Brewery Products

National Labor Relations Board - Board Decisions

Mar 19, 1991

302 N.L.R.B. 98 (N.L.R.B. 1991)

98
302 NLRB No. 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union has excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Drywall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
No exceptions were filed to the judge’s findings that the Respondent vio-
lated Sec. 8(a)(5) and (1) both by delaying provision of the requested ware-
house-employee-payroll information to the Union during 1988 collective-bar-
gaining negotiations, and by refusing to provide the Union with a copy of the
Sales Agreement the Union requested on March 15, 1989. Similarly, no excep-
tions were taken to the judge’s findings that the Respondent hired employee
McCray as a temporary replacement, and that the Respondent did not unlaw-
fully delay negotiations after the June 20, 1988 lockout or unlawfully fail to
compensate locked-out employees for vacation pay.
2 The Union excepts to the judge’s finding that the Respondent’s misrepre-
sentation about warehouse employee Dunckel’s hours of work was ‘‘almost ir-
relevant to negotiations,’’ and ‘‘would seem to be more important in a griev-
ance proceeding to determine whether he was a full or part-time employee and
whether he was being properly compensated under the terms of a contract.’’
We agree with the Union that the requested information on Dunckel’s hours
of work was relevant for negotiating purposes, including for the Union to as-
sess the value of the Respondent’s total contract proposal. We also find, how-
ever, that the parties’ bargaining positions were so polarized at the time of
lockout that the Respondent’s failure timely to provide this information did not
preclude meaningful bargaining.
3 The Union excepts to the judge’s proposed order requiring the Respondent
to post the notice to employees at its Ann Arbor place of business. The Union
asserts that the Respondent has ceased its operations and a district court has
so found. See Schaub v. Brewery Products, 133 LRRM 2342, 2343 (E.D.
Mich. 1989). (‘‘In the instant case, the assets of respondent have apparently
been sold and respondent has ceased all business operations.’’) Because the
Respondent has ceased its operations, we shall require it to mail copies of the
notice to all unit employees employed at the time of the closure. See, e.g.,
Print-Quic, 262 NLRB 857, 862 fn. 19 (1982). 1 All dates are in 1988 unless otherwise noted.
Brewery Products, Inc. and Local 247, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Case 7–CA–28442
March 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 19, 1989, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The
Union filed exceptions and a supporting brief, and the
Respondent filed a brief in opposition to the Union’s
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Brew-
ery Products, Inc., Ann Arbor, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Mail a copy of the attached notice marked
‘‘Appendix’’ to the Union and to all unit employees
who were employed at the Ann Arbor, Michigan facil-
ity. Copies of the notice, on forms provided by the Re-
spondent’s authorized representative, shall be mailed
by the Respondent immediately upon receipt.’’
CHAIRMAN STEPHENS, dissenting in part.
In my view the record supports a finding that the
Respondent sought to protect its single nonunion unit
employee, William Dunckel, from the effects of its
lockout in two respects. I would find (1) that the Re-
spondent induced employee Denny McCray, whom it
was hiring as a temporary replacement in the lockout,
to get Dunckel hired as McCray’s replacement with
McCray’s former employer, and (2) that—at least until
the unfair labor practice charges were filed in this
case—the Respondent, without legitimate nondiscrim-
inatory reasons, continued Dunckel’s health insurance
coverage while ceasing to pay for that of the other unit
employees. I would therefore find that the Respondent
violated Section 8(a)(3) and (1) of the Act by institut-
ing a discriminatory lockout and discriminating in the
provision of health insurance. I, accordingly, would
also order the appropriate remedy for such violations—
that the unit employees be reinstated with backpay and
otherwise be made whole for the discrimination against
them.
Richard F. Czubaj, Esq., for the General Counsel.
Mark S. Demorest, Esq., of Bloomfield Hills, Michigan, for
the Respondent.
