Adolph Coors Co.

National Labor Relations Board - Board Decisions

Mar 21, 1978

235 N.L.R.B. 271 (N.L.R.B. 1978)

ADOLPH COORS COMPANY
Adolph Coors Company and Brewery, Bottling, Can
and Allied Industrial Union, Local 366, AFL-CIO.
Case 27-CA-5238
March 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 4, 1977, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party I filed exceptions and a supporting
brief, and Respondent filed a brief in support of the
Administrative Law Judge's 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
Charging Party's request for oral argument is hereby denied as the
record and briefs adequately present the issues involved.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have examined the
Administrative Law Judge's credibility resolutions and find, on that basis.
no reason to disturb them. They are hereby affirmed.
3 We agree with the General Counsel's contention that Respondent's
savings and investment plan does not appear to have been accurately
described by the Administrative Law Judge in part IV,(A),(l),(a) of his
Decision. The plan, initially, provided that a member could contribute up to
I percent of his or her salary as a basic contribution and nine additional
percentage points of salary as an additional contribution. In turn, Respon-
dent would contribute 10 percent of the basic contribution or, at maximum,
10 percent of I percent. Subsequently. the plan was modified to permit basic
contributions to be increased to up to 6 percent of a member's salary, with
additional contributions limited to a further 4 percent of the member's
salary. In turn, Respondent would contribute 15 percent of the basic
contribution or, at maximum, 15 percent of 6 percent. In any event, the
Administrative Law Judge's error does not require a different result. In this
connection, two additional statements of the Administrative Law Judge
appear to be inadvertent errors. The bracketed language in sec. 8:05 of the
contract proposal (fn. 13 of the attached Decision) was included in the
expired contract but was sought to be deleted in the contract proposal. The
phrase "in accordance with the Employer's requirements" (fn. 15 of the
attached Decision) was not found in the recent contract but was included in
the contract proposal.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
Jerrold H. Shapiro, Administrative Law Judge: The
hearing in this case held on July 19 and 20, 1977, is based
on charges filed on February 11, 1977, by Brewery,
Bottling, Can and Allied Industrial Union, Local 366,
AFL-CIO, herein called the Union, and a complaint issued
April 26, 1977, as amended May 27, 1977, on behalf of the
General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director for
Region 27, alleging that Adolph Coors Company, herein
called Respondent, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Adolph Coors Company is a Colorado
corporation which maintains its principal office and place
of business at Golden, Colorado, where it manufactures
beer. Respondent annually sells and ships goods and
materials valued in excess of $50,000 directly to points and
places outside of the State of Colorado. Respondent
admits, and I find, it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent offered into evidence several contract proposals, Resp.
Exhs. 2 through 10, submitted by itself and the Union during contract
negotiations. The General Counsel and Charging Party objected to their
admission and I reserved ruling. I am of the view that the matters contained
in these documents are not relevant to the disposition of the issues posed by
this case. Accordingly, I reject these exhibits.
235 NLRB No. 19
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union, Brewery,
Bottling, Can and Allied Industrial Union, Local 366,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
II. BACKGROUND AND ISSUES
During the period material to this case Respondent
employed more than 1,400 production and maintenance
workers at its Golden, Colorado, facility. The Union has
represented these workers for more than 20 years and has
negotiated a series of collective-bargaining contracts with
Respondent covering them. The most recent contract was
effective from June 18, 1974, to December 31, 1976. The
negotiations for a new contract began on or about
November 4, 1976. During November and December 1976
and January 1977,2 the parties held approximately 15
negotiation meetings without reaching agreement. In Janu-
ary an impasse occurred in the negotiations. On April 5,
the Union called the workers out on strike. As of the dates
of the hearing in this proceeding, July 19-20 the parties had
not succeeded in reaching agreement and the strike
continued.
On February 7, during the period when the negotiations
had deadlocked, Respondent instituted the terms and
conditions of employment which had been included in its
so called best and final offer submitted to the Union on or
about January 28 which was rejected by the Union.
Included among the improved working conditions which
Respondent implemented was an increase in the Compa-
ny's contribution into the employees' savings and invest-
ment plan and an increase in the Company's contribution
into the employees' retirement plan and an increase in the
employees' retirement benefits.
