Falstaff Brewing Corp.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Mission Manufacturing Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Lodge 12 and Lodge 2007 of District 37, International Association of Ma- chinists, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has refused to bargain collectively by excluding the aforementioned labor organizations from the grievance procedure when they were the statutory representatives of the employees and has thereby violated Section 8 (a) (1) and (5) of the Act. 4. Respondent has not otherwise refused to bargain collectively in violation of Section 8 (a)(5) of the Act. 5. Respondent has not discriminated against employees in violation of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] Falstaff Brewing Corporation and Oscar Gerak Brewers and Maltsters Local Union No. 6, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and Oscar Gerak. Cases Nos. 14-CA-0174 and 14-CB-789. July 25, 1960 DECISION AND ORDER On February 11, 1960, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and briefs in support thereof.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediateReport, the exceptions and briefs, and the entire record in the cases, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except as modified herein.2 'Inasmuch as the record , exceptions, and briefs adequately present the issues and posi- tions of the parties, the Respondent 's requests for oral argument are denied. 2At one point in his Intermediate Report, the Trial Examiner states: "[A]s in all proceedings charging unlawful discrimination under the statute, the question is whether 128 NLRB No. 39. FALSTAFF BREWING CORPORATION 295 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondent Falstaff Brewing Corporation, St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging employees because they have protested the conduct of union officers to the Teamsters Monitors or otherwise engaged in concerted union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiaztion as a condi- tion of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Oscar Gerak immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Jointly and severally with the Respondent Union make Oscar Gerak whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (d) Post copies of the notice attached to the Intermediate Report marked "Appendix A," 3 at its principal office and at each of the two or not the record as a whole supports the affirmative allegation of the complaint . . .. [Emphasis supplied.] Insofar as this statement may suggest that the standard of proof required of the General Counsel is less than that imposed by the Act , we do not adopt it. The standard to be met has been stated clearly and succinctly thusly : "In every case, a violation of the Act must be proved by the General Counsel by the preponderance of the evi- dence . . . ." [Emphasis supplied.] Glen Raven Silk Mills, Inc, 101 NLRB 239, enfd. as modified 203 F. 2d 940 (CA. 4). The Trial Examiner , in referring to Light's beating of Gerak , submitted the following gratuitous observation* ". . . granting, as I certainly do, that he [ Gerak] also deserved a good punch in the nose . . . . Mindful of our responsibilities and duties of a judicial nature, we cannot align ourselves with remarks which characterize the recipient of a beating as "deserving" of such brutality 3 This notice is amended by substituting for the words "The Recommendations of a Trial Examiner " the words "A Decision and Order" In the event that this Order is 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plants it operates in the city of St. Louis, Missouri. Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by Respondent Company, be, posted by it immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, as soon as they are forwarded by the Regional Director, copies of the notice attached to the Intermediate Report marked "Appendix B." (f) Mail to the Regional Director for the Fourteenth Region signed copies of said notice attached to the Intermediate Report marked "Appendix A" for posting by the Respondent Union at its business office and meeting hall in St. Louis in places where notices to members are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed as provided above, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of receipt of this Order, what steps it has taken to comply herewith. B. Respondent Brewers and Maltsters Local Union No. 6, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing, or attempting to cause Falstaff Brewing Corporation, its officers, agents, successors, or assigns, to discharge employees for protesting the conduct of union officers to the Teamsters Monitors or otherwise engaging in concerted union activities in violation of Sec- tion 8 (a) (3) of the Act. (b) In any like or other manner, restraining or coercing employees of the said Company or any employee member of Respondent Union in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which we find will effectu- ate the policies of the Act : (a) Notify the Company in writing that it withdraws all objection to the employment of Oscar Gerak, with copy to Oscar Gerak indi- enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " FALSTAFF BREWING CORPORATION 297 vidually, and that it requests the Company to offer him immediate and full reinstatement to his former or substantially equivalent position. (b) Jointly and severally with the Respondent Company make Oscar Gerak whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its business office and meeting hall in St. Louis, Missouri, and all other places where notices to members of the Respondent Union are customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix B." 4 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the representative of Respondent Union, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to the members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions, as set forth in (c) above, as soon as forwarded by the Regional Director, copies of the notice attached to the Intermediate Report marked "Appendix A." (e) Mail to the Regional Director for the Fourteenth Region signed copies of said notice attached to the Intermediate Report marked "Appendix B," for posting by the Respondent Company at its princi- pal office and at each of the two plants it operates in the city of St. Louis, Missouri, where notices to its employees are customarily posted. (f) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply herewith. See footnote 3. