Brewery Workers

National Labor Relations Board - Board Decisions

Mar 8, 1972

195 N.L.R.B. 772 (N.L.R.B. 1972)

772 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
International Union of United Brewery , Flour, Cereal,
Soft Drink and Distillery Workers of America,
AFL-CIO (Miller Brewing Company ) and William
A. Kamp . Case 16-CB-578
March 8, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 29, 1971, Trial Examiner Benjamin B.
Lipton issued the attached Decision in this proceeding.
Thereafter, General Counsel and the Charging Party
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions, except as modified
herein.
1. The Trial Examiner found, and we agree, that
Respondent did not violate Section 8(b)(1)(A) of the
Act by requesting the Company to continue for 1 year
to deduct the dues of eight employees whose original
checkoff authorization cards were not dated, or by
refusing to process an overtime grievance through arbi-
tration.
2. The Trial Examiner further found that Respond-
ent did not violate Section 8(b)(1)(A) of the Act by
sending out to the employees certain letters containing
the language reprinted below. We disagree.
On September 17, 1970, Respondent's agent Ger-
chak sent a letter to the unit employees containing,
inter alia, the following language:
There is a rumor making the rounds that unless
you decide to pay dues that we will cancel the
contract before the raise in pay comes due next
month. I don't know whether we can do that but
don't spend that 26 cents an hour until I find out.
Save me the trouble of investigating by signing a
new check off authorization ... .
On September 24, 1970, Respondent's agent Lind-
berg sent the unit employees a letter which read, in
part:
If you want the contract enforced to the letter
and the company made to abide by the contract,
then come in and support us. Get in this fight.
Lend us your aid and your strength. Sign the en-
closed checkoff.
The Teamsters have informed you that we can't
cancel the present contract. They have been wrong
so many times in the past eight months that our
195 NLRB No. 143
only advice to ^ you is-"DON'T BET ANY
MONEY THAT WE CAN'T CANCEL THAT
AGREEMENT".
*
If, on the other hand, you would rather run the
risk of a non-union plant, or the possibility of the
cancellation of the contract, that is your preroga-
tive .... V
We find the above language to constitute clear
threats by Respondent to cancel the contract and pre-
vent employees from receiving benefits provided for in
the contract unless employees signed checkoff authori-
zations. It is well established, and we find, that each
employee has a right under the Act to sign or not to
sign a dues checkoff authorization, and that threats
such as these of loss of contract benefits if employees
refuse to sign dues checkoff authorizations constitute
violations of Section 8(b)(1)(A).1 Accordingly, we shall
order the Respondent to cease and desist from threat-
ening employees with cancellation of the contract or
loss of benefits if they refuse to sign checkoff authoriza-
tions.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board orders that Respondent, International Union of
United Brewery, Flour, Cereal, Soft Drink and Distill-
ery Workers of America, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from threatening employees with
cancellation of the contract or loss of benefits if they
refuse to sign checkoff authorizations.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices in Fort Worth, Texas,
copies of the attached notice marked "Appendix."2 Co-
pies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by an
official representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its mem-
bers are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
' International Union ofDistrict 50, eta! (RuberoidCompany, aDivision
of General Analine and Film Corporation), 173 NLRB 87, American Screw
Company, 122 NLRB 485, 489
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "POSTED PUR-
SUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD "
BREWERY WORKERS 773
(b) Mail copies of the attached notice to all em-
ployees in the bargaining unit which it represents.
(c) Additional copies of the attached notice shall be
signed by a representative of the Respondent and be
forthwith returned to the Regional Director for Region
16, for posting at the place of business of Miller Brew-
ing Company in Fort Worth , Texas, in places where
notices to employees are customarily posted, if the
Company is willing to do so.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TRIAL EXAMINER'S DECISION
SSTATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: This case was
tried before me on July 21-23, 1971, in Fort Worth, Texas,
upon a complaint by the General Counsel that the Respond-
ent committed certain violations of Section 8(b)(1)(A) of the
Act.'
Upon the entire record in the case , with due consideration
of the briefs filed by General Counsel and Respondent, and
from my observation of the witnesses on the stand, I make the
following: -
FINDINGS OF FACT
1. JURISDICTION,
Miller Brewing Company , herein called the Company, is a
Wisconsin corporation engaged in the manufacture and sale
of malt beverages , including beer and related products. It
maintains a plant in Fort Worth, Texas, which is the only
facility involved herein. During the year preceding the issu-
ance of the complaint , the Company had a direct inflow and
a direct outflow in interstate commerce, in each instance,
valued in excess of $50,000. Respondent admits, and I find,
that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
To All Employees of Miller Brewing Company
Represented by International Union of United Brew-
ery, Flour, Cereal, Soft Drink and Distillery Workers
of America, AFL-CIO
WE WILL NOT advise, warn , or threaten em-
ployees that we will cancel the contract or with-
hold from them any benefits unless they execute
dues checkoff authorizations in our favor.
We hereby notify the employees of Miller Brew-
ing Company that they are free to decide for them-
selves whether or not they will authorize their
Employer to deduct union dues from their pay.
INTERNATIONAL UNION
OF UNION BREWERY
FLOUR, CEREAL,
SOFT DRINK AND
DISTILLERY WORKERS
OF AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 8A24, Federal Office Building, 819 Tay-
lor Street, Fort Worth, Texas 76102, Telephone 817-
334-2921.
II THE LABOR ORGANIZATION INVOLVED
The Respondent, herein also called Local 120 or the
Union, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Questions Presented
The essential issues are whether Respondent unlawfully (1)
caused the Company to refuse to honor the written requests
of certain employees to revoke their dues checkoff authoriza-
tions on behalf of Respondent; (2) threatened to cancel its
collective-bargaining agreement and cease representing the
employees in order to compel them to sign checkoff authori-
zations in Respondent 's favor; and (3) breached its duty of
fair representation by refusing to arbitrate a grievance as a
reprisal against employees because of their dissident activities
in opposition to the certified Respondent.
