Brewery & Soft Drink Workers Local Union 163

National Labor Relations Board - Board Decisions

Nov 9, 1961

134 N.L.R.B. 99 (N.L.R.B. 1961)

BREWERY & SOFT DRINK WORKERS LOCAL UNION 163 99
said she could not make the rate "even if she wanted to," he told Stephenson to
discharge her immediately s
Upon a consideration of all the evidence, I am not convinced that Respondent
either transferred Preston to the support operation or discharged her for discrimina-
tory reasons. Although it does appear that Preston was subjected to a substantial
amount of harassment from Stephenson while she was working on the support opera-
tion , this circumstance may reasonably be attributed to Preston 's uncooperative atti-
tude and failure to improve her production . In the circumstances of this case, even
if there had been evidence of union animosity on Respondent 's part-and there
was no such evidence here-I would conclude that the General Counsel had not
proven by a preponderance of the evidence that Respondent was discriminatorily
motivated in transferring, then discharging , Preston.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor practices , as alleged in the com-
plaint , within the meaning of Section 8(a)(1) and (3) of the Act.
[Recommendations omitted from pitolication.]
6 To show that it had correctly appraised Preston's attitude about her work, Respond-
ent called as a witness an employee , Goldie Clarke, who related that she had overheard
Preston telling some of her friends in the plant lunchroom that "she couldn't get along"
with Stephenson , that "she hated him" ; that "she wasn't going to try to make the rate
of work because she didn't like the job she was on ", and that she wanted her old job
back. Preston denied making these statements but none of the employees to whom she
allegedly made the statements, and who"could have " confirmed or denied Clarke 's testi-
mony, were called to testify I credit Clarke's testimony.
Brewery and Soft Drink Workers Local Union No. 163 [Steg-
maier Brewing Company ] and George Tryba
International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, AFL-CIO [Steg-
maier Brewing Company] and George Tryba . Cases Nos.
4-CB-664 and 4-CB-705. November 9, 1961
DECISION AND ORDER
On August 7, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the consolidated complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b)-of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
134 NLRB No. 16.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions' and brief, and the entire record in
these cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendation.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in each of the above-entitled cases; an order
consolidating the cases, an amended consolidated complaint, and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the Respondent Unions,
a hearing involving allegations of unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, was held in
Wilkes-Barre, Pennsylvania, on June 28, 1961, before the duly designated Trial
Examiner.
At the conclusion of the hearing ruling was reserved upon the Respondents' motion
to dismiss the complaint: Disposition of the motion is made by the following find-
ings, conclusions, and recommendations.
Briefs have been received from General Counsel and the Respondents.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
Stegmaier Brewing Company is a Pennsylvania corporation , with principal office
and place of business in Wilkes-Barre , Pennsylvania , where it is engaged in the
business of brewing and selling beer.
Its gross sales annually exceed $ 1,000,000. The annual value of goods shipped
directly to points outside the Commonwealth of Pennsylvania exceeds $50,000.
The Company is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNIONS
The Respondent Unions represent, for purposes of collective bargaining, employ-
ees of Stegmaier Brewing Company and are labor organizations.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
General Counsel contends that the Respondents unlawfully caused Stegmaier to
discharge, on January 31, 1961, employee George Tryba. In substance, it is
General Counsel's claim that the Unions caused the Employer to violate Section
8(a)(3) of the Act by terminating Tryba's employment to encourage membership
in a labor organization, and by this act of causation themselves violated Section
8(b)(1)(A) and (2) of the Act.
B. The facts
Material facts are as follows:
(1) In May 1960, Stegmaier and the Respondent Unions were parties to a
collective-bargaining agreement which, among other things, provided that:
SECTION 11. In the event that capable and experienced men cannot be had to
fill vacancies, regular employees shall be given preference to learning.
General Counsel makes no claim that the above-cited section or any other provision
of the contract is unlawful.
(2) In the early part of the same month the Employer was in need of a fireman
for its boilerroom.