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in St. Louis, Missouri , on December 14 and 16, 1959 , on separate complaints , consolidated for purpose of hearing , against Falstaff Brewing Corpora- tion , herein called the Company or the Respondent Company, and against Brewers and Maltsters Local Union No. 6, affiliated with International Brotherhood of Team- sters, Chauffieurs, Warehousemen and Helpers of America, herein called the Union or the Respondent Union, and on answers duly filed by each of the Respondents. The main issue litigated was whether the Respondent Union had violated Section 8(b)(1)(A ) and (2) of the Act and whether the Respondent Company had violated Section 8(a)(3) and ( 1). A brief from the General Counsel was received by the Trial Examiner after the close of the hearing. Upon the entire record , and from my observation of the witnesses, I make the following: 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE COMPANY Falstaff Brewing Corporation is a Delaware corporation, with its principal office at St. Louis, Missouri, where it operates breweries. In connection with the operation of its said breweries, the Company annually purchases commodities shipped to it directly from points and places outside the State of Missouri, valued at an amount in excess of $50,000, and annually ships beer directly from said breweries to points and places outside the State of Missouri valued at an amount in excess of $50,000. I find that the Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaints allege, the answers admit, and I find that Brewers and Maltsters Local Union No. 6, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A picture of the case Gerak, the Charging Party, an employee of the Company for 13 years, was dis- charged on June 4, 1959. He was always classified a utility brewer, and had long felt aggrieved for having been denied any opportunity to progress into the classi- fication of brewer with its seniority prerogatives and financial advantages in a sea- sonal industry. He placed the blame for this situation primarily upon Respondent Local 6, which has long represented all brewery employees with the Falstaff Com- pany, and Robert Lewis, its secretary-treasurer. On May 18, 1959, Gerak, and two other utility brewers, wrote a letter to the Teamsters Monitors in Washington, D C , requesting that they "force Local 6 to represent us fairly The basic contention of the General Counsel in this case is that Lewis, in retaliation against Gerak for having attempted to curb his authority over the affairs of Local 6, caused the Company to discharge him. The Company defends affirmatively on the ground that it discharged Gerak for just cause, independent of any union consideration. The Union defends primarily on the ground that it brought no pressure whatsoever upon the Company, but rather that the secretary-treasurer's primary interest was to prevail upon other union members to get along with Gerak, and to make it possible for him to continue in employment. The testimony and exhibits can be said to place the "facts" into two categories. First, there are those as to which no question is raised, either because the parties agree, or because the testimony of both General Counsel's witnesses and witnesses for the Respondents is not in conflict, or because direct testimony is not only uncon- tradicted, but also plausible and credible on its face. Second, there are facts resting upon testimony of witnesses for the Respondents which is open to question because their testimony is not internally consistent or mutually in accord, because the story of individual witnesses at times seems inherently incredible, or because the oral testi- mony is in conflict with the extended prior affidavit of the personnel manager of the Company. For purposes of clarity, therefore, I will set out first those facts as to which no question is or can be raised. B. The unquestioned evidence Local 6 has a membership that varies between 1,250 and 1,500 members, and Robert Lewis has been its secretary-treasurer for the past 14 years. Although there is a full slate of constitutionally and periodically elected officers, Lewis agreed with his counsel on the record that he was ",the top as far as head of Local 6" is con- cerned. For collective-bargaining purposes, he is the chairman of a joint board of brewery workers-a group consisting of four Teamsters locals for brewery work- ers in St. Louis, Missouri. He heads up the negotiating team, and handles griev- ances for Local 6. He referred to Local 6 several times during his testimony as "my organization." On one occasion after Gerak's discharge, while addressing the full membership of the local at a regular monthly meeting, Lewis ridiculed the charges which the employees had placed in the hands of the Monitors as an attempt to label him a "dictator." He admitted he then found occasion to say to them: "I told them that at times democracy can become rather sickening." On April 17, 1959, Lewis caled at the plant and asked the union steward to bring Gerak to an outside door near an alley. In the presence of Van Hoogstra^at, the FALSTAFF BREWING CORPORATION 299 leadman, and Light, a shop delegate, Lewis accused Gerak of speaking ill of him among union members and proceeded to berate him for several minutes in ex- tremely offensive language. He said he would "break his God damn head." Light, called by the Union and corroborated by Gerak, agreed Lewis used diversified and extended profanity. No one else spoke a word, and Gerak returned to work. Pink lilies do not sprout out of Gerak's mouth either. He said he once heard an unidentified man voice an ugly and very dirty phrase about the father of a fellow worker, Mr. Light, Jr., the shop delegate mentioned