B., General Background
On July 3, 1969,2 a Board election was conducted among
53 eligible employees in a production and maintenance unit
at the Fort Worth plant.3 On and after July 12, checkoff
authorizations were solicited and were signed by employees,
omitting the amount of dues to be deducted . Some of the
authorizations were undated and, in certain instances, mem-
bership applications were signed simultaneously. On October
22, Respondent was formally certified as bargaining repre-
sentative . On December 17, Respondent and the Company
executed a 3-year contract , effective from October 1, 1969,
which made provision for'employee checkoff authorizations.'
On January 25 and 26, the union membership voted (109 for
The original charge was 'filed on October 1 and served on October 2,
1970, an amended charge was filed on February 22 and served on February
24, 1971; and the complaint was issued on May 7, 1971.
' All dates are sequentially in 1969 and 1970, except as specifically
shown '
The contending unions consisted of the Respondent and Teamsters
Local 47.
The contract does not provide for union security , Texas has a "right to
work" statute
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 14 against) to ratify the contract and to establish a dues
structure of $7 per month. Thereafter, Respondent submitted
to the Company all its checkoff authorizations, with the
amount of the dues inserted. On February 1, the Company
commenced the payroll deduction of dues, which were remit-
ted to Respondent.
On March 25, a meeting was held at which 106 of 110
employees attending voted to disaffiliated from Respondent.
On April 1, at a further meeting, about 90 percent of the
former members of Respondent's Local 120 voted to affiliate
with the Teamsters union. Richard A. Hammond, who had
been president of Local 120 prior to the disaffiliation, became
president of Local 981, newly chartered by the Teamsters.'
About April 2, Respondent placed Local 120 under trustee-
ship, designating Lynn Wells, an International representa-
tive, as trustee. Thomas Cashman, a steward, was appointed
assistant trustee. On April 24, a petition was filed with the
Board by Hammond seeking to amend the certification by
substituting Teamsters Local 981 for Local 120 of Respond-
ent.' On May 7, the petition was denied by the Regional
Director' on grounds that the certified Respondent,is a func-
tioning labor organization which continues to administer the
contract and to process grievances.'
C. The Checkoff Revocations
On various dates between June 23 and August 18, a large
number of employees sent letters to the Company seeking to
revoke their checkoff authorizations.' Included in this group
are the eight employees, specifically named in the complaint,
who had signed undated authorization cards. In a letter dated
June 25, Respondent notified the Company:
It has been called to our attention that your company
has received written communications from approxi-
mately 21 employees of the Miller Brewing Company
setting forth their intention to revoke their Check Off of
dues to Brewery Workers Local Union No. 120.
We herewith call to your attention that said revoca-
tion of dues check off by any employee of the Miller
Brewing Company must be in compliance with the fol-
lowing language of the contract:
Signed authorization shall be on a form provided
for that purpose and shall be irrevocable for a
period of one (1) year from the date thereof or until
the termination date of this agreement, whichever
occurs sooner. Unless an employee desiring to
revoke his authorization for the deduction of dues
serves written notice of such revocation on the
Company and the Union not less than ten (10) days
nor more than twenty (20) days before the anniver-
sary of such authorization or the termination date
of this agreement, such authorization shall become
irrevocable and binding until the next such anniver-
sary, date or termination date, whichever occurs
sooner, subject to further renewal for like period
unless revoked in the manner above provided.
For narrative purposes, and not essential materiality, it is indicated that
Hammond gave general testimony as to the reasons for the employees'
disaffection - that they believed the International failed to provide cooper-
ation and support to Local 120, and that they were dissatisfied with the
collective-bargaining contract.
The petition asserted 134 employees were in the unit
Upheld by the Board on request for review.
Official notice of formal public documents
As of July 8, the Company had 37 such revocations, in identical lan-
guage
In light of the fact that this section of the contract has
not been complied with, we call to your attention that
such notices of revocation of dues checkoff by any em-
ployee is untimely and cannot be complied with.
On July 8, the Company responded:
The following [37] employees have submitted written
notice to the Company pursuant to Article I, Section 1.5
of the contract revoking their authorizations for check
off:
* * *
Unless you have specific objections such dues deductions
will be discontinued, at the end of this month.
On July 10, Respondent wrote the Company:
On those checkoffs that are in compliance with the con-
tract ... we agree with the company's contention that
said revocations of dues deductions will have to be hon-
ored by the company.
However, with respect to those checkoffs that are not
dated, we take the position that the company is duty
bound to continue deduction of dues of those employees
on the basis that when the checkoffs were placed in the
hands of the company not dated, the first dues checkoff
would begin at that time ....
It is our contention that ... these undated ... authoriza-
tions ... became effective when they were placed in the
possession of the company and the company made the
first dues deduction which we contend is one year from
date that the first deduction was made.
Therefore, we cannot agree that the company should
honor the revocations of checkoff that were undated
On July 15, the Company advised Respondent:
. as you requested we will not honor those revocations
of checkoff in which the original authorization was un-
dated. We have informed those employees of this fact by
certified mail with a carbon copy to you.
And on various dates from July 15 to August 21, the Com-
pany separately notified the eight named employees involved
in the complaint, as follows:
Becuase of [your undated authorization cards] the
Union has requested us to continue your dues deduction
pursuant to the contract until the 1 year has expired
from the time of the first checkoff.
Since the checkoff began on February 1, 1970, if you
wish to revoke your authorization you will be required
to send us another revocation prior to that date in ac-
cordance with ... the current contract.
The Company honored those revocations which involved
dated authorizations, but continued to deduct dues from the
wages of the eight employees in question. In January 1971,
these employees sent in further checkoff revocations, which
were then given effect by the Company.
