Miller Breing Co.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 266 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller Brewing Company and Ervin Szewczuga and
Gerald Treichel. Case 30-CA-4468
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELL.O
On April 2, 1980, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to Respondent's
exceptions.
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 at-
tached Decision in light of the. exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.'
In reaching his Decision the Administrative Law
Judge relied on our prior decisions in Precision
Castings Co.,2 Gould Corp.,3 and Indiana and
Michigan Electric Co., 4 for support. Respondent's
exceptions raised the question of the validity of In-
diana and Michigan, supra, as precedent in light of
the Seventh Circuit's refusal to enforce the Board's
Order. We do not read the Seventh Circuit's opin-
ion as placing absolute liability on union stewards
and further find that the factual distinctions be-
tween that case and the instant case place this case
outside the reach of its precedential impact.
In Indiana and Michigan Electric, supra, the court
found that 50 bargaining unit employees walked off
their jobs and left the employer's premises in viola-
tion of a contractual no-strike clause. Five union
officials falsely advised their supervisors that they
were ill and left with the other strikers. Three of
the five union officials later assisted in ending the
strike. As a result of this unlawful activity the em-
ployer issued written warnings to the rank-and-file
strikers, suspended for I day the three stewards
I The Administrative Law Judge recommended that the two discrimin-
atees be given backpay beginning with the date of their discharge. No-
vember 15. 1977. However, the rank-and-file employees who left the
plant were given 3-day suspensions on the same date. Therefore, the
remedy is revised to make whole the discriminatees to the extent that the
discipline imposed against them exceeded that given to the rank-and-file.
The recommended Order and notice are revised accordingly.
2 Precision Castings Company. Division of Aurora Corporation, a wholly
owned Subsidiary of Allied Products Corporation, 233 NLRB 183 (1977).
5 Gould Corporation, 237 NLRB 881 (1978), enforcement denied 612
F.2d 728 (3d Cir. 1979).
4Indiana d Michigan Electric Company. 237 NLRB 226 (1978), en-
forcement denied 599 F.2d 227 (7th Cir. 1979).
who helped to end the walkout, and suspended for
3 days the two officials who took no action to ter-
minate the strike. The court reasoned that union of-
ficials have a higher responsibility than other em-
ployees not to engage in conduct which violates
their duties as employees and repudiates their re-
sponsibilities as union officials. The court found
that the employer's action in disciplining the union
officials more severely than the other strikers did
not violate the Act because it was "entitled to take
into account the union official's greater responsibil-
ity and hence greater fault." 5
In the instant case, Stewards Treichel and
Szewczuga were informed by Respondent of a
work assignment decision which they knew would
upset their membership. Their initial response was
to contact Union Business Representative Carrera
to inform him of the decision, to register their dis-
agreement, and to seek his help in investigating
methods by which the decision might be reconsid-
ered. The stewards agreed that the best course of
action was to wait until the newly assigned em-
ployees began the disputed work and thereupon file
a grievance in accord with the contract procedure.
In keeping with past practice, the stewards in-
formed their fellow electricians about this most
recent decision. However, the angry reaction
which this news elicited exceeded their expecta-
tions and talk of a walkout began immediately. The
employees' anger was directed not only at Respon-
dent for its decision, but also at the stewards and
the Union for their inability to represent successful-
ly their interests. The rank-and-file strikers wanted
to go to the union hall to find out why they so
often came out on the losing end. Both stewards
tried to calm their men and Treichel contacted
Carrera for further advice and assistance in restor-
ing order. During this conversation, Carrera told
Treichel to continue to try to calm the men and to
keep them inside the plant, but, if the employees in-
sisted on coming to the union hall, to keep them
together as a single group. Following this advice
both stewards attempted to convince the employ-
ees that the matter was being pursued through the
appropriate channels and that they should return to
their jobs and allow the process to work. Despite
their continued efforts, the employees refused to be
pacified. When it became apparent that the em-
ployees were determined to leave, Treichel and
Szewczuga each notified supervisory personnel
about what was happening. As their men exited the
plant, the stewards observed Carrera's instruction
to keep their men together and followed them out.
Thereafter Respondent issued letters of reprimand
r Indiana & .Michigant Electric Compay. upra at 232
254 NLRB No. 24
266
MILLER BREWING COMPANY
and temporary suspensions to the rank-and-file
strikers, but discharged Treichel and Szewczuga
for "participation in and leadership of the wal-
kout." While acknowledging that it has no basis for
believing that either Treichel or Szewczuga incit-
ed, suggested, or encouraged the walkout, Respon-
dent asserts that Treichel and Szewczuga, by virtue
of their union stewardship positions alone, were
leaders in the unlawful strike and thereby deserved
the harsher discipline.
The facts of this case clearly portray a situation
where these two stewards could have done little
else but what they did. They were caught in a
series of events whereby an employer's decision
provoked a hostile, and ultimately uncontrollable,
reaction against the Employer, the Union, and
themselves. Credited testimony reveals that at each
step in the situation's progress they attempted to
restore order, to persuade their men to remain on
the job, to seek assistance from others in the
Union, and to apprise Respondent truthfully about
what was happening. Both the union business rep-
resentative and their men wanted the stewards to
accompany the rank-and-file to the union hall. The
leadership which was exerted by Treichel and
Szewczuga was not in causing the walkout, but
rather in a futile attempt to quell the rising tide fa-
voring that walkout. Based on these findings, the
Seventh Circuit's characterization of a steward's
"greater responsibility and hence greater fault" is
inapplicable herein and we agree with the Adminis-
trative Law Judge's determination that Respon-
dent's imposition of more severe discipline on the
stewards violates Section 8(a)(l) and (3) of the Act.
Contrary to Member Jenkins, the remedy pro-
vided herein is fully appropriate and in accord with
the traditional remedies imposed by the Board. The
Chairman views his disagreement with Member
Jenkins to be less a difference over remedy than
one over the nature of the violation found.
At the outset, it is important to note exactly
what conduct has been found violative of the Act.
Here, we are affirming the Administrative Law
Judge's finding that Respondent unlawfully im-
posed a "greater discipline" (emphasis supplied) on
union stewards than that imposed upon rank-and-
file employees who also participated in the unpro-
tected walkout. In this case, as in Precision Castings
and its progeny, the very heart of the Board's ra-
tionale is that an employer may not rely on union-
related considerations to justify a more severe dis-
cipline for stewards. However, an employee's
status as a steward does not insulate him or her
from the lawful discipline imposed upon all em-
ployees. Thus, in these circumstances, the violation
directly results from the additional penalty imposed
on a steward by an employer. For that violation, a
proper remedy must be provided.
In the Chairman's view, the remedy advocated
by Member Jenkins fails to correlate with the vio-
lation found. In this case, inasmuch as the walkout
was unprotected, Respondent could and did lawful-
ly discipline those employees who participated in
the walkout. Thus, to the extent that all electri-
cians-including the stewards-who participated in
the walkout received a 3-day suspension without
pay, Respondent's discipline was lawful. However,
Respondent's imposing a greater discipline upon
the union stewards was unlawful, and the stewards
are therefore entitled to be made whole to the
extent that their discipline exceeded that found
lawful.
Should the litigation raise, and leave otherwise
unresolved, any doubt whether the total discipline
or only an additional discipline was imposed upon
an employee for discriminatory reasons, Chairman
Fanning would resolve that doubt against the
wrongdoer. The American Distilling Company6 -
cited by Member Jenkins-involved just such a sit-
uation. There, an employee, who was also the
union president, was suspended for 90 days for vio-
lating a work rule. No other employee had ever
been suspended for more than 30 days for the same
offense, and the Board found that the employee re-
ceived the greater discipline because he was the
union president. The case did not involve a group
of employees engaging in the same conduct at the
same time (e.g., such as the unprotected walkout
herein) and for which union stewards received a
greater penalty. In American Distilling as it was un-
certain what penalty, if any, the employee would
have received absent union considerations, the em-
ployer's entire discipline violated the Act and it
was fully proper that the remedy included backpay
for the full 90-day suspension. But, when litigated
on the theory of disparate punishment and the facts
clearly show that all employees similarly situated
received the same lawful discipline except that the
union stewards received a greater discipline be-
cause of their position, the violation found must be
that the additional penalty violated the Act and a
remedy provided for the discrimination actually
suffered. 7
Certainly, in analogous situations, though it is
clear that a discriminatory act has taken place, the
Board nonetheless limits a remedy to fit the viola-
tion. For example, when an employee is discharged
or laid off for discriminatory reasons, the make-
whole remedy will be limited if it can be shown
a 245 NLRB 1148 (1979).
' See, e.g., Westinghouse Electric Corporation, 243 NLRB 306 (1979).
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employee later would have been terminat-
ed or laid off for nondiscriminatory reasons.8 Here,
by imposing a remedy which makes whole the dis-
criminatees to the extent their discipline was un-
lawful, the Board is recognizing the nature and
extent of the violation found and fulfilling its func-
tion to fashion a proper remedy.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Miller Brewing Company, Milwaukee, Wisconsin,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a) of
the recommended Order:
"(a) Make whole Ervin Szewczuga and Gerald
Treichel, with interest, for any loss of earnings in-
curred as a result of the discriminatory discipline.
