Theo Hamm Brewing Co.

National Labor Relations Board - Board Decisions

Mar 3, 1965

151 N.L.R.B. 397 (N.L.R.B. 1965)

THEO HAMM BREWING COMPANY 397
APPENDIX B
NOTICE TO ALL EMPLOYEES OF MAN-RAY SPECIAL DELIVERY SERVICE, INC.
AND AMERICAN PHOTOCOPY EQIPMENT COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and to effectuate the policies of the National Labor Relations Act,
as amended , we hereby notify you that
WE WILL NOT induce or encourage any individual employed by Man-Ray
Special Delivery Service, Inc., or by any other person engaged in commerce or
in an industry affecting commerce , to engage in a strike or a refusal in the
course of his employment to perform any services , and WE WILL NOT threaten,
coerce, or restrain the aforenamed employer or any other person engaged in
commerce or in an industry affecting commerce , where, in either case, an
object is to force or require Man -Ray Special Delivery Service , Inc., to cease
doing business with American Photocopy Equipment Company.
JOINT BOARD, FUR, LEATHER & MACHINE WORKERS UNIONS,
AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF
NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
Theo Hamm Brewing Company and Floyd Smith
Local 111 , International Union of United Brewery , Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL -CIO and
Floyd Smith. Cases Nos. 23-CA-16415 and 23-CI3-187. March 3,
1965
DECISION AND ORDER
On July 7, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that Respondent
Company had not engaged in certain unfair labor practices and
that Respondent Union had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in her attached Decision.
Thereafter, the General Counsel filed exceptions to the Decision
with a supporting brief, and Respondent filed a brief in support
of the Decision.
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 these cases to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
151 NLRB No. 42.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Recommended Order of the Trial Examiner and
orders that Respondent Local 111, International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges filed on June 18, 1963, by Floyd Smith, an individual,
against Respondent Theo Hamm Brewing Company, herein called Hamm, and
Respondent Local 111, International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, AFL-CIO, herein called the Union, a
consolidated complaint was issued on December 13, 1963. The complaint, as
amended, alleged that Respondent Hamm had violated Section 8(a) (1) and (3) of
the National Labor Relations Act, as amended, and that Respondent Union had
violated Section 8(b)(1)(A), (2), and (3) of the Act by various acts and conduct
hereinafter described. Each Respondent filed an answer denying that it had engaged
in the unfair labor practices alleged A hearing was held before Trial Examiner
Fannie M. Boyls on February 5 and 6, 1964, at Houston, Texas. The parties waived
oral argument at the conclusion of the hearing but thereafter filed briefs. Also sub-
sequent to the hearing, the International of Respondent Union requested and was
granted permission to file an amicus brief. All briefs have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Hamm is a corporation duly organized and existing under the laws
of the State of Minnesota , and has its central office and place of business in St. Paul,
Minnesota . It operates breweries in St. Paul, Minnesota , San Francisco and Los
Angeles, California , and Houston , Texas. Since acquiring its Houston brewery on
May 1, 1963, Hamm has been shipping and selling products at a rate in excess of
$ 50,000 a year from its Houston brewery directly to points outside the State of Texas.
Respondents concede, and I find, that Hamm 's operations affect commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
Respondents concede, and I find, that Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLGED UNFAIR LABOR PRACTICES
A. The issues
The unfair labor practice charges in this case involve issues arising from alleged
racial segregation of facilities, jobs, and union representation at a plant formerly
operated by Gulf Brewing Company and now operated by Respondent Hamm, and
from alleged discrimination against Floyd Smith, a Negro, because he protested
against racially discriminatory conditions of employment and refused to join the
segregated union. It is alleged that only Negroes were employed in certain depart-
ments and only white persons in others; that Negroes performed the lower paid jobs
THEO HAMM BREWING COMPANY 399
and only white employees performed the higher paid jobs, that Respondent main-
tamed racially segregated water fountains and restroom facilities; that Respondent
Union maintained a separate branch of its local for Negroes and had a separate
contract with Respondent Hamm covering them; that because Smith protested against
the racially segregated working conditions and jobs and refused to join the segre-
gated Union, various threats were made against him by representatives of Respond-
ent Union and Respondent Hamm; and that because of Smith's protests and refusal
to join Respondent Union, he was discharged on June 14, 1963. By these acts it is
alleged that Respondent Hamm violated Section 8(a)(1) and (3), and Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act. The complaint alleges, in
addition, that Respondent Union violated Section 8(b)(3) of the Act by refusing to
process grievances for Smith protesting against him based on racial considerations.
It is asserted on behalf of Respondent Hamm that it did not acquire the brewery
here in issue until May 1, 1963, when it took over the assets, liabilities, and collective-
bargaining contracts of a predecessor company; that pursuant to its national policy
against racial discrimination, it proceeded with reasonable promptness to eliminate
any working conditions then existing which could result in discrimination against
any employee based upon his race or color; and that among the steps it took were
the promotion of Negro employees into jobs formerly held only by white employees
and the elimination of a separate contract for the departments formerly employing
only Negroes Respondent Hamm denied that any of its facilities were segregated,
that any of its representatives threatened Smith, or that his discharge on June 14,
1963, was prompted by considerations other than his failure to perform his assigned
duties in a satisfactory manner.
Respondent Union denied that any of its representatives had ever threatened Smith
or otherwise restrained him in the exercise of his statutorily protected rights, and
denied that it had caused or attempted to cause Respondent Hamm to discriminate
against Smith. It also denied that it had ever refused to process any grievances in
Smith's behalf.
B. The evidentiary facts
1. Employment conditions and contractual relations under
Respondent Hamm's predecessor
For many years prior to Respondent Hamm's acquisition on May 1, 1963, of the
Houston, Texas, brewery here involved, the plant had been owned and operated by
Gulf Brewing Company which had made Grand Prize beer. Gulf had had con-
tractual relations with Respondent Union for more than 20 years. At first, in the
1930's, it had a contract with Respondent Union covering employees of its brewing,
bottling, shipping, receiving and materials, and supply departments. This contract
was called the main contract, although a few witnesses referred to it as the branch 1
contract. Another branch of Respondent Union was set up for Gulf's long-haul
drivers and a separate contract covered those employees. In the 1940's, the employ-
ees of Gulf's cleanup and garage employees, theretofore unorganized, expressed a
desire for union representation, and Respondent Union established what was known
as branch 2 of the Respondent Union for them. Gulf and Respondent Union nego-
tiated a separate contract for the branch 2 employees. It is only the employees
covered by the main and branch 2 contracts who are involved in this proceeding.
Although no mention of color appears in the contracts, throughout the period
when Gulf operated the brewery, all employees covered by the main contract were
white and all employees covered by the branch 2 contract were Negroes. Members
of branch 2 met separately from other members of Respondent Union except when
there was a grievance affecting both groups and when it became necessary to nego-
tiate a contract Branch 2 had separate officers, all of whom were Negroes. Each
year when branch 2 members met to elect officers, a vote would be taken as to
whether the members wished to meet with the parent local and each time a majority
voted against such joint membership meetings.
The garage, bottling, and other departments of the plant had separate dressing
rooms, restrooms, and water fountains and employees customarily used the facilities
of the department in which they were employed. In other words, although no
"while" or "colored" signs appeared above or on any of these facilities, it had been
customary for white employees to use only the facilities in the departments covered
by the main contract and for Negroes to use only the facilities provided for the
cleanup and garage departments. All employees of the plant, however, drank beer
together on a nonsegregated basis at the employees' bar.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees on any given shift of the cleanup and garage departments received
the same wages as all other employees in those departments . The wages paid to the
employees in the departments covered by the main contract varied according to the
various job classifications , but all employees covered by that contract received a
higher rate of pay than the employees covered by the branch 2 contract.
