Miller Brewing Co.

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller Brewing Company and Chauffeurs, Teamsters and Helpers Local Union No. 981, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 16-CA-3959 October 5, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 17, 1971, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with supporting briefs, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) of the Act by threatening to discharge the powerhouse crew if any attempts were made to bring in another union. We do not agree, however, that Respondent violated Section 8(a)(2) by continuing to deduct union membership dues from the wages of nine employees for 6 months after receipt of their checkoff revocation requests. In the summer of 1969, certain employees signed checkoff authorization cards in anticipation of the election of the Brewery Workers Union as their bargaining representative. The cards provided that the authorizations be irrevocable for a period of 1 year from the date appearing on the cards or until the termination of the collective-bargaining agreement, whichever occurred sooner. Some of the cards were dated, but those signed by the nine employees here involved were not dated. In December 1969 the election took place and Brewery Workers was thereafter certified by the Board. Respondent and Brewery Workers subsequently executed a collective- bargaining agreement retroactive to October 1969, for a term ending October 1, 1972. The contract, like the cards, provided that checkoff authorizations would be irrevocable for a period of 1 year from the date thereof or until the termination date of the contract, whichever occurred sooner. In February 1970, the Respondent began checking off dues on behalf of the Brewery Workers pursuant to the authorization cards, which it received in January 1970. In the summer of 1970, Respondent received letters requesting that the checkoff authorizations be revoked; some from employees whose original authorization cards had been dated, and nine from employees whose cards had not been dated. Respondent immediately hon- ored the revocation requests of the former group, but refused to honor those of the latter group. Respondent continued to deduct dues from the wages of the nine until February 1971, 1 year from the date the checkoffs were instituted, when, pursuant to new revocations received, it discontinued the deductions. We agree with the Trial Examiner that the nine authorization cards were ambiguous, as they were irrevocable for a year "from the date hereof" but contained no dates. We also agree that the contract was of little assistance, as it presupposed that such cards would bear dates from which their irrevocable period would run. We disagree with his finding that Respondent's construction of the cards and the agreement either unduly extended the irrevocability period or in any other manner violated Section 8(a)(1) or 8(a)(2) of the Act. Instead, we find that Respondent acted reasonably and in good faith in construing the cards and the contract and in treating the period of irrevocability of the undated cards as being as of the date Respondent received such cards. The Board has held that it will not effectuate the policies of the Act for the Board to impose upon the parties its interpretation of the meaning of ambiguous contract checkoff provisions as implemented by employees' authorization cards where, as here, a respondent acted reasonably and in good faith.i Accordingly, we shall dismiss this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Miller Brewing i Morton Salt Company, 119 NLRB 1402 193 NLRB No. 88 MILLER BREWING COMPANY 529 Company, Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as so modified: 1. Delete paragraphs 1(b) and 2(a). 2. Substitute the attached notice for the Trial Examiner's notice. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act other than as found herein. APPENDIX N07 iCE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by threatening to discharge employees if they attempted to bring in another union: WE WILL NOT threaten to discharge or replace our employees if they attempt to bring in another union. WE WILL NOI in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. MILLER BREWING COMPANY (Employer) Dated By ( Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. proceeding under Section 10(b) of the National Labor Relations Act, as amended , herein called the Act, was heard in Fort Worth, Texas, on February 16 and 17, 1971, with all parties participating pursuant to due notice upon a consolidated complaint 2 issued by the General Counsel on November 10 The consolidated complaint, as amended, insofar as pertinent herein , alleges in substance that in violation of Section 8(a)(1) and (2) of the Act, Miller Brewing Company ( 1) on about February 18 threatened to discharge an employee for engaging in union or concerted activities, (2) on about March 12 threatened employees they would be discharged if they affiliated with another union to represent its powerhouse employees , and (3) on about July 15 rendered unlawful support to the International Union of Brewery, Flour, Cereal, Softdrink and Distillery Workers of America, AFL-CIO, hereafter called Brewery Workers, by refusing to honor or give effect to the attempts by certain named employees to revoke their dues -deduction authori- zations on behalf of the Brewery Workers. Respondent in its duly filed answers denied engaging in the alleged unfair labor practices. All parties were represented and were afforded an opportunity to adduce evidence , to examine and cross- examine witnesses, and to file briefs . Briefs were received from the General Counsel , the Charging Union, and Respondent and have been carefully considered. On the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent, a corporation duly organized under and existing by virtue of the laws of the State of Wisconsin, maintains an office and place of business at 701 S. Freeway, Fort Worth, Texas, where it has been engaged in the business of manufacturing and selling malt beverages, including beer and related products. During the past 12 months, Respondent, in