Acme Breweries

National Labor Relations Board - Board Decisions

Feb 27, 1943

47 N.L.R.B. 1208 (N.L.R.B. 1943)

In the Matter of ACME BREWERIES AND CALIFORNIA STATE BREWERS
INSTITUTE and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR,
CEREAL AND SOFT DRINK WORKERS OF AMERICA (SUSPENDED FROM
A. F. OF L.) AND JOINT LOCAL Ex. BD. OF CALIFORNIA, #7-227-
229-293
In the Matter Of RAINIER BREWING COMPANY AND CALIFORNIA STATE
BREWERS INSTITUTE and INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL AND SoIT DRINK `WORKERS OF AMERICA (SUSPENDED
FROM A. F. OF L.) AND JOINT LOCAL Ex. BD. OF CALIFORNIA,
#7-221-229-293
In the Matter of REGAL AMBER BREWING CO. AND CALIFORNIA STATE
BREWERS INSTITUTE and INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA (SUSPENDED
FROM A. F. OF L.) AND JOINT LOCAL Ex. BD. OF CALIFORNIA,
#7-227-229-293 .
In the Matter Of SAN FRANCISCO BREWING CORP. AND CALIFORNIA STATE
BREWERS INSTITUTE and INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL AND SOFT DRINK WORKERS OF A31ERICA (SUSPENDED
FROM A. F. OF L.) AND JOINT LOCAL Ex. BD. OF CALIFORNIA,
#7-227-229-293
Cases Nos. C-2424 through C-4427, respectively. Decided February
0'7,191,3
Jurisdiction : brewing industry.
Unfair Labor Practices
Collective Bargaining: charges of refusal to bargain collectively, dismissed, when
employer was found to have acted in good faith in refusing to sign a contract
containing a closed-shop provision for a certain group of employees, and when
union was not willing to accept a contract which did not contain such a
provision.
Practice and Procedure : complaint dismissed.
DECISION
AND
ORDER
On November 17, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had not engaged in unfair labor practices, and recommending'that the
47 N. L. R. B., No. 145
1208
ACME BREWERS 1209
complaint be dismissed. Thereafter the Brewery Workers' Union
filed exceptions to the Intermediate Report, and briefs were filed by
the Brewery Workers' Union and the respondents. Oral argument
was held before the Board on January 12, 1943, in which the Brewery
Workers' Union and the Teamsters' Union participated. The Board
has considered the rulings of the Trial Examiner at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, ' the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the, Trial
Examiner, except in the respects noted below :
1.' We find that the material facts regarding the 1941 negotiations
between the Brewery Workers' Union and the respondents are as
follows : '
In February and March 1941, representatives of the Brewery Work-
ers' Union and Hamilton, representing the respondents, met on several
occasions and negotiated concerning terms and conditions of employ-
ment. During the course of these negotiations, the parties agreed upon
all terms and conditions of employment, except that, as in previous
years, no agreement could be reached concerning the inclusion of a
closed shop and related provisions covering drivers. At a meeting on
February 17, Hamilton stated that the respondents could not agree to
the closed-shop provisions. He further stated that the employers
expected the Brewery Workers' Union "not to put them on the spot"
by demanding a signed agreement containing such provisions. At
this meeting, Ahern, representing the Brewery Workers' Union, stated
that the matter of filing charges with the Board concerning the con-
troversy, was "up to the International," and further stated,, "we know
your position and it will be understood we won't attempt to change it at
this time nor during these negotiations."
Again, at meetings on March 1 and 10, Hamilton indicated that the
respondents would not sign an agreement containing the closed-shop
provisions covering drivers, because of the jurisdictional dispute. At
the last meeting- on March 10, when Hamilton reiterated his refusal to
sign such an agreement, Ahern, stated that the matter would be sub-
mitted to the Joint Board and the General Executive Board, that an
agreement would be presented later for Hamilton's signature, and
that upon his refusal to sigh, charges would probably be. filed. Also
at this meeting on March 10, Hamilton asked one of the union repre-
sentatives "if he would take care of having the working, rules and
regulations printed as he had had the year before," and the union
representative replied that "we will take, care of that."
On March. 12, 1941, the California State Brewers' Institute, herein
called the Institute,, distributed among its members,, including the
respondents, copies of certain "working regulations." These regula-
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions recited that they were to 'be in effect for a 2-year period from'
March 1,1941. They incorporated the terms and conditions of employ-
ment which had been agreed upon during the negotiations, and also
included a provision for a closed shop covering drivers. The respond-
ents have conducted their operations in accordance with these regula
tions. The Brewery Workers' Union, however, has never "adopted"
these regulations as working rules.