Concluding Findings
In a companion case, Miller Brewing Company, 193 NLRB
No. 88, involving essentially the same facts and issue as to an
alleged Company violation, the Board held:
... we find that Respondent acted reasonably and in
good faith in construing the cards and the contract and
in treating the period of irrevocability of the undated
cards as being as of the date Respondent received such
cards. The Board has held that it will not effectuate the
policies of the Act for the Board to impose upon the
parties its interpretation of the meaning of the ambigu-
ous contract checkoff provisions as implemented by em-
BREWERY WORKERS 775
ployees' authorization cards where, as here, a respond-
ent acted reasonable and in good faith.'
Morton Salt Company`, 119 NLRB 1402
I find the same reasoning and conclusion applies to the
instant Respondent upon the record in this case and shall,
likewise, dismiss this allegation of the complaint."
D. The Question of Fair Representation
On or about May 11, a grievance was filed by Merle E.
Kemper, as "steward ," and also over the signature of Ham-
mond , stating.
Grievance pertains to article 9, section 9.2 and is filed on
behalf of myself and all employees listed on reverse side.
We feel that overtime is not being divided equally ac-
cording to the agreement . With the vast difference in
accumulated hours between the low and the high men,
we feel this to be unjust and unequal . We feel a media
should be established on the number of hours worked
between the low and high hours . We time claim all hours
worked and request backpay by all, employees listed."
The contract provides that-
Overtime shall be equitably divided insofar as practica-
ble among the employees on a departmental basis, pro-
vided the employee is capable of doing the work. List of
overtime hours accumulated by all employees will be
available to the Shop Steward upon request.
The grievance, had initially been filed on a Teamsters form,
was returned by the Company to Kemper, and refiled on an
"individual" form.12 On May 13, the grievance was submitted
for the second step procedure, after having been denied by the
Company at the first step. The Company's copy of the griev-
ance form , in evidence , contains the notation by Packaging
and Shipping Manager , D. E. Warren , that - "On May 14,
1970 , Merle Kemper was contacted to set up a second step
meeting. Mr. Kemper said he does not want a second step
meeting with Tom Cashman." The grievance was returned to
Kemper at his request." As such, the grievance was not there-
after formally resubmitted to the Company. In substance, the
contract 'describes the grievance procedure, viz: Step One-
meeting 'of employees with his supervisor and shop steward.
Step Two-meeting between local union president, shop
steward, and departmental manager. Step Three-meeting
between union business agent and industrial, relations
manager . Step Four-submitted to arbitration upon written
request of "either party."
On May 21, a letter to the Company from Hammond, and
also bearing the signatures of about 10 employees in the
margin," states the following:
11 While serious questions are raised in Respondent's arguments that the
limitation provision in Sec. 10(b) bars this allegation in the complaint, I find
it unnecessary`to pass upon Respondent 's contentions in view of the disposi-
tion made herein
13 The exhibit does not contain these names; generally their identity
appears elsewhere in the record.
11 The documentary evidence of General Counsel concerning an alleged
"pattern of unfair representation" by Respondent preceding the filing of the
May 11 grievance is found unrelated 'and immaterial to the immediate issue
and therefore unnecessary to describe in any form.
13 Hammond testified (without indicating whether he was present at the
conversation) that Warren said - the grievance could be carried no further
without the cooperation of Respondent , and one of the trustees had to
attend the second-step meeting
11 Some of the names are illegible or do not appear on the copy of this
exhibit
RE: Grievance No. Lack of Overtime
Dear Mr. Harrington:
Please be advised that I wish to proceed to arbitration
on the above styled case as an individual . I do not recog-
nize Tom Cashman nor the United Brewery, Flour, Ce-
real, Soft Drink and Distillery Workers of America,
A.F.L.-C.I.O. as my bargaining agent and I do not want
them to represent me in any aspect of this grievance or
any other grievance I may file in the future.
On June 9, the Company replied to Hammond declining the
request for arbitration as it related to no specific grievance
and was not in accordance with the procedure set forth in the
contract.
On June 18, Trustee Wells notified the Company that Ed-
ward S. Gerchak, an International' representative , was ap-
pointed as cotrustee of Local 120, and requested "a compila-
tion of the distribution of overtime hours and reasons for the
misapplication of them as mentioned in the grievance filed by
your employee Hammond."" On June 19, Gerchak sent a
letter to all employees asserting that Hammond filed a griev-
ance written for him by a Teamsters representative who does
not want the grievance settled , but - "with or without
Brother Hammond 's cooperation I intend to process it " On
June 22, Gerchak wired the Company submitting the follow-
ing grievance : "Adolf Berry ... has been denied the oppor-
tunity to train on other jobs and as a consequence has not
received an equitable division of overtime he would have been
entitled to." By letter on the same date to all employees,
Gerchak stated (a) that he had not heard from Hammond and
is proceeding without his cooperation , and (b) that he (Ger-
chak) undertook , to file a grievance on behalf of Berry, as
above. In Gerchak's letter, the employees were solicited to
attend a scheduled membership meeting." Dated June 23, a
notice was sent to the Federal Mediation Service, over the
signatures of 13 employees ," authorizing Hammond , as presi-
dent of the Teamsters ' local, to represent them in the selection
of an arbitrator pursuant to the contract with the Company. 1I
On June 23 , Hammond sent the Company the following let-
ter:
Dear Mr. Harrington:
On June 9, 1970, I received five (5) letters in response
to my request for arbitration one of which professed
ignorance as to the nature of the grievance and the other
four stated in substance that I had not complied with
Article XXV of the contract. I am attaching hereto co-
pies of the various grievances which have personally
been discussed with you or your supervisors.
* * *
During the various steps of the grievance procedure
you or your supervisors have insisted that Tom Cash-
man or a representative of United Brewery, Flour, Ce-
real, Soft Drink, and Distillery Workers of America,
AFL-CIO be present as the price for hearing the griev-
ance notwithstanding my position that I did not recog-
15 Although it appears that Gerchak had previously been assigned to
service Local 120, it was not until late June that he became principally
involved, with the grievance dispute here in issue
i6 Geeral Counsel also argues that the failure of employees to attend
union meetings was a reason Respondent took reprisal against them in its
decision to settle the grievance short of arbitration There is no evidence
concerning attendance at union meetings
1' Kemper, McWhorter, Waggoner, Seals, Lynch, K Ditmore, Goleman,
Young, Kershaw , Williams , Zamora , Berry , and Fletcher.