above. After inquiring around to learn its meaning Gerak admittedly went about the plant repeating the phrase and applying it to Light's father in conversation with a number of workmen. Early on the morning of May 4, a union steward, Caselli, asked Gerak to accompany him to the washhouse, a room used primarily for rest or posting of notices and in which very little work was done. To reach it, he and Gerak traversed a number of rooms. Light, who was already in the washhouse at the time, had told Caselli that he wished to speak to Gerak, that he was "going to have it out with him." In the washhouse Caselli told Gerak he must appear before the Union's executive board, Gerak insisted he was entitled to written notice, and Caselli said he would inquire of Lewis what the regulations were. At that point, Light stepped up to Gerak and confronted him with the slander Gerak had voiced about his father. Caselli stepped away a few paces and Light thereupon viciously struck Gerak in the face, beating him to the ground. Caselli helped Gerak to his feet, his face bleeding. Without further ado, the three left the washhouse and returned to their work. Gerak informed his lead- man that he was leaving and went home. His departure and the attack upon him were reported to the plant superintendent, Kavanaugh, that same morning. Later that morning, Gerak went to a hospital to have his nose X-rayed. He stayed away from work until May 13, when he returned and worked a full day. There is no indication that on that day there was any difficulty between Gerak and any other employees. On the morning of May 14, on his way to work, Gerak felt a cold coming on and instead went to his sister's house, she living near Gerak's doctor. The doctor came to see him there, and found him suffering from a virus condition. Gerak's sister called the plant and reported her brother ill. Gerak eventually went home, and a medical certificate shows that at least for a period of 1 week thereafter he was under a doctor's care. On May 18, Gerak and two other utility brewers, Link and Pond, wrote a two- page letter to the Teamsters Monitors in Washington. The letter asked the Monitors "to investigate and correct the situation which we feel is a disgrace to decent union- ism," on behalf of over 300 members of Local 6. It blamed the Union for prevent- ing "utility brewers" from progressing to "brewer" status notwithstanding they per- formed the same work, paid the same union dues, and held utility brewer status for many years. It ended by saying "we are asking you to look into this matter and force Local 6 to represent us fairly. Bob Lewis has threatened to kill any man who goes to the Labor Board about this. . . The letter was sent to Messrs. Martin F. O'Donaghue, Daniel Maher, and Godfrey Schmidt, 831 Teamster Build- ing, International Brotherhood of Teamsters, Washington, D.C., with copies to James R. Hoffa, general president of the International Teamster Brotherhood, and to Harold J. Gibbons, president of Joint Council 13 of the International Teamster Brotherhood in St. Louis, Missouri. Robert Lewis a a trustee of Joint Council 13. On the evening of May 26, Pucci, the Company's personnel manager, telephoned Gerak at his sister's home. He inquired after his health and asked when Gerak would be able to return for work. He advised Gerak the latter was entitled to welfare benefits under the contract because of his illness, and asked whether Gerak had filed the necessary claim papers. He also arranged with Gerak that he should return to work Monday morning. June 1, with the understanding that Gerak would advise the assistant brewmaster, Miller, if by Monday he was still unable to come in. Pucci thereupon mailed to Gerak the necessary forms for the sick benefit payments; he then told Miller to schedule Gerak for work on June 1. Gerak did not return on Monday. He next heard from the Company when he received a discharge notice dated June 4. The letter said only "the decision to discharge you is the result of an investigation of several undesirable matters which were brought to our attention during your absence." There is no contention that Gerak's absence was in any way the cause of his discharge. C. The questionable evidence relating to the Company's reason for the discharge and the Respondent Union's participation in that decision The Company's personnel manager and the Union's secretary-treasurer discussed Gerak's continued employment with the Company in a telephone conversation on May 28. Precisely what was said at that time was much disputed at the hearing. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, Kavanaugh and Pucci testified concerning certain conversations that took place between them , and which, according to the Respondents , prove the dis- charge had nothing to do with Gerak's complaint respecting Lewis or his letter to the Monitors. It is the testimony concerning these intra -Company, or inter-Respond- ents' conversations, as it were, which must support, if possible, the affirmative defenses. Kavanaugh testified that when he learned, on the morning of May 4, of the "fight," he called Steward Caselli to his office, and that the latter denied any knowl- edge about it. Kavanaugh then asked his assistant, Miller, to investigate, and Miller later reported ; exactly when, Kavanaugh was vague . First he said it was about 3 weeks, later 2 or 3 weeks-maybe a month-maybe 1 week. Finally, con- fronted with his prior affidavit, he said Miller reported 10 days later . According to Kavanaugh, Miller reported that the men complained of Gerak's dangerous carelessness with important valves, that Gerak had made derogatory statements about others, and that he had been a general agitator : "That is roughly what he brought in to me." Nothing was put in writing. Miller did not testify. Kavanaugh continued that this information caused him to decide then and there to discharge Gerak. Again he vacillated as to how long it took him to do anything about it. Finally, he said that about May 26 he spoke to Pucci, the personnel man- ager, about the matter . He advised Pucci what Miller had reported and "told him to