On October 25, 1941, the Brewery Workers' Union sent to the Insti-
tute a proposed contract for a term of 2 years embodying the working'
rules under which the respondents were operating and demanded that
the contract be signed' immediately. On October' 31, the Institute
replied that its position with regard to signing an agreement was the
same as had been expressed in its letter to the Brewery Workers' Union
on March 21, 1939. In that letter the Institute had stated that the
difference between the parties related only to the closed-shop terms
covering drivers and related matters and that those differences arose
out of the jurisdictional dispute.' Furthermore, in the letter of March
21, 1939, the Institute had offered to sign a closed-shop agreement
covering all employees except drivers.
In summary, a review of the 1941 negotiations as a whole shows
that the parties negotiated and agreed upon all terms and conditions
of employment including a closed shop for all employees except driv-
ers, but could not agree on those provisions relating to a closed shop
for drivers ; that the negotiations foundered only upon that issue;'
that the respondents were` willing to sign a closed-shop agreement
including all of the terms and conditions agreed upon, but would not
sign an agreement containing closed-shop provisions for drivers, be-
cause of the jurisdictional controversy; and that the Brewery Work-
ers' Union never indicated a willingness to accept an agreement which
did not contain the proposed closed-shop provisions relating to drivers.
The respondents' position regarding the closed shop for drivers, as
stated by its-counsel at the hearing, is that, while the respondents have
for many years employed and now employ only drivers who belong to
the Brewery Workers' Union, they are not willing to, enter into an
agreement to continue to do so because of the jurisdictional dispute.
- 2. The Trial Examiner found that Hamilton reasonably concluded
from the '1941 negotiations that the provisions agreed upon would be
embodied in "working rules," as had been done in 1939. He further
found that the parties reached an understanding that "the Brewery
Workers' Union would adopt those terms as working rules and regula-
tions" and that "by March 10 the Brewery Workers' Union had aban-
doned its demand for a signed contract ..." We do not agree with
these findings, since the evidence affords no adequate basis for them:
3. The Trial Examiner found that the respondents had negotiated
in good faith in February and March 1941, and had refused for valid
1-
ACME - BREWERS 1211
and sufficient - reasons to agree to a closed-shop provision' covering
drivers. With these conclusions we agree. • the Brewery Workers'
Union has taken the position that the respondents refused to bargain
because of their failure to incorporate in a signed instrument the terms
and conditions previously agreed upon. We find this contention to be
without support in the record. It is clear that the respondents at no
time agreed to a closed-shop provision for drivers, and that the nego-
tiations foundered on this issue. As already noted, the parties reached
an agreement on all terms and conditions of employment other than
the closed shop for drivers. On this point of difference, the respond-
ents adhered to the position they had taken over a period of years,
explaining again that they could not bind themselves to such a pro-
vision in the face of the long-standing jurisdictional dispute. The
Brewery Workers' Union, on the other hand, never indicated a willing-
ness to accept an agreement containing the terms agreed upon, unless
such agreement included the proposed closed shop covering drivers.
Since the Act does not require an employer to agree to any terms
and conditions as long as he honestly and sincerely endeavors to reach
an agreement, the question of whether'the respondents' conduct con-
stituted a refusal to bargain turns on the good faith of their position
as to the closed shop for drivers. We are convinced that, in refusing
to yield • on that provision, the respondents were not attempting to
hamper the bargaining process or to render, impossible the consumma-
tion of an otherwise satisfactory agreement. The respondents' posi-
tion on the closed shop for drivers has been consistently maintained-
'since 1936, when the Teamsters' Union, under an award of the Ameri-
can Federation of Labor, began to demand recognition as the repre-
'sentative of the respondents' drivers. During the ensuing years, the
'Teamsters' Union threatened to institute a boycott against the re-
spondents and others who recognized the Brewery Workers' Union
as the representative of brewery truck drivers. In fact,'in 1937, the
threat was executed with considerable loss to the respondents. During
this period, the Institute attempted in vain to settle the dispute be=
tw'een the two unions. There is no showing that the danger to the
respondents' business engendered by the jurisdictional (controversy,
has in anywise abated.' The respondents' good faith is further appar=
Indeed, if anything , the threat seems to have increased since October 13, 1941, for
on that date the Supreme Court denied certiorari in Green v. Obergfell, 121 F. ( 2d) 46,
wherein the Court of Appeals tor the District of Columbia upheld the authority of the
American Federation of Labor to make the jurisdictional award to the Teamsters. On
October 16 , 1941, the Brewery Workers' Union was suspended from the American Federa-
tion of Labor.
The Trial Examiner properly found that "The magnitude of the jurisdictional dispute
between the Teamsters ' Union and the Brewery Workers' Union and the position of
embarrassment and uncertainty in which it places employers is not exhaustively presented
by the record herein. "It is of such common knowledge, however, that it may be officially
noticed," ' '
1212 DECISIONS OF NATIONAL LABOR RELATION'S. BOARD
I
ent from their willingness in practice to enforce a closed shop for
drivers from day to day.
