Brewery & Soft Drink Workers Local Union 163

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