Said interest shall be computed as set forth in the
remedy section of this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, concurring:
I agree with the remedy provided herein, but, in
addition, I would order a complete make-whole
remedy, providing backpay to Szewczuga and
Treichel for the entire length of their discrimina-
tory discharges, beginning November 15, 1977. The
limited remedy fashioned herein represents an un-
warranted departure from the Board's traditional
remedies in disparate treatment cases.
It is the Board's function to remedy the effects
of an unfair labor practice and to restore the status
quo ante. It is neither the purpose nor the design of
an unfair labor practice proceeding for the Board
to assume the role of an arbitrator, meting out
what it considers to be appropriate discipline when
it finds that a respondent's discriminatory action
has resulted in inappropriately severe discipline.
Rather, the Board's obligation to remedy the ef-
fects of the unlawful conduct actually committed is
not affected by the fact that a respondent lawfully
a See, e.g., Ohio Valley Graphic Arts, Inc., 234 NLRB 493 (1978). In
that case, an employer, for discriminatory reasons, accelerated the dis-
charge of an employee, whom it would have lawfully discharged 6 days
later. In fashioning a remedy, the Board did not order reinstatement.
Rather, the Board directed the employee be awarded backpay for the 6
days by which his discharge preceded the date, absent unlawful consider-
ations, upon which he would have been lawfully discharged. Thus, the
Board precisely tailored the remedy so as to make whole the discrimina-
tee only to the extent the employer's action was unlawful.
could have imposed less severe discipline upon a
discriminatee.
A simple illustration demonstrates the folly in-
herent in the remedy herein. In a typical disparate
treatment case, the prounion employee receives
greater discipline for the same offense than does
the nonunion employee. If the violation is found,
the Board orders a complete make-whole remedy;
we do not reduce the discipline or alter the nature
of it.9 Indeed, the Board has applied its traditional
make-whole remedial approach in cases similar to
the instant case. For example, in The American Dis-
tilling Company, 245 NLRB 1148 (1979), a union
official was suspended for 90 days for misconduct
for which rank-and-file employees had received
suspensions ranging from 1 week to 30 days. The
Board ordered that the discriminatee be given
backpay for the full term of the suspension imposed
by that respondent, not for some lesser period over
and above that which may have reflected a nondis-
criminatory suspension. Thus, it has never been the
Board's function to administer discipline fairly for
those employers who administer it discriminatorily.
If the Board ventures into this area of formulating
"appropriate" levels of discipline, its processes will
be steeped in an analytical mire of disciplinary sys-
tems and efforts to find the appropriate level where
nonunion employees are disciplined to different de-
grees, all consuming great amounts of time, and re-
sulting in arbitrary and unpredictable remedies for
discriminatees. Simply stated, if Respondent's con-
duct is found unlawful, the Board may not amelio-
rate the effects of the unlawful conduct by, in
effect, imposing lesser discipline on the discrimina-
tees. Accordingly, I would order the traditional
make-whole remedy.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would reverse the
Administrative Law Judge and dismiss the com-
plaint in this case. Once again I must reiterate my
continuing disagreement with the majority's con-
clusion that it is a violation of the Act for an em-
ployer to discipline union officials more severely
than other employees for breaching their duty to
enforce the contract by participating in a strike in
violation of a contractual no-strike provision.' °
Furthermore, I note that this case arose within the
Seventh Circuit, which has clearly indicated that it
considers the majority's analysis of the law in such
9 See, e.g., Windsor Plastics. Inc., 231 NLRB 1222 (1977).
'0 See my dissenting opinion in Gould Corporation. 237 NLRB 881
(1978), enforcement denied 612 F.2d 728 (3d Cir. 1979), and my concur-
ring opinion in Midwest Precision Castings Company, 244 NLRB 597
(1979).
268
MILLER BREWING COMPANY
cases to be erroneous. ' Inasmuch as I find the ma-
jority's attempts to distinguish the facts in this case
from those in the Indiana & Michigan case singular-
ly unconvincing, I would follow that precedent,
which coincides with my analysis of the law in this
area. Thus, I would find that Respondent did not
violate Section 8(a)(3) and (1) of the Act by disci-
plining Charging Parties Szewczuga and Treichel
more severely than other employees who partici-
pated in the unprotected strike, because as union
officials they had a higher duty than other employ-
ees to abide by and enforce the contractual no-
strike provision.
It is undisputed that the walkout of Respondent's
first-shift electricians on November 1, 1977, violat-
ed the no-strike clause of the contract and was thus
unprotected. It is also undisputed that Stewards
Szewczuga and Treichel walked out of the plant
with the other electricians, despite requests by Re-
spondent's officials that they remain on the job,
and went with the striking electricians to the union
hall. By this conduct, they clearly joined and par-
ticipated in the illegal strike. While Szewczuga and
Treichel also took some steps to prevent the wal-
kout and to end it after they were unsuccessful in
forestalling it, their conduct in walking out with
the striking employees was inconsistent with their
attempts to prevent the strike and breached their
duty to enforce the contract. In light of their posi-
tions of authority within the Union, they would
logically be viewed by the employees as leaders in
any strike situation. Their actions in walking out
along with the other employees thus spoke louder
than their words, effectively demonstrating their
tacit approval of the employees' strike and under-
mining the Union's contractual no-strike commit-
ment.
For the reasons set forth in my dissenting opin-
ion in Metropolitan Edison Company, 252 NLRB
No. 147 (1980), I would find that, regardless of the
actions taken by Szewczuga and Treichel to end
the strike, they nevertheless breached their primary
responsibility as union officials to enforce the con-
tract by participating in a strike which violated the
no-strike clause of the contract. Therefore, I would
find that Respondent acted lawfully in holding
them to a higher standard of conduct and disciplin-
ing them more harshly than other employees who
participated in the illegal strike. Accordingly, I dis-
sent.
'L See Indiana & Michigan Electric Company v. NL.R.B., 599 F.2d 227
(7th Cir. 1979), denying enforcement of 237 NLRB 226 (1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge employees or dis-
criminate against them in regard to their hire,
tenure, or any term or condition of employ-
ment, because of their protected concerted ac-
tivities or because they hold union office in the
bargaining unit when engaging in protected
concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL give Ervin Szewczuga and Gerald
Treichel backpay with interest to compensate
for any loss of earnings they incurred as a
result of the discriminatory discipline.
WE WILL offer to both said employees im-
mediate and full reinstatement to their former
jobs or, if such positions no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights or privi-
leges previously enjoyed.
MILLER BREWING COMPANY
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge:
This case is concerned with the discharge of the Charg-
ing Parties, two electrician employees of Respondent,
who were stewards for Local 494, International Brother-
hood of Electrical Workers, AFL-CIO-CLC (IBEW or
the Union), in connection with a wildcat walkout to the
IBEW union hall, on November 1, 1977, of most of the
first-shift electricians employed at Respondent's Milwau-
kee brewery, in contravention of the union contract with
Respondent abjuring strikes and walkouts in favor of set-
tlement of disputes by the grievance and arbitration pro-
cedures of the contract.
The work stoppage was of several hours duration. It
was a mixed reaction of the electricians to what they re-
garded as management favoritism toward Machinist
Union (IAM) employees in reversing, on November 1, a
prior management decision and awarding to machinists
certain Filtec work being performed by electricians, and
the seeming inadequacy of their IBEW union representa-
tion, under the contract grievance procedure, to hold on
to work performed by the electricians. Only the two
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union stewards were punished by discharge. The other
participating employees were disciplined by up to a 3-
day loss of pay and reprimand in their files.
The complaint alleged,' and the General Counsel con-
tends, that the discharge of the two stewards was dis-
criminatory and imposed on them alone because of their
union status as stewards, in violation or Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act).
Respondent claims that the discharge of the two em-
ployees was not solely because of their status as union
stewards, but rather because of their active leadership of
the employees in the work stoppage and walkout, and
therefore constituted justified action to discourage lead-
ership in breach of the contract obligation.
The case was heard before me on January 15, 16, and
17, 1979, at Milwaukee, Wisconsin. All three parties have
filed briefs.
Upon the entire record of the case, including my ob-
servation of the witnesses and consideration of the briefs,
I make the following:2
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Wisconsin corporation that operates
breweries and related facilities throughout the United
States, including the brewery in Milwaukee involved in
this case.
In the year prior to issuance of the complaint, a repre-
sentative period, Respondent realized gross revenues in
excess of $500,000 from its operations and shipped and
received goods valued in excess of $50,000 to and from
points outside Wisconsin.
As the parties admit, Respondent is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
As the parties also admit, the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent's Milwaukee brewery, the facility in-
volved in this case, is a collection of buildings where
beer is brewed and packaged in bottles, cans, and kegs.
According to Joe Paulicivic, who was Respondent's
labor relations manager for the Milwaukee brewery in
November 1977 and earlier, Respondent's employees
were variously affiliated with 12 unions. The employees
of direct concern were electricians, members of the
IBEW (the Union), who constitute a segment of the
maintenance force in the brewing and packaging depart-
ments.
The electricians provided coverage for the brewery's 3
shifts, with about 28 men on the first and predominant
shift, and about 6 men each on the second and third
shifts. The first shift hours were from 7 a.m. to 3:30 p.m.