We conclude that, since the respondents and the Brewery Workers'
,Union reached agreement omall other terms of employment, and since
the respondents refused for good and sufficient cause to agree to a
closed shop covering drivers for a definite term, the respondents have
fulfilled,the requirements of the Act as to,collective bargaining. Con-
sequently, we find, as did the Trial Examiner, that the respondents
have not refused to bargain, within the meaning of the Act, and shall,
therefore, dismiss the complaint.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued against the respond-
ents, Acme Breweries, Rainier Brewing Company, Regal Amber
Brewing Co., San Francisco Brewing Corp. and California State
Brewers Institute, all of San Francisco, California, be, and it hereby
is, dismissed.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate but identical charges duly filed on April 13, 1942, by Inter-
national Union of United Brewery, Flour, Cereal and Soft Drink Workers of
America, herein called the Brewery Workers Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the Twentieth
Region (San Francisco, California) issued its complaint dated August 19, 1942,1
against Acme Breweries, Rainier Brewing Company, Regal Amber Brewing Com-
pany, and San Francisco Brewing Corp., herein called the respondent com-
panies, and the California State Brewers Institute, herein called the Institute,
alleging that the respondents ha d"engaged 'in and are' engaging' in' unfair labor
practices affecting commerce, within the meaning of Section 8 (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
LeRoy Ma,rceaii, for the Board.
Brobecic, Phleger ct Harrison by Gregory Harrison and E. R Hoerchnerr, of
San Francisco, Cal , for the respondents.
P. H McCarthy, Jr., of San Francisco, Cal and Said S. Klein of Los Angeles,
Cal, for the Brewery Workers Union
Mathew 0 Tobriner and Jonathan H. Rowell, of San Francisco, Cal., for the
Teamsters Union
s Under the circumstances, we find it unnecessary to make any determination regarding
the appropriate unit or units, and majority representation therein.
1 The Board had, by its order dated June 26, 1942, consolidated the above-entitled cases
and an additional case, being Case No. XX-C-1125 then pending against Golden West
Brewery Company and California State Brewers Institute , and bad, by its order dated
August 11, 1942 , severed Case No. XX-C-1125.
ACME BREWERS 1213
called the Act. Copies of the 'complaint and notice of hearing thereon were
duly served upon the respondents and the Brewery Workers Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (1) that the respondents on or about March 1, March 10 and October 25,
1941, refused, and at all times since March 1, 1941, -have refused to bargain
collectively with the Brewery Workers Union as the exclusive representative
of the respondent companies' employees in appropriate units, although the Brew,
ery Workers Union on March 1, 1941, was and at all times thereafter has been
the duly designated bargaining representative of a majority of the employees
in the appropriate units; (2) that the respondents, by this refusal to bargain
collectively with the Brewery Workers Union, have interfered with, restrained,
and coerced the employees, of the respondent companies in the exercise of the
rights guaranteed in Section 7 of the Act.
In their joint answer, dated September 2, 1942, the respondents admitted
the jurisdictional allegations of the complaint but denied engaging in the unfair
labor practices alleged.
4
Pursuant to notice, it hearing was held in San Francisco, California, from
October 28 to October 31, 1942, before the undersigned, the Trial Examiner duly
designated by the Acting Chief Trial Examiner. At the beginning of the hearing
the undersigned granted the motion to intervene herein, filed by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
herein called the Teamsters Union, and Auto Truck Drivers Local 85, affiliated
with the Teamsters Union, to the extent that the Teamsters Union and Local 85
were permitted to participate in the hearing only with respect to the question
of the appropriateness of the collective bargaining units alleged in the com-
plaint 2 The Board, the respondents, the Brewery Workers Union, and the
Teamsters Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence hearing upon the issues was afforded all parties.' At the
conclusion of the hearing counsel for all parties presented oral argument on the
record before the undersigned" The parties were advised that they might
file briefs with the undersigned. All parties waived this right
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Each of the respondent companies is a California corporation having its
principal office and place of business in San Francisco, California, where it is
engaged in the production and sale of brewery products Each of the respondent
companies ship large quantities of its finished .products from its plant to points
outside the State of California. The value of products annually so shipped by
each of the respondent companies is as follows: Acme Breweries-more than
$500,000, amounting to more than 28 percent of its total, annual- production ;
Rainier Brewing Company-more than $1,000,000, constituting in excess of
13 percent of its total annual production ; Regal Amber Brewing Company-more
2 On October 8, 1942, the Teamsters Union and Local 85, asserting an interest in the
outcome of this proceeding, filed with the Regional Director a notion to intervene herein.
The Acting Regional Director ieferred this motion to the Trial Examiner for deteimuia-
tion thereof.
3 As above noted, the Teamsters Union's participation in the hearing was limited to the
extent of its apparent interest.
