Wine, Liquor & Distillery Workers Union, Local 1, Distillery, Rectifying And Wine Workers International Union Of America, A. F. Of L. And Sciienley Distillers Corporation, 504 (1948)

Docket Number:2-CC-23 and 2-CC-24
Party Name:518

In the Matter of WINE, LIQUOR & DISTILLERY WORKERS UNION, LOCAL 1, DISTILLERY, RECTIFYING AND WINE WORKERS INTERNATIONAL UNION OF AMERICA, A. F. OF L. and SCIIENLEY DISTILLERS CORPORATION In the Matter of WINE, LIQUOR & DISTILLERY WORKERS UNION, LOCAL 1, DISTILLERY, RECTIFYING AND WINE WORKERS INTERNATIONAL UNION or AMERICA, A. F. OF L. and JARDINE LIQUOR CORPORATION Cases Nos. 2-CC-23 and 2-CC-24, respectively.-Decided July 22, 1948 DECISION AND ORDER On April 8, 1948, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Local 1, had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions; and Schenley, one of the charging parties, filed a brief. The Respondent filed no brief in support of its exceptions.

On April 15, 1948, after issuance of the Intermediate Report,

Jardine, the other charging party, filed with the Board a motion for permission to withdraw its charge in this proceeding and for 'an order directing that the complaint herein based on its charge be withdrawn.' In support of its motion, Jardine filed an affidavit of its president stating that all grievances between the Respondent and Jardine have been adjusted to their mutual satisfaction and that no purpose would be served by continuance of the proceeding because the unfair labor practices charged have ceased. An opposition to this motion, dated April 19, 1948, was filed on behalf of the Board's General Counsel, urging that the motion to withdraw the charge be denied for two reasons: (1) the secondary boycott was not confined to Jardine but extended to other distributors of Schenley products; and (2) Presi 504 505 dent Kaplan's statement in his affidavit, referred to above, to the effect that all grievances have been settled is in direct conflict with his testimony that there were no grievances to adjust. Schenley also filed an affidavit in opposition to the motion to withdraw, urging similar and other reasons in support of its opposition.

However, on June 18, 1948, Schenley filed a motion for permission to withdraw its charge in which it also withdrew its opposition to Jardine's motion and requested that the complaint herein based upon that charge be dismissed. In support of its motion, Schenley submitted an affidavit which stated in substance that the Respondent's parent organization, the International, acting on behalf of its affiliated locals, during June 1948, had entered into an agreement with Schenley covering its Stagg plant, referred to in the Intermediate Report, which eliminated the principal issue of the Stagg strike and the danger of resumption of the activity complained of as unfair labor practices.

On June 22, 1948, the Board at Washington, D. C., heard oral argument in which the Respondent Schenley, and a representative of the General Counsel participated; Jardine did not appear. Counsel argued on the motions, and waived further argument on the merits.

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 Intermediate Report, the exceptions, the briefs, including the Respondent's brief submitted to the Trial Examiner, the arguments of counsel, and the entire record in the case. In order to effectuate the policies of the Act, we hereby deny the motions to withdraw the charges. The Board adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications, additions, and exceptions:

  1. The Trial Examiner found that the Respondent engaged in work stoppages at the warehouses of independent liquor distributors handling Schenley products in the metropolitan area of New York City principally in order to exert pressure on Schenley to induce it to agree to contract terms which the Respondent's sister local, Local 38, sought to obtain from Schenley's subsidiary, Stagg. For the reasons stated in the Intermediate Report, we are in agreement with the Trial Examiner to the extent that that end was one of the objects of the work stoppages. Accordingly, we find that the Respondent engaged in, and induced or encouraged the employees of employers other than Schenley, including Jardine, to engage in, a strike or a concerted refusal in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services, and that one object thereof was to force or require such employers to cease using, selling, handling, transporting, or otherwise dealing in the products of Schenley or to cease doing business with Schenley, in violation of Section 8 (b) (4) (A) of the Act.1 2. The Respondent contends that the Board has no jurisdiction to issue a complaint under Section 8 (b) (4) (A) of the Act upon a charge filed by Schenley because Schenley through its subsidiary, Stagg, was engaged in a primary dispute with Local 1 and thus is not a neutral third person sought to be protected by Section 8 (b) (4) (A). However, the complaint was issued in part on a charge filed by Jardine which is such a neutral third person. Moreover, the Act as amended contains the same language as the original Act, namely, 'whenever it is charged that any person has engaged in... any... unfair labor practice, the Board... shall have power to issue... a complaint...,' and that language has been interpreted to mean that any person may file a charge, as the Board's present Rules and Regulations, Section 203.9, provide.2 This contention has no merit.