On February 9, Respondent, by letter, notified all of the
employees represented by the Union that effective Febru-
ary 7 the Company had implemented its contract proposal
rejected by the Union and described the wage and benefit
improvements it had placed into effect. The letter also
informed the employees, "[t]he company also implemented
. . .certain language provisions that were contained in our
offer on January 28 .... The substance of these provi-
sions are provided in the attachment to this letter." The
"attachment" is a two-page document which purportedly
describes the substance of the changes made by Respon-
dent's contract proposal in the language of the recently
terminated contract.
On April 15 Respondent, by letter, notified all of the unit
employees that the assertion of the Union that Respondent
had eliminated all of the employees' seniority rights was
false and told the employees "the company has made no
substantial changes in seniority under the terms of its final
offer."
The ultimate questions for decision, as posed by the
pleadings and litigated at the hearing, are:
1. Whether on February 7 Respondent unilaterally
instituted changes in its retirement plan and savings and
investment plan, affecting the employees represented by
the Union, without affording the Union an opportunity to
bargain about these subjects.
2. Whether Respondent's letters of February 9 and
April 15 misrepresented the terms of Respondent's con-
tract proposal insofar as the letters indicated to the
employees that Respondent's proposal with respect to
employees' seniority and the employees' shift assignments
was more favorable to the employees than the proposal
Respondent had offered the Union and implemented. And,
if this is so, did the misstatements tend to restrain the
employees from supporting the Union and did Respondent
make such misstatements for the purpose of undermining
the Union's representative status.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unilateral Conduct
I. The facts
(a) The savings and investment plan
Respondent's employees, who are not represented by the
Union, have been eligible to participate in the Company's
savings and investment plan since approximately 1974. The
plan, in pertinent part, provides that eligible employees
may pay into the plan a certain percentage of their wages
as savings and that the Company shall contribute a
percentage of the actual money the employees save. The
plan is not referred to in the 1974-76 collective-bargaining
contract and the employees represented by the Union,
covered by this contract, were not eligible to participate in
the plan until about July 1, 1976, when, with the approval
of the Union, Respondent extended the plan to cover these
employees. The circumstances surrounding the plan's
extension to cover the employees represented by the Union
are as follows.
In May 1976 Hargis, Respondent's vice president of
personnel, and several other company representatives met
with Union President Silverthorn and Union Financial
Secretary DeBey. Hargis indicated to the union representa-
tives that Respondent wanted to extend participation in the
savings and investment plan to the employees represented
by the Union. Hargis explained the plan and asked if the
Union wanted to submit the plan to a vote of its
membership. Silverthorn stated he considered the plan as a
gift, thus it was not necessary to submit it to the
membership. Silverthorn asked whether himself and De-
Bey, who are not employees of the Company, would be
eligible to participate in the plan. Hargis stated he would
check into the matter. Thereafter, in June 1976, another
meeting was held between Company and union representa-
tives at which the savings and investment plan was
discussed. Present for Respondent was Tom Robinson, the
person in charge of administering the plan. Robinson
advised Silverthorn and DeBey that they were not eligible
to participate in the plan since they were not employees.
He gave a copy of the plan to Silverthorn and told him that
the Company intended to notify the employees represented
2 Unless otherwise specified all dates herein refer to 1977.
272
ADOLPH COORS COMPANY
by the Union that they were eligible to participate in the
plan. The union representatives raised no objections. 3 On
or about July 1, 1976, Respondent extended the plan to
cover the employees represented by the Union and a
number of them opted to participate in the plan. Silvert-
horn testified that the plan's extension to cover the
employees represented by the Union was done by Respon-
dent "with Union approval."
The plan, at the time it was extended to cover the
employees represented by the Union, provided that em-
ployees who participate could contribute from I to 6
percent of his or her wages and that Respondent would
contribute 10 percent of the actual money the employees
contribute. Thereafter, on a date not specified in the
record, Respondent increased its contribution on behalf of
those participants who were not represented by the Union
from 10 to 15 percent.
The savings and investment plan was not included in
Respondent's or the Union's initial contract proposals nor
was the subject mentioned during the contract negotiations
until the December 29, 1976, negotiating meeting.