2. Steps taken by Respondent Union and Respondent Hamm to change
preexisting working conditions and the dual contract system
The conditions described above are what Respondent Hamm inherited when on
May 1 , 1963, it acquired the assets and liabilities of Gulf Brewing Company and
assumed the collective -bargaining agreements between Gulf and Respondent Union.
The contracts by their terms were to be in effect until October 19, 1965.
Prior to Hamm's acquisition of the brewery , Bobby Idom , the Union's business
agent, talked to Erickson , the head of Respondent's industrial relations department,
about employment opportunities for the Negro employees who had been stymied in
the cleanup and garage departments . He told Erickson that those employees had
had no opportunity for advancement to better paying jobs in other departments
because no new employees had been hired for years in those other departments.
When Erickson indicated that Hamm planned to hire more employees for the bot-
tling, brewing , and warehouse departments , Idom requested that Erickson first give
the old branch 2 employees an opportunity to advance to the better paying jobs before
hiring new employees . Erickson agreed to cooperate in this respect . The two men
also discussed the elimination of the branch 2 contract or the consolidation of that
contract with the main contract . After Hamm took over the brewery , further nego-
tiations between Respondent Union and Respondent Hamm took place to accom-
plish these objectives . By July 12, they had reached an understanding and signed
an agreement in which it was provided that branch 2 of the Union would no longer
be covered by a separate contract ; that the employees covered by the branch 2 con-
tract would be covered by the main contract ; that all employees of the cleanup and
garage departments would have job bidding rights into vacancies which might occur
in any other department ; and that employees with the most seniority would be given
preference in the job bidding without regard to race so long as the employees were
qualified. Around June 1, even before this agreement was executed , Business Agent
Idom told Branch 2 President Allen that branch 2 was going to be abolished and that
Allen would have to turn in its charter.
Upon acquiring the plant, Hamm shut down the brewing and bottling work after
completing the production of the Grand Prize beer then in processing , and renovated
the premises preparatory to manufacturing its own beer . During this period the
only new employees hired were craftsmen to do the renovating and construction
work. Hamm had not started producing its own beer prior to June 14 , when Smith
was discharged , but shortly thereafter when production started and new employees
for that work were needed , a number of Negro employees in the cleanup and garage
departments bid on and were transferred to jobs theretofore performed only by the
white employees . At the time of the hearing, Negro and white employees were
working together all over the plant and using on a nonsegregated basis whatever
restrooms and water fountains were convenient.
Hamm's general manager, Charles Adams, upon being told by representatives of
the National Association for the Advancement of Colored People, after Smith's dis-
charge, that Smith was accusing Hamm of maintaining separate facilities for its
white and Negro employees , called a meeting of the plant management and super-
visory staff . He made it clear to them that it was Hamm's policy not to permit dis-
crimination against employees because of race or color and asked their cooperation
in enforcing that policy.
3. Employment of Floyd Smith and Respondent Union's
attempts to persuade him to join the Union
Floyd Smith was employed by Gulf Brewing Company on March 28, 1963, on a
90-day probationary basis to do yardwork and act as a handyman in the cleanup
department . He, along with other Gulf employees , became an employee of Hamm
on May 1. Before being employed by Gulf, Smith had worked for Hughes Tool
Company, whose plant adjoined that of Gulf, for about 12 years but he and many
others were laid off at Hughes Tool Company for lack of work in late February or
early March 1963 . The union representing Hughes Tool Company employees had
been involved in unfair labor practice charges arising out of the maintenance of
separate locals and separate representation for the white and Negro employees at
THEO HAMM BREWING COMPANY 401
that plant , and the Trial Examiner who heard the case had found a violation of
Section 8 (b)(1)(A), (2), and (3 ) of the Act by the union involved (Independent
Metal Workers Union, Local No. 1, Cases Nos. 23-CB-429 and 23-RC-1758,
IR-93-63, Recommended Order issued February 26, 1963). By reason of his
familiarity with conditions at the Hughes Tool Company where members of his race
worked under the dual contract system based upon racial considerations , Smith was
keenly sensitive to and critical of the situation which he found at the Gulf Brewing
Company plant.
Within about a week after Smith was hired by Gulf and upon a number of occasions
thereafter , Branch 2 Union Steward Oscar Brady, and its president , James T. Allen,
both Negroes , sought to induce Smith to join the Union . Smith at first indicated
that he might join at the end of his probationary period but expressed disapproval
of a segregated union system and later told them that he would not join a segre-
gated union.
Upon one occasion when Brady was seeking to persuade Smith to join the Union
and Smith mentioned that he had a large family to support, Brady offered to pay
half of Smith's union dues if he would join. Smith , however, declined the offer.
Upon other occasions after Smith had indicated to Allen that he would at least
not join before the expiration of his 90-day probationary period , Allen told him that
he might as well join immediately because whether he joined then or later he would
have to pay his dues from the beginning of his employment after he had signed a
checkoff authorization card . He explained to Smith that he was advising him to
join at that time because he knew Smith had nine dependents and that it would be
hard on him to have all the dues deducted from one paycheck.
Thereafter, at Allen 's request , Union Business Agent Bobby Idom, a white man,
came to the plant to talk to Smith and to two other newly hired former Hughes
Tool Company employees about joining the Union. Smith asked whether he would
have to pay dues while he was a probationary employee and Idom stated that he
would. Smith then said that he understood he had 90 days in which to join. Idom
replied , "Yes, you have 90 days or you don 't even have to join if you don't want to."
Smith then started complaining about the segregated conditions at the plant and
asked Idom what his views were on integrating the plant and promoting the Negroes
to higher paying jobs than yardwork . Idom replied that he did not want to talk
about the problem; that it was not his problem ; and that he was going to leave its
solution to someone who knew more about it than he did. During the preceding
year, as well as in 1963 just before Smith was hired, Idom had similarly told a
Negro employee, Mitchell Fontenot , that he was not going to get into the racial
integration problem at that time, after Fontenot had inquired about the chances of
advancement to a higher paying job in the bottling department.'
4. Threats by Branch 2 President Allen
Allen talked to Smith upon a number of occasions about joining the Union. Upon
one of these occasions when Smith stated that he had a right to work without joining,
Allen replied, "Yeah, under the Taft-Hartley, they have the right to work law in
in Texas, but . . . we as a union member has got the right not to work with you."
He also told Smith that if he did not join by the end of his probationary period, Allen
would call a meeting of branch 2 about the matter and that if a single member voted
against working with Smith, Allen would report to Personnel Director Welch that
the men refused to work with Smith. Finally, after Smith expressed displeasure at
being pressured to join the Union, Allen announced that he would not ask Smith
again until his 90 days were up and that if Smith did not join by that time Allen
would see that his timecard was pulled.2
5. Threats by Union Steward Brady to deprive Smith of party work
Both Gulf and Respondent Hamm permitted a part of the brewery premises to
be used in the evenings from time to time by various organizations for beer parties.
The garage and cleanup department employees were permitted to work at overtime
rates at these parties. George Welch, formerly the personnel director of Gulf and
of Hamm, had delegated to Union Steward Brady the responsibility for distributing
'The findings in this section are based upon the undisputed and mutually corrobora-
tive testimony of Allen, Brady, Smith, and Fontenot.
2 The above findings are based upon the credited testimony of Allen as corroborated by
that of Smith and Mitchell Fontenot.
783-133-66-vol. J51-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the party work among the employees represented by branch 2. Brady purported to
divide the work equally among those employees desiring that type of work and to
assign the work on a seniority basis.