Ellen F. Moss, Esq., of Southfield, Michigan, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
September 9, 1988,1 Local 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (the Union) filed an unfair labor practice
charge against Brewery Products, Inc. (Brewery Products or
Respondent). An amended charge was filed by the Union on
October 4, 1988. On October 31, the Regional Director for
Region 7 issued a complaint against Respondent alleging that
it has violated the National Labor Relations Act (the Act) by
failing to provide copies of certain payroll information to the
Union; by discriminatorily providing health insurance to a
locked-out nonunion employee; and by failing to pay accrued
vacation benefits to locked-out employees.
On March 3, 1989, an amended complaint was filed
against Respondent alleging, in addition to the allegations
contained in the original complaint, that Brewery Products
failed and refused to bargain in good faith with the Union
99BREWERY PRODUCTS
and that the lockout was in violation of the Act. Hearing was
held in these matters in Detroit, Michigan, on April 26 and
27, 1989. At the hearing, counsel for the General Counsel
sought to further amend the amended complaint by adding to
paragraph 14(c) the language set out and italicized below:
On or about June 9, 1988, [Respondent] prematurely
declared that the parties were at an impasse after failing
to afford the Charging Party with a reasonable oppor-
tunity to review the previously requested information
provided that day and after failing to provide the infor-
mation requested with regard to the proposed pension
plan.
The proposed amendment was rejected at the hearing
based on Respondent’s legitimate claim of surprise. Briefs
were received from all parties on or about June 16, 1989.
The General Counsel has requested review of the decision to
reject the amendment on brief and after careful review of the
record, I have decided to reverse my earlier ruling and allow
the amendment. I agree with the General Counsel that the
record was fully developed on this point and Respondent will
not be unfairly prejudiced by the amendment.
The General Counsel was also allowed at hearing to
amend the complaint to add an allegation that Respondent
violated the Act by refusing on and after March 15, 1989,
to furnish a copy of a proposed agreement providing for the
sale of certain assets of Respondent to another company.
Based on the entire record, and on my observation of the
demeanor of the witnesses and in consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Brewery Products, Inc. is a Michigan corpora-
tion located in Ann Arbor, Michigan, and engaged in the
wholesale sale and distribution of beer and other beverages
to retail establishments. Respondent has admitted the juris-
dictional allegations of the amended complaint and I find that
it is now and has been at all times material to this proceed-
ing, an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is now and has
been at all times material to this proceeding, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Issues Presented
During the course of protracted negotiations between the
Union and Respondent for a new collective-bargaining agree-
ment, Respondent locked out its unit employees. It is con-
tended by the Charging Party and the General Counsel that
the lockout was unlawful as impasse in negotiations was pre-
maturely declared by Respondent because it had, inter alia,
failed to provide the Union with relevant information in a
timely fashion. It is further contended that after the lockout,
Respondent continued to employ a nonunion employee to
perform bargaining unit work and continued his health bene-
fits while refusing to pay the union employees’ health bene-
fits payments and denying union employees accrued vaca-
tion. At some point in the winter or early spring of 1989,
Respondent decided to sell the Company and/or its assets
and refused to comply with a union information request con-
cerning this possible sale. The amended complaint presents
the following issues for determination:
1. Did Respondent unlawfully fail to provide the
Union with requested warehouse employee payroll in-
formation in a timely manner?
2. Was the warehouse payroll information that was
furnished adequate or was it a misrepresentation of the
facts?
3. Did Respondent fail to provide the Union with in-
formation pertaining to proposed changes in the pension
plan and its effects on unit employees?
4. Did Respondent act in bad faith and in violation
of the Act when it locked out its employees?
5. Did Respondent unlawfully refuse to pay its
locked out employees their accrued vacation pay?
6. Did Respondent unlawfully continue to provide
health insurance coverage to non-union locked out em-
ployee while refusing to continue coverage to locked
out Union employees?
7. Did Respondent unlawfully refuse to provide the
Union with a copy of a proposed sales contract?