take action to protect the Company." He used this phrase to avoid the direct question whether he told Pucci to discharge the man. His tesitmony was also that he wished to protect the Company against an undesirable "character," and that his talk with Pucci was equivalent to discharge instructions . Kavanaugh stated un- equivocally that no one from the Respondent Local asked him to discharge Gerak or influenced his decision in any way. Pucci was called as a witness by the General Counsel . During his examination he was shown a 15-page affidavit which he had signed on August 10, 1959, telling the story of the pertinent events. Pucci acknowledged the affidavit, which he admitted signing and understanding to have been a sworn statement . As will appear below, his oral testimony was at many critical points in sharp conflict with his earlier affi- davit. At many points he revealed a studied effort to shade the meaning of words appearing in the affidavit, to add or detract from its affirmative wording by suggested inuendos intended to impart a contrary meaning, and , in substance, to nullify its significant effect. Although insisting that the affidavit did not set forth his exact words, and that he had a further conversation with the Labor Board investigator on a later occasion, when he made other, different statements to him, Pucci ad- mitted that what appeared in his affidavit was true. ' In view of his official position as personnel manager of two plants , of the direct conflict between his testimony and important parts of his earlier affidavit , and of his admission of the truth of the affidavit at the time he made it , I received it into evidence as an exhibit by the General Counsel. Pucci testified that he first learned of the Gerak affair when Kavanaugh spoke to him about it on May 26. He said Kavanaugh had already decided to discharge Gerak and so instructed Pucci that day. His affidavit instead reads that Kavanaugh "asked me to investigate the absence from work of Oscar Gerak . he told me that Gerak had been in the fight and he figured that he had been absent because of it. Kavanaugh asked me to check into the matter to see when Gerak was returning to work. . . . At that time there was no thought of discharging Gerak due to the altercation : we just wanted to learn when he would be available for work " In direct conflict with Kavanaugh's testimony relating to the May 26 conversation, the affidavit makes no mention of Miller 's investigation or any complaints regarding Gerak's behavior or employee animosity toward him. As related above, Pucci telephoned Gerak that evening and inquired about his health. asked did he want the welfare forms, arranged for Gerak to come to work the following Monday, and then sent out the sick leave forms. Pucci continued to testify that he spoke to Kavanaugh again about Gerak on the telephone early on May 28 He insisted that as of that moment Kavanaugh still told him nothing about any dissatisfaction with Gerak's character, about emnloyee complaints con- cerning him, or gave any indication that the employees might refuse to work with him on his return . He said his understanding with the superintendent up to this 1 After acknowledging his affidavit Pucci was asked Q. TRIAL EXAMINER : Now, you wouldn't sign anything unless you knew it was true, would you 9 A The WITNESS : That 's correct, I would not sign it. FALSTAFF BREWING CORPORATION 301 moment was that Gerak would be confronted, upon his return to work, with the decision to discharge him, and then, if his reasons for his absence were unacceptable, disciplinary action be taken. Again his affidavit completely contradicts his oral testimony. There Pucci stated that on May 28 Kavanaugh told him the men voiced their protest on hearing Gerak was scheduled to return and that they "thought Gerak should have been discharged." I am utterly unable to reconcile either the respective oral testimony of these two men, or the hopeless disagreement between their contradictory testimony and Pucci's affidavit. Later on May 28 Lewis, the secretary-treasurer of Local 6, spoke to Pucci on the telephone. He told Pucci that he had received a number of anonymous telephone calls from union members who were "up in arms" over the Light fight, that the situation was "hot and serious," and that he could not be responsible for what might happen the following Monday if Gerak returned to work. Pucci denied from the stand that Lewis told him to discharge Gerak, but admitted "he [Lewis] probably suggested we . . . try to do something to keep the man from working. . " At this point in Pucci's testimony, there appeared another important contradiction of his earlier affidavit. He denied having told Lewis on the telephone there was no ground for discharging Gerak. His affidavit instead reads: "I told Lewis that I felt there was nothing which could justify discharge action at this time, but that we would investigate further." Lewis also testified concerning his telephone conversation with Pucci. The tenor of his entire testimony was that he was concerned with the possibility of conflict in the plant when Gerak returned because of anonymous calls he had received from employees who were disturbed. He would have it that he called Pucci in order to gain time to bring peace in the plant, to restore amicable relations between Gerak and his fellow employees, and eventually to make it possible for Gerak to resume working at peace. He said he asked Pucci "not to let Mr. Gerak work for the time being. When Pucci asked who would pay the man, Lewis said Falstaff would have to do so. He quoted Pucci as saying on the telephone that the Company did not know if it was going to retain Gerak. Asked directly by his attorney whether he had asked Pucci to discharge Gerak, Lewis replied: "Mr. Craig, you know I'm much too smart for that. No, I didn't." Early on May 31 Pucci telephoned the assistant brewmaster, Miller, and told him that if Gerak reported to work as previously scheduled he should be paid and sent home. Gerak did not report as arranged. Later that day Pucci appeared at plant No. 5 where Gerak worked, and, outside the