the course and conduct of its business operations at the aforesaid plant, purchased products and materials valued in excess of $50,000 from sources located outside the State of Texas and shipped such products and materials directly to its Fort Worth plant and during the same period sold and shipped directly to customers located outside the State of Texas products valued in excess of $50,000. Respondent admits, and I find, that at all times material herein it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE' WILLIAM W. KAPELL, Trial Examiner: This matter, a i On November 10, 1970, the Acting Regional Director for Region 16 issued an Order and a Consolidated Complaint consolidating Case 16-CB-578 , involving the International Union of United Brewery, Flour, Cereal, Softdrink and Distillery Workers of America, AFL-CIO, and William Kamp, an individual , with the above -entitled case Thereafter, on February 10, 1971, and prior to the within hearing , the Regional Director issued an Order severing Case 16-CB-578 from the above -entitled case iI. THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and I find, that at all times material herein Teamsters and Brewery Workers have been labor organizations within the meaning of Section 2(5) of the Act. Accordingly, only the CA case is involved herein 2 Based upon an original and a first amended charge filed by Chauffeurs, Teamsters and Helpers Local Union No 981, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter referred to as Teamsters, on Apnl 28 and April 30, 1970, respectively. All dates hereafter refer to the year 1970 unless otherwise noted 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(a)(1) Violations In support of the contentions that the Company on or about February 18 threatened to discharge an employee for engaging in union or protected concerted activities, the General Counsel adduced the following: Richard Ham- mond, an employee in the Company's bottle shop, testified that he attended a meeting at the plant on about February 18 with Arthur Nabors, the shop steward for Brewery Workers, and Vernon Tapogna, the assistant plant manager and brewmaster. The meeting was held to discuss a grievance filed by employee Mike Lacrone concerning the performance of certain work by supervisors on Sunday rather than by hourly paid employees, thereby depriving the latter of Sunday double time hourly pay. The work involved "attemperation" of beer tanks (the regulation of the temperature of the beer by the manipulation of certain valves), which was done during the week by hourly paid employees. Hammond, who was unfamiliar with the nature of the work, requested, that Tapogna take them to the fermentation cellar where he described the nature of the work and claimed the operation was a complicated one. When Nabors argued that inasmuch as the hourly paid employees did the work during the week they were qualified to do it on Sundays, Tapogna retorted "If you don't quit bothering me, you can be replaced." 3 Tapogna testified on behalf of the Company that on the day prior to the above-related meeting he met with Lacrone and suggested that supervisors be permitted to do the work on Sunday if it took less than half an hour, but Lacrone refused to go along with his suggestion. The next day he met and discussed the matter with Nabors and Hammond, who also opposed having supervisors perform the disputed work to which he replied that they could automate the operation. Tapogna testified further that on February 21 he and John Harrington, the Company's manager of industrial relations, met with Hammond and Nabors on the third step of the grievance concerning the Sunday work, but that nothing was said about Nabors being replaced. With respect to the alleged incident involving the threat on or about March 12 to replace or discharge the powerhouse employees if they sought affiliation with another union, Hammond testified that on or about that date he participated in a conversation with Ril Shuler, the plant maintenance supervisor and assistant plant manager, and Eugene Kucker, a powerhouse operator and a Brewery Workers shop steward, pertaining to a grievance to rebut a written reprimand given Kucker; that in discussing the grievance, Shuler repeatedly said that he didn't care what their bargaining contract stated because he was going to follow the company rules, while he (Hammond) insisted the matter was controlled solely by their contract and he was not concerned with the company rules; that Shuler replied, "We realize that your tired of it. We know that you'd like to get another union in here, the Operating Engineers, in the powerhouse; and if you do or if you try we'll get a whole new crew." Kucker corroborated Hammond's testimony to the extent that Shuler stated he had heard rumors that they were trying to change unions, and if they did or tried to he would get rid of the whole powerhouse crew and get a new crew. Shuler testified that he held a first step grievance meeting with Kucker and Hammond on March 6 at which they discussed getting two 10-minute coffeebreaks, a lunchbreak of half an hour off the job, and permitting union stewards to talk about union business with union members during working time; that at no time did they discuss the Operating Engineers; that he never said he knew the Operating Engineers were trying to organize the power- house crew, and if they did they would let them all go; and that he met again with Hammond on the grievance but nothing was said about the Operating Engineers or discharging the powerhouse crew. B. Conclusions as to the 8(a)(1) Violations Based on the straightforward testimony of Hammond, corroborated by Nabors, I find that Tapogna told Nabors he could be replaced if he did not stop bothering him. Nabors, however, did not react as if his job were seriously threatened, he simply laughed in response at the prospect. Nor was the alleged threat repeated in subsequent meetings of the parties. At most it was an isolated remark made during a lengthy grievance meeting in an attempt to resolve a dispute concerning Sunday work which was not taken seriously by the party to whom it was directed. Further- more, the