Pittsburgh Brewing Co.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pittsburgh Brewing Company and Henry F. Elisler. Case 6-CA-7946 September 25, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO whether Respondent violated Section 8(a)(3) of the Na- tional Labor Relations Board Act, as amended, by laying off Henry F. Ellsler on December 8, 1974, and thereafter failing and refusing to recall him, and whether Respondent otherwise independently violated Section 8(a)(1) of the Act by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: On June 16, 1975, Administrative Law Judge Max Rosenberg issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, and hereby orders that the Respondent, Pittsburgh Brewing Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Administrative Law Judge in his discussion of the factual back- ground of the case stated that all of the watchmen signed authorization cards. However, the record reveals that, out of the seven members of the unit, six signed and returned cards to the union hall The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 31, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION MAx ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Pittsburgh, Pennsylvania, on April 24, 1975, on a com- plaint filed by the General Counsel of the National Labor Relations Board and an answer filed thereto by Pittsburgh Brewing Company, herein called Respondent.' At issue is i The complaint, which issued on March 13, 1975, is based on charges and amended charges filed and served on December 12, 1974, and March 4, 1975, respectively. FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent, a Pennsylvania corporation with its princi- pal office located in Pittsburgh, Pennsylvania, is engaged in the manufacture and nonretail sale of malt beverages. The sole facility involved herein is located in Pittsburgh. During the annual period material to this proceeding, Re- spondent received goods and materials valued in excess of $50,000, for use at its Pittsburgh installation, directly from points located outside the Commonwealth of Pennsylva- nia. During the same period, Respondent sold and shipped goods and materials valued in excess of $50,000 from its Pittsburgh facility directly to points situated outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, Local Union 67-A, AFL-CIO, herein called the Union , is a labor orga- nization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(3) of the Act by laying off Henry F. Ellsler on Decem- ber 8, 1974,2 and thereafter failing to recall him to work because of his membership in and activities on behalf of the Union. The complaint further alleges that Respondent offended the provisions of Section 8(a)(1) when, on No- vember 1, it promised wage increases to employees if they refrained from becoming or remaining members of the Union, or giving support to it, and, when, on the same date, it promised that no employees who were members of, or supported, the Union would be discharged or laid off if they abandoned their union membership or ceased giving support to that labor organization. For its part, Respon- dent denies that it engaged in any labor practices pro- scribed by the statute. Henry Ellsler, the Charging Party, was hired by Respon- 2 Unless otherwise indicated , all dates herein fall in 1974. 220 NLRB No. 109 PITTSBURGH BREWING COMPANY 715 dent on August 5, 1973, as a full-time watchman. From that date until January 1974, his usual duties consisted of checking the security of Respondent's buildings by locking doors and turning the lights on and off. In January, he was assigned to the task of directing truck traffic around the construction site of a new warehouse which Respondent was erecting on its premises . In August, Ellsler suffered an injury which hospitalized him until October of that year. When he returned to work, he resumed his former duties as a security guard rather than those of directing traffic. He was laid off on December 8, under circumstances to be chronicled hereinafter. It is uncontroverted and I find that, during his employment tenure, he maintained a "good work record" as a guard. Becoming dissatisfied with his conditions of employment on or about October 1, Ellsler sought out employee Wil- liam Edgar, another watchman at Respondent's facility, and broached the subject of seeking collective representa- tion by a labor organization. Ellsler then spoke to the other guards at the plant, seven in total number, and a consensus was reached among the men to enlist the aid of a union. On October 16, Ellsler approached Robert Loidl, who worked as a truckdriver for Respondent but was also the secretary and business agent of the Union? Ellsler informed Loidl that the watchmen were desirous of joining the Union. Loidl promised that he would send letters and authoriza- tion cards to them with instructions that the designations be executed and returned to the Union. Ellsler then fur- nished Loidl with the names and addresses of the men. By October 25, all of the watchmen received their authoriza- tion cards, signed them, and returned them to Loidl at the union hall. The following day, Ellsler met Loidl in the plant, and the latter announced that he planned to speak to Kenneth McCulloch, Respondent's director of personnel and labor relations, and seek recognition for the Union as the exclusive bargaining representative of the watchmen. On October 30, Loidl, in his capacity as the union business agent, dispatched a letter to McCulloch in which the for- mer apprised McCulloch that the Union represented a ma- jority of the security guards and requested a meeting at