brewmaster's office, took written statements from 14 employees, each generally critical of Gerak. Only two of them referred to any problem over carelessness with proper shutting or opening of valves, and these only suggest indirectly that Gerak may have been the negligent employee. None of them refers to the Light incident in the washhouse on May 4. They are couched in general terms, vague, and largely full of references back to ancient recollection.2 As set out above, on June 4 Pucci sent a discharge letter to Gerak, who never sought to obtain any explanation or justification from the Company. On July 6 Gerak went to Lewis' office accompanied by his sister (Gerak: "I didn't think it was proper for me to go through the Company") and asked why he had been fired. All he succeeded in hearing from Lewis was: "You know . It is out of my hands." Also, in July, Gerak went to an attorney, Mr. Gilpin, for assistance. The attorney wrote to the president of the Falstaff Corporation, inquiring as to the reason for its action. Pucci responded by telephone. Asked by Gilpin why Gerak had been 2 The following statement in full, by employee Watson, is typical of the 14, I, Lawrence Watson, wish to state that I feel that Oscar Gerak is an undesirable employee and wish to see action taken against him to remove him from the job For the following reasons: (1) On a number of occasions when he arrived for work he would ignore any recognition of friendliness and display an arrogant atti- tude. (2) He seldom had a good word for any of his fellow workers, particularly the men from Illinois-he continually referred to them as "Illinois Hoosiers" or "stump jumpers " (3) When assigned to work on what he called "hard jobs" he almost always made insulting remarks about the foreman who placed him on these jobs. (4) He was always jealous of the men who worked in the fermenting cellars (for making overtime) and let it be known that since he was not getting the over- time thefermenting men were called names (profanity). In general I have always felt that Gerak was a hard man to work with and a person had to be on his guard at all times to avoid actually fighting with him. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD released, Pucci said the Company had received "complaints from union representa- tives." Asked to give specific details, he refused.3 D. Further pertinent evidence, analysis, and conclusions Charged with having released Gerak at the Union's insistence, the Company chose to defend on the affirmative ground that it discharged him because he was an unde- sirable character. On the total evidence in the case, I do not think the Respondent Company has proved this affirmative defense; in any event, I am convinced it did not discharge Gerak for that reason. The issue of the case, however, is not why Gerak was discharged. Rather, as in all proceedings charging unlawful discrimination under the statute, the question is whether or not the record as a whole supports the affirmative allegation of the complaint that the Company discharged the employee at the Union's insistence in order to discourage his exercise of rights guaranteed in Section 7 of the Act. For the reasons appearing below I reject the Company's asserted basis for dis- charge. Gerak testified without contradiction that cussing went on in the plant as a commonplace occurrence, and that all the men were permitted to drink beer on the job without limitation. Lewis' unrestrained profanity of April 17 at the plant did not offend the sensibilities of the leadman or the union delegate who silently ac- quiesced. Both Pucci and Kavanaugh said there have been fights in the plant before; Pucci said someone had been discharged years ago but he could not recall details. He also said that so far as discharges are concerned "there has not been any practices in this area." He then added that no one was ever discharged for fighting. On this point, his affidavit reads: "There have been several other instances where some employees would not get along well with each other, and where arguments and fights may have occurred. This was never the basis for discharge because usu- ally such personality problems could be handled in other ways, either by transfers to other departments or otherwise separating the individuals at fault." Kavanaugh said, "We don't fire anyone for fighting because it is pretty well, I mean, that happens, we don't fire them on the grounds of fighting. We are not judges, we don't know which one is the guilty one, they might both be guilty. We have never fired anyone for fighting." Moreover, although the Company kept advancing the Light "fight" as one of the provoking causes of the discharge, the truth of the matter is that there was no "fight" in the washhouse on May 4. Instead, as the record clearly shows, by prearrangement between Light and Steward Caselli, Gerak was lured into the isolated washhouse expressly so that Light could "have it out" with him. Whether or not Gerak deserved reprimand for his offensive language concerning Light's father, indeed, granting, as I certainly do, that he also deserved a good punch in the nose, any kind of a real investigation should have revealed to the Company that Gerak did not fight, but rather was brutally and deliberately assaulted. He never struck a blow, never had an opportunity, and left quietly without even attempting to hit back at his tormentors. The very basis of the discharge urged at the hearing-a comprehensive investiga- tion conducted by the assistant brewmaster-if it ever did take place, is highly suspect because of its unilateral character. Gerak was never asked his version either of the washhouse incident or of his relationship with other employees. Quite contrary to the fairness which Pucci sought to convey, even to the extent of saying it had been decided to confront Gerak with his accusers before taking action against him, Gerak was not given any opportunity to exculpate himself. I do not credit any of the testimony offered by Kavanaugh and Pucci at the hearing with respect to the conversations they said they had on May 26 and thereafter. Kavanaugh testified