undisputed evidence shows that Hammond did most of the talking, with Nabors participating to a very minor extent, thereby tending to refute any claim that Nabors was bothering or irritating Tapogna. In fact, Nabors, corroborated by Tapogna, denied that he bothered Tapogna. Accordingly, I conclude that Tapogna's remark was not only not provoked, but was neither coercive nor threatening within the meaning of Section 8(a)(1) of the Act. The alleged threat by Shuler to replace the powerhouse crew if any attempts were made to bring in another union (the Operating Engineers) is based upon the contradicted testimony of Hammond and Kucker. Shuler not only denied making the threat but claimed he was wholly unaware that the Operating Engineers were even trying to organize the powerhouse crew. He asserted that the grievance discussion pertained to coffee and lunch breaks and the right of the shop steward to discuss union business with members during working time. Yet, the record discloses that members of Brewery Workers were disaffect- ing, that on April 8 the Teamsters advised the Company that as of April 4 the employees in the certified unit had voted overwhelmingly to disaffect from the Brewery Workers and to affiliate with the Teamsters, and that the Teamsters later that month filed a petition to amend the certification of Brewery Workers by changing the name of the certified union to Teamsters. In all probability the Company became vaguely aware prior to April that another union was organizing its employees, but had no precise details. Hammond's assertion that Shuler referred to 3 Nabors, who corroborated the testimony of Hammond, stated on cross-examination that he laughed when told he could be replaced MILLER BREWING COMPANY 531 rumors about another union coming into the plant appears highly plausible under the circumstances. Moreover, I find the testimony of Hammond and Kucker more definite and certain than that of Shuler, and more credible in the context of what was happening in the plant. I, therefore, conclude that Shuler made the alleged threat in an attempt to preserve the union status quo. The threat definitely was coercive and interfered with the statutory rights of the employees, in violation of Section 8(a)(1) of the Act. C. The Alleged 8(a)(2) Violations The complaint, as amended, alleges that the Company rendered unlawful support to Brewery Workers on about July 15 in violation of Section 8(a)(2) of the Act by refusing to honor and implement the attempts of 12 named employees 4 to revoke their dues-deduction deduction authorizations on behalf of Brewery Workers. Pursuant to the General Counsel's unopposed motion, the complaint was amended by withdrawing the names of Tennis Cornum, Dennis Bacher, and Coy L. Gamble from the list of the 12 above-named employees. It was also stipulated that if the nine remaining employees were called to testify they would state that they signed their authorizations for deduction of dues as follows: Hunter, Kamp, and Sanders on July 26, 1969; Dyer and White on August 11, 1969; Berry on July 12, 1969; Gray on July 25, 1969; McCoy on August 24, 1969; and Rodriguez on September 3, 1969. Although the aforesaid authorizations provided space for inserting the date, they were not filled in. John T. Harrington, industrial relations manager for the Company, testified that the bargaining contract with Brewery Workers was executed on December 17, 1969, retroactive to October 1, 1969, for a term ending on October 1, 1972,5 that prior to June 23 he treated undated dues-deduction authorizations the same as dated ones in implementing their revocations, that the undated and dated authorizations were received by the Company about mid- January 1970 and checkoffs pursuant thereto began in February, that he would have honored the revocations of the undated authorizations received thereafter if the Brewery Workers had not objected, and that in compliance with the request of the Brewery Workers he took the position that the undated authorizations could not be revoked prior to February 1971. Beginning in June and continuing through August, the Company received a revocation from each of the above- named employees of their dues-deduction authorizations .6 In correspondence between the Company and the Brewery Workers, the latter claimed that the revocations of the undated authorizations failed to comply with the contract (article 1 , section 1.5), and, therefore, should not be Consisting of Frank 0 Rodriguez, Thurman A Berry, Michael D Dyer, Robert N Gray, Eugene Hunter, William A Kamp, Clarence McCoy, Bobby D Sanders, Frank H White, Tennis D Cornum, Dennis R Bacher, and Coy L Gamble 5 The contract provided in article I, section 15 for dues deduction in pertinent part as follows Signed authorization shall be on a form provided for that purpose and shall be irrevocable for a period of one ( 1) year from the date thereof or until the termination date of this agreement , whichever occurs sooner Unless an employee desiring to revoke his authorization for the deduction of dues serves written notice of such revocation on honored. Yielding to the request of the Brewery Workers, which took the position that the undated authorizations became effective when placed in the possession of the Company, and that revocations should be honored 1 year from the date of the first checkoff, the Company replied to each employee's revocation as follows: We have received your request for Revocation of Authorization for Deduction of Union Dues. Your signed authorization for deduction of union dues which we have in our possession, however is undated. Because of this the Union has requested us to continue your dues deduction pursuant to the contract until one year has expired from the time of the first checkoff. Since the checkoff began on February 2, 1970, if you wish to revoke your authorization you will be required to send us another revocation prior to that date in accordance with Article 1, Section 1.5 of the current contract. The Company continued to deduct dues until February 1971, when it honored new revocations received in compliance with its demand. D. Conclusions as to the 