B. Facts Giving Rise to the Dispute
Respondent is a Michigan corporation located in Ann
Arbor and is engaged in the wholesale sale and distribution
of beer and other beverages to retail establishments. It is
owned by Walter and Paul Godek. Since approximately
1967, the Union has represented a unit of Respondent’s em-
ployees, including driver/salesmen and warehouse employees.
During the time of the events in question, the unit consisted
of three driver/salesmen and one or two warehouse employ-
ees. In addition, Respondent hired a few part-time employees
each summer. The contract provided for such seasonal em-
ployees and allowed them to work outside the proscriptions
of the union-security clause. The most recent contract be-
tween the parties was negotiated between the Union and the
Bi-County Wholesale Distributors Association (the Associa-
tion), of which Respondent was a member. In early 1987,
prior to the contract’s April 30, 1987 expiration date, Re-
spondent sent to the Union a timely notification of its res-
ignation from the Association and a request to open bargain-
ing for a successor agreement. After that time, the parties en-
gaged in 26 or 27 bargaining sessions, without success.
Major issues which were in contention were, inter alia,
wages, unit composition, subcontracting, health insurance,
and pension benefits. Throughout the bargaining period, Re-
spondent demanded a significant reduction in wages, from 46
cents commission per case of beer delivered under the last
year of the expired contract, to 25 cents per case under the
second year of the proposed agreement. Respondent also
sought to change health and pension plans from existing
Teamsters’ plans to plans of Respondent’s choosing. Re-
spondent also proposed removing both warehouse and part-
time employees from the bargaining unit.
Respondent sought the concessions because it believed that
if concessions were not obtained, it would no longer remain
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent contends that part-time employees had never been included in
the bargaining unit. The only description of the unit is by a contract reference
to a job classification schedule which does not mention regular part time with
respect to the job classifications listed. The schedule also references minimum
hours for the jobs which are high enough to infer that all the unit positions
are full time. Although Union Vice President Schuler disagreed, he could point
to no contract language to support his position. He testified that he had been
informed by Respondent that at an earlier time, one of Schuler’s predecessors
had agreed that persons employed to work with bottle returns would not be
part of the bargaining unit if they worked less than 20 hours per week. It ap-
pears to me that this agreement would be the best definition of the breaking
point between part-time and full-time work, as the contract itself does not con-
tain a clear definition.
a viable company. Its business had declined in size over the
years, from eight routes 10 years before to three routes at the
time of the lockout. This decline was due to the decline in
popularity of Pabst beer, Brewery Products’ chief domestic
brand. An additional reason Respondent sought economic
concessions was that Brewery Products had converted from
a ‘‘driver sale’’ to a ‘‘presale’’ system, but that change in
Respondent’s operation was not reflected in the way its driv-
ers were compensated. The conversion had taken place well
before the expiration of the last contract between the parties.
Respondent contends that the presale method of operation
saves drivers 1-1/2 to 2 hours a day in paper work. There-
fore, under the presale system, a driver is compensated less
per case, but is presumably able to deliver more cages in the
time he works daily. Brewery Products had withdrawn from
the Association because the other members were much larger
than it and Respondent believed it was necessary to bargain
separately so a new contract would address the issues which
were unique to it.
The Union opposed the Respondent’s proposed conces-
sions, though it knew of the Respondent’s difficulties. The
Respondent contends and the evidence supports the conten-
tion that the Union’s strategy in negotiations was to prolong
them as long as possible in order to delay granting any con-
cessions to Brewery Product. The Company filed an unfair
labor practice charge against the Union in 1987 to get the
Union to the bargaining table. The Union settled the charge
by, in the words of its negotiator, ‘‘starting to negotiate.’’