Kaveny, Respondent's director of employee relations,
and Union Representatives Silverthorn and Patrick were
called as witnesses by the General Counsel, and Lerten,
Respondent's attorney, was called as a witness by Respon-
dent to testify concerning what was said about the savings
and investment plan during the negotiations. Kaveny, who
testified as an adverse witness for the General Counsel, did
not impress me as a reliable witness. Accordingly, I have
rejected his testimony whenever it conflicts with the
testimony given by another witness. Regarding the testimo-
ny of the other witnesses, Lerten impressed me as the most
credible of the three and I have credited his testimony
whenever there is a conflict in their testimony. 4 Specifical-
ly, I reject the testimony of the union representatives that
Respondent refused to furnish the union representatives
with a copy of the Savings and Investment Plan and told
them that the plan was a nonnegotiable subject which the
Union would have to take or leave without any negotia-
tion.
During the December 29, 1976, negotiation meeting,
Silverthorn, for the Union, took the position that the
benefits under Respondent's retirement plan should be
increased. Lerten, for Respondent, answered that the
current retirement benefits were adequate considering that
the employees could supplement them with social security
benefits as well as by the savings they accrued in the
3 Hargis and Silverthorn testified about the circumstances surrounding
Respondent's extension of the savings and investment plan to cover the
employees represented by the Union. In instances where their testimony is
not consistent I have credited Hargis' because he impressed me as the more
credible witness. In particular I reject Silverthorn's testimony that he asked
if the plan was negotiable and, ire response, Hargis answered that the plan
was not a subject for negotiation.
4 I have considered that due to the numerous negotiation meetings and
the elapsed time since these meetings and the hearing that Lerten in most
instances was not able to testify without using his notes taken contempora-
neous with the negotiation meetings to refresh his recollection. This does
not, in my opinion, detract from his credibility. I also reject the Charging
Party's request that I strike Lerten's testimony on the ground that such
testimony by an attorney constitutes a breach of the code of professional
responsibility of the American Bar Association. See, Local Union No. 9 of the
International Union of Operating Engineers (The Fountain Sand & Gravel
Company), 210 NLRB 129, fn. I (1974), and Hill-Behan Lumber Company.,
175 NLRB 345, fn. 1(1969).
savings and investment plan. Silverthorn noted that there
recently had been an increase in Respondent's contribution
to the savings and investment plan and asked if the
increase would be offered to the workers represented by the
Union. Lerten said that if the Union wanted this increase
for the workers it represented that Respondent was
prepared to consider the savings and investment plan as a
part of the total economic package it was offering the
Union. The next day, when negotiations resumed, Kellogg,
for Respondent, as a part of Respondent's contract
proposal included the savings and investment plan and
specifically offered to increase Respondent's contribution
for the employees represented by the Union to the same
extent that the contribution for the other employees had
been raised, and set forth the amount of that increase.
Silverthorn took the position that the Union desired an
increase in Respondent's contribution to the retirement
plan, rather than the savings and investment plan, and
asked that Respondent contribute to the retirement plan
the moneys it would normally contribute into the savings
and investment plan. Kellogg rejected this proposal. 5
During the January 4 negotiation meeting, Respondent's
representatives offered the Union a complete contract
proposal which included the Savings and Investment Plan
with an increased company contribution from 10 to 15
percent. In addition, Respondent offered to increase its
contribution to the retirement plan. The union representa-
tives indicated they would consider the Company's entire
proposal. Also at this meeting, when Union Representative
Patrick asked for a copy of the savings and investment
plan, Respondent's Representative Kellogg stated that the
Union had been furnished a copy in 1976 when the plan
was extended to cover the union-represented employees.
Silverthorn, who had been given a copy of the plan in June
1976, stated he did not remember if he had received a copy
of the plan but would search for it.6
On January 2 and 28, Respondent submitted to the
Union complete contract proposals which included the
savings and investment plan with an increase in the
Company's contribution to 15 percent.
The negotiations, as indicated previously, reached a
bargaining impasse during January7 and on February 7,
Respondent implemented the terms of its last contract
proposal including the aforesaid savings and investment
plan proposal.
s As indicated, supra, Union Representative Patrick testified that at the
meeting of December 30. 1976, Kaveny told the union representatives that
the Union "could take it Ireferring to the savings and investment plan I or
leave it, it was non-negotiable." On cross-examination, however, Patrick in
effect admitted that Kaveny did not refuse to bargain about the savings and
investment plan. Thus, Kaveny testified that in response to Silverthorn's
request that the Company's contributions to the savings and investment
plan be allotted to the retirement plan, Kaveny replied that the Company
would not do this and told the union representatives that the Union would
have to either take or leave the contributions as a part of the savings and
investment plan.
