 2 (2) of the Act defines
the term "employer" as including "any person acting as an agent of
an employer." We agree with our dissenting colleague that, as the
agent of each of the Respondents in,formulating their labor relations
policies and negotiating their collective bargaining contracts, the
MORAND BROTHERS BEVERAGE CO., Efr AL. 417
Associations were entitled to be treated as an employer of the em-
ployees of each Respondent within the contemplation of the Act. We
believe that under the statute the Local was, accordingly required
to bargain in the first instance with the negotiators for the Associa-
tions until an impasse was reached. This the Local did. Thereafter,
on March 16, 1949, the Local sent identical proposed contracts to each
Respondent, and on April 7, 1949, the Local proposed separate nego-
tiations to Old Rose.. These proposals for separate negotiations and
contracts are alleged by the Respondents, and found by our dissenting
colleague, to violate Section 8 (b) (3).
As already stated, there is no basis in the record for finding that
these proposals for separate negotiations precluded the conduct of
such negotiations by the representatives of the Associations. More-
over, even if we assume that they did, we do not believe that such
proposals for separate negotiations would be in derogation of the
bargaining rights of the Associations under the Act. The duty of
the Local under the Act to bargain with the Associations could be no
broader than the authority vested in the Associations to bargain with
the Local. The authority of the Associations was, so far as appears
from the record, limited to association-wide bargaining, and did not
extend to the separate bargaining proposed by the Local to'Old Rose
and the other Respondents.
Nor would such proposals for separate negotiations, even if they
were to preclude participation by association representatives, violate
the requirement of Section 8 (b) (3) that the Local bargain with an
employer. For each Respondent continued to be an employer under
the Act, with whom the Local was free to bargain after an impasse
had been reached in association-wide bargaining. For notwithstand-
ing its delegation of collective bargaining functions to the Associa-
tions, each Respondent continued to maintain the conventional
employer-employee relationship with its own employees, directing
their day-by-day operations, paying their wages, and even executing
separate, although identical, contracts with the Local for its
employees.
There remains for consideration the issue of whether the Local's
proposals for separate bargaining, with or without the intervention
of the Associations, violated its duty under Section 8 (b) (3), to
bargain on the basis of an appropriate unit. We cannot agree with
the dissenting opinion that the association-wide unit was the only
appropriate unit in this case and that single-employer units would
necessarily be inappropriate where, as in the instant case, the parties
have exhausted the possibility of reaching agreement on the basis of a
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multiemployer unit: There is nothing in the statute which requires
that the unit for bargaining be the only appropriate unit, or the
ultimate unit, or the most appropriate unit; the Act requires only
that the unit be "appropriate." 13 It must be appropriate to ensure
to employees, in each case, "the fullest freedom in exercising the rights
guaranteed by this Act." 14 Balancing the instability resulting from
the collapse of negotiations on a multiemployer basis against the
benefits to be derived from further collective bargaining on a single-
employer basis, we conclude that, in this case, to ensure the fullest
freedom in exercising the collective bargaining rights guaranteed to
employees single-employer units could be found appropriate 15
While such a conclusion might give to unions a limited alternative
choice as - to bargaining units, it would reduce to that extent the
existing disparity between the treatment accorded employers and
unions. Our dissenting colleague has consistently joined in this
Board's unanimous decisions 16 permitting employers unlimited free-
dom unilaterally to fashion the scope of, or to completely destroy,
multiemployer bargaining units by simply withdrawing at any time
from such units at their will or fancy. In such cases it is solely the
employer who, by his conduct alone, determines whether he will be
part of a multiemployer unit or shall constitute a single-employer
unit. - Yet, the Board has repeatedly and unanimously given its stamp
of approval to units established in this manner regardless of the extent
or effectiveness of the multiemployer bargaining history, and even
in the absence of an impasse in such bargaining. Our colleague's
unwillingness to accord even a semblance of such treatment to a union,
under the limited circumstances where negotiations on a multiem-
ployer basis have broken down, would seem to contradict his declara-
tion, with which we are in wholehearted accord, that the same
principles be applied to labor organizations as are applied to employers
in determining whether there has been compliance with the statutory
duty to bargain collectively.
Moreover, even if we were to hold that the association-wide unit
is the only appropriate unit in this case, it would still not follow that
13 Appropriate is a word with a well -defined meaning . Webster ' s International Dictionary
defines it as "Suitable for the purpose and circumstances ; befitting the place or occasion."
It carries with it no overtones of the exclusive or the ultimate or the superlative. To
convey such thoughts , the words "only" or "ultimate" or "most" must be conjoined with
the word "appropriate ." The statute does not conjoin them. See also Garden State
Hosiery Co., 74 NLRB 318, 324.
14 Section 9 (b).
15 Foreman cf Clark, 74 NLRB 77 , cited in the dissenting opinion, is inapposite because an
impasse was reached only with respect to one group of employees , the remaining employees,
continuing to be covered by multiemployer contracts . Cf. Pioneer Incorporated , 90 NLRB
No. 247 , where the Board refused to permit an'employer to withdraw from , a multiemployer
unit only with respect to one group of employees.