About May 1, upon learning that employee Johnson-who was hired the same day
Smith was hired but whose name appeared below that of Smith on the seniority
roster-was assigned to party work in preference to Smith, Smith asked Brady for
an explanation. Brady told him that Johnson had joined the Union and Smith had
not, and that it had been agreed that union men would be preferred over nonunion
men. Smith then sought out branch 2 President Allen and told him he wanted to
turn in a complaint against Brady for not properly performing his duties as shop
steward. Allen gave him a pamphlet on the duties of shop stewards. Allen had
already advised Brady against withholding party work from Smith.
About 3 weeks later another party was held and employee Ross, who was also
below Smith on the seniority list, was assigned by Brady to party work. Smith
again complained to Brady and Brady told him, "I told you before, we are not
going to let you work any parties." On the same day Brady told Fontenot that he
was not going to give Smith any more party work-that he was going to assign the
work only to employees who had joined the Union.
On the following day Smith complained to Personnel Director Welch about not
being assigned to party work. At first Welch took the position that he had been
letting the men in the department take care of the assignment themselves and did
not want to intervene but that he would look into Smith's complaint that he was
being denied the right to work because he did not see eye to eye with the Union. On
the following day Welch told Smith that he had discussed the matter with Brady
and that how the assignments were made was up to Brady. Smith then stated that
the men were joking about being able to keep him from working just because he had
not joined the Union; that the men were "taking bread off [his] family's table by
denying [him] the right to work"; and that Welch was violating Texas law by deny-
ing him the right to work because of his attitude toward the Union. Welch, there-
upon, replied that maybe Smith had a point and that Welch would see what he could
find out.
Thereafter, Brady, after talking to Welch, announced to employee Fontenot that
he was going to let Smith work at parties after all, and told Smith, "You won out
this time ... but I've got something else up our sleeve for you " Brady, thereafter,
threatened to deny party work to all probationary employees but later denied that
he needed them and changed his mind about adopting such a policy. After the talk
with Welch, he did assign party work to Smith and by the date of Smith's discharge
on June 14, Smith had, as Respondent Hamm's records show, received substantially
the same amount of party work as Johnson, who was hired on the same day, and
about twice as much as Ross, who was hired a week later.3
6. The drinking fountain episode
Smith also had difficulty with Roy Askew, the union steward over the departments
covered by the main contract. As already noted, for many years prior to the occur-
rences covered by the complaint, the restroom and water fountain facilities at the
plant had been racially segregated. In 1962, Fontenot talked to Allen and Brady
about the matter. He told Brady that since the fountains did not have signs about
them designating them for the use of white or colored employees, he did not accept
the premise that he was supposed to use certain facilities in one area when he was in
another area. Brady replied that the segregated system had been in effect for many
years. Fontenot also told Allen that he did not think he should have to go to the rear
to use restrooms and other facilities when in doing so he had to pass up two or three
others, and expressed an intention not to do so. Allen wished him, "Good luck."
Fontenot, about a year prior to the time Hamm acquired the brewery, also talked
to Personnel Director Welch about the matter and the latter told him that the Com-
pany had not designated the facilities on a racial basis but had them located for the
convenience of the men who were working at the plant and that the men were
s The findings regarding party work are based upon the credited testimony of Smith
and Fontenot, corroborated in part by the testimony of Allen Brady denied that he
ever threatened to withhold party work from Smith or that he ever talked to anyone
about Smith doing party work. He also denied that Smith ever complained to him about
segregated working conditions. I do not regard Brady as a frank or credible witness and
do not credit his testimony where it conflicts with that of Smith, Fontenot, or Allen.
Welch was no longer employed by Hamm at the time of the hearing and attempts by
Respondent Hamm to subpena him as a witness were unsuccessful.
THEO HAMM BREWING COMPANY 403
expected to try to get along. About a week after Hamm took over the brewery,
Fontenot again talked to Welch about whether any decision had been reached as to
whether Negro employees were to use all the facilities and Welch replied that the
Company had no set pattern and he would have to look into the matter.
Shortly before Respondent Hamm acquired the brewery, Brady told Fontenot that
the men in the bottling shop were complaining about him and Floyd Smith using
their facilities, and stated that Fontenot and Smith should find somewhere else to go
for drinking and restroom facilities. Just after that, Union Steward Roy Askew
called Fontenot over to his machine in the bottling shop and asked him whether
Brady had delivered his message. Fontenot replied that Brady had, and asked why
he should not use the bottling shop water fountain. Askew replied, "It wasn't the
race or color. That didn't have anything to do with it. Just everybody couldn't
drink out of the same water fountain, he said, because ... if anybody drink out of
the same water fountain, there wouldn't be any cold water, and that one was for
them, and they didn't have time to go all the way around to the other water foun-
tains, because their breaks were limited." Various employees, apparently prior to
this conversation, had reported to Fontenot and Smith that Askew had sent word
that they had better stop using that fountain or they were "going to lose [their] tail
feathers." 4
About June 1, 1963, Smith was cutting grass about 150 feet from one of the
entrances to the bottling shop and became thirsty. He entered the bottling shop to
get a drink from a water fountain there and saw Askew hosing down the floor.
Smith gave the following account of what then happened: Askew approached him
and asked if Smith had not received the message that he was not supposed to drink
from the bottling shop fountain. Smith continued walking toward the fountain as
Askew pinched the hose with one hand to cut off the flow of water and with his other
hand raised the hose as if he were about to strike Smith, while at the same time telling
Smith he wanted him to stay out of the bottling shop and that the boys who did not
work in that shop should not use the fountain there.5 Smith proceeded to get a drink
but told Askew, "Listen fellow, for your good and mine, don't you never say nothing
to me about drinking out of one of these fountains. There is no sign on this fountain.
There is no bulletin on the walls by the Company saying that these fountains are for
any particular race. And, as long as I'm working in this vicinity, I'm going to drink
at these fountains, whenever I see fit." Askew then said, "Now, don't get . . .
excited about it. I think we can work this thing out ... but I certainly don't want
you boys to drink out of this fountain." After a few more words with Askew, Smith
returned to his yardwork.
Askew gave a somewhat different account of the incident. According to his ver-
sion, there were three drinking fountains in the bottling shop and two entrances to it
from the outside. Askew and a helper had soaped and were hosing down the floor
on one side of the bottling shop when Smith came through the door on that side,
tracking up the wet floor instead of using the entrance and drinking fountain on the
other side of the bottling shop where the floor was dry. Askew asked Smith to stay
out because they were washing the floor. Smith came in anyway. Askew told him
the floor was wet and he would track it up. Smith replied, "Don't never say that
to me again, because if you do, somebody is going to get hurt." Askew attempted to
apologize or explain the reason for requesting Smith to stay out but Smith said,
"Don't say nothing to me." Askew denied that be raised the hose in a threatening
manner. He testified that at one point he told Smith to get out of the way and use
the other door, and that Smith retorted, "Don't you get that water on me."
Although Askew did not appear to be as frank a witness as Smith, and I am con-
vinced that Smith's account more accurately reflects what was said on this occasion,
I am also convinced that Askew was genuinely provoked at Smith, not only because
Smith was ignoring previous requests that yardmen not use the bottling shop facilities
but also because Smith was tracking up the freshly washed floor. Smith's extreme
* The findings in the preceding three paragraphs are based upon the credited testimony
of Fontenot, Allen, and Smith. Askew admitted telling Fontenot that employees in each
department should use their own facilities but contended that he told Fontenot and Allen
that his objection was to the yard employees tracking up the floor when it was being
scrubbed.