11 Seven grievances were listed On June 29, the Federal agency re-
sponded to Hammond , and the Company, suggesting the names of available
arbitrators No further action was taken after subsequent correspondence.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize that Union as my bargaining representative and that
I wished to process the grievance as an individual. At
that point you have refused to consider the 'grievance.
That is still my position.
As you well know the issue concerning the representa-
tive status of Teamster Local 981 and Local 120 is cur-
rently before the National Labor Relations Board and
until said issue is resolved I wish to present and adjust
the grievance herein and any others that may anse as an
individual.
In June, Gerchak and three named stewards discussed the
grievance with Harrington. The Union emphasized that the
unequal distribution of overtime resulted from the employees'
failure to receive proper training to perform the jobs involved.
Harrington took no position at that time. On July 2, Gerchak
wrote the employees-that he has returned to Fort Worth to
administer the contract which is in force until 1972, and that,
with or without the cooperation of the employees, he intends
to process grievances and make the Company live up to its
commitments. For the 1970 period ending July 4, the Com-
pany provided Respondent with the overtime compilation,
covering 100 employees, as requested on June 18.19 Gerchak
discussed the compilation with Berry and Young, two of the
listed grievants, and sent a message to Hammond, seeking a
discussion, but received no response. It also appears that the
compilation was posted on the plant bulletin board. On July
15, Gerchak wrote the manager of the Company requesting
a meeting, after stating:
Dear Mr. Lewis:
In my telephone conversation with you earlier this week
you felt that the distribution of overtime was properly
handled. My examination of the compilation of overtime
hours furnished'by you as of the period ending 7-4-70
indicates that you did not make a reasonable effort to live
up to Section 92.1 of the existing contract. A good faith
effort on your part would have made it possible for every
one to share equitably in the overtime hours that were
available in that period. I am hereby requesting that you
make whole those employees whatever monies they lost
due to your indifference to your obligation to this section
of the contract. A rough compilation by me shows that
the mean average comes up to approximately 70 hours.
The remedy that I seek is that all of the employees who
got less than the average be given the difference between
the hours they worked and the hours they would have
received if you had handled the matter properly.
On July 17, Gerchak addressed a letter to nine named em-
ployees, headed by Hammond, as follows:
Gentlemen:
My attention has been called to a grievance filed by
you as individuals. Please be advised that contractually
the Company cannot process it as you desire. I have
requested that Miller Brewing Company meet with me
at an early date to discuss this matter. When the date for
such a meeting is set I will notify you by phone of time
and date.
I have no idea what the Company position will be but
if you are really interested in correcting the conditions
of employment you are complaining about, your pres-
ence and testimony will be needed. My presentation of
your grievance without your cooperation could result in
the continuation and unfair imposition of a condition
that you complain of for another two (2) years, which is
the term of the present contract. This union, and only
" The compilation appears complete, although it is noted that Zamora's
name is not included.
this union, is the certified bargaining agent for the em-
ployees of this- Company.
On July 21, Gerchak wrote to the same nine employees:
Please be advised that your grievance will be pro-
cessed at 3:00 P.M. Friday, July 24, 1970.
Please meet me at the office of Mr. Harrington ....
Your cooperation and attendance is hereby requested.
On July 24, the scheduled meeting was held. Present for
Respondent were Gerchak and three stewards, and for the
Company, Harrington and Warren. None of the grievants
appeared. Respondent argued that the overtime was inequita-
bly distributed as the employees were not given sufficient
training for particular jobs; and the remedy it sought was to
make whole those employees who had performed less than an
average figure of 70 hours under the overtime compilation
which the Company had submitted. The Company admitted
discrepancies, but maintained that it was well within the
contract provision relating to the division of overtime. The
grievance was denied.
From July 24 to November 1, Harrington had approxi-
mately 5 meetings with Gerchak and the union'stewards on
the subject of this grievance, consuming 7 or 8 hours of
discussion. He indicated these took place on July 24, August
13 and 18, an unspecified date in September, and on October
27. In these meetings, the job qualifications of employees were
reviewed. It was brought out that the various jobs were spe-
cialized, that most employees had to be trained for their work
when hired, and that the supervisors in, assigning overtime
were aware of the qualifications of particular employees. An-
swering the Union, the Company insisted the employees were
being trained as quickly and as' well as could be done.
In his brief, General Counsel adverts to certain letters (e.g.,
on July 30, September 24, and ' October 26 and 30) from
Respondent to the employees as "propaganda ' sheets, cal-
culated more to alienate than to encouarge" cooperation of
the employees - concerning Respondent's processing of the
grievance in question., These and other letters submitted by
General Counsel must be read in the context,of the disaffilia-
tion action which took place within 2 months following ratifi-
cation of the contract and Respondent's continuing status,
rights and duties as the statutory bargaining representative.
In the July 30 letter, Gerchak advised the employees that the
Board denied the Teamsters final motion respecting its peti-
tion to amend the certification. Pertaining to the issues of the
complaint, the remainder of the ' letter is innocuous. Two
letters in particular dated September 17 and 24; are alleged
in the complaint to include threats by Respondent to, cancel
the existing contract and to cease representation of the em-
ployees. These letters are also relevant to the issue at hand;
the alleged independent violations, will be treated infra. On
September 17, Gerchak wrote the,, employees, in, part as fol-
lows:
There is a rumor making the rounds that unless you
decide to pay dues that we will cancel the contract before
the raise in pay comes due next month. I don't know
whether we can do that but don't spend that 26 cents an
hour until I find out. Save me the trouble of investigating
by signing a new check off authorization. Your steward
has them or come down to Howard Johnson's Restau-
rant next Tuesday, Wednesday or Thursday.