The Respondent also contends and is supported by the evi-
dence that the Union was unwilling to grant major conces-
sions to Brewery Products while negotiation were also under-
way with the Association. Union Vice President Dave
Schuler testified he was not going to let the ‘‘tail wag the
dog,’’ referring to the relationship of Brewery Product to the
Association members. Schuler testified that he was not going
to take what the Respondent had proposed and have that
‘‘come forth as a settlement that would affect the outcome
of the other three, or would be used against me by the other
three.’’ He further testified that he had not gone into bargain-
ing with the idea of concessions though it was not something
beyond comprehension. The negotiations with the Associa-
tion were not resolved until January 1989, long after the June
20, 1988 lockout began.
C. The Payroll and Pension Plan Information
Request Issues
On November 12, 1987, the Union requested payroll infor-
mation on the warehouse and part-time employees.2 The
Union renewed its request several times, including five con-
secutive sessions in April through June 1988. On May 4 and
June 2, Respondent told the Union that Respondent was not
certain that it was obligated to provide that information.
Brewery Products took the position that the sole warehouse
employee, William Dunckel, was not part of the bargaining
unit as he was a part-time employee and for that reason, a
response to the request was unnecessary. Part of the basis for
Respondent’s position in this regard was the Union’s failure
to process a grievance it had filed to ascertain Dunckel’s sta-
tus with respect to the bargaining unit.
On May 10, Respondent told the Union that it was putting
the information together; but, on June 2, said the information
was not available. Also on June 2, the Respondent withdrew
its proposal to exclude warehouse employees from the unit.
At a meeting held on June 9, 1988, Respondent withdrew its
proposal to remove part-time employees from the unit, but
still proposed that they not receive fringe benefits. On June
9, Respondent provided the requested information. Copies of
the payroll records of warehouse employee Dunckel and a
seasonal employee were shown to the Union. Though copies
of these records were not given to the Union on June 9, they
were mailed to the Union and received by it a few days after
the meeting.
Respondent also produced on June 9 worksheets breaking
down the hours worked by Dunckel for Respondent and Auto
Plaza Leasing, another company owned by the owners of
Brewery Products. Although the Union’s vice president
Schuler testified that he did not recall receiving the work-
sheets, Brewery Products’ president Walter Godek, testified
credibly that copies of these worksheets were made at the
motel where the June 9 meeting was held and given to
Schuler. However, the records provided did not adequately
explain the division of hours worked at Respondent and at
the auto leasing company by the one current warehouse em-
ployee.
I agree with the General Counsel that Respondent’s docu-
ment showing the division of hours apparently misrepre-
sented the number of hours worked for Respondent by
Dunckel. During negotiations, Respondent told the Union
that Dunckel worked part time for Respondent and part time
for Auto Plaza Leasing. While Dunckel worked 40–45 hours
per week, Respondent told the Union that he only worked 25
hours a week for Respondent and the remainder for Auto
Plaza Leasing. Dunckel, however, credibly testified that he
only worked 1 or 2 hours per week for Auto Plaza Leasing.
The document presented by Respondent to support its posi-
tion appears to me to be nothing more that an arbitrary as-
signment of Dunckel’s hours to one company or the other,
with no real relationship to the type work actually performed.
On the other hand, there is nothing in the evidence to lead
me to believe that there exists any other document relating
to Dunckel other than those given. The documentation fur-
nished assigning hours between companies was evidently re-
lied on by Respondent to assign Dunckel’s pay for tax and
accounting purposes. I can only speculate on Respondent’s
motive for maintaining these records which do not seem to
comport with the facts. It could be for tax or accounting rea-
sons, or it could be, as the General Counsel asserts, to bol-
ster Respondent’s earlier position that the warehouseman po-
sition was not in the bargaining unit as it was part time.
However, the documentation presented reflects the Respond-
ent regularly assigned 25 hours per week of Dunckel’s time
to its payroll. Therefore, even based on this documentation,
101BREWERY PRODUCTS
3 New York Times Co., 265 NLRB 353 (1982); Kroger Co., 226 NLRB 512
(1976); American Beef Packers, 193 NLRB 1117 (1971).
Dunckel would not have been a part-time employee if one
used the 20-hour-per-week standard contained in Respond-
ent’s agreement with the Union defining what constitutes
part-time work with respect to bottle return workers.