B On direct examination Smith testified that Askew said those fountains were for white
employees, not for colored employees, but this testimony appears clearly to be Smith's
interpolation for, on cross-examination , upon being specifically questioned about this
language, he testified that Askew told him, "you boys that don't work in there [the
bottling shop ] should refrain from drinking [there]."
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sensitivity to the racially segregated working conditions and union representation
which he found at the brewery may have tended to blind him to other considerations
which justifiably caused Askew to object to his use of the water fountain in question
on this particular occasion . I am not persuaded that Askew, in pinching and moving
the water hose, meant to strike or threaten to strike Smith with it although Smith
may have honestly believed that to be Askew's intention.
About 10 minutes after returning to his job, according to Smith's credited testi-
mony, he saw Brady in the bottling shop apparentty engaging in a heated conversa-
tion with Askew. Smith left his work and joined the two. He asked Brady to tell
Askew never to say anything to him again about the water fountain. He reported to
Brady that Askew had threatened to hit him and stated , "It's not going to be pleasant
the next time." He repeated , "Definitely , don't have him misunderstood-have him
understood now, don't never say nothing to me about these fountains again, because
the Company has not told me that I can't drink out of these fountains ." Brady told
him, "Smith , go on back to your job . I think I can handle the situation."
As Smith started toward his job, Maintenance Superintendent Wilson Lucky came
by and asked what was going on. Smith explained , "I was getting this guy straight
here concerning the water fountains where they were trying to keep me from drink-
ing." Lucky told him, "You haven't got time to argue about a thing like this. I
can't use a man who takes company time to argue about a thing like that." Smith
then returned to his job.
That evening as Brady was leaving work , Smith intercepted him and told him that
he, Smith, was "not going to be pushed around" by Askew and wanted Brady "to
make an issue out of this " with management, stating that he did not think manage-
ment would "support this type of thing." He asked Brady to see management at
once. Brady replied that General Manager Adams was out of town but that Brady
would take care of the matter.
Sometime in June, apparently after the water fountain incident described above,
Askew complained to Branch 2 President Allen that both Smith and Fontenot after
working in the yard would come into the bottling shop and track it up as fast as he
could clean it. He told Allen that Smith was using the bottling shop water fountain
as well as the restrooms and messing up the floor , that some of the men did not like
it, and that somebody was "going to get into trouble about it."
7. The discharge of Smith on June 16 6
Smith was discharged on June 14 , 1963, about 2 weeks before the end of his 90-day
probationary period on the recommendation of Maintenance Superintendent Wilson
Lucky. The incident which precipitated the discharge was Smith's disobedience of
an express order given him by Superintendent Lucky the preceding afternoon to put
away the water hose and sprinkler before leaving working. Smith had not put the
equipment away as directed but had instead requested a fellow employee , Johnson,
who worked later, to do so after more of the ground had been watered. Johnson
neglected to do Smith's chore for him. When Lucky arrived at the plant on the
morning of June 14 and found that the sprinkler had been operating all night, he
sought out Smith and said, "Smith , didn't I give you order to put up all your equip-
ment that you used in the evening before you leave?" Smith answered in the affirma-
tive but explained why he had not followed orders on this occasion. Lucky replied,
"Regardless of who you told to put it up, I told you to put it up before you leave ....
I'm not going to put up with anybody working for me that can 't take orders."
At quitting time that afternoon , Lucky told Smith to report to Personnel Director
Welch's office. Welch told Smith he had bad news for him-that he was having to
let Smith go. Smith stated that he was not surprised because the attitude around the
plant toward him had changed considerably. Welch assured Smith that there was
no "foul play of any kind" but that the Company merely felt that Smith was not
performing his duties properly. He explained that it had been reported to him that
Smith was spending a considerable amount of time talking to people and that "a
few minutes here and a few minutes there developed into considerable time loss for
the Company ." Smith asserted that he believed the real reasons for his discharge were
recent events, principally the water fountain incident. Smith told Welch about that
incident and about his difficulties with the segregated Union . Welch assured him
that those matters had nothing to do with his discharge and again asserted that dis-
satisfaction with Smith's work performance was the sole reason . Welch added that
he himself had noticed during the last 2 days, when Smith was working around the
office area, that Smith was slow and seemed to talk to too many people and that
6 The findings in this section , unless otherwise indicated , are undisputed.
THEO HAMM BREWING COMPANY 405
Welch was going along with Lucky's recommendation. Welch offered to write up
Smith's dismissal slip as a layoff rather than as a discharge in order to make it easier
for Smith to obtain work elsewhere.
Superintendent Lucky, whose recommendation it was that Smith should be dis-
charged, testified that he recommended the discharge before the end of Smith's pro-
bationary period because he was convinced that Smith was never going to produce
to the extent that an employee in his position should. Lucky, for some time prior
to the last week in May, had been engaged in work other than his regular duties as
maintenance superintendent and did not have much opportunity during that period
to observe closely the work of the approximately 15 maintenance employees. He
testified, however, that about the middle of April even before returning to his regular
duties, he had noticed Smith sitting or standing around and not working. On one
occasion about that time while sitting at a desk in the office, Lucky had observed
Smith working in the flowerbeds in the grove and estimated that he had worked only
about a half hour out of an hour and 45 minutes spent on the job. On a number of
occasions thereafter in late April or early May, according to Lucky, he observed
Smith loafing and talking instead of working. On several occasions while Smith
and Fontenot, with whom Smith was teamed as a worker, were assigned to work on
the roof, Lucky would pass nearby and hear conversations, would pause long enough
to ascertain whether they were talking about their work, and then, upon discovering
that they were merely engaging in idle conversation, would talk to them about the
progress they were making on the roof. He would find Smith leaning against the
wall with his feet on the roof and Fontenot "pecking" around on the roof with a
putty knife.
On one occasion when Lucky had assigned Smith and Fontenot to the job of cut-
ting weeds in the parking lot area and missed them, he started looking for them and
upon hearing conversation behind a fence, paused to listen, and ascertained that
they were again engaged in idle conversation. He then took Fontenot to the office
for a reprimand and told Smith to get back to work. On numerous other occasions,
according to Lucky, he would miss them from the places where they were expected
to work and would waste 10 or 20 minutes looking for them. He testified that about
2 weeks before Smith's discharge he told Smith that if he did not get busy, Lucky
would have to release him. This was apparently in reference to the occasion,
already related, on which Smith left his work to talk to Brady and Askew just after
the water fountain incident, and Lucky ordered Smith back to his work with the
admonition, "I can't use a man who takes company time to argue about a thing like
that."
According to Lucky's credited testimony, moreover, June 13 was not the first time
Smith had failed to put away company equipment before leaving his work at the end
of the day. On a prior occasion Smith had left a rake and hoe leaning against a tree
in the grove overnight and Lucky had talked to Smith about it
It was about a week before the water fountain incident that Lucky took Fontenot
to the office for a reprimand. According to Fontenot's credited testimony, Lucky told
Fontenot, in Personnel Director Welch's presence, that he and Smith were doing more
talking than working on the roof, that Fontenot's work had not been showing up, and
that he was being given a warning Welch told Fontenot to watch his step and try
to get along with Lucky. Thereafter, Fontenot and Smith expressed a belief that
Lucky was watching them too closely, that their jobs were in jeopardy, and that it
would be better for both of them if they broke up as a working team. A week or two
before Smith was fired, Fontenot requested Welch to have him transferred from
working with Smith, explaining that Lucky was "riding" both of them rather hard
and complaining about their work, and that Fontenot did not believe it was his fault.