6 No further request for a copy of the plan was made by the Union until
after the events which are material to this case took place.
7 At the outset of the hearing the General Counsel conceded that when
Respondent implemented the terms of its contract proposal there was an
impasse in collective-bargaining negotiations.
273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The retirement plan
The parties contract which terminated on December 31,
1976, provides for a retirement plan funded by contribu-
tions by the employees and Respondent. The plan is
administered by a joint committee comprised of an equal
number of company and union representatives with a
provision for impartial arbitration in case of a deadlock.
During the negotiations for a new contract the Union
proposed a 15-cent-per-hour increase in Respondent's
contribution to the retirement plan and a 9-cent-per-hour
increase in the employees' contributions. Respondent
rejected this proposal insofar as it increased Respondent's
contribution, and at the negotiation meeting of January 4,
countered with a proposal which increased its contribution
by 5 cents per hour. At this meeting Kellogg, for Respon-
dent, told the union representatives that Respondent was
willing to increase its retirement contribution by 5 cents
per hour, and in regard to the employees' contributions,
was amenable to whatever the Union proposed. On the
subject of retirement benefits Kellogg stated that Respon-
dent's representatives had consulted with the actuary for
the retirement plan who had informed them that Respon-
dent's 5-cent-an-hour increase in its contribution would
raise a beneficiary's past service benefit from $2 to $6 per
month and a beneficiary's future service benefit by 10
percent. The union representatives neither accepted or
rejected this proposal, rather at the end of the negotiation
meeting stated they would review and consider the Compa-
ny's entire proposal. Thereafter, on January 28 Respondent
submitted to the Union its so-called best and final offer
which included the offer of a 5-cent-per-hour increase in
the Company's retirement contribution and an increase in
the retirement benefits to $6 per month for past service
benefits and an increase of future service benefits by 10
percent. The Union rejected Respondent's best and final
offer and, on February 7, during a period when negotia-
tions were deadlocked, Respondent placed into effect the
terms of this offer, including the increase in its retirement
contribution and the increase in the employees' insurance
benefits. 8
It is undisputed that Respondent and Union at all times
material herein believed that the matter of insurance
benefits was not a subject for collective bargaining during
contract negotiations, but that the insurance benefits were
fixed by the joint committee which administers the retire-
ment plan. However, during the negotiation meeting of
May 4, Lerten, for Respondent, stated that until just
recently he had been unaware of the last amendment to the
retirement plan, dated October 1, 1974, and based on this
amendment it was his opinion that insurance benefits
should be fixed during contract negotiations rather than by
the joint committee. The parties agreed that Respondent's
increased contribution would be placed in escrow pending
the outcome of the negotiations and the two retired
8 During February and March, two employees retired and received the
increased benefits.
9 The record establishes that on February 7 negotiations were at an
impasse. In any event, the General Counsel at the start of the hearing
conceded that when Respondent implemented the terms of its contract offer
there was an impasse in the negotiations.
10 In reaching this conclusion I have taken into account that Respon-
employees who were currently receiving the increased
benefits would continue to receive them and that the
benefits paid to any future retirees would be the subject for
negotiations.
2. Discussion and conclusionary findings
The complaint as amended alleges in substance that on
February 7 Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally instituting a savings and investment
plan and by unilaterally increasing retirement benefits for
the employees represented by the Union without bargain-
ing with the Union.
The law is settled that an employer violates its duty to
bargain if, when negotiations are in progress, it unilaterally
institutes changes in existing terms and conditions of
employment. N.LR.B. v. Benne Katz, etc., d/b/a Williams-
burg Steel Products Co., 369 U.S. 736 (1962). "On the other
hand, after bargaining to an impasse, that is, after good-
faith negotiations have exhausted the prospects of conclud-
ing an agreement, an employer does not violate the Act by
making unilateral changes that are reasonably compre-
hended within his pre-impasse proposals." Taft Broadcast-
ing Company, 163 NLRB 475, 478 (1967), enfd. sub nom
American Federation of Television and Radio Artists, AFL-
CIO, Kansas City Local, 395 F.2d 622 (C.A.D.C., 1968).