As by June 9, Respondent had withdrawn its proposals to
remove warehouse employees and part-time employees from
the unit, Dunckel would have been included in the bargain-
ing unit regardless of whether he was a full-time or part-time
employee of Respondent. As noted above, I believe he would
have been a full-time employee based on the past agreement
and Respondent’s documentation. In a letter sent by Schuler
to Godek on June 14, Schuler thanked Godek for the infor-
mation on the warehouse employees. The letter did not ask
for any further information on the warehouse employees. Al-
though the Union and the General Counsel contend that the
information supplied with respect to the division of
Dunckel’s hours between Respondent and Auto Plaza Leas-
ing was either incomplete, misleading, or both, I find that it
was the information used by Respondent and that its rep-
resentation that Dunckel worked less hours for Respondent
than he actually worked did not preclude meaningful bar-
gaining by the Union.
The Respondent’s last proposal before the lockout con-
tained proposed hourly wage rates which would apply to the
position of warehouseman. The Union had been furnished the
wage rate previously paid for the position. It appears to me
that the Union was in a position to intelligently evaluate the
proposal based on what it had been provided and to decide
whether it was acceptable or not. In fact, Vice President
Schuler’s letter of June 14 contains a counteroffer with re-
spect to the proposed hourly wage rates for warehousemen.
The misrepresentation about Dunckel’s hours would seem to
me to be more important in a grievance proceeding to deter-
mine whether he was a full or part-time employee and
whether he was being properly compensated under the terms
of a contract providing wage rates and benefits for both lev-
els of employment. It appears obvious to me that, depending
on the future volume of the Respondent’s business, it might
have need for a part-time warehouseman or a full-time ware-
houseman or some combination of each. The contract being
negotiated would have to address the fact that the position
could be either full or part time. Thus, Dunckel’s previous
status in this regard appears to me to be almost irrelevant to
negotiations when Respondent agreed to include both full
and part-time warehousemen positions in the bargaining unit.
I do find the delay in providing the information to be
undue as the information was clearly necessary and relevant
to bargaining over the wages and benefits for the involved
employee or employees, and at least until June 9, to bargain-
ing over the identity of the unit. As the delay was undue I
find it in violation of the Act. However, I do not find that
it constitutes anything more than an isolated instance of bad
faith, and is not indicative of a course of bad-faith bargaining
by Respondent. I also cannot find that the delay in providing
this information played a significant role in the lack of
progress of negotiations. The almost absolute lack of move-
ment on wage rates for the drivers, as well as the parties’
intransigent positions on Respondent’s health insurance and
pension proposals seem the key factors in delaying the nego-
tiations. I believe delay was also caused by the Union’s re-
luctance to reach agreement with Respondent before it had
reached agreement with the Association.
I do not believe that Respondent’s actions with respect to
information requests concerning its pension and health insur-
ance proposals were either unlawful or would indicate bad-
faith bargaining. Respondent provided to the Union during
negotiations certain documentation regarding the pension
proposal. There apparently remained a question of what the
effect of the plan would be on the older affected employees.
Union Vice President Schuler testified that the Godeks gave
him the name of their pension consultant and asked Schuler
to call him with any questions he might have as the Godeks
were not experts on pensions. Shortly after giving this testi-
mony, he changed his mind and said that he had not been
given such a contact by the Godeks. He was then shown a
letter with the name and address of the consultant shown
thereon and admitted having received it. The Godeks testified
that they did in fact give Schuler the name of the consultant
and asked that his questions be addressed to him because of
their lack of knowledge with respect to pensions. I credit the
testimony of the Godeks and the first testimony of Schuler.
Respondent also told its consultant that it had given the con-
sultant’s name to Schuler and that he might call. The con-
sultant offered to meet with Schuler or make a presentation
to the employees. Schuler did not call the consultant.