Most of the buildings comprising the brewery are in
groups with some inside interconnections within each
I The charge was filed on December 13, 1977.
2 Certain errors in the transcript are hereby noted and corrected.
group, but only exterior ingress and egress between the
several groups. The main dividing line between the
groups is State Street (running east and west) so that the
buildings, denominated by numbers, are usually described
as north or south or on the north side or south side (of
State Street).
The electricians work out of three electric shops. One
is located on the third floor of north building 29, some-
times called north bottling, which is part of the group of
north side buildings concerned with packaging (see Resp.
Exh. 6).
A second electric shop is on the first floor of south
building 60, sometimes called south bottling, which
building, along with south building 61, comprise the
south packaging plant (see Resp. Exh. 6).
A third electric shop is on the first floor of south
building 15, which building is concerned with brewing
(see Resp. Exh. 6).
In connection with the three electric shops, for the
first and predominant shift the union business agent had
appointed from among the electricians three stewards,
one for each shop. One of the stewards was Ervin
Szewczuga (referred to as Erv in the testimony), an em-
ployee of Respondent for 26 years, who had been serv-
ing as steward for 4 years of the electric shop in north
building 29. For the electric shop in south building 60,
the appointed steward was Gerald Treichel (referred to
as Gerry in the testimony), an employee for 12 years and
steward for 4 years. For the electric shop in south build-
ing 15, the appointed steward was Theodore Collins (re-
ferred to as Ted in the testimony), an employee for 22
years and steward for about 3 years.
Among the supervisory and management personnel in-
volved in the events of this case were Paul Jablonowski,
then packaging maintenance manager; Joe Paulicivic,
then labor relations manager for the Milwaukee brewery;
Daniel Feinsinger, industrial relations division (IRD)
manager for the Milwaukee brewery, to whom Paulici-
vic reported; Resident (or Plant) Manager Fred Mundt,
to whom Feinsinger reported; Corporate Manager of all
Industrial Relations Departments Koenig; Supervisor
Edward Beers, who was an electrical and mechanical
maintenance supervisor in south packaging; and Supervi-
sor Gary Grande, who was an electrical maintenance su-
pervisor in north packaging.
B. The Union Contract
Local 494 IBEW (the Union) has represented the elec-
tricians employed at Respondent's Milwaukee brewery
between 30 and 40 years, according to Union Business
Representative Henry Carrera. Carrera had been business
representative for almost 10 years at the time of the hear-
ing.
The latest and current 3-year contract, which is a con-
tract of the Union with the Pabst and Schlitz Milwaukee
breweries as well as Respondent's Milwaukee brewery,
became retroactively effective on October 1, 1977, after
270
MILLER BREWING COMPANY
being ratified by the parties on October 31 and signed
November 11, 1977,
3 and runs to October 1, 1980.
The pertinent "no strike" provision of the contract is
article IX, paragraph 5, which reads as follows:
ARTICLE IX
GRIEVANCE AND ARBITRATION PROCEDURE
5. During the term of this Agreement, all disputes,
grievances, complaints and adjustments pursuant to
this Agreement shall be settled in accordance with
the Grievance and Arbitration Procedure outlined
herein, and the Union agrees for itself and its mem-
bers that there shall be no strike of any kind, walk-
out, slow-down, picketing, stay-in, or work stop-
page of any type. Should the Union, or any employ-
ee or group of employees violate the provisions of
this paragraph, it is mutually agreed that the Em-
ployer may impose such disciplinary action against
any or all employees involved as it may deem nec-
essary, including discharge. The Employer agrees
that there shall be no lock-out on its part. It is
agreed that any dispute arising under Paragraph 5
shall be disposed of through the Grievance and Ar-
bitration Procedure set forth in this Article IX.
C. The Filtec Dispute and Prior Disputes History
For years, the electricians, represented by IBEW, and
the machinists, represented by District 10 of the Interna-
tional Association of Machinists etc. (IAM), had been
vying for jurisdiction over items of in-plant work.
A prime example, with origins going back many years,
was the repair of electrical parts on battery-operated
forklift trucks used in and about the plant. Although in
1958 the electricians had been awarded the work by Re-
spondent involving what was then a very few such elec-
tric trucks, in 1973 when Respondent acquired a large
fleet of them it assigned the work to an internal vehicle
repair shop operated by the Machinists. The Electricians
in 1974 took Respondent's assignment to arbitration, and
in 1975 the arbitrator ordered Respondent to assign the
work to the electricians. Nevertheless, as many of the
employee witnesses testified and Labor Relations Man-
ager Paulicivic conceded, Respondent refused to assign
the work to the electricians and instead cooperated with
the machinists (who to meet technical requirements
threatened a work stoppage) in having the matter
brought to the Board for determination under Section
10(k) of the Act. In 1976, the Board, relying heavily on
Respondent's preference for the machinists (noting that
both crafts were equally suited by background, practice,
and skills), awarded the work to the machinists, Interna-
tional Association of Machinists and Aerospace Workers,
District No. 10, AFL-CIO, 222 NLRB 688, 689-690
(1976).
This episode, as did others involving contests with the
machinists and work decisions prior to November 1977,
soured the views of the electrician employees concerning
the impartiality of Respondent's management and super-
3 The prior contract had expired October 1. 1977. hut as extended
for another month while negotiations continued.
visors, and fostered a belief that management was siding
with the machinists. The belief was fed by employee un-
derstanding that some of the supervisors of the electrical
and mechanical departments came from machinists back-
grounds (for example Beers, Jablonowski, and a Gene
Salkowski) and that there was no electrician in the rel-
evant management (see testimony of electrician employ-
ees Liske, Rutz, and Collins among others, and testimony
of Jablonowski and Beers indicating previous machinist
ties).
The disenchantment of the electricians, according to
electrician Liske a 16-year employee, extended not only
to their Employer but also to the union representatives
and stewards who, said Liske, appeared to be only losing
in the grievance procedure over work previously done
by electricians. Among some of the other disputes that
the electricians lost was the refusal of the machinists to
allow electricians the use of certain company tools, for
which Maintenance Manager Jablonowski first gave a
promise to correct but then repudiated under machinists'
pressure (testimony of electrician Szewczuga); removal
of motors from gear heads (testimony of electricians
Liske and Rutz); a matter concerning brackets in July
1977, as to which Szewczuga said he had persuaded his
fellow electricians to refrain from walking out; and,
lastly, the dispute over the Filtec work, which precipitat-
ed the work stoppage of November 1, 1977.
The Filtec, an inspection reject device in packaging to
determine the liquid level in containers, was going
through a process of replacement in the plant. The old
style, mainly on the bottle lines, uses an optical system
that passes a beam of light through the bottle and senses
the difference in light refraction to determine the fill
level of the liquid. The replacement style, useable for
packaging cans as well as bottles, passes a beam of radi-
ation through the can or bottle to sense the liquid level
by differentiation of the density. Apparently, the new
style Filtec is more electronically oriented than the old
style. The gradual process of replacing the old with the
new had begun when the dispute between the electri-
cians and machinists erupted at the end of October 1977.
The installation of the new Filtec system, in various
locations, involved three parts, namely, installing (a) the
totalizer, (b) the inspection head, and (c) the reject con-
veyor.
The work had been divided between the electricians
and the machinists, and, as electrician steward Szewc-
zuga testified, there had been agreement between the
contesting sides that electricians would install item (a),
the totalizer, and machinists would install item (c), the
reject conveyor. There had been no agreement on install-
ing item (b), the inspection head.
In October 1977 or earlier, Respondent had engaged
an outside electrical contracting firm, the McGaw Com-
pany, whose employees are IBEW electricians, to do the
mounting of the inspection heads; and in the last week in
October 1977 McGaw electricians were working on four
units on a dual line for quarts and 12-ounce bottles,
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which work included bolting the inspection head to the
floor and insuring that it was level to the conveyor. 4
On October 24, 1977, according to Labor Relations
Manager Paulicivic, the McGaw electricians were told
to stop work, as a result of the machinists' complaint
(with overtones of a strike threat) that the electricians
were doing the machinists' work. On October 26, Pauli-
civic called a meeting that included electrician stewards,
Szewczuga and Treichel, and two machinist stewards,
White and Lysek, and told them that Respondent had
decided to have the McGaw electricians continue with
the Filtec work assigned to them. Paulicivic claimed, at
the hearing, that this was merely a temporary decision,
but electrician stewards Szewczuga and Treichel testified
they understood this was a final decision. Paulicivic ap-
parently contributed to the understanding or misunder-
standing of the electrician stewards by not putting what
he said had been decided in writing, and by asking only
the machinist stewards at the meeting to supply some ad-
ditional information. He testified that Packaging Mainte-
nance Manager Jablonowski later suggested that he, Pau-
licivic, get some further information for the electricians
through Project Manager Brockmeyer in order to have
the whole old history; and Brockmeyer came to electri-
cian steward Szewczuga after the McGaw electricians
resumed work on October 27 and (either inadvertently
or intentionally) perpetuated the misunderstanding con-
cerning the decision of October 26 by telling Szewczuga
that he, Brockmeyer, was getting "heat" from the ma-
chinists and needed some information from the electri-
cians to tell the machinists. Szewczuga supplied Brock-
meyer with a letter or letters concerning earlier history.