As described in detail, supra, on February 7, after
bargaining to an impasse, Respondent placed into effect
the terms and conditions of employment contained in its
contract proposal which had been rejected by the Union.
Included among the changes instituted by Respondent was
an increase of from 10 percent to 15 percent in its
contribution to the savings and investment plan and an
increase in retirement benefits to $6 per month for past
service benefits and an increase in future service benefits
by 10 percent. These changes were among the terms
included in Respondent's contract offer rejected by the
Union. There is insufficient evidence that the impasse in
negotiations 9 occurred in the context of bad-faith bargain-
ing or that Respotndent did not bargain in good faith in
connection with its savings, investment, and retirement
benefit proposals.t 0
In summation, I find an impasse in contract negotiations
had occurred when, on February 7, Respondent instituted
the changes here in question. I find further that these
changes were comprehended within Respondent's propos-
als which preceded impasse and were not made in the
context of bad-faith bargaining. I hold, therefore, that
Respondent, having taken the unilateral action discussed
above, did not thereby violate Section 8(a)(5) and (1) of the
Act. Accordingly, I shall recommend that all of the
allegations set forth in the "Amendment to Complaint" be
dismissed.
dent, as well as the Union, did not believe that the subject of retirement
benefits was a matter for contract negotiations. Nonetheless, the evidence is
insufficient to establish that Respondent did not afford the Union an
adequate opportunity to bargain over retirement benefits, or their distribu-
tion, or that Respondent did not otherwise bargain in good faith over this
subject.
274
ADOLPH COORS COMPANY
B. The Misrepresentations
I. The facts
On February 7 Respondent placed into effect all of the
terms and conditions of employment contained in its final
contract offer. On February 9 Respondent distributed a
letter to all of the employees represented by the Union
which in substance notified them that the contract negotia-
tions had reached an impasse and that Respondent had
implemented the wage increases and benefit improvements
contained in its contract proposal as well as certain
"language provisions." In this last respect the letter states:
The company also implemented, effective February 7,
1977, certain language provisions that were contained
in our offer on January 28. It is the company's belief
that these changes are necessary to insure the continued
efficient operation in the business and are in the
genuine best overall interests of every employee. The
substance of these provisions are provided in the
attachment to this letter.
The General Counsel, as discussed infra, contends that two
of the sections included in the attachment to Respondent's
February 9 letter contain misleading language which does
not accurately reflect the conditions of employment offered
to the Union and implemented by Respondent. The two
sections in dispute, as they appear in the attachment to the
February 9 letter, read as follows:
SECTION 8 - REDUCTION IN WORK FORCE
Layoffs of employees with more than one year of P &
M service will be governed by present contract lan-
guage. Employees with less than one year's P & M
service, who are laid off, cannot bump into another
department.
SECTION 13 - SHIFT DIFFERENTIAL
The company may place employees on straight or
rotating shifts. However, if the unit involves more than
twenty (20) employees on straight shifts and the
company desires to change all of the employees to
rotating shifts, the company will give the Union at least
one week's notice of the proposed change. This will give
the Union the opportunity to discuss the proposed
change with the company.
The portions of Respondent's contract proposal dealing
with Section 8 - Reduction in Work Force and Section 13
- Shift Differential, which were implemented February 7
and which the General Counsel contends are misrepresent-
ed in Respondent's February 9 letter, read as follows:
8.02 In the event that an employee is reduced, pursuant
to the provisions of Paragraph 8.01, such employee
shall have the right to bump, within three (3) working
II The italicized language was not contained in the parties' recently
terminated collective-bargaining contract.
12 The italicized language was not contained in the parties' recently
terminated collective-bargaining contract.
13 The language bracketed was included in Respondent's contract
days, that employee in his/her department who has the
least Departmental seniority and whose work the
employee doing the bumping can perform without
further training in accordance with the Employer's
requirements. This privilege is limited to one "bump"
and an employee shall not be permitted to "bump" into
a leadman, assistant leadman, or production specialist
job. Further, no employee can bump into a higher paying
job than one which the employee held immediately prior to
exercising this bump. If the reduction of personnel
within a classification in a department results in a
layoff, the provision of paragraph 8.03 or 8.04 shall
apply depending upon the length of the employee's
Production and Maintenance service. [Emphasis sup-
plied.]"