The General Counsel contends that this does not constitute
an adequate response to the information request as he con-
strues the direction to call the consultant as shifting the Re-
spondent’s burden to supply information to the Union. I can-
not agree. Clearly, no one with Respondent was fully com-
petent to answer all questions about its proposed pension
plan. To make available its consultant for questions by the
Union appears to me to be the most efficient and effective
way to provide the Union with correct information. To have
the Union ask a question of one of Respondent’s owners and
rely on them to accurately pass the request on to their con-
sultant and then try to accurately relay the answer seems to
me to stress form over substance to an inordinate degree.
The cases3 cited by the General Counsel in support of his
position involve situations where the involved union was
held not to have to conduct some form of independent re-
search or investigation to find information which was rel-
evant and necessary and which was in the control of the in-
volved respondents. In the instant case, Respondent offered
to make available any information desired, asking only that
such requests be directed to its agent, the pension consultant.
I can see little, if any difference in Respondent directing the
Union to its consultant and what might be the case in a much
larger company of directing the Union to a benefits depart-
ment. I find Respondent’s actions with respect to the pension
plan information request to be lawful and do not constitute
an unfair labor practice.
As noted above, Schuler did not call the consultant. How-
ever, in January 1989, he did write the Union’s Central
States Pension Fund requesting pension information about
the effect of unit members’ pulling out of the fund. This in-
formation was available only from the fund and could not
have been provided by Respondent. I firmly believe that Re-
spondent’s request of the Union to direct its pension ques-
tions to its consultant was reasonable and certainly does not
constitute a refusal to supply necessary and relevant informa-
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Union proposed that commission rates for cases of beer delivered re-
main the same as in the old contract for the first year of the new contract
and then increase in the second and third years. It also counterproposed to Re-
spondent’s $7.35 to $8 per hour wage rate applicable to warehousemen, an
hourly rate of $11 rising to $11.80 in the third year of the proposed agree-
ment.
5 The Union asserts that McCray was hired as a permanent, not a temporary
employee, based on certain of McCray’s testimony. On brief, it argues that
McCray was given a uniform and a yearly salary, indicia of the permanent
nature of his employment. Godek testified that McCray was hired as a tem-
porary. In response to the question of whether Godek told him the job was
temporary, McCray testified, ‘‘I—they were pretty vague. I was hoping it
would be permanent, but it wasn’t actually said it would be permanent.’’ He
testified that though it was his understanding that the job would be permanent,
Godek never told him that. The job given to McCray did not have a yearly
salary. He was paid in a similar fashion as the unit drivers, on a per case of
beer delivered basis. I do not believe that McCray’s testimony contradicts
Godek’s assertions that McCray was a temporary employee as he admitted he
was never told the job would be permanent.
tion. I also believe that Vice President Schuler’s disinterest
in calling the Respondent’s consultant and his approximate
6-month delay in contacting his own pension experts for nec-
essary information that only they could provide, seriously un-
dermines the stated level of importance of the pension infor-
mation to the negotiations at the time of the lockout.
The General Counsel does not contend on brief that the
Respondent failed to provide adequate information with re-
spect to Respondent’s health insurance proposal and indeed,
Vice President Schuler indicated in his testimony that the in-
formation supplied by Respondent prior to the lockout was
adequate to evaluate the proposal.
D. The Lockout Issues
The Board has held that, absent proof of antiunion motiva-
tion, it is not a violation of Section 8(a)(3) of the Act for
an employer to lock out its bargaining unit employees, and
continue to operate with temporary employees during the
lockout, to bring economic pressure to bear in support of a
legitimate bargaining position. Harter Equipment, 280 NLRB
597 (1986); Georgia-Pacific Corp., 281 NLRB 1 (1986).