It was therefore with a reply of surprise that Szewc-
zuga was told by Paulicivic and Jablonowski, on the
morning of November 1, that they wanted a further
meeting at 11 that morning with him and electrician ste-
ward Treichel and the two machinist stewards to "clari-
fy" the Filtec decision of October 26. Szewczuga replied
he thought the matter had been clarified on October 26.
Nevertheless the meeting was held and Szewczuga and
Treichel attended along with the machinists' and man-
agement representatives.
At the 11 a.m. meeting of November 1, Szewczuga for
the electricians and White for the machinists were each
handed a paper (G.C. Exh. 2), which reversed the Octo-
ber 26 decision, so that installation of the disputed item
(b), the Filtec inspection head, previously awarded to the
electricians, was now awarded to the machinists. The
November 1 decision noted (what had not been in dis-
pute) that electricians would continue to be responsible
for wiring and adjustments of the inspection head as in
the past, and stated also (what apparently had not been
in dispute) that installation of the totalizer (item (a))
would be done completely by the electricians, and instal-
lation of the reject conveyor (item (c)) would be done by
the machinists except for wiring by the electricians.
Packaging Maintenance Manager Jablonowski told the
four stewards that the decision was final. He and Labor
4 Electricians Szewczuga, Rutz, and others of Respondent's electri-
cians testified that they had no objection to, or problem with, the work
being done by the outside electricians who were fellow members of their
Union.
Relations Manager Paulicivic claimed that both the elec-
tricians and machinists representatives responded heated-
ly, the electricians because it was unfair to take from the
electricians work they had been doing, the machinists be-
cause they had not also been given the installation of the
totalizer (although there was contradictory evidence that
they had agreed that this item would be done by the
electricians, and Paulicivic conceded that the machinists
filed no grievance over the assignment).
Manager Jablonowski testified that in the course of the
discussion electrician Szewczuga said, "It looks like to
get anything here you have to be a rabble rouser." Jab-
lonowski said he replied, "Don't go using self-help, you
have a grievance procedure to follow." Szewczuga did
not recall any reference to "rabble rouser." He was quite
clear in his testimony that he made no threats. In this
regard, Jablonoski's further testimony was corroborative
of Szewczuga, Jablonowski saying that he did not feel
the rabblerouser remark was a matter of concern or that
it indicated trouble, and that it was typical of remarks
made in this and other meetings. 5
Indeed, after the meeting ended at or about 11:30 a.m.,
both Managers Jablonowski and Paulicivic went off to
lunch, as they testified, without any foreboding of trou-
ble, particularly interruption of work, at the plant.
D. The Work Stoppage
Following the forenoon meeting of November I on
the Filtec installation assignments, electrician stewards
Szewczuga and Treichel proceeded to the electric shop
in north building 29 and telephoned the results of the
Filtec meeting to Union Business Representative Henry
Carrera. In essence they reported that Respondent had
reversed its earlier decision of October 26 on electricians
installing the Filtec inspection head and awarded the
work to the machinists. According to the two stewards,
Carrera said he would see what he could do about it.
Carrera testified that he also told them that it looked like
another jurisdictional dispute under the contract with
Respondent, as in the electric forklift case, and he would
look about for someone to argue the case for the electri-
cians.
The two stewards decided that each would go back to
his own shop for lunch but rejoin and see electrician ste-
ward Ted Collins in the south brewing department for
any ideas he had, as a result of his participation in the
most recent contract negotiation, for preparing or deal-
ing with the Filtec grievance, and that if there were any
need Treichel would be in touch with Carrera.
I. The walkout from South Packaging
Leaving steward Szewczuga, steward Treichel went
from north building 29 across the street to the electric
shop on the first floor of south building 60, found no one
there, and went to the second floor lunchroom. From his
testimony, it appeared that he found a good number of
I Labor Relations Manager Paulicivic was careful to point out that in
the meeting neither electricians nor machinists used the term work stop-
page, and that when they referred to "trouble," as a result of the assign-
ment, they were talking of being extremely unhappy, not a work stop-
page.
272
MILLER BREWING COMPANY
his fellow electricians and, eating his lunch, told them of
the new and changed Filtec decision by Respondent and
that Union Representative Carrera was going to work on
it. He got an angry response, his fellow employees
asking, why did they come out on the short end when he
represented them, demanding that the Union tell them,
and asserting that they were going down to the Union to
find out. The discussion and participants moved to the
electric shop now involving most of the electricians at-
tached to the shop. Treichel managed to call and reach
Carrera again at the union hall and told him the men
were talking of leaving and coming down to the union
hall on account of the Filtec decision. Carrera counseled
Treichel that Treichel should try to hold the men there
while Carrera got in touch with the plant's industrial re-
lations department (IRD) to try and stop the employees;
and added, as Treichel described it, that if he could not
hold the employees there to keep them together as a
group if they were coming down to the union hall. 6
Coming back to his electricians, said Treichel, the sen-
timent appeared to be growing for going down to the
union hall. He testified that he told them it was the
wrong thing to do and that Hank Carrera was going to
work on the matter.
Steward Treichel put a call in to steward Szewczuga
and learned that he had been getting the same angry re-
action from his electricians but no indication of any
action yet and, as prearranged, both decided to see ste-
ward Collins, and they met him briefly in south building
15 at or near the first floor electric shop, which services
the south brewing department. As Collins related, they
told him of the Filtec decision, that their fellow electri-
cians were up in arms and wanted to go to the union
hall, that this would be contrary to the union contract,
and that they did not want this to happen. Szewczuga
and Treichel asked Collins if there were any things in
the recent contract negotiations or terms that would help
in preparing a grievance, but the three quickly decided it
would be best to let the machinists start the work and
then file a grievance. The meeting was brief, and Szewc-
zuga and Treichel departed for their buildings. 7
Treichel testified that, when he returned to the electric
shop in south building 60, he found that a consensus of
his colleagues had hardened against his view that they
stay, that they would not listen to him but were deter-
mined to leave for the union hall, and that they began
moving out of the electric shop to pack away their tools
and change to street clothes. Treichel then sought out
Supervisor Orville Witt in his office, and told him that
the electricians of the building shop 60 were determined
to go to the union hall and that he, Treichel, had to go
6 Union Representative Carrera testified that he tried to reach Labor
Relations Manager Paulicivic and his assistant Olsen and learned they
were out to lunch, was told that IRD Manager Feinsinger was also out,
and, after leaving a message for Feinsinger to call him, went out to lunch
himself. When he got back to his office just before I o'clock. Carrera got
a call from Feinsinger to come to the plant at once and help deal with a
chaotic situation of people leaving. He complied and arrived, he said, in
about 15 or 20 minutes.
7 Electrician steward Collins thought that his discussion with the other
two stewards was by a joint telephone call from both, but the others
were quite clear it was a personal meeting, and I credit their testimony
There was no disagreement among the three as to what was said
with them. Treichel then went back to the electric shop,
still in his work garb, punched out (the clock is in the
shop), but did not leave and instead went to the locker
room to change to street clothes. He said he told the
men there, who were dressed to leave, that if they were
going to the union hall to stay together. He did not,
Treichel said, direct anyone to stop work or to leave the
plant.
Treichel testified that he then went back to the electric
shop and, after his colleagues punched out and left, he
followed behind them, electrician Roland Liske immedi-
ately preceding him.
In connection with the foregoing testimony, two elec-
tricians who were part of the crew in south packaging
testified. They were Roland Liske and Carl Rutz.
Electrician Liske testified that he had been in the
second floor lunchroom of south building 60 starting at
11:30 a.m. and left for the first floor electric shop before
(as he discovered later) steward Treichel had come into
the lunchroom. When Treichel came into the electric
shop at or shortly after noon and discussed the Filtec de-
cision, it was then Liske's impression that this was Trei-
chel's first communication of the Filtec decision to the
electricians in south packaging.
Liske testified that Treichel informed the employees
present that the Company had reversed its earlier deci-
sion and given the machinists the installation of the in-
spection head previously performed by the electricians.
According to Liske, the men accused Treichel and the
Union of not doing enough. Some said the Company had
waited until the union contract was ratified the previous
day, October 31, before announcing the Filtec decision
because there had been a rejection of the company con-
tract offer prior to October 31. Others said the Company
had been knuckling under to the machinists. Liske felt as
did others, he said, that going the legal route of griev-
ance and arbitration was futile. Further, he was in agree-
ment with the suggestion (which he said he did not
make) of "hitting the bricks" (walking out). Liske testi-
fied that Treichel did not suggest the walkout or support
the decision in favor of it, nor was there anything that
Treichel said that influenced him to leave work on No-
vember 1.
Electrician Liske further testified that, after he
changed to street clothes and was on his way from the
locker room heading to clock out, he was stopped by Su-
pervisor Orville Witt and Unit Manager Ed Beers, who
ordered him to go back to work, or be subject to disci-
pline including discharge. Liske replied that the men
were going to the union hall to get the Filtec matter re-
solved, and went down the stairway and punched out
with his fellow employees. He also testified that he did
not obey the supervisor's order to return to work be-
cause his fellow employees were going to the union hall
and so was he, that the decision to disobey was his own,
and that there was no threat of union discipline if he did
not walk out. Further, he was aware that some electri-
cians stayed on and that there was no union action taken
against them.