he told Pucci on the 26th to discharge Gerak. Pucci's affidavit flatly contradicts this. Kavanaugh also testified he detailed to Pucci on that same day the derogatory reports resulting from Miller's 10-day inves- tigation. Pucci swore to the contrary, and his affidavit shows clearly Kavanaugh never mentioned criticism of Gerak until after Lewis had called Pucci. While insisting, contrary to his affidavit, that he had been ordered on May 26 to discharge Gerak, Pucci's actions thereafter were completely insistent with any such 3 Attorney Gilpin's testimony was supported by his office memorandum concerning the telephone conversation, a note which he prepared and placed in his file at the time of his talk with Puce!. At the hearing, Pucci denied having used the phrase "union representa- tives," and said that at best he may have -referred to complaints of "union members." I credit the attorney, who was a clearly disinterested and reputable witness. Against him, the totality of Pucci's testimony, evaluated in the light of his completely in- consistent extended prior affidavit, makes it impossible for me to accept his conflicting testimony. FALSTAFF BREWING CORPORATION 303 determination. He inquired of Gerak's health, insisted on mailing him welfare benefit forms, arranged for his return to work on the following Monday, and so advised the immediate supervisor in Gerak's department. All this, without once mentioning to anyone-except for the well concealed, unrecorded, and confidential talking between superintendent and personnel manager-that the Company was in any way dissatisfied with him. But most destructive of the company officials' testimony that they wished to get rid of Gerak, is Pucci's failure to mention the fact to Lewis on the telephone. Pucci's purported explanation of the long delay in carrying out the decision to discharge, of his ostensible and deceptive solicitude toward Gerak in inviting him to work, and of the written gripes which the Company solicited from certain em- ployees, was that all of this was but a scheme which he had envolved to protect the Company's interest in the situation. And even on this asserted concern over the Company's interest, Kavanaugh and Pucci could not agree at the hearing. The superintendent said he told Pucci to protect the Company against persons of Gerak's "character." The personnel manager said he was seeking to protect the Company from the "Union." I do not believe either of them. What more protection from the "Union" could Pucci need when Lewis himself told him to keep Gerak out of the plant? Instead he tells Lewis there were no grounds to justify discharging the man and impliedly suggests Local 6 pay Gerak's wages if it wants him to be kept out. This was hardly the way to carry out Kavanaugh's instructions to discharge. And the timing of what Pucci did, as distinguished from the self-serving conversa- tions between them which the two company officers now advance, is most significant of all. Up to the moment of his talk with Lewis, Pucci had taken no action against Gerak; instead he had treated him as though the Company had no special interest in him at all. Immediately following Lewis' telephone call on May 28, Pucci countermands his instruction to Miller and tells him to refuse to permit Gerak to work Monday. He even tells him to pay Gerak a gratuity to go home-precisely in keeping with Lewis' highhanded order. Now for the first time he does something to make a "record" to protect the Company-as he said-by having employees come to Kavanaugh's house and sign general, vague, and not very unusual com- plaints against a fellow employee. With these now in the file for future "protec- tion"-despite the established practice over the years, no previous record of com- plaints have ever been placed in Gerak's personnel folder-Pucci forgets all about his strategy to confront Gerak and summarily discharges him without notice. What protection was he building up for his Company? Could it be that all this amounted to was a last minute effort to remove the spotlight from the Union as a moving cause of Gerak's discharge and make it appear instead that the union "members" were the motivating pressure? And finally, when Pucci had an opportunity to come forth with Gerak's asserted misconduct and undesirable personal characteristics in defense of the Company's action, he told Gilpin, Gerak's lawyer, only that there had been complaints from "union representatives." If the written statements from employees were to protect the Company, all he had to do was start reading from them to Mr. Gilpin, when asked for specific details. Gerak not having been discharged for cause, the next question is whether or not he was discharged because the authoritative agent of Local 6 so wished. I have no doubt that that is exactly what happened in this case. As found above, before Lewis spoke to Pucci on the telephone on May 28, the Company had made no decision to discharge Gerak at all. He was to report to work the following Monday, but did not do so. Three more days went by and he did not communicate with his Employer. I recognize 'a considerable element of doubt as to Gerak's credibility as a witness in this case. He saw a doctor between May 14 and 21, and he admitted that thereafter for the next 13 days he had no medical attention. It may well be that his reason for continued absence was something other than ill health. In the total context of the record of this case, and with a due appraisal of the tenor of Robert Lewis' statements from the witness stand, I can easily imagine other possible reasons for Gerak's continued absence. The question here, however, is not why did Gerak absent himself. Rather: why did the Company, having no intention of dis- charging him on Friday, change over the weekend, decide to pay him to stay home, and then fire him without any communication at all? Lewis did not like Gerak. The profane diatribe that he let loose on April 17, when he made a trip to the plant for the express purpose of roundly insulting the employee, coupled with the enmity bordering on hate he revealed on the witness stand, leave no doubt that the