Jos. Schlitz Brewing Company

National Labor Relations Board - Board DecisionsFeb 12, 1979

240 N.L.R.B. 710 (N.L.R.B. 1979)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jos. Schlitz Brewing Company and Albert Jackowski. Case 30-CA4344 February 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEI.O ANt) TRUESDALE On October 17, 1978, Administrative Law Judge Bruce C. Nasdor issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering 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 briefs 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 complaint be, and it hereby is, dis- missed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule 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 Producty. In(. 91 NI.RB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. Additionally, in his brief the General Counsel contends that the Adiinis- trative Law Judge never reached or decided the 8(Ia() allegation of the complaint that on August 15. 1977. Industrial Relations Manager Riley threatened employee Jackowski that stewards and other union officials would be dealt with in a harsher manner than other employees. While Jack- owski testified that such a statement was made. Riles denied meeting with Jackowski on or about the day in question. It appears that the Administra- tive Law Judge did not treat this 8(a)( I ) allegation in the text of his Decision and did not explicitly resolve the conflict in testimony. Ilowever, with re- gard to other matters. the Administrative aw Judge consistently credited Riley where his testimony differed from that of Jackowski. Accordingly we find that the Administrative Law Judge implicitly discredited Jackowski's testimony concerning the alleged threat. and, because there is no credible record evidence to support this 8taX I) allegation. it shall be dismissed. In adopting the Administrative Law Judge's Decision, we note that. in his Conclusions and Analysis section. he inadvertently referred to Charging Party Jackowski's arrangement with management regarding his attendance as having occurred after, instead of prior Io. the strike. IloHweser hi, error does not affect our conclusion herein. 240 NLRB No. 100 DECISION STAIEMENI OF THE CASE BRUCE C. NASDOR. Administrative Law Judge: This case was heard in Milwaukee, Wisconsin, on February 23, March 22 and 23, April 25 and 26, 1978. The charge and first amended charge were filed on September 14 and No- vember 1, 1977, respectively. The complaint was issued on November 15, 1977, and was amended on the first day of hearing on February 23, 1978. The complaint and amended complaint allege that Section 8(a)(1), (3), and (4) of the Act were violated when, on or about August 12, 1977, Respondent discriminatorily discharged employee Albert Jackowski because of his union and/or protected concerted activity and/or because he threatened to utilize the procedures of the National Labor Relations Board, and has at all times since said date, failed and refused to rein- state Jackowski to his former or substantially equivalent position. The complaint further alleges independent viola- tions of Section 8(a)(1) of the Act in that Respondent's Industrial Relations Manager Jerry Riley on July I and again on August 15, 1977, threatened to deal with stewards and/or other union officials in a harsher manner than other employees. Respondent's answer denies the commis- sion of the alleged unfair labor practices. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor, and after due consideration of briefs, I make the following: FINDINGS OF FATI I JURISDICTION Respondent's answer admits and I find that Respondent is a Wisconsin corporation engaged in the manufacture of malt beverages from its Milwaukee, Wisconsin, location. During the past calendar year, a representative period, Re- spondent purchased and received goods valued in excess of $50,000 directly from points located outside the State of Wisconsin. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I1 IHE ABOR ORGANIZATION Respondent's answer admits and I find that at all times material herein, Local 7996, United Steelworkers of Amer- ica, AFL-CIO has been, and is now, a labor organization within the meaning of Section 2(5) of the Act. It TIHE ALEGED UNFAIR LABOR PRA(TICES A. Background The instant case involves the container division of the Jos. Schlitz Brewing Company, which manufactures beer I he unoppiosed motion of the General Counsel to correct the transcript is granted. JOS. SCHLITZ BREWING OMPANY 711 cans for the Company's various breweries and employs ap- proximately 250 employees who are represented by Local 7996 of the United Steelworkers of America (hereinafter referred to as the Union). At all times material herein the Employer and the Union have been parties to a master agreement which became effective May 30, 1977. providing for wages, hours, and conditions of employment. Respon- dent herein is located at Oak Creek. Wisconsin, approxi- mately 10 miles away from Milwaukee. Wisconsin. where the brewery is located. Albert Jackowski was employed by Respondent begin- ning on April 5, 1973. as a night-shift millwright. As a result of Jackowski's termination on August 12, 1977, a grievance was filed. On August 22. 