Electrician Carl Rutz testified, as did Liske, that it was
normal practice for the stewards to inform the electri-
273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cians of decisions by management. However, he said he
was not present when steward Treichel communicated
the Filtec decision to his colleagues, having been work-
ing on a breakdown in shipping just before noon on No-
vember 1, but he learned of the decision from several of
the men as he came into the south building 60 lunchroom
just after noon. Steward Treichel was not there. Rutz
said the men were saying "nasty" things, expressing dis-
gust with the stewards, saying that they could not get
their stewards to do anything, and saying it was time
that the men themselves did something. He said he par-
ticipated in about 25 minutes of discussion in which the
group decided to leave to go to the union hall. There
was no indication, said Rutz, that Treichel had suggested
they leave, and it was clearly not Treichel's decision, nor
the decision of steward Szewczuga who was stationed on
the north side, that the men leave their work to go to the
union hall. Rutz testified that he was aware of the no-
strike clause in the union contract and that by leaving
work he could be subject to discipline including dis-
charge.
Rutz further testified that he went to put away equip-
ment he had been working with in the shipping area and
his tools before coming to the locker room to change
clothes, and found most of the men changing or already
in street clothes. Steward Treichel came in in his work
clothes and changed and, following the other men, went
downstairs with Rutz to the electric shop. Rutz went to
the timeclock and punched out, but Treichel bypassed
the clock telling Rutz he had already punched out before
coming up to change clothes.
Unit Maintenance Manager Ed Beers testified that he
accosted several of the electricians as they were about to
punch out or go out. He said he told electrician Roland
Liske to return to work and that Liske replied he could
not. Beers said he ordered electrician Greg Nowacki to
return to work, but that Nowacki refused and answered
that he was concerned with peer pressure and that he
had to work with his fellow employees.
Steward Treichel testified that he was the last of his
group to leave the building. Unit Maintenance Manager
Ed Beers followed and called to the retreating figures to
come back. Apparently Treichel, Liske, and Rutz heard
him, but only Treichel stopped and returned to talk to
Beers. According to Treichel, Beers asked what was
happening, and Treichel replied he was going to the
union hall with the men on union business. Beers told
him that if he and they did not come back all were risk-
ing discipline including discharge. According to Beers,
Treichel answered that they knew this but they could
not come back. Beers said that there were established
procedures for handling the problem, and, according to
Beers, Treichel answered, not for us Ed. Treichel testi-
fied that he did not recall saying that or what if any
comment he made to the reference to procedures. In any
event, according to Treichel, the conversation ended
with Beers saying that he wished Triechel would come
back, and Treichel answering that he wish he could.
Treichel rejoined the others and went to the union hall.
2. The walkout from North Packaging
As already noted, after 11:30 a.m. on November 1, fol-
lowing telephone notification of Union Representative
Carrera by union stewards Treichel and Szewczuga of
the Filtec decision, the two stewards separated. Treichel
returned to his south building 60 and to its lunchroom,
and Szewczuga went to the nearby lunchroom in his
area, on the third floor of north building 26 not far from
the third floor electric shop in the adjacent north build-
ing 29. A group of Szewczuga's fellow electricians were
there having lunch and asked the result of the 11 o'clock
meeting on the Filtec. Szewczuga told them that the
Company had reversed the prior decision on the inspec-
tion head and given the installation of it to the machin-
ists.
As Szewczuga testified, the men were irate, accused
the stewards and the Union of not doing their jobs, and
asked the stewards what they were doing to represent
them. Szewczuga answered that the stewards were doing
the best they could and that Union Representative Car-
rera knew of the decision and would take proper action.
Approximately 5 minutes after he arrived in the lunch-
room, Szewczuga was called to take care of a break-
down of the Filtec on a can line which was in a part of
his work area, one floor below in north building 26. He
went to do the work, leaving on the table the copy of
the written decision given him in the 11 a.m. meeting.
He did the repair (of a Filtec not rejecting partly filled
cans) in or about 5 minutes, watched it for about 10 min-
utes to see that it worked properly, and then returned to
the lunchroom just a few minutes before noon. The men
were gone, and he picked up his lunch pail and went on
to his electric shop in north building 29. He found the
men discussing and arguing about the written Filtec deci-
sion he had left in the lunchroom.
Steward Treichel called from south packaging, and he
and Szewczuga exchanged information on the angry re-
actions each was getting from his colleagues and agreed,
as prearranged, to meet and talk to steward Collins in
south brewing building 15. Szewczuga told his fellow
electricians he was going across the street to join Trei-
chel in talking to Collins about any help they might get
out of the recent contract negotiations.
From the brief meeting with Collins and Treichel (al-
ready discussed above), Szewczuga came back to the
north side, and apparently went directly to his work sta-
tion. Szewczuga testified that at or about 12:40 p.m. he
received a page call, picked up the phone and an uniden-
tified voice told him, "we're going to the Union hall and
we want you to come down too," and hung up. Szewc-
zuga immediately headed for the electric shop on the
third floor of building 29.
On his way there, Szewczuga said that he passed Elec-
trical Supervisor Gary Grande and alerted him (as the
first supervisor he had seen, according to the testimony
of Supervisor Grande) that it appeared that Szewczuga's
fellow employees were going to a meeting at the union
hall. Arriving in the electric shop, Szewczuga said, he
found some of the men already in street clothes. He told
the men it would be best if they stayed and tried to re-
solve the matter, and asked that they at least wait until
274
MILLER BREWING COMPANY
Union Representative Carrera could do something, such
as file a grievance; but the response he got, Szewczuga
said, was that they were not ready to believe in griev-
ances at this point after the experience with the electric
lift trucks and other lost grievances, and now being de-
prived of the Filtec assignment on the day after they
ratified the union contract.
Electrician Ken Entringer, who was stationed on the
north side but temporarily doing work in south side
packaging, spent about 15 minutes in the noon period
meetings of the north side electricians in the lunchroom
and electric shop when Steward Szewczuga was not
there. Entringer testified that the electricians spoke an-
grily of being used as "pawns" of the company by a
seeming grant of the work on the Filtec inspection head
before they ratified the union contract with Respondent,
and taking it away the day after the electricians ratified
the contract; and they spoke of their exasperation with
not only the Company, but also with the Union and the
stewards. There was talk of "let's hit the bricks" and "go
to the Union hall," and by the time he left the meeting,
said Entringer, there was close to a unanimous consensus
to go to the union hall.8 Further, he said that there was
no arrangement by the men with the stewards to leave
concertedly.
Electrician Entringer testified that he went back to his
work station on the south side to put away his tools,
came back to north side to the locker room to change to
street clothes, then came back to the electric shop for his
lunch box, and encountered Szewczuga for the first time
that day. When Szewczuga asked Entringer where he
was going, he replied, flippantly, look out the window,
and, without giving Szewczuga time to say more, left.
Entringer testified that he was aware of two electrical
supervisors, Fry and Grande, who had appeared and
were attempting to give the employees orders to return
to work; and he knew he should have returned to work
and knew of the contract prohibition against walkouts.
Entringer punched out (the timeclock was in the electric
shop), and testified that he was the first of his section to
leave the plant and that Szewczuga was the last to come
out.
Szewczuga testified that, when he realized his pleas to
the men were of no avail, he tried to reach Treichel on
the south side by phone for any word on Carrera, and
then tried to reach Carrera directly, both without suc-
cess. Szewczuga concluded that he should accompany
the men to the union hall, went to the locker room to
change to his street clothes, and returned to the electric
shop in order to pick up whatever documentation he had
on the Filtec and to clock out.
While Szewczuga was getting his documents from his
work bench, Packaging Maintenance Manager Jablon-
owski and Supervisor John Scobie came in and told
Szewczuga it would be illegal for the men and him to go
out and that all were subjecting themselves to discipline
and possible discharge. Szewczuga replied that he under-
stood, but that he could do nothing with the men, they
were angry and were going to the union hall and wanted
8 Szewczuga testified that four of the north side electricians did not
join the walkout, and that he had said nothing to them or they to him
their steward at the union hall. He testified that he men-
tioned some of the causes of anger of which the men had
told him, such as taking away the Filtec assignment after
the electricians ratified the union contract, and apprehen-
sion that the Filtec would be lost as they lost the electric
forklift truck assignment. Szewczuga then clocked out
and went to the union hall with his fellow electricians.
He testified that, in his 26 years of employment, this was
the first walkout by the electricians.
Jablonowski testified that, after his return from lunch
on November 1, he was alerted that there might be a
work slowdown of the electricians going on, and Super-
visors Grande and Fry came to him saying Grande had
been told by electrician steward Szewczuga that a union
meeting was in progress. Jablonowski called Supervisor
Ed Beers to check on the south side, and himself took
several supervisors to the third floor electric shop in
north side building 29. They encountered employees in
street clothes. He asked his supervisors to go about and
remind the employees that they were engaged in an il-
legal work stoppage and were subjecting themselves to
being disciplined, and to order them to return to work.