which a labor compact covering the men could be negotiat- ed. It is undenied and I find that, on the afternoon of No- vember 1 Ellsler received a telephone call at his home from McCulloch. McCulloch stated that `I heard that you guys want to go union and I would like to talk to you about it .... Ellsler remarked that he was about to leave for work, and an arrangement was made whereby McCulloch would telephone Ellsler at Respondent's shipping room that evening. Ellsler drove to the plant and informed Loidl about his conversation with McCulloch and the call which he expected that night from the personnel and labor rela- tions manager. Loidl indicated that he would be unable to monitor Ellsler's discussion with McCulloch, but stated that he would assign James Kelly, one of Respondent's truckdrivers, and a union member, to perform the chore. Shortly after 9 p.m. on November 1, McCulloch tele- phoned Ellsler. With Kelly listening on an extension phone, McCulloch "offered me [Ellsler] 30 cents an hour increase if I would get the cards back from the Union and he stated also at that time that there would be no layoffs, no discharges or nothing else, he just wanted the cards back and we would get a 30 cents an hour raise. Then he stated, please don't let those big mouths down at the ga- rage know about this conversation." Ellsler responded that he was not empowered to accept the offer until he had polled the men. Later that night, Ellsler conveyed the con- tents of his conversation with McCulloch to Loidl. The next morning, November 2, Ellsler telephoned the guards and presented McCulloch's offer. The men replied that "they were not interested in it, they wanted everything to go through the union." Ellsler relayed this intelligence to Loidl. It is Ellsler's testimony that, after he punched in on the afternoon of November 7, 1974, and while he was proceed- ing to Respondent's supply house, he encountered McCul- loch who inquired into the sentiments of the guards regard- ing his offer. Ellsler reported that "it was no deal because the guys wanted everything to go through the union." This response evoked McCulloch's anger, an attitude which Ellsler resented. At this juncture, Ellsler stated that he in- tended to talk to Mr. Slace, Respondent's president, about the matter, to which McCulloch retorted, "Mr. Slace, I'm personnel manager and I'll run this show the way I want to.,, 4 Events abided until the morning of November 11, when Ellsler received a call at home from his supervisor, James Casey. I find that Casey told Ellsler that McCulloch decid- ed to conduct a meeting with the watchmen that afternoon. Ellsler telephoned the other guards and conveyed the mes- sage. The men subsequently met with McCulloch in his office, together with Union Representative Loidl and Houser. When McCulloch noticed Loidl and Houser at the meeting, he ordered them to leave. Ellsler protested that these individuals represented the watchmen and "if they leave we all leave because they're here to speak for us." The union agents and the guards then left the room. By letter of December 6, McCulloch wrote to Loidl that: On December 3, 1974, [the Union] presented cards ex- ecuted by each of [Respondent's] watchmen, exclud- ing supervisors, which authorized Local 67 as the rep- resentative of the watchmen for bargaining purposes. In order that the Company have a written record of the desires of its watchmen employees please have each of the guards execute the copy of this letter at the places indicated and return it to me. Upon receipt of this letter, [Respondent] will recognize Local 67 as the representative of the watchmen .5 Loidl turned the letter over to Ellsler with instructions that the watchmen append their signature to the document. The seven guards did so, and Ellsler returned the instrument to Loidl. On December 8, the end of the workweek, Ellsler report- While on the stand , McCulloch denied that he made this comment to Ellsler. Ellsler impressed me as a sincere and forthright witness. I therefore credit this testimonial version of this incident 3 The Union represented Respondent's other employees at its estab - 5 Respondent commenced negotiations with the Union regarding a collec- lishment during the times material herein . Live-bargaining agreement covering the watchmen on December 11. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed for duty and was handed a letter by James Casey.6 The letter, dated December 7, recited that "This notice is to advise you that you are layed [sic] off from work at the end of your shift on Sun. December 8, until further notice. This action is being taken due to a reduction in our Watchmen force." The letter was signed by McCulloch. Ellsler, at the time of the hearing herein, had not been recalled to work by Respondent. Ellsler's testimony relating to the events leading to his separation from Respondent's employment rolls on De- cember 8, was corroborated in its salient respects by Loidl and Kelly, and was not seriously controverted by either McCulloch or Kelly. Accordingly, I find the facts to be as Ellsler reported them on the witness stand. Joseph Scolaro, another guard who was laid off on De- cember 8, testified that, in November after the abortive meeting between the guards and McCulloch on November 11, he met Supervisor James Casey while making his rounds. In an ensuing conversation, Casey told Scolaro that "Ellsler is a damned fool and a troublemaker, we should have took the [Union] cards and turned them in, he would have went upstairs and got some kind of a paper that there would have been no reprisal about it." In further explication of this