4 Pages 398-435, inclusive, of the transcript of testimony.
I
1214 DECISIONS OF NATIONAL LABOR,, RELATIONS, BOARD
than $250,000, or more than 8 percent of its total annual production; San Fran-
cisco Brewing Corporation-more than $800,000, amounting to more than 25
percent of its annual production. - ,
The Institute is a California corporation composed of producers of brewery
products, including the respondent companies, having its principal office and
place of business in San Francisco, California The Institute was organized
and exists for the purpose of performing various services for its members and,
representing its members and -other similar enterprises with respect to various
matters. During the course of its operations, including the times mentioned
in the complaint, the Institute has represented various employers, including the,
respondent companies, in collective bargaining negotiations with employees'
repres entative_s.`
II THE ORGANIZATIONS INVOLVED
International•Union of United Brewery, Flour , Cereal, and Soft Drink Workers
of America is an unaffiliated' labor organization, admitting to membership various
groups of employees engaged in the production and distribution of brewery
products, including the employees of the respondent companies.
Local Unions Nos. 7, 293, 227 and 229 are labor organizations, and are local
units of the International Union ' of United Brewery, Flour, Cereal and Soft
Drink Woikers of America, admitting to membership, respectively, persons
employed by producers of brewery products, whose plants are located in the
State of California, as brewers, bottlers, truck drivers, and shipping clerks
Joint Local Exective Board of California, herein called the Joint Board, is a
labor organization composed of delegates from the above-named local unions.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, and Auto Truck Drivers Local 85 are labor organizations, affiliated
with the American Federation of Labor, claiming to have an interest in the out-
come of this proceeding.
III THE UNFAIR LABOR PRACTICES
A The alleged refusal to bargain'
1. Background
For many years past the Institute has recognized the Brewery Workers Union
as the collective bargaining representative of the respondent companies' employees
in the brewing, bottling and delivery departments, and-,has bargained with the
Brewery Workers Union as such representative' Since 1937 the Institute has
also recognized the Brewery Workers Union as the collective bargaining repre-
sentative of the employees in the shipping departments of the respondent,
companies.'
G The above findings are based upon allegations of the complaint , admissions contained
in the respondents ' answer and a stipulation at the hearing that if appropriate witnesses
were called they would testify 2n accordance with the allegations of the complaint and
the admissions of the answer
°The Brewery Workers Union was suspended from the American Federation of Labor
on October 16, 1941.
Unless otherwise noted, the findings herein rest upon undisputed and credible evidence:
s It should be understood that when the Institute is mentioned herein respecting its
dealing with labor organizations it was acting on behalf of its members, including the
respondent companies
Until about 1937 the respondent companies were represented in their collective bar-
grunmgrelations by the Institutes predecessor, the California State Brewers Association."
To avoid confusion, however, the respondent companies' representative will always be
ieferred to herein as the Institute even though the reference is sometimes to a time when.'
the representative was known as the
Association
c __ 1 - " _ ACME BREWERS ' 1215
In June 1933, the Institute and the Brewery Workers Union executed separate
closed-shop agreements covering brewers, bottlers and drivers. These agree-
ments, by their terms, were to remain in effect until May 15, 1936. The agree-
ment covering drivers was, by its terms, renewable for one year unless either
party gave notice at least thirty days prior to the expiration date of an intention
to change the agreement 30
From 1936 to the present time, the Teamsters Union has pressed its claimed right,
based largely upon a jurisdictional award made by the American Federation,of
Labor, to represent brewery truck drivers, and has demanded that the Institute
bargain with it as the representative of such drivers. To enforce these demands
the Teamsters Union, in 1937, refused to handle the products of California brew-
eries which had been sent by common carriers to the States of Washington and
Oregon, there to be distributed by distribution agencies whose trucks were
manned by members of the Teamsters Union.
During the period from 1936 through 1938, the Teamsters Union threatened to
refuse to handle products of breweries" which recognized the Brewery Workers
Union as the representative of brewery truck drivers, and the Brewery Workers
Union threatened to call a strike if the breweries refused to recognize it as such
representative. During this period, representatives, of the Institute conferred with
the Teamsters Union and the Brewery Workers Union in unsuccessful attempts
amicably to settle the dispute between the two unions. During this period the
Institute informed the Brewery Workers Union that the breweries were contem-
plating discontinuance of their delivery departments unless the jurisdictional
dispute was terminated."