Observing Szewczuga gather papers at his work
bench, Jablonowski asked Szewczuga if he could stop
the men, and there ensued the discussion described above
by Szewczuga. Jablonowski further testified that Szewc-
zuga gave no direction to any of the employees to leave,
and did not countermand any order by a supervisor to an
employee. Likewise, Electrical Supervisor Grande, who
was among the supervisors directing the employees to
return to work on penalty of discipline including dis-
charge, testified that Szewczuga did not countermand or
interfere with Grande's instructions to the electricians.
3. Stay-in at the South Brewing department
lunchroom
The seven first-shift electricians in south brewing de-
partment building 15, of which electrician Ted Collins
was one and also a union steward, were apparently the
last of the three groups of electricians to learn, officially,
of the revised Filtec decision on November 1, when
Treichel and Szewczuga, after first informing their re-
spective groups in packaging, transmitted the information
to Collins. Collins also learned of the angry reaction of
the other two groups from the two stewards, and of the
indication, which had already surfaced in Treichel's
south packaging group, that they were talking of a wal-
kout to the union hall.
Collins informed his group, who were in the lunch-
room, of what he had learned. According to Collins they
took up the cry that everything was going to the ma-
chinists, because it was said that many management
people had been machinists at one time. They said they
would go down to the union hall to get explanations and
action. Collins told them it was against the contract and
rules to leave their work, but as he testified his explana-
tion did not seem to help.
Collins said that he decided to go with his group, and
went to his supervisor, Floyd McFadden, electric super-
visor for brewing operations, to tell him what the group
had decided, and that he was going with them to keep
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order if he could. Supervisor McFadden immediately
called Industrial Relations Manager Feinsinger. Fein-
singer took Labor Relations Manager Paulicivic with
him, gathered up McFadden, and together the three
management representatives went into the lunchroom of
south building 15. According to Paulicivic and Fein-
singer the electricians were upset, and some were al-
ready in street clothes ready to leave for the union hall.
Paulicivic testified that he and Feinsinger ordered the
men back to work on penalty of discipline including dis-
charge, telling them they were engaging in an illegal
work stoppage in violation of the union contract. The
men replied, he said, you are violating the contract by
giving away our work as you did in the electric forklift
case. None of the men returned to work.Feinsinger told
steward Collins to call stewards Treichel and Szewc-
zuga, but Collins was unable to reach them.
Paulicivic testified that Collins was having a difficult
time in controlling his colleagues, and said so, but that
he was asked to try to hold them in the lunchroom.
Feinsinger called Union Representative Carrera to come
out to the plant in a hurry to stop a walkout, and he ar-
rived in or about 15 minutes. Feinsinger then told ste-
ward Collins that Carrera had come to the plant and to
hold the electricians in the lunchroom until the matter
was settled. Collins informed his colleagues that Carrera
was now in the plant, and they stayed in the lunchroom.
When Union Representative Carrera arrived he was
met by Industrial Relations Manager Feinsinger and
Labor Relations Manager Paulicivic, who told Carrera
that there were seven electricians in the lunchroom who
would not go back to work and that the other electri-
cians had left the plant. Carrera reproved Paulicivic (as
the latter acknowledged) for not calling Carrera before
the Filtec decision was announced so that he could have
talked to the electricians about it, and then went into the
lunchroom to talk to the seven men about getting back
to work. Carrera testified that they were in a bad state,
complaining of their stewards and of him, saying that
when they "went by the book" on grievance and arbitra-
tion in the electric forklift truck case they still did not
get the work that was awarded to them in the arbitra-
tion, and shouting let's " let's get out and join the
others." Carrera asked them, what would it take to get
them back to work. The response was assurances of no
reprisal against the employees, including those who had
walked out.
Union Representative Carrera went to consult with the
management representatives. He ended up talking to
Corporate Industrial Relations Manager Koenig, Mil-
waukee Industrial Relations Manager Feinsinger, and
Milwaukee Labor Relations Manager Paulicivic. They
discussed two matters.
In the matter of the Filtec work assignment, it was
agreed that Respondent would give notice that it was in-
stituting the revised work condition giving the installa-
tion of the inspection head to the machinists, and the
electricians' Union would inform Respondent by letter of
an intention to strike on that account, affording Respon-
dent an opportunity to file a charge with the Board
under Section 10(k) of the Act alleging a violation of
Section 8(b)(4)(ii)(D), thereby putting the jurisdictional
dispute before the Board to decide."
In the matter of discipline of employees for the work
stoppage, there was no clear agreement or promise as
Union Representative Carrera conceded, but rather an
indication to him by Respondent's representatives of
what would likely eventuate. As Labor Relations Man-
ager Paulicivic said, Carrera stated he did not want any
of his people fired. In reply, Corporate Manager Koenig
referred to past practice where he said, the worst that
had happened (when employees resumed work prompt-
ly) was a reprimand and warning, which was put into
the offending employee's file, and that Koenig did not
expect that anything more severe would happen here.
(Paulicivic thought Koenig had been referring to past sit-
uations where employees did not leave the plant proper-
ty, but Carrera's testimony did not indicate that Koenig
had drawn any such distinction.)
With these understandings on the two matters, Carrera
indicated that he would be helped in getting the men
back to work. He called the union hall and found that
there were 17 men there, including the 2 stewards Trei-
chel and Szewczuga, and asked that the stewards hold
everyone there till he got back. He then proceeded to
the lunchroom, and, as he testified, explained the ar-
rangement he had made with the Company on the Filtec
assignment, and that, on discipline, (management had in-
dicated there would be no repercussions other than writ-
ten reprimands and warnings in the employees' files).
According to Collins, the electricians in the lunchroom
apparently were satisfied with Carrera's explanation, par-
ticularly that there would be no discipline for any elec-
trician greater than a reprimand and warning, and, it
being close to quitting time, agreed to return to work in
the morning and checked out.
At management's request, Collins went across the
street to tell the second shift electricians to start work
and in turn to tell the third-shift electricians to start
work when they came in.
E. The Return to Work and Respondent's
In vestigation
Having obtained the promise of the brewing depart-
ment electricians to return to work the next day, No-
vember 2, Union Representative Carrera hurried from
the brewery to the union hall where the 17 electricians
of the first-shift packaging department were awaiting his
arrival. They had come to the hall in their cars at or
about 1:30 p.m., and Carrera arrived about 3:30 p.m.,
after telephoning from the brewery and telling Sczew-
zuga and Treichel to hold everyone there until he got
back.
As several employees testified, there was a good deal
of turmoil and display of temper as the employees await-
ed Carrera. According to the testimony, Szewczuga and
Treichel attempted to keep order, but had little to say
otherwise except that when several employees suggested
9 This arrangement was kept. Respondent filed a charge before the
Board under Sec. 10(k) of the Act, and the Board decided the dispute in
favor of the machinists, Local 494, International Brotherhood of Electrical
Workers, AFL-CIO, 235 NLRB 1550 (1978).
276
MILLER BREWING COMPANY
inviting the second shift electricians to the Union hall
both stewards said it was not a good idea, and it was not
done.
Carrera testified that, when he arrived at the union
meeting hall, the men, other than Szewczuga and Trei-
chel, "jumped" on him with their frustration and anger
and clamored that they would not go back to work.
When he got the men quiet enough to listen, he said, he
explained the solution he had arrived at with Respondent
for resolving the Filtec dispute under Section 10(k) of
the Act, and told them that if they returned to work the
next day he had been informed by management that up
to this time punishment meted out in similar situations
had been a written reprimand for the infraction and a
warning notice in the personnel file of the offending em-
ployee. Based upon this information, Carrera said he
began to obtain general agreement on the men returning
to work. While most of them reacted guardedly to the
solution, said Carrera, both stewards Treichel and
Szewczuga spoke in favor of it and told the employees
that returning to work was the best thing to do. Carrera
testified that from what he observed in the 3 hours of
meeting with these employees he did not gather that
Treichel or Szewczuga had led the employees out of the
plant.
Because he had forgotten to discuss with Corporate
Industrial Relations Manager Koenig the matter of who
would do the installation of the disputed Filtec inspec-
tion head work pending resolution of the jurisdictional
issue, Union Representative Carrera took two of the
most vociferous of the employees (not the stewards) to
the telephone with him and called Corporate Manager
Koenig. Koenig stated that the machinists opposed any
electricians doing the work even tentatively, including
outside electricians such as McGaw's employees, and he
would therefore try to obtain interim help for the disput-
ed work from the manufacturer of the Filtec or from a
millwright company.
The meeting at the union hall ended at or about 6:30
p.m. on November 1, with a resolve that the electricians
would return to work November 2.
The second- and third-shift electricians did not engage
in a work stoppage on November 1, and all shifts were
back to work on November 2 and thereafter.
On November 2, Respondent launched an investigation
of the work stoppage, consisting of interviews of first the
supervisors on November 2 and then the electricians on
November 3. The investigation appeared to have been
largely if not entirely completed on November 3. Labor
Relations Manager Paulicivic was in charge of the inves-
tigation and, together with Packaging Maintenance Man-
ager Jablonowski, who participated in the investigation,
made the effective recommendations for discipline of the
employees who participated in the work stoppage. The
recommendations were approved by Milwaukee Industri-
o1 Apparently, however, one of the proposers of the idea, electrician
Greg Mecha, called electrician Jerome Moss, who was normally a first-
shift employee but worked the second-shift that week, and Moss got hold
of two other second-shift electricians in his neighborhood and all three
went to the union hall after telephoning the plant they would be late. Ul-
timately, the three forfeited pay for the several hours not worked that
day.
al Relations Manager Feinsinger, then by Resident
(Plant) Manager Mundt, and passed on for adoption and
adopted by Corporate Industrial Manager Koenig and
Corporate Labor Relations Manager Dockery.