1977. at a third-step grievance meeting, the Union. through John Cleveland. staff representative, proposed that Jackowskl be reinstated without backpay. The C'ompany refused this proposal and Jackowski's grievance was appealed to arbitration on No- vember 8. 1977. On November 10 1977. the arbitrator is- sued his decision reinstating Jackowski without backpay thereby converting the discharge to a disciplinary suspen- sion of approximately 3 months. Facts of the Discharge Respondent operates its plant 24 hours a day. 7 days a week utilizing four separate production and maintenance crews; i.e., two day crews and two night crews. Respondent schedules what it characterizes as maintenance days twice a month so that equipment can be repaired and main- tained. On these days the production equipment is turned off, normally for a 24-hour period, and maintenance is per- formed by maintenance employees including millwrights. Respondent scheduled a maintenance day for August 8, 1977, from 6 a.m. to 6 p.m., 2 to be completed in 12 hours rather than the usual 24-hour period. Riley, industrial rela- tions manager, testified that Respondent had run low on the supply of cans during this period. Because of this low inventory the brewery was in dire need of cans and, ac- cording to the testimony, if the brewery ran out of cans, Resondent would have been responsible for any downtime at the brewery. According to management this was an emergency situation and so it scheduled Jackowski and the other millwrights of his crew for overtime work on August 8. On August 4, millwrights Oakley Burt and Jackowski told their supervisor, Rich Lewis, that they did not want to work the day shift as scheduled since they were night-shift millwrights, and would prefer to come in and work the night shift. According to Respondent's version they' stated that working the day shift would disrupt their lifestyles whereas according to Jackowski, he advised Rich that it was because of personal business. Although he did not give Rich Lewis any reason, he told him that he would furnish an excuse if Lewis requested one. Lewis advised them that he would check with Thiel. who was the assistant engineer- ing manager. On Friday August 5, Lewis told Thiel that Burt and All dates herein are 1977 unless olherule indiclated Jackowski did not want to work the day shift, but they wanted to know if they could work the evening shift. Ac- cording to Thiel's testimony he was informed by Lewis that they were not refusing to work. but they took the position they were night-shift people and theN did not want to come in on days. Later that day, on August 5. Thiel told Riley that two individuals on the night-shift crew did not want to work the day shift on August 8. but rather wanted to work nights. Riley and Thiel both testified that at this point the names of the employees involved were not mentioned by RileN. Riley told Thiel to have Lewis explain to the em- ployees the situation and if there were additional problems he should make sure the employees were aware of the fact that they' were supposed to work. Furthermore. if they did not work they would be subject to disciplinary action. Thiel communicated with Lewis. pursuant to Riley's in- structions and told Lewis to advise Burt and Jackowski that they would have to work the day shift on August 8 and failing to do so they would be subject to disciplinary ac- tion. When the night shift commenced on August 5. Lewis advised Burt and Jackowski that he had checked and had been advised to tell them they' would have to work as scheduled because of an emergency' situation, the brewery was short of cans, and thus there would be only a 12-hour maintenance. Lewis testified that they responded that they did not care to work the day shift because thev were night- shift millwrights and would prefer to remain on the night shift. On the morning of August 6. Lewis again reminded Burt and Jackowski that the Company expected them to work on August 8, in accordance with the scheduling. He again stated the emergency aspects of the situation, and Jackow- ski and Burt told him they did not work the day shift. During the night shift on August 6. L.ewis told them that if theN refused to work as scheduled and "if there was any disciplinary action that could be taken. it would be taken." They again responded that they did not care to work the day shift. On the evening of August 6. Thiel was advised by Lewis that Burt and Jackowski were still unwilling to work the short maintenance day on August 8. Thiel confronted Burt and Jackowski and asked them what the problem was. Jackowski stated that they' were night-shift people and that they were going to work nights. Thiel reiterated the Com- pany's position that they would be disciplined if they did not show up for work on Monday morning. Burt respond- ed that they would "test the system" and Thiel asked Jack- owski if he felt the same way. Jackowski replied that he had been to the