On April 13, 1936, the Institute sent a letter to the Brewery Workers Union,
making reference to the jurisdictional dispute and to the Teamsters Union's
demand that no new contract covering the drivers be entered into with the
Brewery Workers Union The Institute's letter then stated that because of
the jurisdictional dispute and the employers' desire to be free of "conflicting
contractual claims" by the two unions during attempts to settle the dispute,
the contract between the Institute and the Brewery Workers Union which was
to expire the following month would not be renewed The letter further stated
that the Institute would recommend to its members that as long as the juris-
dictional dispute remained unsettled no contracts should be entered into
with either the Teamsters Union or the Brewery Workers Union and, instead,
the employers should "continue the present status of employment relative to
hours, pay and conditions of employment, but without any contract and with-
out any definite term for the continuance of such `status quo.' " Upon the
undisputed and•credible testimony of James G. Hamilton, the Institute' s secre-
tary, the undersigned finds that in 1936 it was understood between the Insti-
tute and the Brewery Workers, Union that the statics quo would be main-
tained until "conditions developed which would make it necessary for either
party to abandon" it. It is undisputed that the status quo was maintained
from,May 1936 to April 1939, except for one wage increase in 1937, and that
no contract between the Institute or the respondent companies on the one
to The agreement covering the brewers contained ambiguous language apparently intended
to constitute the same renewal provision The agreement covering the bottling depart-
ments contained no renewal provision
11 The terms "breweries" and "employers," when used herein, include the respondent
companies
12 Only a small portion of the products of the respondent companies' is moved by their
own delivery departments The balance is moved by distributors or common carriers.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand, and the Brewery Workers Union on the' other, was in existence during
that period 18 The undersigned so finds.
On January 6 or 7, 1939, the Brewery Workers Union submitted to the Insti-
tute certain proposals which it hoped to embody in a contract between the
parties. 'These proposals included closed-shop provisions, covering brewers,
bottlers, drivers, checkers and shipping clerks, and a provision stating : "If
a rush order or an unavoidable accumulation of empties require more shipping,
facilities than a brewery or bottling establishment has vehicles to handle,
then in that case draying firms may be employed to complete such work"
During the following three months the Institute and the Brewery Workers
Union held numerous conferences in an attempt to arrive at an understanding
based upon the Brewery Workers Union's proposals. Included among the
matters discussed were the Brewery Workers Union's demand for written
evidence of the Institute's recognition of it as the collective bargaining rep-
i esentative of the employees involved, and the Institute's objections to the
above-quoted proposal which the Institute construed as a requirement that
the breweries maintain their delivery; departments, thus restricting their
right to conduct their operations in accordance with good business practices.
On February 3, the Institute, by letter, informed the Brewery Workers Union
that it recognized that a majority of the brewers, bottlers, drivers, checkers
and shipping clerks employed by its members, including the respondent com-
panies, had designated the Brewery Workers Union as their collective bargaining
representative. The letter further stated that the members of the Institute
reserved the right, without restrictions, to alter at any, time the manner in which
they should conduct their respective businesses. On February 7, the Institute,
by letter, again reiterated its recognition of the Brewery Workers Union as the
collective bargaining representative of all employees mentioned in its letter of
February 3, suggested resumption of negotiations, and again stated that the
Institute's members continued to reserve the right to alter the manner of con-
ducting their business including the right to discontinue delivery of products.
On February 23, the Brewery Workers Union submitted to the Institute a
proposed contract including closed-shop provisions for the brewers, bottlers,
drivers, checkers and shipping clerks, and the provision that draying firms
might be employed by the breweries on such rush or emergency occasions On
February.28.ithe,Institute; by letter,, informed the Brewery Workers-Union that
the proposed contract submitted by it on February 23 was acceptable in so far
as it concerned wages, hours, and other conditions of employment, but that all
provisions for a closed-shop or preference of work for driveis and the provision
that draying firms might be employed on rush or emergency occasions must be
deleted The letter then suggested prompt execution of a' contract with-the
modifications-suggested in the letter.
On March 13, at a conference between the parties, Hamilton reiterated the
Institute's position that the bieweries must be free to discontinue their delivery
departin.,^nts if necessary to protect their operations from losses caused by the
jurisdictional-'dispute One of the representatives of the Brewery Workers
Union rellied that any attempt to discontinue the delivery departments would
not' be permitted
On March 21, the Institute, by letter, informed the Brewery Workeis Union
that the only differences between the Institute and the Biewery Workers Union
were those stated _n its letter of February 28, and that these differences related
uIt is clear from the record that the `status quo' as used by the Institute in its cor-
respondence referred inter atia to the continued ,opeiiI ion of the respondent companies
under a closed shop ariangement including the drivers
ACME BREWERS 1217
solely to the,drivers and the necessity of the employers retaining freedom` of
action in the management of their business in the future. The letter then stated
that the Institute was willing to execute a closed-shop contract for all employees
except drivers and that that exception arose solely out of the jurisdictional
dispute between, the Teamsters Union and the Brewery Workers Union, and
suggested that a contract be executed embodying the modifications outlined in
the Institute's letter of February 28.