Union Representative Carrera and several employees
called attention, in their testimony, to the fact that Re-
spondent withheld announcing the discipline until after
the Union signed its new contract with Respondent on
November 11.
F. The Discipline Including Two Discharges
On November 15, 1977, without any advance notice or
intimation to the Union or to the electricians, Respon-
dent announced the discipline it was imposing for the
work stoppage and walkout of November 1.
According to Labor Relations Manager Paulicivic
there were three levels of discipline.
(a) For the six electricians who stopped work but
stayed in the lunchroom of south building 15, written
reprimands and warnings in their personnel records and
loss of pay for the 3 hours of lost work. Steward Collins,
who was the seventh electrician with them, was given no
reprimand or warning but was docked for the 3 hours of
lost work.
(b) For the 15 electricians who walked out, suspen-
sions for 3 days without pay and letters of reprimand and
warning in their personnel records.
(c) For the 2 Stewards Treichel and Szewczuga, who
walked out with the other 15 electricians, discharge, be-
cause of "participation in and leadership of' the walkout
(Resp. Exhs. I and 2).
The announcement was made in a meeting on Novem-
ber 15 held by Labor Relations Manager Paulicivic and
Packaging Maintenance Manager Jablonowski, to which
Collins was summoned first, and then Treichel and
Szewczuga. According to the participants, concerning
the discharges of Treichel and Szewczuga, Paulicivic
read the discharge notice of Treichel (Resp. Exh. 2,
above) and told Szewczuga that the same applied to him.
Collins testified that this was a total surprise to him and
that Treichel asked, for himself and Szewczuga, if they
were being fired because they were stewards, and that
Paulicivic replied yes, that because they were stewards
they were supposed to be able to control their men and
make them do what they wanted them to do.'
At hearing, Paulicivic and Jablonowski explained how
they arrived at the judgment that stewards Treichel and
Szewczuga were the "leaders" of the walkout.
Manager Jablonowski testified that, as a result of both
his personal knowledge and participation in the investi-
gation, he did not know who actually called or started
or led the walkout, and that in his personal dealing on
November 1, with the north side walkout, he did not see
I Treichel testified that his words were, "[Alre" you "singling us out"
because "we are stewards?" Paulicivic said Treichel asked, are you firing
us "for that," but did not contradict Collins' testimony and conceded that
he did reply that as stewards Treichel and Szewczuga should be more
aware than any of the employees of the contract respecting grievances
and work stoppages. I credit the testimony of Collins, a more disinterest-
ed participant. and because the additional explanations, infra, indicate that
Paulicivic and his colleagues equated "stewardship" with "leadership" in
the walkout; the answer attributed to him was reflective of his views.
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Szewczuga direct any employees to leave or counter-
mand orders of the supervisors to return to work. How-
ever, he, Jablonowski, considered both Szewczuga and
Treichel leaders because during his term as maintenance
manager they were always in his office as leaders and
spokesmen of their group of electricians; and, because
the Employer put them in the role of carrying messages
to the rest of the electricians, Jablonowski expected them
to report decisions to their fellow electricians and called
them both to the office on November I to impart infor-
mation to them on the Filtec dispute that he wanted con-
veyed to the electricians. When the two stewards report-
ed to their fellow employees that the disputed Filtec
work went to the machinists, they were not misstating
Respondent's position, said Jablonowski. But, when the
electricians started walking out and the two stewards
walked out with them, the stewards were thereby con-
doning the actions of their fellows, signifying leadership.
In sum, said Jablonowski, in the discussion at the dis-
charge meeting of November 15, "we considered Trei-
chel and Szewczuga as leaders because they were ste-
wards."
Likewise, Manager Paulicivic testified, as did Jablon-
owski, that, from personal knowledge and the investiga-
tion, he had no direct knowledge that Treichel or
Szewczuga started or encouraged or led the walkout.
However, since they were stewards and transmitted the
Employer's message to the affected employees on the
Filtec dispute he, Paulicivic, assumed that they had done
it in such a way as to cause the walkout.' 2 Indeed, he
said, he regarded Treichel and Szewczuga responsible
for the conduct of the electricians who stayed in at the
lunchroom in south building 15, because they were the
only two electrician stewards to whom Respondent dis-
seminated the decision on the Filtec dispute on Novem-
ber 1. He conceded that he did not know how the elec-
trician stewards distributed the decision on November 1.
He also conceded that the machinists' representatives
were given the same decision to disseminate to the ma-
chinists, and did not know and had not investigated
whether they passed word around the plant that the elec-
tricians had lost again. In this regard, though Paulicivic
claimed to know that the machinists were unhappy with
the part of the Filtec assignment that did go to the elec-
tricians (though it was apparently with mutual consent),
he admitted that the machinists filed no grievance con-
cerning the Filtec assignments.
The Union filed grievances on the discipline meted out
to all who took part in the work stoppage, according to
Union Representative Carrera. Several days after No-
vember 15, in a conference of Industrial Relations Man-
ager Feinsinger and Labor Relations Manager Paulicivic
for Respondent, and Carrera and Union Business Man-
2 To bolster this assumption, Paulicivic took out of context several
remarks by the two stewards in prior meetings with management which
Paulicivic inferred to be indicative of a frame of mind to create a work
disturbance; but it will be recalled that he and Jablonowski in referring to
some of the same remarks described them as typical of the way represen-
tatives of both machinists and electricians talked at their meetings on
work assignments, see fn. 5, supra, and related text. In making inferences
from past events, Paulicivic took no account of Szewczuga's and Trei-
chel's unblemished records as employees for 26 years and 12 years, re-
spectively, and for 4 years each as stewards.
ager Kruse for the Union, Feinsinger explained the sev-
eral grades of discipline. In referring to the more severe
penalty of discharge for Treichel and Szewczuga, ac-
cording to Carrera and Kruse, Feinsinger said, the ste-
wards wore the badges and consequently had a greater
responsibility. While Feinsinger disclaimed using the
words "wore the badge" saying he spoke of leadership
of the walkout, he conceded that in discharging the two
men it was an obvious consideration that they were ste-
wards and that the whole flavor of his conference discus-
sion centered on their greater responsibility as stewards.
Feinsinger testified that he relied on and approved the
Paulicivic investigation and recommendations, and it is
clear that he accepted and approved the Paulicivic-Jab-
lonowski view that equated the stewardship of the two
discharged electricians with leadership of the walkout.
Union Business Manager Kruse and Union Representa-
tive Carrera pointed out that the stewards were not offi-
cers of the Union and were not elected, but were ap-
pointed by the union representative to serve and served,
without additional compensation or benefits, as go-
betweens or means of communication between the men
and the Company and between the Company and the
men. In this connection the third steward, Collins, testi-
fied that when he heard the management views on stew-
ardship, expressed in the course of the November 15 dis-
charge meeting, he resigned as steward; and Carrera tes-
tified (as did several employees) that he has since been
unable to persuade any of the electricians at the plant to
serve as stewards. 3
G. Conclusions Regarding 8(a)(1) and (3) Violations
As already reviewed, the principal testimony concern-
ing the actual conduct of Treichel and Szewczuga before
the electricians started to walk out of the plant with their
fellow electricians came from the participants in the
work stoppage. That testimony indicated that each of the
two stewards in transmitting the Filtec decision to his
group urged his fellows to let the Union handle the
matter of the Filtec assignment by the contract grievance
process and urged against a work stoppage when talk of
a walkout to the Union surfaced but that the employees'
anger and protest that put the walkout talk into action
was as much aimed at the stewards and the Union for
their apparent lack of success or inadequacy in holding
work assignments under the contract process as it was
aimed at the seeming favoritism shown by management
to machinists over electricians. There was thus no evi-
dence that the stewards were cranking up sentiment for a
walkout to the union hall or otherwise exerting leader-
ship of the walkout, but rather that after it was apparent
that the two groups were going to the hall each steward
went along hoping to keep his group orderly.
On its part, Respondent assumed that the two electri-
cian stewards not only led the walkout of the two
13 Manager Feinsinger testified that the union grievances on discipline
including the discharge went to arbitration. As a matter of information
only, counsel for Respondent noted in his opening statement at the hear-
ing that the arbitration upheld the discharges, but it was further noted
that Respondent's answer to the complaint did not raise this result, or de-
ferral to the arbitration, as a defense.
27X
MILLER BREWING COMPANY
groups, but also created the work stoppage of the third
group who stayed in the brewing department lunchroom,
because the two electricians were stewards, and as such
had been handed the Filtec work assignment decision by
Respondent to transmit to the electricians and transmit-
ted it.