He told Welch that on occasions, "Smith would get involved in some pretty lengthy
conversations" and that this irritated Lucky. Welch replied that he did not believe
the teamwork being put out by Smith and Fontenot was what it should be. Fontenot
insisted, however, that he felt he was doing his share of the work and that if the work
was not showing up, it was not his fault. Welch granted Fontenot's request for a
transfer and assigned him to work as a night porter in the main office. Later, when
Hamm started brewing its own beer, Fontenot was promoted to work in the bottling
department.
The record leaves no doubt that Smith did an excessive amount of talking, mostly
about race problems, both while he was working as well as during lunch and beer
breaks. Smith testified that he conducted what he described as "a pulse-feeling
campaign" among other Negro employees about the segregated conditions at the
brewery and suggested to them that a committee be formed to consult with manage-
ment about considering seniority rather than race as the basis for assigning jobs, but
that his fellow employees did not want to talk about the matter and would walk away.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He testified that even Fontenot, who at first had gone along with him "in the attempt
to force the integration dispute into the open," finally began telling Smith he should
join the Union. Smith concluded, "It was pretty clear that everybody, that everyone
was out to get me."
According to Branch 2 President Allen, who particularly impressed me as a frank
and honest witness, Smith would start an argument with someone everywhere he went
and Allen told him he was causing trouble. He told Smith, "Smith, you have already
caused enough stink, and people are looking down the nose at us," meaning members
of their race. Allen graphically described the tense situation created by Smith as
follows
Nobody was angry-nobody was mad, but you could see it, you could feel it
in the air when he did something that men wasn't used to doing that the mens
didn't like it .... The mens just didn't holler at you-they just didn't joke with
you like they used to. You could see it in the air. At least, I could because I
have a lot of friends out there both white and colored, and Smith come out there
and went to raising sand, well, you could tell, you just couldn't get the same
feeling-people talking to you like they did.
Q. In other words, they thought he was a troublemaker?
A. In one respect, because nobody couldn't talk to him. Why, I couldn't even
talk to him, and I'm his own color.
On June 14, after deciding to terminate Smith's services, Welch sought out Allen,
told him of the decision, and asked Allen what was the matter with Smith. Allen
said that he did not know and could get no cooperation from him in joining the Union.
Welch also asked whether he would have any trouble with the Union over discharg-
ing Smith. Allen replied that Welch would not unless Smith filed a grievance.
Following his discharge, Smith met Brady and asked Brady what he was going to do
about his discharge. Brady replied, "Sorry, there is nothing I can do." As Smith
was leaving the plant, he met General Manager Charles Adams, introduced himself,
and told Adams about the discharge and his belief that he was fired at least in part
because he had attempted to use the facilities in the bottling shop and had criticized
the Union and its policies. Adams who had theretofore been informed by Welch
that one of the men was not performing his work satisfactorily, told Smith that what
Smith was reporting was not in accord with what Adams had heard but promised,
nevertheless, that he would investigate. Smith requested him to interview Fontenot
since Fontenot had worked with him during most of the period of his employment at
the plant. Adams asked Smith to call him on the following Monday morning. When
Smith called, as requested, Adams told him that after investigating the matter he was
going along with Welch's decision because he was convinced that Smith was dis-
charged for not performing his duties.
Adams did in fact investigate Smith's discharge, and among those he interviewed
was Fontenot. Fontenot had been apprised of the discharge by Welch about 15 or
20 minutes after it happened. Welch told Fontenot that he had let Smith go because
Smith was not the type of worker Hamm was looking for, but that Smith appeared
not to accept the reason given him for the discharge. He asked Fontenot if the latter
knew what Smith meant and Fontenot replied that he did not. When Adams inter-
viewed Fontenot, he told him that Smith had claimed he was fired for exercising
some of his rights as an American citizen and had suggested that Adams talk to
Fontenot. He told Fontenot that it was not Hamm's policy to do the things that
Smith charged the Company with doing and that he was therefore investigating. He
asked Fontenot if he knew of any of the reasons for Smith's termination and Fontenot
replied that he did not. He told Adams that he had had trouble in working with
Smith and expressed the view that Smith "didn't have any grounds" for challenging
the decision to discharge him.
On June 18, Smith filed an unfair labor practice charge with the Board. He also
sought the assistance of the National Association for the Advancement of Colored
People, herein called the NAACP. Representatives of that organization inquired of
Adams about the reasons for Smith's discharge. Adams met with these representatives
on several occasions and explained Hamm's reasons for discharging Smith, as well as
Hamm's policy against racial discrimination. He also invited the representatives to the
brewery and suggested that they talk to anyone they wished to interview about the
matter. Some of these representatives later did come to the brewery but advised
Adams that they believed Hamm was justified in releasing Smith.
The General Counsel relies heavily upon the testimony of George T. Nelson, a
member of the board of directors of the Houston chapter of the NAACP, to establish
a discriminatory motivation by Respondent Hamm in the discharge of Smith. Nelson
testified about what happened on June 24 at a meeting of Adams with NAACP repre-
THEO HAMM BREWING COMPANY 407
sentatives, which was held in the office of one of the NAACP attorneys. Nelson
testified as follows with respect to the reasons given by Adams for the discharge of
Smith:
Q. Will you tell me what he said?
A. Mr. Adams said that he had information from the personnel manager, l
believe his name is Mr. Welch, that Smith did not do his work good, and that
they had witnesses to the effect that he did not do his work good, and that he had
tried to use the water that was designated for white, and that he would not
join-
No, he didn't say that.
He wouldn't join the segregated Union-he said that he had that information.
But he said later that Smith was a trouble maker- ... .
That point, this trouble maker statement through other questions when this
committee asked, and he said, well, maybe I shouldn't have said that, but that's
the information that I have.
Q. Did he tell in what way Smith was a trouble maker?
A. Well, nothing other than he wouldn't go along like the rest of the employees.
Neither counsel for Respondent Hamm nor for Respondent Union cross-examined
Nelson.? Adams, however, testified that in one of the meetings with NAACP repre-
sentatives, apparently the one to which Nelson referred, after informing the group
present of Hamm's policy against discrimination because of race or color, he explained
the basic reason for Smith's release, the fact that he was not performing his work
satisfactorily, and that one of the NAACP representatives then asked, "Well, yeah,
but what is it that I hear to this effect- what is it that I hear about separate water
fountains. Didn't that have something to do with it " Adams replied that it did
not. He stated that he had not heard any such complaints at the plant. Adams, as a
witness, tended to speak in general and rather vague terms and I have no doubt that
he likewise did so at the meetings with the NAACP representatives. This, I believe,
was a personality trait and not necessarily an attempt to evade or becloud the issues.
Nevertheless, in view of what Smith had told him immediately after Smith's discharge
and of the fact that he interviewed a number of people at the plant in the course of
investigating Smith's accusations, it seems extremely unlikely that he did not learn
prior to meeting with NAACP representatives about the water fountain incident and
Smith's contentions as to the cause of it, as well as about Smith's refusal to join the
segregated Union. I am convinced and find that Adams did mention these matters
at the meeting about which Nelson testified, and that he did so, perhaps uninten-
tionally, in a manner which led Nelson reasonably to conclude that he was including
those factors along with Smith's unsatisfactory work performance as reasons for the
discharge.