8(a)(2) Violations The authorizations in conjunction with and as related to the collective-bargaining contract must be considered a three-party agreement covering the Brewery Workers, the Respondent, and each authorization signatory. Pursuant thereto, and insofar as pertinent herein, dues deductions were irrevocable for a period of 1 year. The failure of the employees to have recorded specifically the dates when that year began raises a question as to whether those dates may be established by construing or interpreting the authoriza- tions in the light of parol evidence reflecting the dates when the authorizations were, in fact, signed. The law is well settled that parol evidence is inadmissable to vary, alter, or contradict a writing which is complete and unambiguous, where no fraud, accident, or mistake is claimed. Patently, the authorizations in issue were rendered ambiguous because no dates were inserted. In these circumstances, an interpretation based on parol evidence which cures the agreement of its ambiguity and renders its performance possible will be preferred to one which makes it void or its performance impossible or meaningless. Thus, the issue herein involves a dispute over the interpretation of a contract rather than one involving an interpretation and application of the Act. I conclude that the uncontradicted evidence indicating the date when each employee signed his undated authorization may be used to construe those authorizations with respect to the starting date of the irrevocable period. I find that such construction would also be consistent with the policies and purposes of the Act. The the Company and the Union not less than ten (10) days nor more than twenty (20) days before the anniversary of such authonzation or the termination date of this agreement , such authorization shall become irrevocable and binding until the next such anniversary date or termination date, whichever occurs sooner, subject to further renewal for like period unless revoked in the manner above provided 6 Most of the revocations did not comply with the 20- and 10-day time requirements set forth in the contract However, the Company raised no objection on that point in considering the timeliness of the revocations in that respect, and it, therefore, is not regarded as an issue herein 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, in effect, also construed the undated authori- zations by starting the irrevocable period of 1 year on the date it began deducting dues. It, thereby, actually extended the irrevocable period to about 1-1/2 years from the date when the authorizations were signed. This was done in compliance with the request of the Brewery Workers, and not only runs counter to the irrevocability limitation of the Act but also marks a departure from the Company's past practice in treating undated authorizations the same as dated ones. I, therefore, find that Respondent's failure to honor the revocations in issue herein interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act and rendered unlawful assistance and support to the Brewery Workers in violation of Section 8(a)(2). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully continued to deduct union mem- bership dues from the wages of its employees and paid said dues to Brewery Workers, I find that a reimbursement order is necessary to effectuate the policies of the Act. Accordingly, I shall recommend that Respondent reim- burse the employees involved herein for the dues deducted from their wages during the period following the receipt of their revocations, with interest at the rate of 6 percent per annum. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7 The activities of Respondent set forth in Section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein, Brewery Workers and Teamsters have been labor organizations within the meaning of Section 2(5) of the Act 3. By threatening to discharge the powerhouse crew if any attempts were made to bring in another union, Respondent coerced the employees and interfered with their statutory rights within the meaning of and in violation of Section 8(a)(1) of the Act. 4. By continuing to deduct union membership dues from the wages of employees following the receipt of revocation of their checkoff authorizations, Respondent promoted Brewery Workers by rendering it unlawful assistance and support and interfered with the employees' Section 7 rights in violation of Section 8(a)(1) and (2) of the Act. 5. Except as found above, Respondent has not engaged in any other unfair labor practice alleged in the complaint. 7 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto ORDER Respondent, Miller Brewing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge employees if they made any attempts to bring in another union. (b) Continuing to deduct union membership dues pursuant to checkoff authorizations of employees after said employees had revoked their said authorizations. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Reimburse Frank O. Rodriguez, Thurman A. Berry, Michael D. Dyer, Robert N. Gray, Eugene Hunter, William A. Kamp, Clarence McCoy, Bobby D. Sanders, and Frank H. White for the union membership dues deducted from their wages for the period following the receipt of the revocations of their dues-deduction authorizations. (b) Post at its plant in Fort Worth, Texas, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 covered by any other material. shall be deemed waived for all purposes B In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " MILLER BREWING COMPANY 533 (c) Notify the Regional Director for Region 16, in IT IS ALSO ORDERED that the complaint be dismissed wnting, within 20 days from the date of the receipt of this insofar as it alleges violations of the Act not specifically Decision, what steps the Respondent has taken to comply found. herewith.9 "Notify the Regional Director for Region 16, in writing , within 20 days 9 In the event that this recommended Order is adopted by the Board from the date of this Order, what steps the Respondent has taken to after exceptions have been filed, this provision shall be modified to read comply herewith"