Obviously, in discharging employees Treichel and
Szewczuga for leadership of the work stoppage Respon-
dent acted on an assumption or belief, without founda-
tion in and contrary to the fact, that employees Treichel
and Szewczuga had performed in a wrongful manner
their union-related and protected function under the Act
as stewards,' 4 in transmitting Respondent's work assign-
ment decision to their fellow employees. An employer
may not discharge an employee for even a good-faith but
mistaken belief that he was guilty of misconduct while
engaging in protected activity, and such discharge vio-
lates Section 8(a)(l) of the Act, N.L.R.B. v. Burnup and
Sims, Inc., 379 U.S. 21, 23-24 (1964).
In connection with disciplining the two stewards for
their actual participation in the illegal walkout, while it
is true that the employer may "pick and choose" from
among the offending employees it proposes to discipline
including discharge, it cannot discriminate among such
employees on the basis of union considerations, American
Beef Packers, Inc., 196 NLRB 875 (1972). Here all of the
participants who engaged in the work stoppage were
punished by a 3-day suspension or less, except Treichel
and Szewczuga who were discharged because they were
stewards and allegedly had a greater responsibility than
the other employees to refrain from, if not deter, such
conduct. The evidence was that both stewards did at-
tempt to deter the walkout by arguing with their fellow
employees for use of the grievance procedure and
against the walkout. The question reduces itself to
whether their joining their fellows, who had decided to
walk out, justified the Employer in imposing the greater
penalty of discharge upon the stewards because they
were stewards, in contrast to the lesser penalty on em-
ployee participants who were not stewards.
The Board recognizes that a greater penalty than that
given other participants may be applied to the participat-
ing steward where he actively led and directed the wild-
cat strike, Chrysler Corporation, Dodge Truck Plant, 232
NLRB 466, 477 (1977), or sought to induce employee
participation in a contractually prohibited slowdown,
Midwest Precision Castings Company, 244 NLRB 597
(1979).
However, the Board has held that selecting an em-
ployee for discipline, or imposing upon him a greater
penalty than imposed upon others who breached a no-
walkout contract provision, because the employee is a
union steward, is discrimination against the employee on
the basis of his holding union office and violates Section
8(a)(3) of the Act, Precision Castings Company, Division of
Aurora Corporation, a wholly owned subsidiary of Allied
Products Corporation, 233 NLRB 183, 184 (1977), where
the employer selected for suspension five employees,
who joined a contractually forbidden walkout, because
14 The union office of steward or committeeman "embodies the es-
sence of protected concerted activities," General Motors Corporation, 218
NLRB 472, 477 (1975), enfd. 535 F.2d 1246 (3d Cir 1976).
the five were stewards and supposedly failed to abide by
their contractual obligation to take all reasonable steps to
restore normal operations: Indiana and Michigan Electric
Company, 237 NLRB 226 (1978), finding that the con-
tractual language did not constitute a recognition that
the stewards (who joined a walkout after it began) had
taken a higher risk than other employees; and Gould Cor-
poration, 237 NLRB 881 (1978), holding that the steward,
who joined a 2-hour work stoppage and was the only
employee discharged, was discharged not for his actions
as an employee but because of his lack of actions as a
steward, which the Board said was a legally impermissi-
ble criterion for discipline under the Act that was not
validated by the contract clause specifying responsibil-
ities of union officers.
The Seventh and Third Circuit Courts of Appeals, re-
spectively, declined to enforce the latter two decisions,
Indiana & Michigan Electric Company v. N.L.R.B., 599
F.2d 227 (7th Cir. 1979); and Gould Inc. v. N.L.R.B., 612
F.2d 728 (3d Cir. 1979), and in the course of doing so
also expressed disapproval of the lead case, Precision
Castings Co., supra.
The principal disagreement between the courts, on the
one hand, and the Board, on the other hand, is the
courts' view that selecting the steward for separate, or
more severe, discipline (than is applied to other employ-
ee participants in a work stoppage forbidden by contract)
is not inherently destructive of protected employee rights
under the Act because the steward is already bound as
an employee, as well as a union official, not to violate
the contract prohibition; and the more severe punishment
is based upon breach of the higher responsibility that ac-
companies the official status as steward, a breach that
makes the steward's misconduct more serious than that
of the rank-and-file (Indiana and Michigan Electric Co..
supra at 229; Gould Inc., supra at 730-732). Both courts
derived from the contractual provisions in each case a
positive duty upon the stewards to take steps to termi-
nate the illegal work stoppage (in Gould, provisions bind-
ing the union officers and representatives to take steps to
cause the illegal activity to cease, to refuse to aid such
action, and to use reasonable efforts to terminate such
action; in Indiana and Michigan Electric, provisions that
the employees will not be called upon or permitted by
the union to engage in illegal work stoppages).
In comparing these two cases with the case at bar,
there may be a basis for a distinction in that the contract
clause pertaining to unlawful work stoppages (see sec. B,
above) has no special undertaking that could be said to
place a special or specific duty upon the stewards in con-
nection with forbidden work stoppages. It simply pro-
vides that the Union agrees for itself and its members
that there shall be no (forbidden) work stoppage. '
'1 In a more recent decision of September 28, 1979, Armour-Dial. Inc..,
245 NLRB 959, where the Board found that the employer had singled
out four union committeemen for discipline of suspension because of a
work stoppage that the four employees did not engage in or induce but
from which they refused to disassociate themselves, the Board held that
the employer violated Sec. 8(a)3) and (I) of the Act because the basis for
the discipline must be misconduct itself, and not the employee's position
as a union official (citing its Precision Casiing and Gould decisions.
Continued
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, aside from the question of whether the two
circuit opinions in Indiana and Michigan Electric and
Gould are distinguishable from the case at bar on the
contract issue, it appears that the Board has not yet ad-
dressed itself to the question of whether it acquiesces in
(or declines to follow) the disapproval by the two circuit
courts of the Board rationale in the two cases (as well as
the earlier Precision Castings case). In that state of affairs,
I am obliged under established precedent to adhere to
Precision Castings, Indiana and Michigan Electric, and
Gould, as decided by the Board, as the existing Board
law not reversed by the Board or the Supreme Court,
Insurance Agents International Union AFL-CIO (The Pru-
dential Insurance Company of America), 119 NLRB 768,
773 (1957); Novak Logging Company, 119 NLRB 1573,
1575-76 (1958); Iowa Beef Packers, Inc., 144 NLRB 615,
616-617 (1963); Nello Pistoresi & Son, Inc. (S & D Truck-
ing Co., Inc.), 203 NLRB 905, 906, fn. 2 (1973), notwith-
standing the fact that the case at bar arose in the territo-
rial jurisdiction of the Seventh Circuit.
Hence, I am of the opinion that the discharge by Re-
spondent of employees Treichel and Szewczuga, consti-
tuting a greater discipline than that visited upon the
other participants in the walkout and imposed because
the two employees were union stewards, was discrimina-
tory and in violation of Section 8(a)(3) and (1) of the
Act. In this connection it should be noted that the dis-
charges of the two stewards have actually discouraged
all of the remaining electricians, including the former
third steward who resigned as steward as a result of the
discharges, to decline to serve as stewards, and has effec-
tively deprived the unit of its full statutory and contrac-
tual right of representation in matters requiring or calling
for the presence or participation of stewards.
CONCLUSIONS OF LAW
1. Respondent's discharge of employees Szewczuga
and Treichel, from among the 24 electrician employees
who participated in an unauthorized work stoppage on
November 1, 1977, imposed as a greater discipline than
was imposed upon the other participants because the two
employees were union stewards, was discriminatory and
constituted unfair labor practices in violation of Section
8(a)(3) and (1) of the Act. The discharge, on the further
basis of an unproven accusation or mistaken belief by
Respondent that the two stewards were the leaders of
the work stoppage and walkout, constituted further
unfair labor practices in violation of Section 8(a)(1) of
the Act.
2. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent:
supra). The Board pointed out that the no-strike clause contained no re-
quirement that union officials take appropriate steps to prevent violations
of the clause or allowing the employer to discipline officials on the basis
of their failure as union officers to abide by the contract; and the Board
added that it was not reaching the issue of whether a union could. by
contract, waive an employee's right to engage in protected concerted ac-
tivity through holding of union office by providing for the discipline of
union officials.
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employees Szewczuga and Trei-
chel, and give each backpay from the date of his dis-
charge, November 15, 1977, said backpay to be comput-
ed on a quarterly basis as set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), approved in N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344
(1953), with interest as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).16
(3) Post the notices provided for herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, there is hereby issued the following recom-
mended:
ORDER 1 7
The Respondent, Miller Brewing Company, Milwau-
kee, Wisconsin, its officers, agents, successors, and as-
signs, shall:
i. Cease and desist from:
(a) Discharging employees or discriminating against
them in regard to their hire, tenure, or any term or con-
dition of employment, because of their protected con-
certed activities or because they hold union office in the
bargaining unit when engaging in protected concerted
activities.
(b) In any like manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make employees Ervin Szewczuga and Gerald
Treichel whole, in the manner set forth in the section of
this Decision entitled "The Remedy," for any loss of
earnings incurred by them as a result of their discharges
on November 15, 1977.
(b) Offer to both of said employees immediate and full
reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plant in Milwaukee, Wisconsin, copies of
the attached notice marked "Appendix."18 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by one of its autho-
'6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
17 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
18 In the event 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 read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
280
MILLER BREWING COMPANY
rized representatives, shall be posted by it immediately
upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
281