WINE & LIQUOR SALESMEN & A. WKRS. LOC. U.# 195 v. NLRB

• Decision Date: 03 November 1971
• Docket Number: 23867.,No. 23731,23731
• Citation: 452 F.2d 1312
• Parties: WINE & LIQUOR SALESMEN & ALLIED WORKERS LOCAL UNION #195, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brescome Distributors Corporation, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BRESCOME DISTRIBUTORS CORPORATION, Respondent, Wine & Liquor Salesmen & Allied Workers Local Union #195, etc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

452 F.2d 1312 (1971)

WINE & LIQUOR SALESMEN & ALLIED WORKERS LOCAL UNION #195, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brescome Distributors Corporation, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BRESCOME DISTRIBUTORS CORPORATION, Respondent, Wine & Liquor Salesmen & Allied Workers Local Union #195, etc., Intervenor.

Nos. 23731, 23867.

United States Court of Appeals, District of Columbia Circuit.

Argued October 27, 1970.

Decided November 3, 1971.

Mr. Laurence Gold, Washington, D. C., for petitioner in No. 23,731 and intervenor in No. 23,867. Mr. J. Albert Woll, Washington, D. C., was on the brief for petitioner in No. 23,731 and intervenor in No. 23,867.

Mr. Charles Both, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Herman M. Levy, Atty., National Labor Relations Board, were on the brief, for petitioner in No. 23,867 and respondent in No. 23,731.

Mr. Jerome H. Somers for intervenor in No. 23,731 and respondent in No. 23,867.

Before BAZELON, Chief Judge, and ROBB, Circuit Judge, and JOHNSON,^* Chief Judge, U. S. District Court for the Middle District of Alabama.

PER CURIAM:

These cases began with charges brought against Brescome Distributors Corporation (the Company) by the Wine and Liquor Salesmen and Allied Workers Local Union No. 195, a/w Distillery, Rectifying, Wine and Allied Workers International Union of America, AFL-CIO (the Union or Distillery Workers). The charges resulted in a complaint before the National Labor Relations Board alleging that the Company had violated Secs. 8(a) (1), 8(a) (2), and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), 158(a) (2), and 158(a) (5). More specifically, the complaint alleged that by various acts and conduct the Company (1) interfered with, restrained and coerced employees in the exercise of their rights under Sec. 7 of the Act, 29 U.S.C. § 157; and (2) in 1952 initiated, formed, sponsored and promoted the Brescome Distributors Employees Association, and from on or about June 6, 1967 assisted, dominated, contributed to the support of, and interfered with the administration of the Association. The complaint further alleged that from on or about June 6, 1967 the Company refused to bargain with the Distillery Workers.

The Board found that the Company unlawfully assisted and interfered with the Association in violation of Secs. 8(a) (1) and (2) of the Act. The Board did not find that the Company had dominated the Association. The Board concluded that the Company violated Sec. 8(a) (5) of the Act by refusing to bargain with the Distillery Workers, although that Union had been selected as their representative by a majority of the Company's salesmen, constituting an appropriate bargaining unit. The Board ordered the Company to bargain with the Distillery Workers and to cease and desist from recognizing the Association unless the Association was certified as the representative of the Company's employees in an election conducted by the Board.

In these consolidated proceedings the Board in No. 23,867 petitions for enforcement of its order. By petition for review in No. 23,731 the Distillery Workers challenge the Board's failure to find that the Company dominated the Association and its failure to order the disestablishment of the Association. The Company contends that both the Board's petition for enforcement and the Union's petition for review should be denied. We affirm the Board.

The Brescome Distributors Corporation is engaged in the wholesale distribution of wines and liquors. Its business is conducted from a warehouse and office building in Hartford, Connecticut. The Company employs warehousemen, truck drivers and wine and liquor salesmen. The members of the Brescome Employees Association are salesmen and drivers employed by the Company. The Association was organized in 1952 and in that year, pursuant to a consent election, was certified by the Board as the representative of all the Company's employees, excluding electrical employees, guards, professional employees and supervisors. It appears that in the years between 1952 and 1967 the Association from time to time negotiated with the Company on various terms of employment for its members. Agreements were reached on such matters as salesmen's commissions, wages of warehousemen and drivers, hours of work, holidays and paid vacations, and life and medical insurance. Some of the agreements were oral, others were reduced to writing.