C. Analysis and conclusions
1. Regarding Smith's discharge
As just indicated, I am persuaded from what General Manager Adams told the
NAACP representatives at the meeting with them described above that they could
reasonably have gained the impression that three factors entered into the decision to
discharge Smith-his unsatisfactory work record, the water fountain incident, and
Smith's refusal to join the segregated union. Nevertheless, I am convinced that while
Adams told them about all these matters because they were fresh in his mind from
having talked to Smith and others following Smith's discharge, he was only trying to
make the point that although Smith was properly discharged for unsatisfactory work
performance, he was being a troublemaker by injecting into his case these other issues
which he only imagined were contributing reasons Adams represented the new
management of the brewery and I believe that he was genuinely interested in promot-
ing good race and public relations and would not knowingly have countenanced any
discrimination based on racial considerations. But regardless of what Adams may
have said or of what he actually meant, I am not persuaded that Smith's refusal to
join the segregated Union had anything to do with his discharge, or that the water
fountain incident did, except insofar as it incidentally involved Smith's neglect of his
work and a disruption of the work of others.
There is no evidence in the record that any union representative sought to bring
about Smith's discharge, or that management had any reason to believe that the
Union desired his discharge. Indeed, from the fact that Welch, upon deciding to go
along with Lucky's recommendation, sought out Branch 2 President Allen to ascer-
7 Nelson was an elderly , dignified Negro gentleman and all parties at the hearing were
obviously treating him with deference and kindness
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tain whether the Union would cause any trouble if Smith were discharged, it is a
reasonable conclusion that Welch feared that the Union might oppose the discharge.
Although Allen concededly had threatened to have Smith's timecard pulled or to
notify Hamm that the men would not work with Smith if by the end of his proba-
tionary period he had joined the Union, Smith never served his full probationary
period and Allen had no occasion to try to execute his threats. Both Allen and
Brady, moreover, credibly denied that they sought to have Smith discharged. Busi-
ness Agent Idom also credibly testified that he had never recommended the dis-
charge of any employee and had never even discussed Smith with any company
representative. In these circumstances there does not appear to be any basis for
concluding that Hamm was concerned one way or the other with whether Smith
joined the Union or that, in any event, it would consider his nonmembership as a
basis for discharging him.
Superintendent Lucky's awareness of Smith's participation in the water fountain
incident, however, may well have been one of the factors considered by Lucky in
recommending Smith's dismissal. Smith's conduct in that connection involved an
absence from work on his part, if not also a disruption of the work of others-a type
of conduct for which Lucky had already reprimanded Smith on the occasion when
Fontenot was taken to the office-but it also constituted a protest against a condition
of employment and an attempt through his union representative to have his complaint
remedied, a type of activity, in general, considered protected under Section 7 of the
Act. Though an employee's right to complain to his union representative about work-
ing conditions is a union activity protected by the Act, the exercise of this right under
any and all circumstances is not necessarily protected. There must be a reasonable
accommodation between the exercise of this right and the enforcement of the employ-
er's right to forbid any unnecessary disruption of work by the employee. Smith did
not purport to represent a grievance in the orderly manner provided under the
collective-bargaining agreement, but had left his work to interrupt and join in the
discussion which Brady was having with Askew; and even Brady, before Lucky
arrived on the scene, had told Smith to go back to his work and let Brady handle the
situation. There is no basis for assuming that Lucky, in sending Smith back to work
with the admonition that he should not "take company time" to argue a thing like
that, was motivated by any consideration other than an intent to see that Smith
performed his work.8 I am aware of the fact, as the General Counsel points out,
that Brady and Askew on that occasion were permitted to continue talking and were
not told to return to their work. They, however, were union stewards, presumably
engaged in the performance of their union functions and the collective-bargaining
agreement recognized their right to engage in certain union business on company
time. (See sections 4 and 19 of the contract.)
Smith's strong resentment against the segregated facilities, the segregated union,
and the restrictions on job opportunities at the plant for employees of his race, which
he frequently voiced to his fellow workers and about which he became involved in
lengthy conversations, did not endear him to his fellow workers, but, on the con-
trary, created a strained relationship and caused them to try to avoid his company.
It may well be that Lucky, upon some of the occasions upon which he concededly
stopped to listen while checking on the work of Smith and Fontenot, learned of
Smith's unpopular views. Nevertheless, even if he knew of those views and dis-
approved of them-a surmise not supported by the record-there is no warrant for
concluding that Smith was discharged for reasons other than those assigned to him
by Lucky and Welch. There is an abundance of evidence that Smith frequently
neglected his work, did not perform the amount of work expected of him, and by his
excessive talking interfered with the work of others. I find that Respondent Hamm, by
discharging Smith during his probationary period, under the circumstances shown by
the record, did not violate Section 8(a) (3) and (1) of the Act.
I further find no basis in the record for concluding that Respondent Union caused
or attempted to cause Smith's discharge in violation of Section 8(b) (2) of the Act.
2. Regarding the alleged discriminatory conditions of employment based
on racial grounds
The evidentiary facts herein summarized and the record as a whole leave no room
for doubt that for many years prior to the acquisition of the brewery by Respondent
Hamm, the business had been operated on a segregated basis insofar as jobs, plant
facilities, and union representation were concerned. To be sure, the branch 2 and
8In view of this conclusion, I must reject the General Counsel's contention that Lucky
upon this occasion violated Section 8(a) (1) of the Act by threatening to discharge
Smith for engaging in protected concerted activity.
THEO HA-MM BREWING COMPANY 409
main contracts did not on their face recite that one was for Negroes and the other
was for white employees or that only Negioes could be hired for those departments
covered by branch 2 and that only white people could be hired for those covered by
the main contract but the segregated pattern in fact existed. Similarly, no signs,
bulletins, or employer orders designated some water fountains and restroom facili-
ties for Negroes and others for white employees but here, again, segregation of those
facilities on a de facto basis existed prior to acquisition of the brewery by Hamm and
continued thereafter until Hamm started production operations and, in cooperation
with the Union, opened up jobs for bidding on an integrated basis.9
The National Labor Relations Act, even in the labor relations field, is no sub-
stitute for equal employment opportunities legislation and there are undoubtedly
examples of inequities based on racial grounds in the employment relationship which
cannot reasonably be said to come under the protective cloak of the Act. There are,
on the other hand, undoubtedly some acts of racial discrimination which do, coinci-
dentally, fall within that protective cloak because they involve such guaranteed rights
as those of employees to engage in union or other concerted activities for their
mutual aid and protection, to bargain with their employer through a representative
of their own choosing, and to be free from employer discrimination and union
restraint or coercion because of their attempt to exercise their Section 7 rights. Each
case must be analyzed on an ad hoc basis to determine whether the racially discrimi-
natory conduct coincidentally involves a violation of the Act.
I have no doubt that the maintenance and application of a dual contract system
based on racial considerations wherein employees, solely because of their race or
color, are denied the opportunity to bid for and work at higher paying jobs constitutes
a violation of Section 8(a)(3) and (1) of the Act by the employer because such
discrimination in employment conditions inherently, at the very least, discourages
union membership on the part of those employees contractually discriminated
against. The maintenance and application of such contracts also constitute a viola-
tion of Section 8(b) (2) of the Act, for the union, by its part in enforcing such con-
tracts, causes the employer to violate Section 8(a)(3).l0 Whether the maintenance
of and countenancing of racial segregation of water fountains and other facilities
are violations of Section 8(a)(3) and (1) by the employer and of Section 8(b)(2)
by the contracting union, is not so clear. Nor is it clear that a union refuses to bar-
gain within the meaning of Section 8(b)(3) of the Act by violating its duty of fair
representation in making or enforcing a contract which discriminates against those it
purports to represent on the basis of their race or color. As the Supreme Court
pointed out in Humphrey v. Moore, 376 U S. 335, 344, "there are differing views on
whether a violation of the duty of fair representation is an unfair labor practice." 11
It does not appear necessary in this proceeding to resolve these interesting legal
issues for even assuming that Respondents' conduct was unlawful in all the respects
contended by the General Counsel, I am convinced that in view of the actions taken
by the parties themselves to remedy the past injustices inherent in the segregation of
jobs and the segregation of union representation, a remedial order directing the
parties to cease and desist from those practices would be neither appropriate nor
advisable. It is to their credit that even before the brewery was actually acquired by
Hamm, representatives of Respondent Union and Respondent Hamm agreed in prin-
ciple to the elimination of these inequitable conditions and that thereafter they
successfully negotiated a solution which, while preserving the substantive provisions
of the collective-bargaining agreements which had been assumed by Hamm, resulted
in the wiping out of segregated jobs, facilities, and union representation The parties,
I believe, acted with reasonable promptness in accomplishing their objective after
Hamm took over the operation of the brewery. It is noted, moreover, that even before
the remedial agreement was actually signed on July 12, the parties, as soon as produc-
tion operations commenced, had started putting into effect the understanding which
they had reached by affording the Negro employees the opportunity to bid on avail-
9 Counsel for the International in its amicue brief states that production started on
June 19 but the record shows only that it had started after Smith was discharged and
before July 12 when the agreement abolishing branch 2 was signed.