10 See , e. g., Johnson Optical Company , et al., 87 NLRB 539 ; Association of Motion Picture
Producers, Inc., et al., 88 NLRB 1155.
MORAND, BROTHERS BEVERAGEI CO., ET AL. 419
the Local's conduct violated the Act. While it is true that under this,
view any bargaining on a single-employer basis with a particular
Respondent would be limited to a segment of the appropriate, multi-
employer unit, Section 8 (b) (3) does not, in our opinion, require
that all the employees in an appropriate unit, particularly in a multi
employer unit, be bargained for simultaneously, or that they be covered
by the same contract 17 It is sufficient that the party seeking to.
bargain for a portion of the statutory unit intends, as did the Local
in this case, to negotiate at an appropriate time for the rest of the
employees in such unit.
The dissenting opinion suggests, however, that the Local's over-
tures to the individual members of the Associations are analogous
to an employer's attempt to take unilateral action or to deal with
individual employees directly, rather than through their statutory
agent. As such conduct by an employer has been found, under cer-
tain circumstances, to violate Section 8 (a) (5) of the Act, it is'urged
that the Local's conduct should be deemed to contravene Section 8
(b) (3).18 However, passing over other possible grounds of dis-
tinction, the cases relied upon in the dissent are wholly inapposite
because the situations are not at all analogous. Underlying the
Board's holdings in all those cases is the concept that an employer's
unilateral action and individual bargaining is the antithesis of, and
derogates from, the practice and procedure of collective bargaining,
which it is the policy of the Act to encourage. Here, however, there
was no attempt by the Local to substitute unilateral action or individ-
ual bargaining for collective bargaining, but only to substitute for
one type of collective bargaining (association-wide) another type
of collective bargaining (on a single-employer basis). Thus, the
Local's conduct, far from being in derogation of the statutory policy,
may well have served to effectuate that policy.
Finally, with respect to Section 8 (b) (3), as with respect to Section
8 (b) (1) (B), the Respondents and our dissenting colleague contend
for a construction of the Act which would preclude "residual" collec-
tive bargaining with individual employers, after negotiations with.
the common representative of such employers have failed. As already
stated, we are unwilling to take a view of the Act which would frus-
trate its basic purpose of encouraging resort to collective bargaining
rather than economic action, and which would have required the
' In fact , in the case of multiemployer units , the individual employers , like the employers,
in the instant case, frequently execute separate , though identical , contracts.
18 See The Texas Company, et al. ( National Maritime Union of America ), 78 NLRB 971,
where the Board indicated that it would give the same content to the phrase "refusal to.
bargain" in Section 8 (b) (3) as in Section 8 (a) (5). Accord : Conway 's Express, 87-
NLRB 972.
917572-51-vol. 91-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesmen of all the Respondents to strike simultaneously at the risk
of forfeiting the protection of the statute.
We find, therefore, in agreement with the Trial Examiner, and in
accordance with the contentions made on behalf of the General Counsel,
that the Local's conduct would not be violative of Section 8 (b) (3)
or Section 8 (b) (1) (B) of the Act.
In view of our finding above that the Local's conduct would not
violate Section 8 (b) of the Act, we deem it unnecessary to pass
on the further question whether, assuming that the Local did violate
Section 8 (b) of the Act, the.conduct of the salesmen was sufficiently
related to such violation as to remove them from the protection of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that each of the Respondents, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Liquor & Wine Salesmen's Union,
Local 62, Distillery, Rectifying and Wine Workers International
Union of America, A. F. L., or in any other labor organization of
its employees, by discharging or otherwise discriminating in regard
to their tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Liquor & Wine Salesmen's Union,
Local 62, Distillery, Rectifying and Wine Workers International
Union of America, A. F. L., or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any
and all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Make whole each of its employees listed in Appendix A attached
to the Intermediate Report, in the manner set forth in the section of
said Report entitled "The remedy"; 19
Is The Old Rose strikers , however , are not entitled to any back pay unless they uncon-
ditionally requested reinstatement during the strike , in which case their back pay will be,
computed from the date , of such request . Kallaher and Mee, 87 NLRB 410.
MORAND' BROTHERS BEVERAGEI CO., ET AL. 421
(b) Post at its place of business in Chicago, Illinois, copies of the
.notice attached hereto marked Appendix A.10 Copies of said notitce,
to be furnished each Respondent by the Regional Director for the
Thirteenth Region, shall, after being signed by representatives of the
individual Respondent, be posted by said individual Respondent im-
mediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that the notices are not altered, defaced, or
covered by any other material;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
it has taken to comply herewith.