We are now going to arbitrate., the question as to
whether or not the company lived up to their obligation
in the distribution of overtime. The arbitrator we se-
lected is a Mr. John C. Shearer, a professor of economics
at Oklahoma State University. We 'contend that the
company made no real effort to train employees on other
jobs and as a result of this neglect many did,not get their
fair share of overtime. We are asking that the arbitrator
BREWERY WORKERS 777
make the company give back pay to those who did not
get a fair share of overtime.
And on September 24, C. H. Lindberg, Regional Director for
Respondent, wrote the employees, in part as follows:
The number one item was the question of service. We
informed the members of your local union that if they
had bona fide grievances which constituted a breach of
the contract, you would get service.
For the past eight months, the supporters of the
Teamsters Union have been making claims and promises
that have fallen flat and have been proven false. There
is no getting away from it - the National Labor Rela-
tions Board in Washington has upheld the Brewery
Workers Union as the bargaining agent for the Miller
Brewing Company employees and that they have a
three-year contract which is a bar to any election.
We have had Ed Gerchak in Fort Worth for the past
four months, ready and willing to help you, in fact beg-
ging Miller employees to let him settle their grievances.
And whom do you find in opposition? The Teamsters!!
Don't you think that it is high time that we unite and
fight the common enemy (in this case the Miller Brewing
Company) and enforce the contract to the letter, process
every grievance up to and including arbitration (bona
fide grievances that constitutes a contract violation)?
If you want the contract enforced to the letter and the
company made to abide by the contract, then come in
and support us. Get in this fight. Lend us your aid and
your strength. Sign the enclosed checkoff.
The Teamsters have informed you that we can't cancel
the present contract.- They have been wrong so many
times in the past eight months that our only advice to
you is-'DON'T BET ANY MONEY THAT WE
CAN'T CANCEL THAT AGREEMENT.'
Because of the language that is contained in the agree-
ment, that the Union can file a grievance, we are in the
process of arbitrating the question of division of over-
time....
If you want a sense of accomplishment and you like
a good fight, help Brother Gerchak and your shop stew-
ards (Cashman, Christnight, and Rocquemore) make
the company live up to the contract-and the way you
can do this, again, is by lending your aid and strength
by signing the enclosed checkoff.
If, on the other hand, you would rather run the risk
of a non-union plant, or the possibility of the cancella-
tion of the contract, that is your prerogative. We think
that we have proven good faith. Brother Gerchak and
your shop stewards are only a small group of men and
cannot accomplish miracles on their own. They can,
however, use your support.
Put this company on notice that they are not going to
get away with the contract violations they have commit-
ted thus far and that they are not going to run a non-
union, plant.20
'° I find without merit Respondent's contention that there is no valid
evidence that the September 17 and 24 letters were distributed to the em-
ployees Gerchak testified that he gave the September 17 letter to a se-
cretarial agency, together with a copy of the Excelsior list, and directed that
it be mailed to all employees on this list. Lindberg similarly testified that he
directed his secretary to mail the September 24 letters to the employees on
the Excelsior list, and assumes they were so mailed. As a standard proce-
dure, the Excelsior list, containing the names of all unit employees, was
On October 1, Gerchak wrote Harrington:
On September 18, 1970, I handed you three letters
referring to grievances involving equitable distribution
of overtime, preference of shift involving Billie Basye,
and supervisor Breau's granting to known Teamster ad-
vocates preference in distribution of overtime causing
Bob Sanders a loss of income.
. I received from you one letter on September 28.
This was a denial of my request for reasons why 43
employees were denied the opportunity to train on jobs
that have a high incidence of overtime. The only infor-
mation I got from your letter was an admission of guilt
on your part and a refusal to furnish us with proper
material for the consideration of the arbitrator when he
sits in judgement of the union's contentions that you
made no conscientious effort to distribute overtime
equitably.
* * * * *
In closing, please be . advised that because the em-
ployees in the maintenance department have refused to
give me their cooperation , I am forced to abandon their
grievance on subcontracting . " It is my hope that this will
not encourage you to further encroach on any work that
properly belongs to the maintenance department.
On October 6, Gerchak 's letter to the employees states in
part:
On October 30, Professor Shearer of Tulsa University
is going to hear the testimony on the grievance of Equal
Distribution of Overtime.
In preparing our case for backpay for those who did
not, get their equal share of overtime , I will need the
cooperation of those who lost money by getting less of
their share from the date of the signing of the contract
until July when Mr . Harrington furnished me with his
compilation of overtime hours.
According to the information that I have gathered,
the company was well informed of the unhappiness it
created and continued to ignore their obligations to train
people on jobs that have a high incidence of overtime.
You can judge for yourself what the company's atti-
tude was by Mr. Warren 's statement given to me and the
stewards early in June: "Ifwe had tried to train everybody
on other jobs, we would have fired half of them. "
The first real proof that we have that the company
knew you were unhappy was a grievance filed by Ham-
mond, Kemper, Lynch, Colemen, Berry, Ditmore, Ker-
shaw, and others. This was on May 21.
Unfortunately, signers who were ill-advised refused to
furnish me with helpful information that would have
made it possible to arbitrate this grievance months ago
provided by the Company prior to the Board election on July 3, 1969.
Kemper testified he received both letters Numerous other letters to the
employees, unchallenged in Respondent's brief, were mailed by Gerchak in
the same way. In addition, the Respondent had stipulated to the admission
of these two letters, with no objection as to authenticity, but contesting
relevance In my opinion, sufficient evidence was adduced by General Coun-
sel to show prima facie that the letters were mailed as to shift to Respondent
the burden of going forward If the letters had not been mailed, Respondent
could easily have established this fact from numerous employees who were
available to testify
" This action by Gerchak involving another grievance is noted.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now - whether or not I may be able to convince the
arbitrator of company negligence depends on your coop-
eration. Whether we win this grievance or lose it will not
make me any richer or poorer. The only winner or loser
will be YOU if the overtime grievance affects you ....