(3) Carl Guckelberger, the plant superintendent, as a witness stated that although
for the preceding 25 years it had been the practice to transfer from other departments
all men who had gone into the boilerroom, this time he communicated with the
Local's representative, Watkins, and obtained from him permission to hire a fireman
from outside-a new employee.
BREWERY & SOFT DRINK WORKERS LOCAL UNION 163 101
(4) Pursuant to Watkins' permission , George Tryba was employed on May 17.
(5) At the next union meeting, apparently, its members repudiated Watkins'
action. Early in June, within a few days after Tryba's hire, a committee of union
officers and Watkins met with management regarding the matter. At this meeting
Watkins and the union officials took the position: (a) that Watkins had been in
error in approving the hire from outside the plant; (b) that both the contract and
past practice required that the Employer give some employee from another depart-,
merit an opportunity to train for the job instead of hiring Tryba; (c) that men in
other departments were in layoff status at the time and thus available; and (d) that
the union members protested against setting a precedent in violation of the contract
and past practice which might be against their interest in the future.
'(6) Thereafter the Union continued to press its claim without result. In October
it formally requested arbitration, as the contract provided, and submitted a list of
its designated members of an arbitration board.
1(7) In the meantime another point of disagreement between the parties arose
as a grievance: the contracting out by the Employer of certain hauling previously
done by its employees.
(8) Both grievances were discussed at meetings in October and November.
(9) Finally, at a meeting in November, the Employer agreed to let Tryba go on
January 31, 1961, and the Union agreed to drop its grievance concerning hauling.
(10) Pursuant to agreement Tryba was terminated on the latter date, and the
Employer posted the job opportunity for employees already on its roll.
(11) The president of the Employer Company conceded, at the hearing, that
the Respondent Unions made no threat of any action to gain its point, but merely
insisted that under contract and practice Tryba should not have been hired.
C. Conclusions
Counsel for the Respondents urges that their action in persuading the Employer
to abide by past practice and their interpretation of the contract is not in violation
of the Act.
The Trial Examiner finds merit in this contention.
General Counsel, 'although specifically queried on the point at the hearing, makes
no claim that the contract in any provision is unlawful. It would appear that to
press their point the Unions took appropriate steps, none of which may reasonably
be found to bbe unlawful. In effect, the union members, the principals, upon learn-
ing of their agent's action in approving the hire from outside their ranks, promptly
repudiated it, and shortly after Tryba's hire both their officers and Watkins, their
agent, insisted that the existing contract and past practice required offering the
job opportunity to employees before resorting to outside hire.
At first the Employer declined to yield to the Union's protest. The Unions pressed
their claim to the point of seeking arbitration. It may reasonably be assumed (or
in any event so speculative as to warrant no unlawful intent on the part of the
Respondents) that had arbitration decided against them the grievance would have
been dropped.
Before the grievance came to the arbitration table, however, the Employer yielded
on this matter, while the Union yielded on a concurrent grievance. An effective
swap was made.
It may well be, as General Counsel seems to maintain, that the Employer was
legally justified in relying upon Watkins' approval of its proposed action in hiring
from outside the plant. But this is not a suit for breach of contract brought by the
Union against the Employer. The hiring is not the point at issue, but the firing.
The Trial Examiner knows of no rule of law or logic which accords an employee,
once hired, the right to hold the job in perpetuity.
The nub of General Counsel's contention is that the Respondents caused the
Employer .to discriminate against,Tayba, by firing him, for the purpose of encourag-
ing membership in a labor organization. The facts do not sustain the claim. Union
membership was not involved, but only a dispute between the contracting parties
as to the proper interpretation of a lawful provision in a lawful agreement.
While the point is suggested only by way of illustration, the Trial Examiner
doubts if General Counsel would have issued a complaint against either the Em-
ployer or the Respondents had Tryba been refused hire in compliance with the pro-
visions of a contract conceded to be lawful.
It will be recommended that the complaint be dismissed, the evidence failing to
sustain the allegations of unlawful action on the part of the Respondents.
[Recommendations omitted from publication.]