Board before and he would go again. Thiel then told Burt that Schlitz could afford it, but could Burt? Burt replied the Union also had money with which to fight Schlitz. Thiel replied that they were making their beds and they would have to lie in them. He concluded the conversa- tion by stating that he would see them on Monday morn- ing. Burt reported to work on August 8 at 6 a.m. He was allowed to leave the plant at 12 noon. Jackowski showed up for work on August 8 at approxi- mately 6 p.m. for the night shift. Shortly thereafter Lewis JOS. SCHLITZ BREWING COMPANY 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD met with Jackowski and they both went to Thiel's office. Jackowski and Thiel related different versions of what en- sued. According to Jackowski, Thiel was emotional, dero- gatory, and jumped on Jackowski as soon as he entered the office. Thiel accused Jackowski of not telling Respondent that he had no intentions of coming in and Jackowski re- sponded that he had tried to tell management for 3 days that he had personal business and would not be in. Jack- owski asked for the presence of a union steward and Roger Brzezinski was called in. According to Thiel, he asked Jackowski where he had been during the day shift and what if any reason he had for not coming to work. Thiel relates further that Jackowski made no response, and Brzezinski interjected by asking Jackowski if he had not had personal business. Thiel then asked if Jackowski had personal business, what was he doing in the plant at that time. Jackowski responded that he was a night person and he had told management that he was going to work nights. There was further discussion wherein Thiel asked Jackow- ski if he was attempting to set his own schedule and Jack- owski replied he knew there would be disciplinary action. According to Thiel at no time during this meeting did Jack- owski give any excuse for why he had been absent other than he was a night person and he was going to continue to work nights. Thiel told Jackowski that he was suspended for 5 days pending further investigation of the situation. At Jackowski's unemployment compensation hearing he raised for the first time that his absence on the day in question was due to personal business, specifically the re- covery of his coin collection which apparently had been misappropriated by his wife. There was no contention or testimony during the hearing in this proceeding that Jack- owski ever told Thiel or Lewis that this was the reason for his absence. On August 9, Thiel informed Riley that Jackowski had come in to work the night before, and Thiel detailed the meeting that had been held with the steward in attendance. Riley instructed Thiel to prepare a memo of this August 8 meeting. As a result of this information, Riley issued a form putting Jackowski on suspension, pending further in- vestigation, for violation of Company Rule 6-Insubordi- nation for Failing to Follow Instructions of a Supervisor, including refusal to accept or perform job assignments. On the morning of August 10, a meeting was held in Riley's office with Ledger, the local president, Jackowski, Thiel, and Riley present. Prior to the meeting Ledger ad- vised Jackowski not to participate in the discussion and Jackowski followed this advice. Ledger testified that Riley had the reports of Lewis and Thiel, and he questioned Jackowski as to whether he had not made the statements about going to the National Labor Relations Board. Ac- cording to Ledger, Riley stated that what upset him were statements made by Jackowski that he was going to the Board rather than utilize the grievance procedure con- tained in the contract. Ledger informed Riley that an em- ployee Neil Dann had been involved in an incident similar to Jackowski's and received no discipline. Riley said he would investigate the Dann situation. Riley testified that at the meeting he reviewed the inci- dent, and referred to the memoranda he had received from Thiel and Lewis. Riley asked Jackowski if he knew that he was subject to disciplinary action if he did not work the shift as scheduled. Jackowski responded that was apparent. Riley asked him if he had any reason for his absence and Jackowski replied that he was a night-shift employee, it was hard for him to work days, and he had been having difficulty with his supervisor, Lewis. According to Riley, Jackowski made no mention of personal business nor did he indicate the nature of the difficulties he was having with Lewis. Riley asked Jackowski why he had not come in as scheduled and then file a grievance under the contract. Jackowski made no response. Riley denied any mention of Jackowski going to the Board. Thiel testified that at the August 10 meeting, Riley ex- pressed that he was disappointed with Jackowski's actions; being a union steward, he should have known the proper procedure for filing a grievance. Ledger testified that on August 12, he was called by Thiel to his office. According to Ledger, Thiel stated that Jackowski screwed up this time and that the Company had determined to discharge him. Ledger allegedly