Adolph Coors Co.

National Labor Relations Board - Board Decisions

Jan 24, 1974

208 N.L.R.B. 676 (N.L.R.B. 1974)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adolph Coors Company and Booker T. Mays, Sr.
Case 27-CA-2678
January 24, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Upon a charge filed on March 10, 1969, by Booker
T. Mays, Sr., an individual, herein at times called
Mays or Charging Party, and duly served on Adolph
Coors Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 27,
issued a complaint on June 8, 1973, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint,
and notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges that on February 18, 1969, Respon-
dent discharged employee Mays, and thereafter
failed and refused to reinstate him, because of his
protected and concerted activities in seeking to
implement the terms of the collective-bargaining
agreement between Respondent and the Union,' and
in filing a complaint with the Colorado Civil Rights
Commission.2
On July 20, 1973, Respondent, in lieu of an answer,
filed directly with the Board a Motion for Summary
Judgment and supporting memorandum, with ap-
pendixes attached. Subsequently, on August 16,
1973, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the Respondent's Motion for Summary
Judgment should not be granted. The General
Counsel, thereafter, on August 30, 1973, filed a
response to the Notice To Show Cause, entitled
General Counsel's Response and Opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
' International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, Brewery Workers Local Union
No. 366.
Ruling on the Motion for Summary Judgment
Respondent contends, inter alia, that the complaint
should be, dismissed because the issues as to
Charging Party Mays' discharge, raised by the
complaint, have already been decided adversely both
by an arbitrator and also in proceedings under the
Colorado Antidiscrimination Act. In its response to
the Motion for Summary Judgment, the General
Counsel, however, argues that the complaint raises
issues which the aforementioned proceedings could
not, and did not, determine. We find merit in
Respondent's contentions.
Our review of the record herein reflects that the
events which gave rise to the instant charge occurred
in 1969. On February 10 and 12, Mays was reported
for spending excessive time away from his work
station. On February 13, Mays' supervisor told him
that he would be disciplined therefor. Accordingly,
on February 14, Mays filed a grievance under the
collective-bargaining agreement between the Res-
pondent and the Union. On February 17, Mays was
informed that the discipline would consist of a 5-day
suspension which would commence the next day.
Mays responded that, unless either he received a
written notice of his suspension or his name were
removed from the posted work schedule, he would
report to work the next day. Mays was warned that,
if he did so, he would be subject to discharge for
insubordination. On February 18, he reported, and
commenced working. He was immediately dis-
charged. On February 19, Mays filed a second
grievance. .
In his grievances, Mays charged that his suspension
and layoff were part of a conspiracy of racial
discrimination. Mays' grievances were not informally
resolved but proceeded to arbitration, where hearings
were conducted on four dates in May and June.
Mays was represented by the Union's lawyer and,
inasmuch as Mays had, on April 17, filed a charge
with the Commission, an agent of the Commission
was also present as an observer. On October 17, the
arbitrator issued his decision and award, in which he
considered and rejected Mays' allegations and found,
in substance, that Mays was discharged for insubor-
dination.3 More particularly, after stating that if the
evidence indicated that the reasons assigned for the
discharge were pretextual he would have upheld the
grievant, the arbitrator noted that a number of
elements all contraindicated pretext: among them
were the fact that Respondent's agents repeatedly
informed Mays of his rights under the collective-
bargaining agreement to file grievances, and the lack
2 Herein at times called the Commission.
3 He found that the issues raised by the suspension were moot, but that
they did not affect the issues raised by the discharge.
208 NLRB No. 94
ADOLPH COORS CO.
of evidence that Respondent had at any time
deviated from its normal procedures.
Thereafter, hearings were conducted before a
hearing examiner of the Colorado Commission on
various dates between December 1969 and March
1970. Mays was represented by an assistant attorney
general of the State and also by the Union's lawyer.
The litigation was extensive: the transcript of the
arbitral proceedings was made part of the record; 75
new witnesses testified, and the hearings consumed
10 days; additional evidence was provided as to the
circumstances surrounding Mays' discharge; and