10 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company) v. N.L.R.B., 347 U.S. 17, 47-48. See also Independent Metal Work-
ers Union, Local 1 (Hughes Tool Company), 147 NLRB 1573; and Local 1367, Interna-
tional Longshoremen's Association, AFL-CIO (Galveston Maritime Association, Inc.,
et al.), 148 NLRB 897.
11 See authorities referred to by the Supreme Court in the Humphrey case, supra. See
also the conflicting views of Board Trial Examiners in the Hughes Tool Company and
Galveston Maritime Association cases referred to above and the views of another Trial
Examiner in Tanner Motor Livery, Ltd., 148 NLRB 1402.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able jobs previously covered only by the main contract and by transferring a number
of Negro employees to those jobs. In view of the voluntary action of the parties,
Hamm's national policy against permitting discrimination based on race or color, and
the policy of the International of Respondent Union against such discrimination,12
there does not appear to be any likelihood of a recurrence of the problems which
arose when the plant was being operated under segregated conditions.
For the foregoing reasons, no unfair labor practice finding will be made or
remedial order recommended based upon these past and already remedied practices.
3. Regarding Respondent Union's alleged violation of Section 8(b)(1)(A)
in failing to process Smith's grievances
It is contended that the failure of Branch 2 President Allen and its steward, Brady,
to file or process grievances based on Smith's complaints about being denied party
work, about Askew's attempt to forbid Smith and other Negroes to use the bottling
department water fountain, and about Smith's discharge, constituted restraint and
coercion of Smith in the exercise of his Section 7 rights and was therefore a violation
of Section 8(b)(1)(A) by the Union. A union, of course, has a duty to represent
all the employees in the bargaining unit and this duty includes the obligation to
process grievances for all those employees regardless of whether they are members
or oppose the policies of the union. The Board and the courts have held that the
refusal of a union to process an employee's grievance because of its desire to coerce
him into following union policy is a violation of Section 8(b) (1) (A) of the Act.13
The union, however, must have a wide leeway in deciding which grievance should
and which should not be processed. It should not be subjected to unfair labor prac-
tice charges because of a faulty but good-faith exercise of its judgment in selecting
grievances for processing or merely because of a lack of diligence in exercising this
function.
I am convinced that the Union's failure to process Smith's complaints through the
formal grievance procedure provided in the contract did not constitute an unfair
labor practice in this case. Smith did not file any formal grievance as prescribed
under the collective-bargaining agreement and the Union's rules. Instead, he only
made informal complaints and the union representatives acted just as informally in
dealing with them. Thus, in connection with Smith's alleged complaint to Allen about
Union Steward Brady's failure to assign him party work, the evidence does not
establish that Smith was complaining specifically about the party work. The com-
plaint appears to have been a general one about Brady's failure to perform his duties
as shop steward and Allen responded by furnishing Smith with a pamphlet which
explained the duties of shop stewards. Allen, moreover, did advise Brady against
withholding party work from Smith. In any event, the discrimination against Smith
in this respect ceased after Brady talked with Personnel Director Welch and Brady
made up to Smith before his discharge for the party work previously denied to him,
thus making the processing of a grievance unnecessary. Again, when Smith began
complaining to Union Steward Brady about Union Steward Askew's attempt to
prevent him from using the bottling department water fountain, Brady told Smith to
return to his work, as Brady thought he could handle the situation. Brady continued
to talk to Askew, presumably about the dispute. Thereafter Brady did not refuse
Smith's request that he take up the water fountain incident with management, but
indicated to Smith that he would do so when General Manager Adams returned to
town. As already noted, the entire problem regarding segregated facilities was wiped
out not long thereafter when Hamm started transferring Negro employees to the
bottling department and other departments covered by the main contract.
Nor can I see any basis for finding a violation of Section 8(b)(1)(A) by reason
of the Union's failure to protest Smith's discharge. The sole basis for this charge
appears to be Smith's inquiry of Brady, after the discharge, as to what Brady was
going to do about the discharge and Brady's reply that there was nothing he could do.
12 As requested by the International in its amicus brief, official notice is taken of the
provision of the International's constitution that: "There shall be no discrimination
against applicants or members because of race, creed , color, or national origin" ( article III,
section 4(c)).
17 M. Eakin & Son, 135 NLRB 666, 670, enfd . sub nom as to the respondent union Con-
fectionery & Tobacco Drivers and Warehousemen 's Union, Local 805, IBTCWHA v.
N.L R B., 312 F 2d 108 (C.A 2) ; Peerless Tool and Engineering Co., 111 NLRB 853,
857-858, enfd. sub nom. N.L R.B. v. Die and Tool Makers Lodge No. 113, International
Association of Machinists, AFL, 231 F. 2d 298 (CA. 7), union petition for cert. denied
352 U.S. 833. Cf. Emmadane Farms, Inc, 138 NLRB 1098, 1099, 1113-1114; and Miranda
Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 F. 2d 172 (C.A. 2).
THEO HAMM BREWING COMPANY 411
There does not appear to be any basis for assuming that Brady was acting arbitrarily
or maliciously in thus expressing his conclusion that it would be fruitless for him to
protest the discharge of this probationary employee.
4. Regarding other alleged acts of restraint and coercion by Respondent Union
I do not understand the basis for the General Counsel's assertion that Union
Steward Brady's offer to pay half of Smith's dues if he would join the Union was a
violation of Section 8(b)(1) (A) of the Act. As Brady testified, he felt sorry for
Smith because of the large family which Smith had to support and merely wanted to
help Smith. It appears clear that although Brady was acting as a union steward in
seeking to persuade Smith to join the Union, his offer to pay half the dues Smith would
have been required to pay upon joining the Union was a mere personal act of kind-
ness involving the payment of money out of Brady's own pocket. Clearly, Brady did
not thereby involve the Union in any unfair labor practice conduct.
Nor do I find any violation of the Act in the statements of Branch 2 President Allen
and of Business Agent Idom to Smith that whether Smith joined immediately or upon
the expiration of his probationary period, he would have to pay dues as of the begin-
ning of his employment. Texas has a right-to-work law and the Union had no union-
shop contract with Gulf or Hamm requiring employees to join the Union Smith,
accordingly, could not have been required to join at all or pay any dues. Idom spe-
cifically informed Smith that he did not have to join the Union at any time if he did
not want to. A union has the right under the proviso to Section 8(b) (1) (A) to pre-
scribe its own rules with respect to the acquisition or retention of membership, and
so long as those rules, as here, are applied only to those employees who voluntarily
subject themselves to such rules by joining and retaining their membership in the
union-and, accordingly, do not affect the job rights of the employees-they may not
be said to restrain or coerce employees within the meaning of Section 8(b) (1) (A) of
the Act. American Newspaper Publishers Association v. N.L.R.B., 193 F. 2d 782,
800 (C.A. 7), cert. denied 344 U.S. 812.