In 1967 some of the salesmen undertook to arrange for their representation by the Distillery Workers. In their effort to affiliate with the Distillery Workers the salesmen consulted Ralph Canton, President of the Union's Local 195. Canton came to Hartford and in a series of meetings in May and June of 1967, talked to the salesmen about the advantages of the Union and explained the procedure that would be followed to secure recognition from the Company. By June 3, 1967 ten of the Company's nineteen salesmen had signed cards designating the Distillery Workers as their sole collective bargaining agent;¹ and on June 6 Canton sent the Company a letter stating that the Union represented a majority of the salesmen. He requested a meeting on or before June 12 for the purpose of negotiating a contract. The Company did not reply and on June 12 the Union filed a petition for certification with the regional office of the Board.

The Union's activity stimulated action by Samuel Lentz, President of the Company, Mervyn Lentz, Vice President, and Stanley Goldstein, Comptroller. Beginning on June 16 Mervyn Lentz and Goldstein talked to salesmen individually, questioning them about the Union's activities, asking them to adhere to the Association and telling them that there was no need for an outside union, that the Association had done much for the salesmen and that the Company and the Association could continue to work as "a big, happy family". They suggested that an outside union might reduce earnings or demand that more salesmen be hired, thereby reducing each salesman's territory. They said the Union might interfere with the operation of the Company's pension plan or the availability of loans from the credit union. The President of the Company, Samuel Lentz, called one salesman into his office and said he would like to keep the Union out. He suggested the formation of a committee of three or four salesmen to assist in running the Company. He said that his son, Mervyn Lentz, was expected to take over the business, and if the men selected the Union this would be a "slap in the face" to Mervyn.

On Friday, June 23, Samuel Lentz instigated and encouraged Al Paul, the President of the Association, to call a meeting of the Association. Paul arranged for a meeting on the following Friday but was directed by Mervyn Lentz to schedule it for that same afternoon. Paul complied and the meeting was held in the office of the Association's attorney, Mr. Adinolfi. In Mr. Adinolfi's absence the meeting was conducted by his associate, Mr. Kelly. Mr. Kelly suggested that the salesmen vote on authorizing the Association to continue as their bargaining agent. Some of the salesmen did not wish to vote at that meeting and one asked to see a copy of the Association's contract with the Company. Accordingly, another meeting took place on June 30, when a copy of the 1960 Association contract was made available for inspection. In attendance were seventeen salesmen and two employees, Amoroso and Sandler, found by the Board to be supervisors. It was decided by a 16 to 3 vote to continue with the Association as the salesmen's bargaining representative.

On July 5 counsel for the Association, the Company and the Union signed an agreement for a consent election to be held on July 21 with both the Association and the Union appearing on the ballot. The appropriate unit agreed upon was "All wholesale salesmen * * * excluding office clerical employees, warehousemen, deliverymen, professional employees, and supervisors * * *".² A few days later the salesmen were told, either by the Company's switchboard operator or by direct calls from Mr. Adinolfi, to go to his office to sign papers authorizing the Association to act as their bargaining representative. Between July 7 and July 19 fourteen salesmen signed these authorizations.

On July 17, four days before the election, Mr. Adinolfi instructed Association President Paul to tell warehouse manager Geraci to assemble the drivers at Adinolfi's office. Paul made the arrangements and told Adinolfi that the drivers would be there. Adinolfi said it would not be necessary for Paul to attend the meeting. The next day Adinolfi told Paul to come to his office that evening. When Paul arrived Geraci and the drivers were there. Paul was shown a contract covering the drivers' terms of employment and Adinolfi told him to sign it. Noting that it was a good contract for the drivers, Paul signed. Neither Paul nor the Association had anything else to do with the contract, which did not cover the salesmen.

In interviews with salesmen on the day before the election Samuel Lentz used the new contract with the drivers as an argument in favor of the Association. He said that now that the Company had this contract it could no without salesmen if necessary, that it could take orders over the telephone and the drivers could deliver to customers even if the salesmen were on strike. He repeated the refrain that the Association and the Company should continue as "one big family" and that the appearance of an outside union might cause the loss of benefits derived from the credit union. He explained that he did not want his son Mervyn to be "choked" by the Union, and he asked one older salesman to talk to some of the younger men to "see if they couldn't keep what we had and keep the Distillery Union out"....