8.03 Layoffs of regular employees with more than one
(I) year Production and Maintenance service shall be
made on the basis of length of Production and
Maintenance service, provided that the employee with
the greater Production and Maintenance service has the
ability and skill to perform the work available without
further training in accordance with the Employer's
requirements, andprovidedfirther that the person with the
lesser Production and Maintenance service does not have a
higherpaid job. [Emphasis supplied.]'2
8.05 [In case of circumstances beyond the control of the
Employer] A shift or work week may be shortened
without regard to the seniority provisions of this
Agreement. 13
13.04 The Employer at its sole discretion may place the
employees, or any portion thereof, on straight shifts or
on rotating shifts. However, where employees in a unit
of more than twenty (20) employees are on straight
shifts and the Employer desires to change all of the
employees in that unit to rotating shifts, the Employer
will give the Union at least one week's notice of the
proposed change in shifts and during that week the
Union will be afforded the opportunity to discuss with
the Employer the proposed change in shifts. However,
the final decision with respect to the change in shifts will
be made at the sole discretion of the Employer. [Emphasis
supplied.] 4
On February 7 and 8 Respondent distributed to its
supervisors and managers, who supervise the employees
represented by the Union, a copy of the exact language
contained in its contract proposal implemented February 7
and explained to the supervisors that a letter would be sent
to the employees which would convey only the substance
of the changes in the old contract implemented by
Respondent, hence, supervision would be expected to be
familiar with the exact language of Respondent's proposal
so as to be able to intelligently answer questions posed by
the employees.
proposal but not included in the recently terminated collective-bargaining
contract.
14 The italicized language was not contained in this section (13.04), as set
forth in the February 9 letter.
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During February Respondent posted the exact language
contained in its contract proposal, including the sections in
dispute, on bulletin boards in three departments for the
employees to read. In April it posted an identical notice in
a fourth department for the employees to read. Also, in
February, a supervisor in a fifth department met with his
employees and read them the exact language contained in
the Company's contract proposal, including the sections in
dispute.
Lastly, on April 15, Respondent distributed a letter to all
of its employees which in pertinent part reads:
It is the Union's contention that the major issue
between the Company and the union that is causing the
strike is the allegation that the Company has taken
away all seniority rights. That is not true! The Compa-
ny has made no substantial changes in seniority under
the terms of its final offer. Job bidding, shift preference,
benefit accrual, including vacation selection, is no
different under the Company's most recent proposal
than it was under the recently terminated agreement.
The only significant modification regarding seniority
involves layoff of those employees with less than one year
service. For those employees with less than one year
service, should a layoff be deemed necessary, the layoff
would occur on a departmental basis rather than on a
plant-wide basis. As for any employee with more than one
year P & M service, the layoff provisions today would be
exactly the same as providedfor in our recent agreement.
There is one other provision whereby the union is
contending that the Company is again taking some-
thing away. This has to do with new contract language
giving the employer sole discretionary rights to place
employees on straight shifts or rotating shifts.
* * *
It is difficult to thoroughly discuss in detail complex,
contract language in a letter to you. If you have
additional questions concerning seniority, please feel
free to call the Employee Relations Department.
2. Discussion and conclusionary findings
The complaint in substance alleges Respondent violated
Section 8(a)(1) and (5) of the Act when on February 9 and
April 15 it distributed letters to the employees which
misstated certain terms and conditions of employment
which Respondent had offered to the Union and imple-
mented.