  2. The Respondent further contends that Section 8 (b) (4) (A) was aimed at the use of pressure by third parties to further a union's organizational efforts or jurisdictional claims and was not intended to apply in the case of a lawful dispute over terms of employment, as was the dispute between Local 38 and Stagg. The language of the Act compels us to reject this contention. Moreover, the legislative history indicates that it was the intention of Congress to remove the pressure of strikes and boycotts from those who merely continued to do business with an employer involved in a dispute with his employees over terms of employment as well as over recognition.3 1At the Austin, Nichols & Co. warehouse, on the evening of December 4, 1947, the Respondent's steward requested management not to 'ask him to handle Schenley orders because he would not do it and was going to tell the men not to handle any Schenley goods if they were good union men because there was a strike against Schenley in the South,' and the union steward, in the presence of a management representative, 'told some of the men that if they were good union men they would refuse to handle any more Schenley merchandise.' Thereafter, however, the Austin Nichols employees shipped all Schenley merchandise that they were asked to handle, but management stopped processing new orders for Schenley goods on and from December 5 until December 9, 1947, when full operations were resumed. There was no strike at Austin, Nichols & Co. These events at the Austin Nichols warehouse throw significant light on the Respondent's object in calling the work stoppages at the warehouses of the other wholesale liquor distributors involved herein.

    While we rely on these events for that purpose, we need not and do not pass upon the question whether the Respondent's conduct with respect to the employees of Austin,

    Nichols & Co., hereinabove related, violated Section 8 (b) (4) (A) of the Act.

    2 See N. L. R. B. v. Indiana & Michigan Electric Co., 318 U. S. 9, to the effect that a complaining party under the original Act need not be a labor organization or an employee. Cf.

    Matter of Pennsylvania Greyhound, type of person or organization making the charge or the relationship between such person or organization and the individuals involved in the acts complained of are not limited by the Act.' SSee statement by Senator Taft, 93 Cong. Rec. 4323 (April 29, 1947).

  3. The Respondent also contends that this case does not involve the sort of conduct condemned by Section 8 (b) (4) (A) for an additional reason. It argues that the wholesale distributors here, such as Jardine, have an interest in distributing Schenley products; and that, as such allies of Schenley, they are not neutrals with respect to the primary dispute. We find no merit in this contention. The Respondent relies on the case of Douds v. Metropolitan Federation of Architects, 75 F.

    Supp. 672 (D. C. N. Y.). In that case, U. S. District Judge Rifkind refused to grant the Board's Regional Director an injunction against an engineers' union which sought, by picketing, to encourage employees of a subcontractor to engage in a strike in order to compel the subcontractor to refuse to do engineering work for a contractor. Judge Rifkind rested his decision on the ground that the subcontractor was not engaged in 'doing business' with the contractor within the meaning of Section 8 (b) (4) (A). There, the subcontractor was engaged in selling services of its employees to the contractor, who supervised the subcontractor's employees' work which had substantially increased by reason of a strike against the contractor. Under such circumstances the court concluded that the subcontractor was not a neutral but an ally of the contractor and that it was the subcontractor's activity as an ally which directly provoked the union's picket action. The Metropolitan Architects case is not applicable to the facts of the instant case.

    Here, the record establishes that there is no financial or other connection other than that of seller and buyer, between Schenley and the wholesale distributors involved. We hold that the language of the Act does not vest the Board with...

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