incident, Scolaro stated that Casey ex- claimed that "if [Ellsler] would have gotten the [Union] cards back and turned them back in to Mr. McCulloch, we'd have gotten 30-cent raise and he would have went upstairs and got some kind of paper from Mr. Slace [Respondent's president] or whoever it was supposed to be that there wouldn't have been no reprisal on it." Scolaro added that Casey's characterization of Ellsler as a "damned fool" related to Ellsler's "union activities." During his examination, Casey was asked whether he had ever engaged in a conversation with Scolaro in which he verbally painted Ellsler as a "damn fool" and a "trou- blemaker." Casey responded, "I absolutely have no recall of ever making that statement, absolutely." In light of Casey's testimony regarding his acquisition of knowledge concerning Respondent's proffer of a wage increase to the guards or the advent of the Union, which was not only self-contradictory but also at variance with McCulloch's version, and because I was impressed by neither the de- meanor nor candor of this witness, I credit Scolaro and find that, a few days following the November 11 meeting between McCulloch and the guards, Casey informed Scola- ro that Ellsler was a "damn fool" and a "troublemaker" for fostering union representation. I also find that Casey told Scolaro in this conversation that, had he and the other guards retrieved their signed union designations and given them to McCulloch, the men would have received a 30- cent wage increase and no reprisals would have been vis- ited upon them by Respondent because of their Union aberrations. John Brosnan toiled as a security guard for Respondent for 7 years and James Casey was also his supervisor. It is Brosnan's testimony that, on December 8, the day of the layoff of Ellsler and Scolaro, Casey approached Brosnan and showed the latter the termination slips for the two 6 Casey, the chief of security at Respondent's enterprise, is admittedly a supervisor within the meaning of Sec. 2(1 I) of the Act men. Brosnan confronted Casey and inquired, "why these two men, why Hank Ellsler and why Joe Scolaro, Joe Sco- laro is the second man from the top of the list, Hank Ellsler is the second one from the bottom of the list, why these two men? We always had followed seniority before without a union, why not follow it now ...?" Casey replied, "Hank [Ellsler] has been talking too much, he's talking union all over the plant and I'm sick and tired of it, Mr. McCulloch is tired of it and it's going to the front office to Mr. Slace and we have had it." Brosnan further testified that, about the middle of Janu- ary 1975, a discussion arose with fellow employee William Edgar concerning the guards' seniority roster. Brosnan complained that, with the layoff of Scolaro, Brosnan was entitled to be ranked second on the seniority list, but a former salesman named Spence, who had the least senior- ity of all the watchmen, had been elevated to the top spot. Sometime thereafter, Brosnan spoke with Casey about the matter, and inquired "could you tell me how did it work out that Bill Spence got at the top of the list now, since you had him at the bottom of the list?" According to Brosnan, Casey responded, "Well, John, that's tough luck, that's your fault, you're over twenty one, he [Casey] said you didn't have to join Hank Ellsler. He said you could have stuck with me and I could get you something. Instead you join Hank Ellsler and he said, now you have to take what you got." When questioned as to whether he had any conversation with Brosnan on December 8 regarding the furloughs of Ellsler and Scolaro, Casey answered, "No conversation other than a greeting that we had on Sunday...." Casey then denied that he made any mention to Brosnan about the layoffs. Under further interrogation, Casey also dis- claimed that he had told Brosnan early in January 1975, that Brosnan's lack of seniority was "tough luck, you're big boys now, you're over twenty one," although Casey was not asked, nor did he deny Brosnan's testimony that the chief security stated that "you could have stuck with me and I could get you something. Instead you join Hank Ells- ler and . . . now you have to take what you got." As indicated heretofore, Casey did not overwhelm me with his veracity as a witness. I credit the testimonial utter- ances of John Brosnan and find that, on December 8, Ca- sey confessed that Ellsler was removed from Respondent's payroll on that date because he had "been talking too much, he's talking union all over the plant . . . and we have had it." I also find that, in early January 1975, Casey informed Brosnan that the latter's seniority stance would have escalated had he not thrown his lot in with Ellsler and the collective representational movement which Ellsler es- poused. The brunt of Respondent's defense to its treatment of Ellser by laying him off and failing to recall him is that, as stated by counsel at the hearing, "the economic conditions and physical change of the plant dictated a reduction in force from seven to five guards," and that this separation from employment therefore bore no overtones of antiunion discrimination. I perceive no merit in this defense. When questioned as to the reason of Ellsler's layoff on December 8, McCulloch replied that economic conditions dictated a retrenchment in personnel and "Mr. Ellsler was PITTSBURGH BREWING COMPANY let go because he was one of the lowest people on the se- niority group as they term it and had been there less time than most of them and had had the least experience of any of the people who were in that category ...." However, McCulloch acknowledged