On October 14, Gerchak sent the employees copies of a letter
indicating the time and place of the arbitration hearing sched-
uled on October 30.22
On October 27, extended discussions took place among the
parties concerning the distribution-of-overtime grievance.
Participating for the Respondent were Gerchak and Stewards
Rocqueniore, Cashman, Whitworth, and Christnight, and for
the Company, Harrington, Warren, and Steutker, assistant
brewmaster. In relevant substance, the following transpired:
In the initial meeting at the plant between the Union and the
Company, Gerchak stated he was ready to proceed with the
arbitration, if he could get the men to testify. The four stew-
ards were then sent to poll the particular grievants at their
jobs in the plant. Rocquemore was assigned to contact Ham-
mond, Kemper, and Goleman. He first approached Ham-
mond with the question. He told Hammond the Company did
not think that the` grievants would cooperate and urged that,
if they did not, the grievance ought to be dropped; while the
Union contended the employees would cooperate. Hammond
said he would have to make a phone call, which he would do
after his shift ended about,3:30 p.m. Rocquemore spoke with
Go1eman,,who said he would do what Hammond thinks best.
Kemper indicated he would testify if he were paid for his
time. Rocquemore reported back to the meeting, which was
then recessed until Hammond could give his decision. After
Hammond made his telephone calls, he'tol'd Rocquemore he
would see to it that all those who signed the grievance would
testify, as the matter involved all employees in the plant. He
wanted to be sure the employees who testified would be paid
for, their time, and was told by Whitworth that the Company
had already agreed to do so. However, since he was "the
originat'or," he felt he should be allowed to sit through the
entire arbitration "as a silent observer," without pay, and to
take notes. And further, would Rocquemore ask Gerchak not
to use this as propaganda until the arbitration was decided,
because` otherwise some of the employees might not want to
testify "if Gerchak was going to exploit them." Hammond
asked Rocquemore to come back down and tell him what was
said, by Gerchak. Rocquemore returned and conferred sepa-
rately with Gerchak. He stated that Hammond said he would
go, but he had "stipulations on it." And Rocquemore pro-
ceeded to read off the stipulations, which he had written
down: (1) that the employees get paid for their time in testify-
ing; (2) that Hammond be permitted to sit in and take notes;
and (3) that Hammond wanted "no wording, nothing out on
this, no letters or anything" by Respondent to use "'for ex-
ploiting or politicking" until after the arbitration decision
had been rendered. Gerchak replied that he was one carrying
it to arbitration, not Hammond, and he wanted no stipulation
on this. Rocquemore also related the responses of Goleman
and Kemper. Gerchak and Rocquemore waited for the other
stewards to return with the results of their poll. Of those
stating "definitely" they were willing to testify, Cashman and
Christnight each had only one name.23 Gerchak indicated
22 Several intervening letters in September and October from Gerchak to
the employees are found immaterial Certain of these letters show that
Gerchak was seriously preparing for the arbitration
23 Rocquemore testified that "there were only two people willing to come
down out of the twelve " He was apparently in error, as Kemper, at least,
was uncontradicted in giving his unqualified assent. I cannot find that the
discrepancy is critical as to credibility or to the material facts
that "we need the testimony of all the people because we don't
know that much into it." Each of the four stewards expressed
the opinion that the grievance should be taken to arbitration,
but Gerchak made the decision to the contrary. He said the
arbitration would be lost because they'did not have enough
witnesses; all they could do was to try to reach an agreement
with the Company for a quick settlement where the em-
ployees would be equalized as to future availability of over-
time.
The Union then resumed its meeting with the Company.
They negotiated the question of equalizing the overtime. A
settlement was reached, as reflected infra. About 4:45 p.m.,
Rocquemore returned to the lunchroom where Hammond
and other employees were waiting. The following is Ham-
mond's corroborated testimony, in substance: Rocquemore:
"Gerchak said the deal is off .... They settled it." Ham-
mond: "What did they settle on?" Rocquemore: "Gerchak
said he wasn't going to allow you to sit in on the arbitration."
Hammond: "What does that have to do with it? What in the
hell did you settle on?" Rocquemore: "As of November 1st
everybody's overtime hours goes back to zero." Hammond:
"Well, then you didn't get a damn thing, did you, because
that's the same thing they offered us the first time we ever
talked to them about the grievance?" Rocquemore: "No, and
it is not right."24
On October 19, Harrington sent the following letter to
Gerchak describing the settlement:
This will confirm the understanding reached on Tues-
day, October 27, 1970 between the Company and the
Union in settlement of the overtime grievance filed on
May 11, 1970:
1. The Company will establish a December 31 cut-off
date on overtime hours and each January 1, all employees
will begin with zero overtime hours.
2. In all Departments, a recalled employee will be
charged with the average overtime hours when he re-
turns to work.
3. In the Packaging and Maintenance Departments, a
newly hired employee will be charged with the average
overtime hours upon completion of his probationary
period.
4. In the Brewing Department, a new employee will
be charged with the average overtime hours when in the
opinion of the Company he is -qualified but in no event,
beyond three months.
5. The division of overtime as set forth in the current
contract between the parties, will' be done on a shift
basis.
It is further understood that these changes will become
effective November 1, 1970 with the first cut-off date on
December 31, 1971.
And on October 30, Gerchak wrote his explanation to the
employees:
On May 20 Hammond, on the behalf of a number of
production employees, filed a grievance protesting the
unequal distribution of overtime, and on the advice of
'Teamster officials refused to cooperate with me when I
took up their fight. I have repeatedly asked them to offer
themselves as witnesses to prove to the arbitrator that
the company made no real effort to train any of them on
other jobs so that they could share in any and all over-
time .... As in a court of law testimony of witnesses is
" There is no evidence of the terms of any settlement offer by the Com-
pany made to Hammond or to the Union prior to October 27 And it does
not appear from the detailed evidence herein concerning the processing of
this grievance that, until this date, the Company's position was other than
a complete rejection of the grievance
BREWERY WORKERS 779
necessary to prove a case to an arbitrator. I saw no point
in proceeding to arbitration without their cooperation
and today we worked out a procedure that I feel will
eliminate much of the unequal distribution of overtime
in the future.- To those people who took the Teamster
advice, I suggest that they ask the Teamsters for what-
ever back pay they may have lost.