The conduct of Brady and Allen in some other respects, however, was clearly
unlawful. Brady's threat to withhold party work from Smith because the latter
refused to join the Union and his actual denial of party work to Smith upon at least
two occasions for that reason resulted in a temporary loss of earnings by Smith, and,
therefore, restrained and coerced him in his right to refrain from joining the Union
within the meaning of Section 8 (b)(1)(A) of the Act.14 This conduct, in addition,
restrained and coerced other employees in their right to relinquish their membership
in the Union. Brady, as a union steward of branch 2, had been delegated the right
to distribute party work, and his discrimination against Smith in the assignment of
this work was action taken in his capacity as union steward.
Likewise, plainly coercive in its nature was the threat of Branch 2 President Allen
that if Smith did not join the Union by the end of his probationary period, Allen
would call a meeting of branch 2 members and if a single member voted against
working with Smith, Allen would report to Personnel Director Welch that the men
refused to work with Smith. Allen was thereby threatening by strike action to bring
about Smith's discharge. A like conclusion is compelled as to Allen's further threat
that he would see that Smith's timecard was pulled if he did not join by the end of his
probationary period. These threats to Smith's job tenure manifestly tended to
restrain and coerce Smith and other employees in their right not to join or retain
membership in the Union, in violation of Section 8(b)(1)(A) of the Act. N.L.R.B.
v. Local 1423, United Brotherhood of Carpenters and Joiners of America, AFL
(Columbus Show Case Co.), 238 F. 2d 832, 837 (C.A. 5); Local 794, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Montgomery Ward & Co., Incorporated), 121 NLRB 1552, 1558; J. J. Hagerty, Inc.,
139 NLRB 633, 637, enfd. 321 F. 2d 130 (C.A. 2).
The Union may not escape responsibility for the acts of its branch 2 president and
steward by contending, as it does, that its agents were not authorized to engage in
this conduct These acts were committed in the course of the performance of their
"The General Counsel alleges that the Union's conduct was, in addition, a violation
of Section 8(b) (2) of the Act and that Respondent Hamm, in permitting the Union to
deny party work to Smith, violated Section 8(a)(3) and (1). The General Counsel is
technically correct Nevertheless, since Personnel Director Welch, albeit reluctantly,
apparently put a stop to Brady's discriminatory treatment of Smith soon after learning
about it, and Brady shortly thereafter made amends for this prior treatment of Smith,
I do not believe any useful purpose would be served in basing any 8(b) (2) and 8(a) (3)
or (1) findings upon the conduct involved.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
official duties and were within the apparent scope of their authority Respondent
Union is , accordingly , responsible for them under recognized agency principles.
N.L.R.B . v. International Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers Local No. 83 (Combustion Engineering), 321 F. 2d 807
(C.A. 8).
CONCLUSIONS OF LAW
1. Respondent Union, by refusing to assign work to Smith on the same basis it
assigned work to other employees , because Smith , unlike the others, had refused to
loin the Union , and by threatening to strike or by other means cause Smith to lose his
job if he did not join the Union by the end of his probationary period, has restrained
and coerced Smith and other employees in the exercise of their rights guaranteed
under Section 7 of the Act , in violation of Section 8(b)(1)(A ) of the Act.
2 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7) of the Act.
3. The record does not warrant a finding that Respondent Hamm violated Section
8(a) (3) and ( 1) of the Act or that Respondent Union violated the statute except in
the respects above found.
THE REMEDY
It having been found that Respondent Union has engaged in acts of restraint and
coercion in violation of Section 8(b) (1) (A ) of the Act , my Recommended Order will
require that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act , including the posting of appropriate notices.
While normally the remedy for discriminatorily withholding job assignments would
be reimbursement for the loss of pay occasioned thereby, no reimbursement order
is warranted in this case because Union Steward Brady had already remedied the
discrimination prior to Smith 's discharge . Respondent Hamm 's records show that
as of the date of Smith 's termination , he had received slightly more party work than
employee Johnson , and substantially more than employee Ross, the two employees
preferred over Smith during the period when Union Steward Brady was discriminating
against him.
Upon the entire record in this case, and pursuant to Section 9(c) of the National
Labor Relations Act, as amended , there is hereby issued the following.
RECOMMENDED ORDER
The Respondent Local 111, International Union of United Brewery , Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL -CIO, its officers, representatives,
agents, successors , and assigns, shall
1. Cease and desist from:
(a) Denying or threatening to deny to any employee his fair share of work based
upon that employee 's lack of membership in or opposition to the policies of
Respondent Union.
(b) Causing or threatening to cause Theo Hamm Brewing Company to discrimi-
nate in regard to the tenure of employment of any employee because of that employ-
ee's refusal to join Respondent Union.
(c) In any like or related manner restraining or coercing employees in the exer-
cise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act
(a) Post at its business office and meeting hall, copies of the attached notice
marked "Appendix ." 15 Copies of the aforesaid notice, to be furnished by the
Regional Director for Region 23, shall , after being duly signed by an authorized
representative of Respondent Union, be posted by it immediately upon receipt
thereof, and be maintained for a period of 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to members of the Respondent
Union are custemarily posted ( including all such places in the Theo Hamm Brewing
Company plant ). Reasonable steps shall be taken by it to insure that said notices
are not altered , defaced, or covered by any other material.
151n the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the woras "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order "
LOS ANGELES BLDG. & CONST. TRADES COUNCIL 413
(b) Mail to said Regional Director signed copies of said notice for posting by
Respondent Hamm at its Houston, Texas, brewery, it being willing.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of this Recommended Order, what steps it has taken to comply herewith.16
The complaint, insofar as it alleges violations of Section 8(b)(2) and (3) of the
Act by Respondent Union, and of Section 8(a) (1) and (3) by Respondent Hamm, is
hereby dismissed.
1e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 111, INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA,
AFL-CIO, AND TO ALL EMPLOYEES OF THEO HAMM BREWING COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT deny or threaten to deny to any employee his fair share of work
based upon that employee's lack of membership in or opposition to the policies
of our Union.
WE WILL NOT cause or threaten to cause Theo Hamm Brewing Company to
discriminate in regard to the tenure of employment of any employee because of
that employee's refusal to join our Union.
WE WILL NOT in any like or related manner restrain or coerce employees of
Theo Hamm Brewing Company in the exercise of their rights guaranteed under
Section 7 of the Act.
LOCAL 111, INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS
OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. CA
8-0611, Extension 4271, if they have any question concerning this notice or com-
pliance with its provisions.
Los Angeles Building and Construction Trades Council [Couch
Electric Company , Inc. and Builders of Melody Homes and
Apartments , Inc.] and Jones and Jones, Inc., and Interstate
Employers Association , Inc. Case No. 21-CC-720. March 3,
1965
DECISION AND ORDER
Upon charges filed by Jones and Jones, Inc., and Interstate
Employers Association, Inc., herein collectively called Jones, the
General Counsel for the National Labor Relations Board, by the
Acting Regional Director for Region 21, issued a complaint against
Los Angeles Building and Construction Trades Council, herein
called the Respondent, alleging that the' Respondent had engaged
in. and was engaging in unfair labor practices within the meaning
151 NLRB No. 46.