stated for that kind of offense, he could possibly understand a writ- ten warning or a suspension but not a discharge. Thiel al- legedly responded that what really upset Riley the most and "teed" him off, was when Al (Jackowski) said that he was going to the Board. Thiel denied any reference to Riley being upset that Jackowski went to the Board. At the con- clusion of the discussion by Ledger and Thiel, Thiel gave Ledger a separation notice for Jackowski and requested that Ledger call Jackowski. Ledger thereafter phoned Jack- owski, told him he had been discharged, and asked him to come in the next day to file a grievance. A third-step meeting relating to Jackowski's discharge was held at the plant on August 22. Riley recapitulated the details surrounding the decision to discharge Jackowski. He indicated that the contract contained a grievance pro- cedure and that was the procedure that should have been followed if Jackowski felt that there was something wrong with scheduling him on the day shift. According to Riley's testimony he stated further that Jackowski had enough time to file a grievance and to get a response and that Jackowski had done this in the past for Burt, particularly in regard to a similar scheduling problem Burt had on Fourth of July. The Union took the position that Neil Dann worked a regularly assigned shift on July 28, despite his being scheduled on another shift, and that Dann was in no way disciplined for not coming in as scheduled. Record Secretary Theodore L. Cathers testified that at some point in this meeting Riley commented that Jackowski, being a union steward, should have known better than to do what he did. Ledger testified similarly that Riley stated Jackow- ski should have known better than going to the Board with him being a steward. Riley and Thiel, who were also pres- ent, denied the alleged comment. According to Riley, the only reference to the Board was when Union Representa- tive Cleveland stated while Riley was reviewing the August 6 conversation between Thiel. Burt, and Jackowski, Riley pointed out that was the occasion when Jackowski made his remark to Thiel about going to the Board. The following incident is alleged to be an independent violation of Section 8(a)(1) of the Act. On July 1, Riley met with several employees including Jackowski in an effort to JOS. SCHLITZ BREWING COMPANY 713 explain a change in the work schedule for the July 4th holiday. After Riley explained the schedule, employees asked questions as to whether given their individual prob- lems, they would be required to work and whether others could work in their place. Burt stated that he had made arrangements for the holiday which he would have to can- cel. Riley told him he would have to work and Burt asked what would happen if he just did not appear or if he called in sick. Riley responded that it was obvious from the con- versation that Burt did not want to work that holiday, and Riley would thus require a valid doctor's excuse if Burt called in sick. Riley informed Burt and the employees that if they failed to report without valid excuses they would lose holiday pay and be disciplined, possibly being assessed demerits. He told Burt that if he disagreed with the sched- ule he should file a grievance. He told Burt that Jackowski being a union steward would know what to do regarding filing a grievance and that was the proper way to go about it rather than taking it into his own hands. According to Gasek and Jackowski, Riley stated that if any union offi- cial, officer, or steward did not show up it would be harder on them. Jackowski was the only union official present. They testified that Jackowski asked Riley if he was to take that as a threat and Riley responded that he was not threat- ening him-he was telling him. A grievance was filed on Gasek's behalf by Jackowski on July 2. and the grievance was denied without appeal. Burt and the other employees appeared to work as scheduled on July 4th. In the latter part of July, Jackowski was to file a similar grievance on behalf of Gasek involving Gasek's right to leave the plant for lunch. Respondent points out that Jack- owski had knowledge of the "work now grieve later" principle in at least the two situations referred to, which made it impossible to excuse the actions of Jackowski in failing to report as scheduled rather than following the grievance procedure. Conclusions and Analysis I am persuaded by the weight of the credible evidence that Jackowski's discharge was for cause and unrelated to his office of steward, nor was it motivated by any antiun- ion considerations. In my opinion, his appearance on the night shift, instead of working as scheduled, constituted an open and deliberate defiance of supervision. His status as shop steward should not furnish the basis for immunity from his acts of insubordination. There is no doubt in the record that Jackowski was on notice, as the result of the numerous discussions with man- agement individuals, that he was to work the scheduled shift or be disciplined. Moreover. Ledger advised Jackow- ski in a note that