personal animosity was deeply felt. I need not speculate as to what was the cause for Lewis' dislike before Gerak, with the two other employees, complained to the Teamster Monitors in Washington about Lewis' method of administering the affairs of Local 6. Perhaps he took umbrage at Gerak's 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loose language. This is unlikely, for the record shows clearly that Lewis is not too sensitive to offcolor language himself. More likely, the subject of irritation was the continuous and outspoken complaint by Gerak and other utility brewers that they were precluded from progressing to the "brewer " classification by Local 6 itself. Brewers and utility brewers work side by side and perform duties that are not sub- stantially distinguishable. Nevertheless, as the contract in evidence provides, those employees classified as brewers enjoy seniority prerogatives which permit them to stay in the frequent seasonal layoffs, in consequence of which their overall earnings are greater than those of the utility brewers. This system has long also provided that utility brewers may progress through a short apprenticeship and acquire the status of brewers . Gerak testified that although he has been a utility brewer for upwards of 20 years he was always denied such opportunity, and the record as a whole leaves no doubt that, right or wrong, he was convinced Lewis, who effectively controlled the policies of the Union, deliberately was responsible for the resultant discrimination against Gerak and other members similarly situated in this industry in St. Louis. Indeed, it was this very dissatisfaction which formed the basis of the complaint by Gerak, as spokesman for a large group of members of Local 6, when when they wrote to the Monitors and said they were being treated as second-class members of the Union. They wrote their letter on May 18, and I find the letter was received in due course within a few days, by both the Monitors in Washington and the Teamster District Council in St. Louis, of which Lewis is a trustee. I need no further evidence than the parties' stipulation that the letter was sent to both these destinations, to support the finding, which I make, that Lewis, within a matter of 2 or 3 days after May 18, learned that it had been sent. It was only a few days later that he spoke with the personnel manager about Gerak. And he told Pucci to keep Gerak out of the plant. The record evidence is also sufficient to convince me, and I find, that Lewis told Pucci to discharge Gerak. There is no other plausible explanation for the Com- pany's change in attitude toward the employee. Before the conversation with Lewis, all that appears credibly is that Pucci was concerned with ascertaining when Gerak would return. The officers believed Gerak was out sick; they wanted him to enjoy the contract welfare benefits. After the telephone call, Pucci wanted to pay Gerak to stay home, he sought affidavits to support the justification for a discharge, and without more terminated the man. In resisting the complaint allegation that Local 6 "caused" the Company to dis- charge Gerak, both Respondents rely largely on the absence of direct evidence that Lewis used the word "discharge" when speaking with the personnel manager. In the circumstances of this case, I do not deem the absence of such a literal word a fatal defect. There are cases and circumstances in which the absence of direct and positive proof precludes certain factual findings. There are others in which an in- direct suggestion, a hint, a "wink or a nod." as it were, more than suffices. Lewis is the admitted power in Local 6; he is impatient with "too much democracy." Pucci is afraid , and feels the Company must protect itself against the Union. Both Pucci and Lewis said that Lewis requested the Company not to permit Gerak to return to work. I view Lewis' almost contemptuous reply to his own lawyer that he was "much too smart" to use the word "discharge" as a revelation of unbounded confidence in the ability to hoodwink the entire judicial process. It may be he enjoys exclusive control over the destiny of all the members of Local 6 in St. Louis; he does not have a monopoly of human intelligence, even within the confines of a single courtroom. Lewis' words and demeanor on the witness stand reveal an unmistakeable arrogance toward individual employee rights and union members' prerogatives . In the total picture, I find his uncorroborated explanation of why he wanted Gerak out of the plant totally unconvincing . According to him his only purpose was to placate the disturbed employees and to protect Gerak's employment . If this was his purpose, I hardly understand the special union meeting he called on September 11 when he spoke at length of the May 18 letter to the Monitors and roundly ridiculed Gerak and the other two members who had signed it . On his own admission of the hearing, Lewis defended what he had done in connection with Gerak's discharge, gave Gerak an opportunity to make his grievance stick before 500 or 600 union members, and ended by calling for a mass demonstration of confidence in himself . I do not believe Lewis sought to reconcile any differences between Gerak and other union members. I find. instead, on the entire record, that he very much resented Gerak'g attempt to question his stewardship of the affairs of Local 6 and had him discharged for that reason. I am satisfied Lewis saw in these members' appeal to the Monitors a menace to his continued status as secretary -treasurer of the Union and virtual sole master of its affairs. FALSTAFF BREWING CORPORATION 305 If Gerak's statutory privilege to raise a dissenting voice against Lewis as a union official had not been involved, if employment had not been lost because of Gerak's insistence upon exercising his statutory rights, there would have been no occasion for Lewis, at this same September 11 meeting, to express this contempt of the National Labor Relations Board, to advise all the union members to refuse to give any information of any kind to any of its representatives, and to curse openly, in the most offensive street gutter language, one of the very devoted and hard working Labor Board attorneys stationed in the St. Louis Regional Office. The statute protects the rights of any union member to express his dissatisfaction over the stewardship of elected union officers, and it has been held that activities of employees aimed either at removing elected union officers, or at compelling a change in their methods of running the Union, is protected against discharge by the Company .4 In conclusion I find that by discharging Gerak on June 4, 1959, at the request of Local 6, the Respondent Company discriminated against him in violation of Section 8(a)(3) and (1) of the Act, and that by causing such dis- crimination by the Respondent Company, the Respondent Union violated Section 8(b)(2) and (1)(A) of the statute. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent Local 6 and Respondent Falstaff Brewing Cor- poration have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As to Local 6, I will recommend that it cease and desist from causing or attempting to cause Falstaff Brewing Corporation to discharge employees for pro- testing the conduct of union officers to the Teamsters Monitors or otherwise engag- ing in concerted union activities. As to the Respondent Company I shall recom- mend that it be ordered to cease and desist from discharging employees for engaging in such conduct. I shall also recommend that the Respondent Union and the Respondent Company jointly and severally make Oscar Gerak whole for any loss of pay he may have suffered by reason of the discrimination against him, said loss of pay to be com- puted on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that the Respondent Union be required to notify Oscar Gerak and the Respondent Company in writing that the Respondent Union has no objection to his employment by the Company. The Respondent Union shall not be liable for any backpay which may accrue for the period beginning 5 days after it notifies the Company and Oscar Gerak as aforesaid. It is also recommended that the Company make available to the Board, upon request, payroll and other records to facilitate computation of the amount of backpay due. In view of the nature of the unfair labor practices committed, the commission by the Respondents of similar and other unfair labor practices may be anticipated. The remedy should be coextensive with the threat. I will therefore also recommend that the Respondents be ordered to cease and desist from infringing in any manner on the rights of employees guaranteed in Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Falstaff Brewing Corporation, St. Louis, Missouri, is an employer within the meaning of Section 2(2) of the Act. 2. Brewers and Maltsters Local Union No. 6, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. *Local 138, International Union of Operating Engineers, AFL-CIO (A. Cestone Com- pany), 118 NLRB 669, enfd. 254 F. 2d 958 (C.A. 2) ; Acme Mattress Co. Inc., 91 NLRB 1010, enfd. 192 F. 2d 524 (C.A. 7). 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discriminating in regard to the hire and tenure of employment of Oscar Gerak, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By the above conduct, thereby interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( I) of the Act. 5. By causing the Respondent Company to discriminate against employees in violation of Section 8(a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 6. By causing the Respondent Company to discriminate as aforesaid, thus re- straining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL NOT discharge employees because they have protested the conduct of union officers to the Teamsters Monitors or otherwise engaged in concerted union activities, or in any other manner discriminate against them in regard to hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a)(3) of the Act, as modified by the Labor- Management and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole Oscar Gerak for any loss of pay he may have suffered as a result of our discrimination against him. FALSTAFF BREWING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF BREWERS AND MALTSTERS LOCAL UNION No. 6, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF FALSTAFF BREWING CORPORATION Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that: WE WILL NOT in any manner cause or attempt to cause Falstaff Brewing Cor- poration to discharge employees because they have protested the conduct of union officers to the Teamsters Monitors or otherwise engaged in concerted union activities, or to discriminate against its employees in any manner in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DOUGLAS MOTORS CORP. 307 WE WILL NOT in any other manner restrain or coerce employees of Falstaff Brewing Corporation, or any employee member of this Union , in the exercise of rights guaranteed in Section 7 of the Act , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as a condition of employment , as authorized by Section 8(a)(3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole Oscar Gerak for any loss of pay he may have suffered as a result of the discrimination against him. BREWERS AND MALTSTERS LOCAL UNION No. 6, AFFILIATED WITH INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By--------------- ---------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered Eby any other material. Douglas Motors Corp. and Shopmen's Local Union No. 471 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, Petitioner. Case No. 13-RC- 7070. July 25, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert G. Mayberry, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer has been engaged in the manufacture of plaster and mortar mixers, snowplows, wrecking cranes, rollers, trailers, and towing accessories. In addition, the Employer has as a regular busi- ness practice subcontracted to other firms the manufacture of con- crete mixers, towing tools, engine stands, tire spreaders, and towing bars. The Petitioner herein seeks an immediate election among the pro- duction and maintenance employees of the Employer. At the time of 128 NLRB No. 31.