I am of the opinion Respondent's February 9 letter
misrepresented the substance of its contract proposal. The
letter states that in connection with the subject of the
1s In all other respects the assertion made in the February 9 letter that
the attachment to the letter contains "the substance" of the Company's
contract proposal does not constitute a misstatement. I reject General
Counsel's contention that the letter misrepresented the substance of
Respondent's proposal dealing with the assignment of employees to straight
or rotating shifts by omitting the phrase "sole discretion," or by omitting the
phrase "in accordance with the Employer's requirements," which is found in
the recent contract, that the letter misrepresented the substance of
Respondent's proposal dealing with employees' seniority rights. In any
event, assuming the letter does misstate Respondent's contract proposal in
"reduction in work force" that "layoffs of employees with
more than one (1) year of P & M service will be governed
by" the recent contract, whereas Respondent's contract
proposal concerning this subject deviates from the lan-
guage of the recent contract in two significant respects: 15
(1) Under the recent contract employees scheduled for
layoff are not precluded from bumping less senior employ-
ees who occupy higher paying jobs, whereas under the
terms of the Respondent's contract proposal this is prohib-
ited; and (2) under the terms of the recent contract only
"in case of circumstances beyond the control of the
Employer" can Respondent shorten the work shift or
workweek in disregard of the contractual seniority provi-
sions, whereas under the terms of its contract proposal
Respondent can engage in this conduct without any
limitation. And, insofar as the aforesaid changes in the
terms of the recent contract constitute substantial changes
in the present seniority rights of employees with more than
I year of service, the statement included in the April 15
letter that "[t ]he company has made no substantial changes
in seniority under the terms of its final offer . . . for any
employee with more than one year P & M service, the
layoff provisions today would be exactly the same as
provided in our recent agreement," constitutes an addition-
al misstatement. ' 0
In sum, I find that in the above-described respects the
February 9 and April 15 letters misrepresented the terms of
Respondent's contract proposal. The remaining question is
whether, as alleged in the complaint, these misrepresenta-
tions independently coerced and restrained employees in
violation of Section 8(aX)(I) and/or violated Section 8(a)(5)
and (1) of the Act based on the theory that the misrepre-
sentations evidenced an intent to bypass, undermine, or
subvert the Union as the employees' bargaining representa-
tive.
Regarding the contention that the misrepresentations
necessarily tend to interfere with employees' Section 7
rights in violation of Section 8(a)(1) of the Act, I note that
none of the misstatements expressly or by implication
threaten employees with reprisals or promise them benefits
nor did they occur in a context of unfair labor practices.
This is not a situation where Respondent has promised the
employees more favorable terms and conditions of employ-
ment than offered to the Union. I recognize Respondent's
February 9 letter misstates the terms of its contract
proposal and made the proposal seem more favorable or
less unfavorable, than it really was, to the employees.
However, the entire proposal had previously been placed
into effect in the exact terms it was offered to the Union.
Under the circumstances, I find it difficult to imagine
these additional respects, it would not change the outcome of this
proceeding for, as explained infra, whether the letter contains two, three, or
several misrepresentations, as alleged in the complaint, this conduct in the
context in which it took place does not constitute a violation of the Act.
16 The April 15 letter is also inaccurate insofar as Respondent's final
proposal precludes a person from exercising his or her seniority in the case
of layoff if the person does not have the ability and skill to perform the work
available "in accordance with the Employer's requirements." The layoff
provisions of the recent contract do not contain the limitation, "in
accordance with the Employer's requirements."
276
ADOLPH COORS COMPANY
misrepresentations that could be more effectively answered
by the Union than the ones involved in this case.' 7 Indeed,
soon after it had transmitted the February 9 letter,
Respondent itself brought to the attention of the employees
in several departments the exact contract language which
had been offered the Union and placed into effect. Under
all of these circumstances I find that the misrepresentations
found herein did not tend to interfere with employees'
Section 7 rights in violation of Section 8(a)(1) of the Act.
Regarding the contention that the misrepresentations
communicated to the employees constitute a refusal to
bargain in violation of Section 8(a)(5) of the Act, the law is
settled that "the fact that an employer chooses to inform
employees of the status of negotiations, or of proposals
previously made to the Union, or of its version of a
breakdown in negotiations will not alone establish a failure
to bargain in good faith." The Proctor & Gamble Manufac-
turing Company, 160 NLRB 334, 340 (1966). For, "while
there are cases in which employers have been held to have
violated Section 8(a)(5) of the Act by communicating with
employees during collective-bargaining negotiations, such
violations have been found only when the employer's
language was itself coercive, or could reasonably be
construed as coercive in the context of other unfair labor
practices of the employer." Wantagh Auto Sales, Inc., 177
NLRB 150, 154 (1969). Also, see Stokely-Van Camp, Inc.,
186 NLRB 440, 450 (1970). As I have found, supra, the
disputed communication involved in this case is not
coercive and did not occur in the context of unfair labor
practices. This does not however completely put an end to
this matter because it is also settled law that an employer's
communication to employees during the course of contract
negotiations is not entitled to protection, even though
couched in noncoercive language, where it merely serves
the tactical purpose of implementing a bargaining table
strategy which is itself unlawful. Two examples of such an
approach were presented in General Electric 18 and Fitzger-
ald Mills19 which are cited by the General Counsel to
support his contention that Respondent's misrepresenta-
tions violated Section 8(a)(5) of the Act. In General Electric
the union was "confronted with a communication cam-
paign, which, coupled with the employer's fixed position at
the bargaining table, effectively excluded the union from
meaningful bargaining, and represented a patent attempt
to bypass and undermine the union as bargaining agent."