Early in April, the Institute reiterated its refusal, for the above-stated reasons,
to sign the proposed contract submitted by the Brewery Workers Union on
February 23. On or about April 11, the Brewery Workers Union informed the
Institute that unless the proposed contract was signed the Brewery Workers
Union would call a strike. Hamilton requested the Brewery Workers, Union
not to take any hasty strike action. -
About April 12, P. H. McCarthy, Jr, counsel for the Brewery Workers Union,
telephoned Gregory Harrison, counsel for the Institute, and explained that the
parties had been unable to work out any method of concluding their negotiations,
and suggested that the Brewery Workers Union adopt the,proposals contained,
in its proposed contract as working rules, that the employers put those working
rules into effect, and that the Brewery Workers Union, in lieu of a signed con-
tract, would reserve its right Jo strike in the event of any violation of the
working rules.14 During this telephone conversation, Harrison again stated
that the closed-shop provision of the proposed contract concerning drivers was
the reason for the Institute's refusal to sign it, and stated that he.thought there
would be no need to resort to a strike for the purpose of enforcing the working
rules.15 McCarthy testified that he suggested this arrangement "as a form of
compromise, that it might achieve the factual result without the actual signa-
ture of the Brewers". On April 12, the Brewery Workers Union printed and
distributed to its members the substantive provisions of its proposed contract
in the form of working rules which were to be effective until March 1, 1941. It
is undisputed that the respondent companies conducted their operations in accord-
ance with the working rules adopted by the Brewery Workers Union during
their effective period. The undersigned so finds.
2. The 1941 negotiations
On February 10, 1941, the Brewery Workers Union submitted to the Institute,
proposals in the form of working rules similar to those adopted in April 1939.16 -
The opening sentence of these-proposals stated in part: "These working regula-
tions shall be in full force and effect for two (2) years from March 1, 1941...:'
During the thirty days following the submission of these proposals, the Institute
and the Brewery Workers Union engaged in negotiations concerning the
proposals.
"These working rules Included , inter aZia, the closed-shop provision,with respect to the
drivers
15 This finding is based upon McCarthy 's undisputed , testimony which the undersigned
credits. Harrison testified that ne could not recall a conversation with McCarthy on
April 12, but ' that+ many times during the negotiations he had told McCarthy that the
breweries had received threats of economic reprisals by both the Teamsters Union and
the Brewery Workers Union and that the Institute 's refusal to sign'a closed-shop contract
covering the drivers was an attempt to steer a neutral course , and that while there was
no reason for changing its preient practices with respect to drivers , the Institute could
not sign a closed-shop contract for a definite term covering the drivers , but must remain
free to meet any situation created by "the activities of either of the two contending
unions "
15 These working rules again included the closed-shop provision with respect to the drivers.
513024-43-vol. 47-TT
1218 DECISIONS OF NATIONAL LABOR REiLATIONIS BOARD
William A. Ahern, one of the representatives of the Brewery Workers Union
who participated in these negotiations, testified : that during the' negotiations
upon Hamilton's inquiry, Hamilton was informed that the Brewery Workers
Union expected a written contract and that Hamilton made no reply. He also
testified that the Institute at no time during the negotiations reiterated its
position as stated in its letter of March 21, 1939, that the Institute was willing to
execute a closed-shop contract covering all employees except the drivers. Ahern
further testified, however, that on February 17, Hamilton stated that the employers
expected the Brewery Workers Union "not to put them on the spot" by demanding
a signed contract ; that on February 27, there was some discussion of the Insti-
tute's reluctance to sign a contract ; and that on March 1 and 10, Hamilton stated
that-because of the jurisdictional dispute between the Teamsters. Union and
the Brewery Workers Union, the Institute would not sign a contract unless the
Board ordered it to do so.
Hamilton testified that when he was informed at the February 17 meeting
that the Brewery Workers Union would require) a written contract, he stated
that the Institute would not sign the contract as submitted because it could
,not agree to "the provisions on the drivers " He further testified that there was
some discussion about the requirements of the decisions of the Board and the
courts that agreements reached must be embodied in signed contracts and that
when he stated that the Brewery Workers Union could take this matter to the
Board if it so desired, Ahern replied, "Well, that is up to the International.