MEMBER REYNOLDS, dissenting :
The record in this case shows a history of collective bargaining be-
tween the Union and the Respondents on an association-wide basis
dating back to 1943. Under established precedent,1 at all times here
material, the 'association-wide bargaining unit constituted the only
appropriate unit for bargaining, within the meaning of Section 9 (a)
of the Act. The Union recognized this fact, and bargained with the
Association during the instant negotiations for such a unit up until
the time the differences between it and the Association over economic
terms in the proposed agreement reached the point of impasse. There-
after, on March 16, 1949, the Union sent to each employer-member of
of the Association a copy of the agreement containing the terms re-
jected by the Association and stated, "It is imperative that this .. .
agreement be executed without delay." On behalf of the Em-
ployers, the Association replied to these letters, rejected the demand,
and objected to the Union's attempted dealings with the individual
employers. In March, and at about the time of this exchange of letters,
employees of each of Respondents who were members of the Union
vested in the Union general authority to strike. On April 6, 1949, the
Union called Old Rose's employees out on strike for the admitted
purpose of forcing Old Rose to sign the contract proffered to it.
From these events, the employers comprising the Association de-
duced, and the Trial Examiner in fact found, that each of them faced
the threat of strike unless they acquiesced in the individual course of
20 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words, "Decision and Order," the words, "Decree
of the United States Court of Appeals Enforcing."
21 E. g ., Associated Shoe Industries of, America, Inc., 81 NLRB 224; Air Conditioning
Company of Southern California, et al., 81 NLRB 946; International Typographical Union,
et al. (Baltimore), 87 NLRB 1215; Indianapolis Cleaners and Launderers' Club, 87 NLRB
472: Cleveland Building Supply Co., et al., 90 NLRB 923.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining demanded by the Union. They collectively determined
therefore to protect their interest by taking the economic steps giving,
rise to the complaint. More specifically, each member of the Associa-
tion simultaneously notified every employee that it was his and the
Association's belief that the union strike strategy was directed to
piecemeal dissipation of their concerted bargaining position, that
they could not operate under such circumstances, and that accordingly
they were suspending operations. They further requested each em-
ployee to settle immediately all business he may have had outstanding
with the respective companies. Subsequently, after the Union had
resumed bargaining with the Association, each of the association mem-
bers including Old Rose reinstated all employees without discrimina-
tion.
Concededly there was a clear causal connection between the Union's
actual and anticipated economic action and the Respondents' decision
to suspend operations. However, this Board has long recognized that
"an employer may lawfully discontinue or reduce operations for any
reason whatsoever, good or bad, sound or unsound, provided only that
the Employer's action is not motivated by a purpose to interfere with
and defeat its employees' union activity." 22 Applying this principle
to the instant case, I am satisfied that the operative facts negate, indeed
preclude, a finding that the Employer's conduct was illegally moti-
vated or represented willful interference with lawful employee con-
certed activity. Thus, at all times since 1943, except for the short
period of time embraced by the complaint, the bargaining relations
between the Union and the Employers have been amicable, without
any intimation in the record of any unfair labor practices on the
part of the Employers. The Employer's lack of antiunion bias is
further reflected by the fact that during the period of the instant
controversy, no attempt was made to replace the employees but in-
stead their jobs were kept open and upon the successful conclusion
of association-wide bargaining all were actually reinstated without
discrimination. Upon the entire record, especially the above facts,
and the tenor of the letter notifying the employees to settle their
financial affairs with the Employers, I cannot subscribe to the ma-
jority's view that the Respondents' temporary shutdown was intended
to sever the employee relations of their respective salesmen so as to
constitute a "discharge" in any real or practical sense. Indeed, I re-
gard such action as an economic lockout in the sense that the term is
employed in Section 8 (d) (4) of the Act, which was not intended in
fact to disturb the existing employee-employer relationship.
22 Pepsi- Cola Bottling Company of Montgomery, 72 NLRB 601, 602.
MORAND' BROTHERS BEVERAG'E1 CO., ET A'L. 423
In my.opinion, such an economic lockout, not unlawfully motivated,
is not rendered illegal simply because it had the effect of neutralizing
the economic pressure exerted by a union to resolve in its favor an
impasse arising out of good-faith bargaining negotiations. We are
here testing the legality of the Respondents' conduct in the light of
a statutory scheme designed to equate the rights of unions and em-
ployers in the conduct of labor relations and to insure to each full
opportunity to use their bargaining power in effecting an agreement.
As indicated above, the Union here sought to take advantage of the
highly competitive nature of the Employers' operations by resorting
to a "divide and conquer" strategy designed to force the Employers
to abandon association-wide bargaining and to capitulate to its eco-
nomic demands on an individual basis. In these circumstances I am
compelled therefore to recognize the Employers' decision that all or
none should continue operations to be a. proper exercise of defensive
•economic power under the present statutory scheme of collective bar-
gaining, and I would therefore dismiss the complaint in its entirety.
The majority's attempt to equate the instant situation with those
unfair labor practice cases cited in footnotes 4 and 9 is entirely mis-
leading. Substantially all of those cases turn on a, finding of unlawful
motivation, which is here lacking; and none involve the present
question of an economic lockout affecting members of a union which is
'contemporaneously seeking to resolve an economic issue on the picket
line and not at the conference table. Indeed, in the only two cases