background material, including alleged acts of racial
discrimination dating back into the early 1960's, was
developed. On May 15, 1970, the hearing examiner
issued his decision and order in which he found,
independently of the arbitrator, that both the
suspension and discharge were for cause.
Thereafter, on November 5, 1970, after oral
argument , the Commission issued its own decision, in
which it found, contrary to its hearing examiner, that
Mays' race was one of the motivating factors or
reasons for his discharge. However, on March 25,
1971, the District Court of Jefferson County,
Colorado, accepting the factual findings of the
Commission, found there was no substantial evi-
dence upon which the Commission could base its
conclusions, and therefore set aside the Commis-
sion 's decision. On November 8, 1972, the lower
court's decision was affirmed by the Colorado Court
of Appeals, and on June 28, 1972, the Supreme Court
of Colorado denied certiorari.
The General Counsel now contends that the
decisions of the arbitrator and the Colorado tribu-
nals do not meet the Spielberg criteria 4 and the
Board ought not defer to them. He argues that the
complaint herein alleges that Mays was discharged
for engaging in the protected concerted activity of
filing grievances in order to implement the collective-
bargaining contract between the Respondent and
Union and for filing a charge with the Commission,
while the decisions of the arbitrator and of the state
tribunals considered only whether or not Mays was
discharged because of his race. He further argues
that the contract so limited the authority of the
arbitrator that he could not have considered the issue
of pretext. We disagree.
The record of t.iese proceedings clearly indicates
that both the arbitrator and the Colorado tribunals
were alert to the possibility that the reason advanced
by Respondent for the discharge might be pretextual.
As noted above, the arbitrator expressly considered,
but rejected, the possibility. In the proceedings under
the Colorado Antidiscrimination Act, the tribunals
4 Spielberg Manufacturing Compaq, 112 NLRB 1080
5 Our disposition makes it unnecessary to consider any of the other
677
considered whether Respondent's actions constituted
either disparate treatment or a departure from
normal procedures, but could find evidence of
neither. Instead, it was found Mays' behavior was
unprecedented and that both the suspension and the
discharge were warranted.
In all the circumstances, we conclude that it will
best effectuate the purposes of the Act to defer and
give conclusive effect to the decisions in the
proceedings before the arbitrator and under the
Colorado Antidiscrimination Act. We rely particu-
larly on the grounds that the discharge sought here to
be litigated has already been the subject of extraordi-
narily lengthy proceedings before numerous tribu-
nals in which it was found that the discharge was
properly imposed without pretext, that these pro-
ceedings appear to have been fair and regular, and
that the decisions therein were not clearly repugnant
to the policies and purposes of the Act. Accordingly,
we shall grant the Respondent's Motion for Summa-
ry Judgment and we shall dismiss the complaint.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Adolph Coors Company, is now,
and at all times material herein has been, a
corporation duly organized under and existing by
virtue of the laws of the State of Colorado, and
maintains its principal office and place of business at
Golden, Colorado. The Respondent is now, and at
all times material herein has been, engaged at its
plant in Golden, Colorado, in the manufacture and
distribution of beer. The Respondent, in the course
and conduct of its business operations, annually
manufactures, sells, and ships products valued in
excess of $50,000 directly to points and places
outside the State of Colorado.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
IT. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour,
Cereal , Soft Drink and Distillery Workers of Ameri-
ca, AFL-CIO, Brewery Workers Local Union No.
366, is a labor organization within the meaning of
Section 2(5) of the Act.
contentions raised by the parties.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS 01 LAW
1. Respondent, Adolph Coors Company, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of United Brewery, Flour,
Cereal , Soft Drink and Distillery Workers of Ameri-
ca, AFL-CIO, Brewery Workers Local Union No.
366, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. The decisions of the arbitrator and of the
Colorado tribunals under the Colorado Antidiscrimi-
nation Act are entitled to deference and, therefore, in
order to effectuate the policies of the Act, the
Respondent 's Motion for Summary Judgment will be
granted and the complaint herein will be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be . and it hereby is, dismissed in its entirety.