-We know your position and it will be understood we won't attempt to change
it at this time nor during these negotiations " Ahern did 'not deny making this
statement. • _'
Upon the above-stated credible testimony of Ahern and Hamilton, the under-
signed finds that during the negotiations'in February and March 1941, the Insti-
tute clearly stated its continuing refusal to sign a contract containing a closed'
shop' provision covering drivers, and that the Brewery Workers Union during
these negotiations had knowledge of the Institute's position on that matter and
stated that it would not at that time seek to alter that position
The negotiations were concluded on March 10 - Hamilton testified that at
the conclusion of the negotiations the question arose as to who was going to
inform the employers of the understandings arrived at, and that he asked
Martin Christen,, one of the representatives of the Brewery Workers Union, "if
he would take care of having the working rules and regulations printed as he
had had, (sic) the year before", and that Christen replied, "Well,,we will take care
'of that." Chiisten, although a witness at the hearing, did not deny making
this' statement The undersigned credits Hamilton's testimony and finds that
the conversation between Hamilton and Christen occurred as , related by -
Hamilton. `
On March 12, the Institute mimeographed, in the form of working rules, the
proposals agreed, upon and sent copies of them to the Institutes members, to-
gether with a statement that the proposals would be adopted by the Brewery
Workers Union as working rules The Institute also sent copies of this mimeo-
graphed document,to the Brewery Workers Union. The Brewery Workers'Union
never adopted the proposals as working .rules. There is no evidence, however,
that the Brewery Workers Union protested the distribution of the proposals-in
the form of working rules' It is undisputed that the respondent companies
did conducf their operations in accoidance with these proposals.
Hamilton testified that from his conversation with Christen on March 10,
and from the whole course of negotiations, he understood that the negotiations
.were to be concluded, as they had been in 1939, by the employers enforcing the
ACME BREWERS 1219
Brewery Workers Union's working regulations which would embody the terms
and conditions of employment agreed to by the parties In the undersigned's
opinion, this was a reasonable conclusion in view of the fact that the proposals
were originally submitted in the form of working rules and in view of Christen's
statement on March 10 that he would have the proposals printed as he had in 1939.
'In view of the form in which the Brewery Workers Union submitted its pro-
posals, Christen's statement to Hamilton on March 10, Hamilton's distribution
of the agreed terms in the form of working rules, the Brewery Workers Union's
failure to protest the distribution of the agreed terms in the form of working
rules, and upon all the evidence, the undersigned finds that on March 10, 1941,
the Institute and the Brewery Workers Union agreed upon certain terms and
conditions of employment and reached an understanding - that the Brewery
Workers Union would adopt those terms as working rules and 'regulations, and
that the respondent companies would conduct their operations in accordance
therewith" It is further found that by March 10 the Brewery Workers Union
had abandoned its demand for a signed contract and, as it did in 1939, had
accepted, in lieu of the'Institute's signature to a contract without a closed-shop
provision covering the drivers, an arrangement whereby the Brewery Workers
Union would adopt the terms and conditions of employment as working rules
and the respondent companies would,- for an indefinite period, conduct their
operations in accordance with those rules and regulations
On Octobei 25, 1941, the Brewery Woikers Union sent to the Institute and the
respondent companies a proposed contract identical with the proposals upon
which an understanding had been reached in March 1941, except that the pro-
posals agreed upon in March were cast in the form of working rules, while the
ones submitted in October were in the form of a contract The Brewery Workers
Union, in its letters which accompanied the proposed contract. demanded that the
contract be signed immediately 1e
On October 31, the Institute, by letter. informed the Breweiv lVoi ken, Union
that the document inclosed in the Brewery Workers Union's letter of October 25
was'not an agreement arrived at by the pd ties, as was claimed, and stated that
the parties had arrived at no agreement The Institute further stated that its
position with respect to signing a contract with the Brewery Workers Union was
the same as had been expressed in its letter to the Brewery Workers Union on
March 21,1939. It stated that the differences between the parties related only
to the closed-shop terms of the contract covering the drivers and that these
differences arose out of the jurisdictional dispute It further stated that the only
other difference arose out of the' Institute's objection: to the_ provision of the
contract which, in its i iew, required by implication that the respondent' companies
continue to maintain delivery departments.
Upon the Institute's refusal to sign the contract submitted on October 25, the
Brewery Workers Union filed charges with the Board.
3. Conclusions
The theory upon which the complaint is drawn is that the Institute refused to
sign a contract which had been agreed upon by the parties and reduced to
IT It must be remembered that the terms and conditions of employment agreed upon did
not include a commitment by the Institute to adhere to the closed shop provision witli
respect to the drivers for any definite period
18 The Brewery Workers Union explains its delay until October 25 in submitting a 'written
contract for signature on the ground that certain litigation. pertaining to the jurisdictional
dispute between' the Teamsters Union and the Brenery Workers Union was pending in the
Federal District Courts in California and the District of Columbia, 'ehich litigation was
terminated shortly before the submission of its proposed contract, and that it had delayed
submitting its contract until the termination of this litigation
I
1220 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
writing.19 The respondents, on the other hand,. contend that the parties were
never in agreement upon one of the substantive features of the proposed agree-
ment, i. e. the closed-shop provision covering the drivers for a fixed term Hence,
it claims that its refusal to sign the tendered agreement of October 25, 1941 does
not constitute a violation of the Act. '
In the undersigned's opinion there is' no merit to the Board's contention that
the Institute's refusal to sign the proposed contract submitted on October 25
constituted a refusal to sign an agreement entirely agreed upon. Such a con-
tention ignores the Institute's oft-repeated and undisputed statement that it
period of time. To agree to maintain a closed-shop from day to day is one thing;
would not commit itself to maintain a closed-shop for the drivers for a definite
to agree to do the same thing for 2 years is quite another. In October 1941, the
Institute did only what it had consistently done throughout all of its negotia-
tions with the Brewery Workers Union since January 1939; it refused to sign
a term agreement containing a closed-shop provision for the drivers and a pro-
vision preventing the discontinuance of delivery departments.
