Austin, Nichols & Co., Inc.

11 In the Matter of AusTIN, NICHOLS & Co., INCORPORATED ,A VIRGINIA CORPORATION, and AUSTIN, NICHOLS & CO., INCORPORATED, A MASSA- CHUSETTS CORPORATION and WHOLESALE LICENSED ALCOHOLIC BEVERAGE. SALESMEN'S UNION, LOCAL UNION No. 21056 (AFL) Case No. C 1761.-Decided January 16, 1941 Jurisdiction : liquor importing and wholesaling industry. Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Albert J. Hoban, for the board. Mr. Morris A. Edelman, of New York, N. Y., for the respondents. Mr. Louis J. Blender, of Boston , Mass., for the Union. Mr. A. Herbert Barenboim , of Boston , Mass., for Harry H. Kendler. Miss Mary E. Perkins, of counsel to the Board. DECISION AND . ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Wholesale Licensed Alcoholic Beverage Salesmen's Union, Local Union No. 21056 (AFL), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional- Director of the First Region (Boston, Massachusetts), issued its complaint dated October 25, 1940, against Austin, Nichols & Co., Incorporated, a Virginia Corporation, and Austin, Nichols & Co., Incorporated, a Massachusetts Corpora- tion, herein called the respondents, 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. With respect to the unfair labor practices the complaint alleged, in substance, that the respondents (1) on or about April 1, 1940, dis- couraged membership in the Union by discharging Harry H. Kendler, a salesman employed at their Boston plant, and thereafter refusing to reinstate him besause he was a member of and,active on behalf of the 29 N. L. R B, No. 2. 8 AUSTIN, NICHOLS & CO., INCORPORATED Union and because he engaged in concerted activities with other em- ployees for their mutual aid and protection; and (2) thereby and by (a) questioning their employees engaged at their Boston plant concerning their membership in or activities on behalf of the Union, and (b) making statements to discourage their employees from be- coming or remaining members of the Union, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint, with a notice of hearing, was duly served on the respondents and on the Union ; on November 16, 1940, respondents filed their answer with the Regional Director. Pursuant to the notice and amendments thereto, a hearing was held on November 25, 1940, at Boston, Massachusetts, before Martin Raphael, the Trial Examiner duly designated by the Board. The hearing was opened by the Trial Examiner, the formal exhibits, including a stipulation entered into by the parties on November 25, 1940, for settlement of the case, were offered and admitted in evidence and the hearing was then closed subject to reopening upon due notice to all parties., On December 17, 1940, the respondents, the Union, and the counsel for the Board entered into a new stipulation subject to the approval of the Board, for settlement of the case. This stipulation, which by agreement of the parties was substituted for the earlier one, provided as follows: It is hereby stipulated by and between AusTIN, NICHOLS & Co., INCORPORATED, a Virginia Corporation, AUSTIN, NICHOLS & CO., INCORPORATED, a Massachusetts Corporation, WHOLESALE LICENSED ALCOHOLIC, BEVERAGE SALESMEN'S UNION, LOCAL -UNION No. 21056, affiliated with the American Federation of Labor, and Albert J. Hoban, Attorney for the National Labor Relations Board; First Region, that : I. Upon Amended Charges duly filed by Wholesale Licensed Alcoholic Beverage Salesmen's Union, Local Union No. 21056 (AFL), hereinafter called the Union, the National Labor Rela- tions Board by A. Howard Myers, Regional Director for the First Region (Boston, Massachusetts), acting pursuant to its Rules and Regulations-Series 2-as amended, Article IV, Section 1, issued its Complaint and Notice of Hearing on October 25, 1940, against Austin, Nichols & Co., Incorporated, a Virginia Corporation, and Austin, Nichols & Co., Incorporated, a Massachusetts Corporation. II. A copy of the Amended Charge, Complaint and Notice of Hearing thereon and a copy of National Labor. Relations Board Rules and Regulations-Series 2, as amended, were -duly served upon Austin, Nichols & Co., Incorporated, a Virginia Corpora- tion, and Austin, Nichols & Co., Incorporated, a Massachusetts 1Q DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corporation, and the Union on October 26, 1940, said hearing be- ing scheduled for November 7, 1940, in Court Room 5, Federal Building, Boston, Massachusetts. On October 31, 1940, the said hearing was postponed to November 18, 1940, at the same time and place, and on November 16, 1940, the said hearing was post- poned to November 25, 1940. On November 16, 1940, Austin, Nichols & no., Incorporated, a Virginia Corporation, and Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, filed their answers and requests for dismissal of the Complaint. III. Austin, Nichols & Co., Incorporated, a Massachusetts Cor- poration, is and has been since on or about March 30, 1939, a corporation organized under and existing by virtue of the laws of the Commonwealth of Massachusetts and is now and has con- tinuously been engaged at a place of business in Boston, Massa- chusetts, as an importer and wholesale distributor of beers, wines and liquors. IV. During the period from July 1, 1939 to July 1, 1940, Aus- tin, Nichols, & Co., Incorporated, a Massachusetts Corporation, purchased in excess of 25,000 cases of beers, wines and liquors, valued at more than $400,000. More than ninety-nine percent (99%) of the goods purchased by Austin, Nichols & Co., Incor- porated, a Massachusetts Corporation, during said period were shipped to Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, in the Commonwealth of Massachusetts, from points outside the Commonwealth of Massachusetts. V. During the period from July 1, 1939 to July 1, 1940, Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, sold more than 25,000 cases of beers, wines and liquors, valued at more than $400,000, over ninety-nine percent (99%) of which, prod- ucts were delivered to customers located in the Commonwealth of Massachusetts. VI. Austin, Nichols & Co., Incorporated, a Massachusetts Cor- poration, admits that it is engaged in interstate commerce within the meaning of the National Labor Relations Act. VII. Wholesale Licensed Alcoholic Beverage Salesmen's Un- ion, Local Union No. 21056 (AFL) is a labor organization within the meaning of