that an individual named Mc- Cray was less senior than Ellsler, but justified McCray's retention on the ground that he held a special badge with the Pittsburgh police force .? McCulloch then confessed that he did not know whether Ellsler also possessed such a badge. Moreover, McCulloch recanted in his testimony when pressed on the matter and conceded that seniority was not utilized in separating unrepresented employees from Respondent's employ. Finally, McCulloch testified that, with the completion of the warehouse project, there was no need for traffic guards and this was a factor in laying off Ellsler. However, it is undisputed that for almost 3 months prior to his separation from work, Ellsler toiled as a security guard rather than a traffic guard. In short, I find and conclude that Ellsler was selected for layoff on December 8 solely and exclusively because he enlisted the aid of the Union and supported that labor or- ganization in obtaining representational status among the watchmen at Respondent's plant. By engaging in such con- duct, I find and conclude that Respondent thereby violated Section 8(a)(3) of the Act. I further find and conclude that Respondent offended the provisions of Section 8(a)(1) of the Act by McCulloch's statement to Ellsler and Casey's statements to Scolaro and Brosnan to the effect that the employees would have re- ceived a 30-cent wage increase and would not suffer repri- sals if they rescinded their union designations and aban- doned the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 and inti- mate relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow there- of. V. THE REMEDY Having found Respondent has engaged in and is engag- ing in certain unfair labor practices, I shall order that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. I have found that Respondent laid off Henry F. Ellsler on December 8, 1974, for reasons proscribed by Section 8(a)(3) of the Act. I shall therefore recommend that Re- spondent make him whole for any loss of pay which he may have suffered as a result of the discrimination prac- ticed against him. The backpay provided for herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with 7 McCulloch also admitted that Spence had less seniority as a guard than Ellsler. 717 interest thereon at the rate of 6 percent per annum comput- ed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent offer Henry F. Ellsler immediate and full rein- statement to his former job or, if it no longer exists, to substantially equivalent employment. Upon the basis of the foregoing findings of fact and con- clusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer 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. By laying off Henry F. Ellsler, thereby discriminating in regard to his hire and tenure of employment, in order to discourage his engagement in activities on behalf of the Union, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices banned by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER8 Respondent, Pittsburgh Brewing Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off employees, thereby discriminating in re- gard to their hire and tenure of employment, in order to discourage their engagement in activities on behalf of In- ternational Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, Local 67-A, AFL-CIO. (b) Promising wage increases to employees if they re- frain from becoming or remaining members of the above- mentioned labor organization or any other labor organiza- tion, or from giving support to said unions. (c) Promising that no employees who were members of, or supported, the above-mentioned union, would be dis- charged or laid off if they abandoned their union member- ship or ceased giving support to said labor organization. (d) In any other manner interfering with, restraining, or 8 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to Henry F. Ellsler immediate and full rein- statement to his former job or, if it no longer exists, to substantially equivalent employment, and make him whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him, in the manner set forth in the section of this Decision entitled "The Rem- edy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords social security records and reports, and all other re- cords necessary to analyze the amount of backpay due herein. (c) Post at its facility in Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms to be provided by the Regional Di- rector for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off our employees, thereby discrim- inating in regard to their hire and tenure of employ- ment, in order to discourage their membership in In- ternational Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, Local Union 67-A, AFL-CIO, or any other labor organiza- tion. WE WILL NOT promise wage increases to our employ- ees if they refrain from becoming or remaining mem- bers of the above-mentioned Union or any other labor organization. WE WILL NOT promise that no employees who are members of, or supported the above-mentioned Union will be discharged or laid off if they abandon their union membership. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Nation- al Labor Relations Act, as amended. WE WILL make Henry F. Ellsler whole for any loss of pay he may have suffered as a result of our discrimina- tion practiced against him, and WE WILL reinstate him to his old job or, if it no longer exists, to a substantial- ly equivalent one. All our employees are free to become, remain or refrain from becoming or remaining members of the above-named or any other labor organization. PITTSBURGH BREWING COMPANY