he, Ledger, had talked over the situation with union official Cathers and they were of the opinion that Jackowski would have to work the scheduled shift. The General Counsel sought to demonstrate that Jackowski's discharge constituted disparate treatment by attempting to introduce personnel records of some 21 em- ployees. I sustained an objection to the introduction of these records as I concluded they' were totally irrelevant because the factual similarities between Jackowski's case and those cases were completely dissimilar. I allowed the introduction of personnel records relating to five employ- ees which in my opinion are also not comparable to Jackowski's case. In his brief, the General Counsel renews his request to reopen the record and receive all personnel records sought to be offered. Their request is denied for the reasons given at the hearing. Moreover, the records sought to be introduced in no way established any norm with ref- erence to appropriate discipline. In my opinion the case which comes closest to Jackowski's situation involved an employee, Jeff Pringle. who was also discharged for refus- ing orders relating to work assignments: i.e.. insubordina- tion. Jackowski himself testified at great length with regard to the extraordinary leeway he was given by Respondent for approximately 6 months during a period when he had mar- ital problems and a critically ill infant. He was having at- tendance difficulties because of his personal problems, and under the arrangement he was allowed to leave work early, report late, or not report to work at all. He was relieved of the responsibility of explaining his absences to his supervi- sor. The understanding was that his supervisor would auto- matically know he was absent, late, or left early because of his personal problems and accordingly would not issue him demerits pursuant to Respondent's demerit program. Jackowski's infant passed away and he separated from his wife thus the need for this arrangement ended. The Gener- al Counsel avers that as a result of this arrangement Jack- owski, as steward, believed that personal business was an acceptable excuse: thus, it would not be logical that Jack- owski would flatly refuse to come in to work. Although I do not think the disposition of this case hinges on what reasons if any Jackowski gave for his being absent, he him- self on cross-examination testified that at the August 8 meeting he may have given as a reason for his absence that he was a night man. The General Counsel attempted to show peripherally that Respondent was antiunion and in particular anti-Jackowski because of his participation in a strike and his forceful and frequent activities as a shop steward. The arrangement Jackowski had with manage- ment as to his attendance, which occurred after the strike, in my view negates any inferences that Respondent har- bored an) animus towards Jackowski. Furthermore, the frequency of grievances filed by him was not at all impres- sive compared with other union stewards or officials. I credit the testimony of Thiel and Riley wherein they denied comments relating to Jackowski going to the Board. Their demeanor in no way suggested that they had an ax to grind nor was there any significant variance in their testi- mony on cross-examination. I specifically discredit Jack- owski, Ledger, and Gasek as to any retalitory threats made by Riley. Regarding the independent allegation of Section 8(a)( ), I credit the versions given by Riley and Lewis. Throughout the hearing Jackowski's demeanor displayed and suggested a disdain for management, particularly Ri- le)' and Lewis. In my opinion Ledger and Gasek attempted to tailor their testimony to conform to the allegations. An example of one of the many inconsistencies in Ledger's testimony was his inability to answer or explain why he made no mention of the Board statements at the arbitra- tion hearing. I do not view any statements made by Riley that Jack- 10. SCHLITZ BREWING COMPANY 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owski as steward should have known better than to take matters into his own hands, as a violation of the Act. These were merely statements of fact and in no way can they be constituted as threats. Under the circumstances I conclude that Jackowski's discharge was in no way discriminatory or in violation of Section 8(a)(1), (3), or (4) of the Act. Accordingly, I shall recommend that the complaint and the amended com- plaint be dismissed in their entirety. CON(LUSIONS 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. The allegations of the complaint and the amended complaint that Respondent engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (3), and (4) of the Act have not been supported by substantial evidence. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER 3 The complaint herein be, and the same hereby is, dis- missed in its entirety. In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. he adopted b) the Board and become its findings, conclu- sions. and Order, and all ohjections thereto shall be deemed waived for all purposes.