The basic question here presented is whether an employer upon the facts of this
case may refuse to sign a closed-shop contract for a certain stated period, when - ,
he has been conducting and is willing to continue from day to day to conduct his
operations under a closed-shop arrangement. Ordinarily he is required to do
so in order to effectuate the policy of the Act to ease the burdens and obstructions
to interstate commerce by stabilizing employment relations by means of binding
agreements for a definite period of time. The effective period of such a contract
is, however, a proper subject for collective bargaining. An employer may
properly refuse to agree to,the term suggested by the other party to the negotia-
tions, if his refusal is made in good faith and not merely for the purpose of
obstructing the bargaining process. The question posed above, then, must be
answered by an inquiry into the presence or absence of good faith on the Insti-
tute's part in taking the position it did throughout the negotiations with the
Brewery Workers Union.
It is clear from undisputed and credible evidence that the Institute, while
willing to continue from day to day its closed-shop practices with respect to the
drivers, considered it essential that it be free of contractual obligations which
would foreclose a different course of conduct. It is also clear that the Institute
took this position because of the existing jurisdictional dispute and the prob-
ability that that dispute would require a different course of action in the future.
This is not the case of an employer seeking to destroy a labor organization by
refusing, without apparent reasons, to contract with it for the continuation of
the employer's day to day practices. The Institute's willingness to -sign a closed-
shop contract for all employees except the drivers and its willingness to sign a
contract for the drivers without a closed-shop provision is sufficient evidence
of that fact. Here the Institute was faced with a situation created by two
warring unions which it might reasonably believe was fraught with such danger-
(,us potentialities as to require the preservation of complete freedom of action
from day to day."* While the question is not wholly free from doubt, the under-
signed, upon all the facts and circumstances presented, finds that the Institute
acted in good faith in refusing to sign a term contract including a closed-shop
provision, for the drivers.
19 See Matter of H. L. Heinz Co. et al., 10 N. L. R. B 963, enf'd 311 U. S 514.
m The magnitude of the jurisdictional dispute between the Teamsters Union and the
Brewery Workers Union and the position of embarrassment and uncertainty In which it
places employers is not exhaustively presented by the record herein. It is of such common
knowledge, however, that it may he officially noticed.
ACMMEI BREWERS 1221
The undersigned finds that the respondents , during February and March 1941,
bargained in good faith with the Brewery Workers Union ; that on March 10, the
parties reached a mutually satisfactory agreement as stated above; that the
proposed contract submitted for signature on October 25 was not the agreement
reached in March ; and that the respondents have not refused to sign an agree-
ment reached , and have not in any other manner refused to bargain _ within the
meaning of the Act.
Upon the 'basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following:
CONOLUsIONs OF L.w
1. Acme Breweries, Rainier Brewing Company, Regal Amber Brewing Co.,
and San Francisco Brewing Corp ., the respondent companies herein, are engaged
in commerce within the meaning of Section 2 (6) of the Act.
2. California State Brewers Institute, a respondent herein, is an employer
of the employees involved herein , within the meaning of Section 2 ( 2) of the Act.
3 International Union of United Brewery, Flour , Cereal and Soft Drink
Workers of America, its Local Unions Nos. 7, 293, 227 and 229, its Joint Local
Executive Board of California, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, and Auto Truck Drivers Local 85,
are labor organizations within the meaning of Section 2 ( 5) of the Act.,
4. The respondents have not engaged in unfair labor practices within the
meaning of Section 8 (1) or (5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint against the respondents , Acme Breweries,
Rainier Brewing Company, Regal Amber Brewing Co., San Francisco Brewing
Corp, and California State Brewers Institute , all of San Francisco , California,
be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor `Relations Board, Series 2-as amended, effective October 14,
1942-any party may within fifteen (15) days from the date of the entry of
the order, transferring the case to the Board , pursuant to Section 32 of Article
II of said Rules and Regulations , file with the Board, Shoreham Building,
Washington, D C, an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relies upon , together with the original and four copies of a brief in support
thereof. As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board , request therefor must be made in writing
to the Board within ten ( 10) clays from the date of the order transferring the
case to the Board.
WILLIAM F. GUFFEY, J$.,
Trial Examiner.
Dated November 17, 1942.