Morand Bros. Beverage Co. v. National Labor Rel. Bd.
| Decision Date | 23 July 1951 |
| Docket Number | No. 10335.,10335. |
| Citation | 190 F.2d 576 |
| Parties | MORAND BROS. BEVERAGE CO. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Samuel L. Golan, Chester F. McNamara, Leonard W. Golan, all of Chicago, Ill., Golan & Golan, Chicago, Ill., of counsel, for petitioners.
David P. Findling, A. Norman Somers and Bernard Dunau, N. L. R. B., all of Washington, D. C., George J. Bott, General Counsel, Benjamin A. Theeman, Attys., National Labor Relations Board, Washington, D. C., for respondent.
George O. Bahrs, San Francisco, Cal., Arthur C. Rooney, Chicago, Ill., Eli E. Dorsey, Seattle, Wash., Robert P. Patterson, New York City, Marshall A. Pipin, Chicago, Ill., Seago, Pipin, Bradley & Vetter, Chicago, Ill., of counsel, amicus curiae.
Gerard D. Reilly, Washington, D. C., Reilly, Rhetts & Ruckelshaus, Washington, D. C., Doesburg, Goddess & Bowes, Chicago, Ill., of counsel, for Union Employers Section Printing Industry of America, Inc., amicus curiae.
William R. Bowes, S. G. Lippman, Chicago, Ill., Herbert Thatcher, Albert Woll, Washington, D. C., Woll, Glenn & Thatcher, Washington, D. C., Robert Karmel, Chicago, Ill., of counsel, amici curiae.
Before KERNER, LINDLEY, and SWAIM, Circuit Judges.
Petitioners, wholesale dealers and distributors of alcoholic beverages, seek to set aside an order of the National Labor Relations Board requiring them to cease and desist from discouraging membership in Liquor and Wine Salesmen's Union, Local 62, "by discharging (their employees) or otherwise discriminating in regard to their tenure of employment" or from interfering with, restraining or coercing them in any other manner in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, 29 U.S. C.A. 157. The order also directs petitioners to make back pay awards to their employees.
All of petitioners are members of either the Illinois Wholesale Liquor Dealers Association or the Chicago Wholesale Liquor Dealers Association. Since 1942, they have recognized Local 62 as the exclusive collective bargaining representative of all their salemen-employees and have, from time to time, entered into collective bargaining agreements with that union governing the salesmen's terms and conditions of employment. Thus, contract negotiations were conducted annually between representatives of the employer associations, acting on behalf of petitioners, and representatives of the Union, acting for the salesmen. Once a proposed contract was agreed upon, it was submitted for majority approval to the membership of the Associations and the Union and, their respective approvals having been obtained, separate and identical contracts were executed by the Union and each of petitioners.
Early in January, 1949, negotiations for a new contract were begun, and, by January 22, an apparent impasse had been reached on the question of an increase in commissions for the salesmen. Since the 1948 contract was to expire at the end of January, 1949, the Associations and the Union executed an interim agreement extending the life of the expiring contract to March 15, 1949, "to allow the parties additional time within which to adjust outstanding differences growing out of the negotiations for a successor contract," but the stalemate over commissions continued throughout the extension period. On March 16, the Union sent directly to each petitioner a copy of a document entitled "second supplemental agreement," together with a letter stating that it was "imperative" that the agreement, which included the increase in commissions demanded by the Union, be executed without further delay. The Illinois Association responded in a letter expressing surprise that the Union had "mailed out the contracts without having previously reached an agreement" with the Association's Labor Committee and stating that its members "must decline to execute these agreements." To this letter the Union did not reply, and the then existing status persisted until late in March, 1949, when the Union, to which all of petitioners' salesmen belonged, unanimously approved a general strike authorization.
Rumors of the proposed strike led petitioners, at a meeting held about April 1, to prepare a letter in blank, a copy of which was to be sent to each of their salesmen in the event a strike should be put in force against any one or more of petitioners. The letter read as follows:
"Dear * * *.
Since the existence of the salesmen's union, all contracts have been negotiated and signed on an industry-wide basis. During the negotiations last year and this year, we exhibited financial statements prepared by certified public accountants to the Union officials which demonstrated our inability to give any increase in the commission rate. The Union officials agreed that we were unable to give an increase last year and, accordingly, the contract was signed without changing the commission rate.
Business conditions certainly cannot be any better in 1949 than in 1948, and it would be sheer folly and economic disaster on our part to grant the salesmen any increase in their present high commission rate. During our negotiations this year, the Union officials admitted that if the commission rate was increased, a large number of wholesalers would have to go out of business, nevertheless, the salesmen's union has called their men off the job and are now picketing * * *.
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 permitted the Union to do this, it would merely be a question of time until each house would be compelled to sign this unfair contract or to close its business doors; we consider this action by the Union to be in the same category as a strike called against all of the wholesalers. The Union officials have been advised and are fully aware of our position and 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 may have belonging to us, and come and see us immediately so that we may settle any financial differences that exist to date between us.
Very truly yours,"
Signed copies of this letter were prepared on the stationery of the respective individual petitioners and delivered to the Illinois Association, with the understanding that the names of the various salesmen and the name of the struck petitioner would be filled in and the letters mailed, in the event of a strike. The Union was informed of the existence of these letters during the second of two unsuccessful meetings, held on April 2 and 4, between representatives of the Associations and the Union.
On April 5, the Union wrote each petitioner, except the Old Rose Distributing Co., a letter stating that it had "no intention of calling a stoppage of work at your establishment" and that "it would be erroneous to interpret * * * action (taken against any other establishment) as a threat of a strike in your establishment." Late the next day, the Union struck against Old Rose, and picketing began early on the morning of April 7. On that morning the president of Old Rose, Frank, telephoned O'Neill, president of the Union, asking what was to be done about the strike, to which O'Neill replied that he was ready "to sit down with you * * * and discuss a contract right now." This recorded conversation was played back to a full meeting of the Associations that afternoon, at which the Illinois Association was authorized to fill in and send out the letters-in-blank theretofore prepared by the petitioners. Copies were mailed to each salesman of each petitioner, including Old Rose. On April 8, many of petitioners' salesmen, having received these letters, did not report for work; some of those who did report were told they were "fired" and sent home; others were requested to work that day and then sent home. In any event, none of petitioners' liquor salesmen was employed as such after that date. Many were paid the commissions earned up to April 7 (their commissions were customarily paid on a quarterly basis) and some were requested by petitioners to turn in all "monies and property belonging to us which are now in your possession." By April 11, picket lines had been extended to the establishments of several of petitioners in addition to Old Rose, the pickets carrying placards which read, "Locked out and discharged." However, on or about May 1, the terms of a new contract having been agreed upon between the Union and the Associations, the strike ended and all salesmen returned to work. On May 4, the Board's General Counsel, acting upon a charge and supplemental charge filed by the Union prior to the settlement of the dispute, issued against petitioners herein an unfair labor practices complaint charging them with the discriminatory discharge of all their salesmen-employees. This complaint was heard at Chicago on June 14, 15 and 17, 1949.
The Trial Examiner found that "the employees of Old Rose were discharged on or about April 8 and the employees of the other Respondents were locked out because of the action of the local in striking Old Rose," that such action constituted "discrimination on the part of each Respondent against its employees," that "no legal justification has been shown for the discriminatory treatment of the employees involved," and that petitioners' action violated Sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(1, 3). He recommended that petitioners be ordered to cease and desist from discouraging their employees' union membership "by discharging or locking them out or otherwise discriminating in regard to their tenure of employment" and that t...
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