The settlement of the grievance on overtime involved
the training of all employees in their respective depart-
ment so that all will share in the overtime equally from
this point on. The company asks that 90 days time be
given the brewing department for training everybody. I
have asked Mr. Harrington to post his letter of settle-
ment on the Bulletin Board....
According to Hammond, the day after the settlement, on
October 28, he had a conversation with' Christnight while on
the job in the plant basement. He asked Christnight to relate
what happened at the grievance meeting. Christnight said
that Gerchak told him "that he thought he could have won
the grievance and would have carried it to arbitration but he
wasn't going to allow [Hammond] to have any part of it, and
wasn 't going to give [Hammond] a damn thing." Christnight
could not recall any conversation in the basement. He tes-
tified he spoke with Hammond in the cafeteria that day in the
presence of several other employees. Hammond persisted in
asking what occurred at the meeting the day before, but
repeatedly interrupted Christnight and prevented him from
giving an answer. The complaint alleges an independent vio-
lation of Section 8(b)(1)(A).
Concluding Findings
1. The alleged threats
In each of the letters in question, more fully shown supra,
particular language contains an appearance of an implied
threat, e.g.:
Gerchak's letter of September 17
There is a rumor making the rounds that unless you
decide to pay dues that we will cancel the contract before
the raise in pay comes due next months. I don't know
whether we can do that but don't spend that 26 cents an
hour until I find out. Save me the trouble of investigating
by signing a new check off authorization. Your steward
has them or come down to Howard Johnson's Restau-
rant next Tuesday, Wednesday or Thursday.
Lindberg's letter of September 24
If you want the contract enforced to the letter and the
company made to abide by the contract, then come in
and support us. Get in this fight. Lend us your aid and
your strength. Sign the enclosed checkoff.
* * *
If, on the other hand, you would rather run the risk
of a non-union plant, or the possibility of the cancella-
tion of the contract, that is your prerogative. We think
that we have proven good faith. Brother Gerchak and
your shop stewards are only a small group of men and
cannot accomplish miracles on their own. They can,
however, use your support ....
However, when these passages are read in the full context of
each letter, of the other related correspondence, and of all the
circumstances shown in the record, in my view the conclusion
is not justified that, as alleged, Respondent was threatening
to cancel the contract and cease representation in order to
compel the employees to sign new checkoff authorizations, or
that the employees could so reasonably construe the letters.
The above-quoted language in its confined scope is ambigu-
ous. The actual evidence spanning several months demon-
strates Respondent's determination to maintain its certified
status as representative, to hold to the contract still having 2
years to run, and to service the grievances thereunder. The
disaffiliation action by the bulk of employees, the continuing
challenge and attack upon Respondent's status, and the delib-
erate withholding of cooperation by dissident employees in
Respondent's processing of grievances, shown hereinabove,
all serve to show that Respondent's efforts were essentially to
obtain the necessary support of employees in its administra-
tion of the contract and at the same time to persuade the
dissidents to return to the fold. While in these circumstances
Respondent is by no means free to engage in any acts of direct
or implied coercion, I cannot find that the evidence supports
the alleged violation of Section 8(b)(1)(A).
2. Christnight's alleged admission of a threat
It is alleged that Christnight , as an agent of Respondent,
told an employee, in effect, that Gerchak did not arbitrate a
meritorious grievance "in order to prevent said employee
from benefiting therefrom." As a union steward, Christnight
attended the various conferences with Respondent and the
Company on October 27 pertaining to the overtime griev-
ance. If a threat was made by Gerchak in Christnight's pres-
ence, and Christnight related the threat to an employee, I
would hold that Christnight is an agent as to impute the
responsibility to Respondent. His alleged statement was
made to Hammond, who was already apprised by Roc-
quemore of Gerchak's reasons for the decision not to arbi-
trate. Even assuming that the statement was made as testified
by Hammond, I can find no violation. Reasonably construed,
Gerchak was referring to Hammond as the leader of the
dissidents, rather than as a single employee, and was stating
his reasons for rejecting Hammond's conditions for bringing
the grievants to the arbitration, i.e., as Gerchak apparently
believed, not to allow Hammond to dictate the terms, to
discredit Respondent, or to derive any political advantage
from the arbitration. This allegation will therefore be dis-
missed."
3. Processing of the overtime grievance
It is alleged that Respondent, by Gerchak, on October 27,
failed and refused to arbitrate a 'grievance - as a reprisal
against the unit employees because they exercised their right
to refrain from assisting and joining Respondent. Thus, the
complaint alleges an act of reprisal by Respondent against the
unit employees generally. However, the issue which was liti-
gated relates to a particular grievance filed by about 10 em-
ployees asserting in substance that they were prejudiced by
the Company's failure to divide the overtime equally accord-
ing to the contract, and requesting backpay for the signatories
to the grievance. By this conduct it is contended that Re-
spondent violated its statutory duty of fair representation.
The general principles governing a union's duty of fair
representation have, for some time, been clearly articulated
by the Supreme Court, e.g.:
The complete satisfaction of all who are represented is
hardly to be expected. A wide range of reasonableness
must be allowed a statutory bargaining representative in
serving the unit it represents, subject always to complete
" "Other unlawful threats and warnings in propaganda sheets directed
to unit employees," which General Counsel broadly asserts, are not alleged
in the complaint nor evidenced in the record
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith and honesty of purpose in the exercise of its
discretion.26
More recently,, the Court further recognized that individual
grievants have no absolute'right to have their case taken to
arbitration, that their broad interests are not substantially
endangered where the statutory bargaining representative ex-
ercises, its powers in good faith to,settle the grievances short
of arbitration," In determining such an issue, as herein, the
appropriate criteria consists of the good faith and the essen-
tial fairness of the Union's conduct in processing the griev-
ance in question. As expressed by the Board in the Miranda
case, it must be affirmatively shown in support of the alleged
violation that the union's conduct was based "upon consider-
ations or classifications which are irrelevant, invidious, or
unfair."" -
As the events clearly demonstrate, from May 11 to October
27, the determined position of the grievants, under the
spokesmanship of Hammond, was to pursue their grievance
only as individuals while insisting upon the complete exclu-
sion of Respondent, notwithstanding Respondent's certified
status as representative and the contract's grievance proce-
dures requiring Respondent's participation beginning with
the second step. In such position, Hammond and his cosign-
ers of the grievance were adhering to a consistent course,
since the disaffiliation on March 25, of discrediting Respond-
ent and seeking its ouster as the exclusive bargaining agent.