See The Proctor & Gamble Manufacturing Company, 160
NLRB 334, 340 (1966). In Fitzgerald Mills the employer, as
in General Electric, was found to have bargained in bad
faith with no intention of reaching agreement. His unlawful
conduct included: Unilateral action on mandatory subjects
of bargaining and use of negotiators whose authority was
limited, and this was coupled with an "uncompromising"
attitude at the bargaining table. (313 F.2d at 268.) The
employer also sent notices to employees which went
17 This is especially true with respect to the Apnl 15 letter in which, in
answer to the Union's contention that the Company's contract proposal had
impaired employees' senionty nghts, Respondent expressed the opinion that
it did not believe the terms of its proposal had made a substantial change in
employees' seniority rights.
1i General Electric Company,. 150 NLRB 192 (1964), enfd. 418 F.2d 736
(C.A. 2. 1969).
beyond merely criticizing the union's bargaining tactics, for
the notices credited the company alone for a negotiated
wage increase, indicated that the amount had been deter-
mined unilaterally, without reference to the bargaining
process, and wrongly placed the onus of delay in effectuat-
ing the increase on the union. See 313 F.2d at 268 and 133
NLRB at 883. Also, see Texas Electric Coop, Inc., 197
NLRB 10, 12, 14 (1972), where the employer told his
employees in substance that the union was subordinating
the employees' interest to its own by linking a dues-
checkoff provision to a wage proposal that was less
attractive than the wage increase offered by the company.
The Board held that this conduct was unlawful because the
employer's message was "placed in context of offering the
employees a benefit described as being more advantageous
to them than sought by the Union," thereby, "creat[ing]
the impression that the employer rather than the union is
the true protector of the employees' interests." 197 NLRB
at 14. Indeed, the speech was but the first step in an
unlawful campaign in which the employer helped the
employees circulate a decertification petition and then
withdrew recognition from the Union. 197 NLRB at 14-16.
The rationale of General Electric and Fitzgerald Mills and
Texas Electric Coop does not apply here. The nature of the
misrepresentations communicated to the employees was
not calculated to create the impression that Respondent
rather than the Union is the true protector of the employ-
ees' interests nor have the misrepresentations been shown
to have been a part of an unlawful bargaining table
strategy. Indeed, the General Counsel put on no evidence
of Respondent's bad faith during negotiations.20 These
circumstances, plus the circumstances relied upon, supra, in
concluding that Respondent's conduct did not indepen-
dently violate Section 8(aX)(I) of the Act, persuade me that
Respondent's misstatements to the employees cannot be
characterized as having been made to undermine or
subvert the Union. Respondent's conduct represents no
more than the legitimate tactic of notifying the employees
about a lawful course of action which Respondent, having
already notified the Union about, was committed to engage
in; namely, its implementation of the terms of its last
contract proposal after a bargaining impasse. The fact that
in the process Respondent misstated to the employees the
substance of certain parts of its contract proposal and
thereafter expressed the incorrect opinion to the employees
that it had made no substantial changes in the employees'
existing seniority privileges is not the type of conduct
which constitutes an unfair labor practice, absent circum-
stances not present in this case. It is for all of these reasons
that I have concluded that Respondent did not violate
Section 8(a)(5) of the Act as alleged in the complaint.
"I Fitzgerald Mills Corporation, 133 NLRB 877, 882 (1961), enfd. 313
F.2d 260, 268 (C.A. 6, 1963).
20 It would be a violation of due process to even consider whether there
was an overall failure on the part of Respondent to bargain in good faith
inasmuch as the complaint did not include or fairly encompass such an
allegation and the matter was not litigated.
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
ORDER 2 1
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
278