Section 2, subdivision (5) of the said Act. VIII. Austin, Nichols & Co., Incorporated, a Virginia Corpo- ration, and Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, and the Union waive the right to a hearing as set forth in Sections 10 (b) and 10 (c) of the Act and the making of Findings of Fact and Conclusions of-Law by the National Labor Relations Board. IX. Austin, Nichols & Co., Incorporated, a Massachusetts Cor- - poration, offered to Harry H. Kendler full and complete rein- AUSTIN, NICHOLS & CO.. INCORPORATED 11 statement to his former position without loss of seniority or other rights and privileges and this offer was declined by said Harry H. Kendler: X. It is further stipulated that upon the Amended Charge, the Complaint, the Pleadings, and upon this stipulation, if approved by the National Labor Relations Board, an Order may be entered by said Board, providing as follows : Austin, Nichols & Co., Incorporated, a Massachusetts Corpora- tion, its officers, agents, successors and assigns shall: 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collec- tively 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, as guaranteed in Section 7 of the National Labor Relations Act'; (b) Discouraging membership in any labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action to effectuate the pol- icies of the Act : (a) Make whole Harry H: Kendler for loss of pay suffered by reason of his discharge by payment to him of the sum of seven hundred fifty dollars ($750) ; (b) • Post immediately in conspicuous places at its place of business and keep visible for a period of at least sixty (60) consecutive days from the date of posting, notices embodying the cease and desist provisions of the Order of the said Board; (c) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of the said Order what steps Austin, Nichols & Co., Incorporated, a Mas- sachusetts Corporation, has taken to comply therewith. AND IT IS FURTH ER ORDERED that the complaint in so far as it refers to Austin, Nichols & Co., Incorporated,, a Virginia Corpo- ration be, and the same hereby is, dismissed. XI. The parties hereto consent to the entry of a decree by the appropriate Circuit Court of Appeals, if the Board desires to make application thereto; enforcing the Order of the Board in the form set forth in paragraph X, and the parties further waive their rights to contest the entry of any such decree and their right to receive notice of the filing of an application for the entry of such decree in the form set forth in paragraph X above. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD " XII. It is further agreed that this stipulation shall be null and void and of no effect in the event the National -Labor Rela- tions Board does not approve this stipulation and does not enter an Order based upon the terms and provisions of said stipulation, and that in the event the Board 'does not approve the stipulation and' issue an Order based upon the terms and provisions of said stipulation, the hearing shall be rescheduled and all parties shall have full and complete opportunity to introduce such testimony as they desire within the issues as framed. XIII. This stipulation constitutes the entire agreement between the parties and no verbal agreement of any kind has been made which varies , alters or adds to this stipulation. XIV. It is further stipulated and agreed by all parties hereto that the stipulation which was received in evidence as Board's Exhibit No . 6 at the hearing in the above -entitled matter may be withdrawn , and that this stipulation may be substituted in lieu thereof as Board's Exhibit No. 6 with the same force and effect as if it were the stipulation offered and received in evidence on Page 6 in the transcript of the record. On December 21, 1940, the Board issued an order approving the said stipulation , making it a part of the record in the case and trans- ferring the case to and continuing it before the Board for the purpose of entry of a Decision and Order by the Board pursuant to the pro- visions of the said stipulation. Upon the stipulation and the entire record in the case, the Board makes the following: FINDINGS OF FACT THE BUSINESS OF THE RESPONDENTS The respondent, Austin, Nichols & Co., Incorporated , a Massachu- setts Corporation , is a corporation organized and existing under the laws of the Commonwealth of Massachusetts and is engaged at a place of business in Boston , Massachusetts, as an importer and wholesale distributor of beers, wines , and liquors. During the period from July 1, 1939, to July 1 , 1940, this respondent purchased over 25,000 cases of beers , wines, and liquors, valued at more than $400,000 . More than 99 per cent of the goods purchased during this period were shipped from points outside the Commonwealth of Massachusetts to this respondent in the Commonwealth of Massachu- setts, where' they were sold and delivered to customers located in the Commonwealth of Massachusetts. This respondent admits that it is engaged in interstate commerce within the meaning of the Act. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. AUSTIN, NICHOLS & CO., INCORPORATED 13 ORDER Upon the basis of the foregoing findings of fact, the stipulation, and 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 the respondent, Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, Boston, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in any labor organization of its em- ployees by discriminating in regard to hire or tenure of employment or any term or conditions of employment. 2. Take the following affirmative action to effectuate the policies of the Act : ` (a) Make whole Harry H. Kendler for loss of pay suffered by reason of his discharge by payment to him of the sum of seven hundred fifty dollars ($750) ; (b) Post immediately in conspicuous places at its place of business and keep visible foi a period of at least sixty (60) consecutive days from the date of posting, notices embodying the cease and desist pro- visions of the Order of the said Board; (c) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of the said Order what steps Austin, Nichols & Co., Incorporated, a Massachusetts Corporation, has taken to comply therewith. AND IT IS FURTHERED ORDERED that the complaint in so far as it refers to Austin, Nichols & Co., Incorporated, a Virginia Corporation be, and the same hereby is, dismissed.