Respondent's continuous efforts until October 27 to obtain
the cooperation of the grievants in processing the grievance
were unavailing. It is quite evident that the grievance itself
became a political test and vehicle for the dissidents under
Hammond to continue the conflict for the bargaining agency.
Thus, on one hand, they actively disavowed Respondent as
the proper representative, and on the other they placed Re-
spondent under attack in failing fairly to represent them' in
the grievance. Within this context, Respondent reacted de-
fensively in its letters and approaches to the employees seek-
ing to preserve or recover their support. To be sure, a mutual-
ity of suspicion existed between Hammond and Gerchak. In
assessing the evidence of Respondent's conduct adverted to
by the General Counsel, it cannot be overlooked that it was
functioning as the certified representative, the legality of
which is clearly established and not in issue.
The record does not reflect that there was obvious merit to
the grievance or that Respondent reasonably believed it could
have achieved a more favorable result if it proceeded to arbi-
tration. The contract contains language providing generally
for an equitable division of overtime "insofar as practicable
... provided the employee is capable of doing the work." It
was an accepted fact that all employees were not qualified to
perform available overtime work. In the contract, no consid-
eration was given to the necessity for training employees for
the various jobs which entailed overtime The training issue
was developed in negotiating the grievance and, as earlier
described, a formula was reached in the settlement on Octo-
ber 27.
It is neither contended nor shown that the overtime was
being assigned on a discriminatory basis against the dissident
employees or other than on the basis of ability to perform the
work. Of those dissidents who were involved with the griev-
ance, five had received overtime in excess of the average of
70 hours for all the employees during the period covered by
26 Ford Motor Company v. Huffman, 345 U.S 330, 338 (1953)
" Yaca v Sipes, 386 U S 171, 190-191. "Through this settlement pro-
cess, frivolous grievances are ended prior to the most costly and time con-
suming step in the grievance procedures " Ibid.
38 Miranda Fuel Co, 140 NLRB 181, 185, enforcement denied 326 F 2d
172 (CA 2)
the overtime compilation which the Company supplied to
Respondent.
On October 27, Gerchak on behalf of Respondent was
preparing to go forward with the arbitration set for October
30. While meeting with the Company, he sent four stewards
to poll the individual grievants as to whether they were will-
ing to testify in the arbitration. On both sides, it was generally
assumed that Hammond held the power of decision for the
other grievants. Gerchak received and relied on Steward Roc-
quemore's message concerning Hammond's response, and
the reports of the other stewards. It is an unquestioned fact
that Hammond, after consulting with his advisors, laid down
certain conditions to his making the grievants available for
the arbitration. Hammond was to be,permitted to audit the
proceeding and take notes; Gerchak was not to use the arbi-
tration hearing for propaganda purposes, otherwise the em-
ployees might not want to testify if Gerchak was going to
exploit them. Particularly against the background of the prior
refusals to cooperate and the persisting controversy on repre-
sentation rights, it was not unreasonable for Gerchak to re-
gard Hammond's conditions as politically motivated for
Hammond's own purposes. L find Gerchak's rejection of
Hammond's offer does not, on its face warrant an inference of
bad faith.
Gerchak testified as to his reasons for desiring the coopera-
tion of the grievants and their presence at the arbitration: He
felt it necessary to find out whether these individuals had been
offered an opportunity to train on jobs that had overtime. He
had to know "whether Joe Blow was capable of doing John
Doe's job that particular day"; if the Company established
before the arbitrator that the employee was incapable of do-
ing the job, it "would have left us,dead." And their failure to
appear might well have been considered by the arbitrator in
an adverse light I find unacceptable General Counsell's argu-
ments that, until October 27, Respondent was convinced the
grievance was meritorious, and the arbitration was aban-
doned "at the last minute" because Respondent's previous
threats and overtures did not accomplish its objectives of
inducingthe dissidents to restore their allegiance to Respond-
ent; nor, inconsistently, that Gerchak "intended all along to
`sell out' the employees he represented in a `cheap deal' with
the Company." While Gerchak indicated in his earlier letters
to the employees that he intended to process grievances "with
or without the cooperation of the employees," or of Ham-
mond, it can hardly be held that he was committed by these
statements to take this grievance to arbitration. Certainly, as
a matter of good-faith judgment, Respondent was free at any
time to reevaluate' its evidence and bargain for a reasonable
settlement' without arbitration. Indeed, it appears that the
negotiated settlement achieved for the Union a substantial
measure of success in providing a concrete basis for equaliz-
ing the distribution of overtime among all the employees in
the unit. Considering the extensive evidence produced on this
issue, I am unable to find the necessary support for the allega-
tion that Gerchak's decision to settle the grievance short of
arbitration or the settlement itself, on October 27, was an act
of reprisal, or discriminatory against the grievants, the dissi-
dents, or the unit employees generally.
It is my opinion that, in the entire processing of the griev-
ance, Respondent exercised its discretionary powers fairly
and in good faith within "the wide range of reasonableness"
afforded under the law and within the terms of the contract.
Accordingly, it is concluded that the General Counsel failed
to sustain the burden of proving the alleged violation of Sec-
tion 8(b)(1)(A) of the Act
BREWERY WORKERS 781
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed
in its entirety.