It is Respondent’s position that the the lockout was insti-
tuted to put pressure on the Union to speed the pace of nego-
tiations and was only expected to last a few weeks, based
on previous experience with strikes. At the time of the lock-
out, the parties had been negotiating for a year and had met
in approximately 27 negotiation sessions. The parties were
still far apart on many significant issues including: (1) com-
mission rates for cases of beer delivered, (2) Respondent’s
health insurance and pension plan proposals, and (3) non-
economic proposals such as subcontracting. The minor
change in the commission rates offered by the Union on June
14, 1988, did not break the deadlock.4 As noted by Respond-
ent, the offer did not address any of the other key issues and
Vice President Schuler admitted that he knew the offer
would be unacceptable when it was made. I find that the par-
ties were at impasse on the date of the lockout. The delay
in providing payroll information and the date of its provision
in relation to the date of the lockout do not appear to me
to be of sufficient importance to negate a finding of impasse.
Indeed, in the months following the lockout, no significant
movement has taken place on any of the key economic issues
which existed at the date of the lockouts’ inception, though
bargaining has continued.
Although I have found that the delay in providing re-
quested wage information constitutes an unfair labor practice,
I also find that neither this delay nor Respondent’s actions
in response to the Union’s health insurance and pension plan
information requests rise to the level of bad-faith bargaining
and do not cause the Respondent’s June 20, lockout to be
unlawful ab initio. In the context of the lockout, Respond-
ent’s delay in providing the wage information was cured by
either the provision of the information before the lockout or
the withdrawal of the unit definition proposals before the
lockout or both. I also find significant that there is no proof
in the record of antiunion motivation on the part of the Re-
spondent and the fact that Respondent did not implement its
last offer, indicating to me a willingness to continue to bar-
gain in good faith.
1. Issue of delay in bargaining
Shortly after the lockout began, Brewery Products can-
celed one negotiating session, scheduled for July 7, due to
an emergency on the part of the Company’s attorney. Vice
President Schuler testified that Respondent also canceled a
meeting which had been scheduled for June 28, 1988; but
Respondent’s president testified that the meeting was not
canceled by the Company. The documentary evidence re-
garding this cancellation does not specify who canceled the
meeting. The parties did meet in negotiations on August 2
and September 15.
After September 15, the Union, calling the lockout illegal,
refused to negotiate with Respondent. Respondent filed an
unfair labor practice charge to force resumption of negotia-
tions. As of the date of hearing, there had been no change
in either of the parties’ positions on the major outstanding
issues. I cannot find that Respondent’s behavior as set forth
above reflects a reluctance of the part of Respondent to bar-
gain or is evidence of bad-faith bargaining.
2. Issue of employment discrimination
On Monday, June 13, or Wednesday, June 15, Respondent
made its decision to lock out its employees. Respondent did
not desire to lock out warehouse employee Dunckel, who
was not a member of the Union. However, on advice of
counsel, it decided to lock out Dunckel also. Dunckel testi-
fied that on June 17, Walter Godek told him that because of
labor problems Dunckel could not work for Respondent for
awhile, but might be able to work for S & A Beverage,
whose owner, Al Baker, was parking his truck at Respond-
ent’s facility. Dunckel testified that Godek told him to speak
to Denny McCray, S & A Beverages’ sole driver, whom
Godek had just hired.5 According to Dunckel, he spoke to
McCray on June 18 and Baker on June 20, and was hired
on that date by S & A.
McCray testified that because he felt badly about giving
3 days’ notice to his employer, Baker, he suggested Dunckel
to Baker as a possible replacement for him. He knew that
Dunckel was going to be available for work because of the
lockout. Baker and Dunckel both testified that they met on
June 20, Dunckel was offered work with S & A and Dunckel
accepted. The General Counsel contends that Respondent or-
chestrated the switch between Dunckel and McCray and thus
discriminated against its three locked-out drivers who were
not similarly found employment. I disagree primarily because
I found Baker to be an entirely credible witness and credit
103BREWERY PRODUCTS
his testimony that he did not speak to either of the Godeks
about Dunckel until after he had hired him. He also testified
credibly that he would have hired virtually anyone to drive
for him on June 20 because of the bind that McCray’s leav-
ing had caused his business. Without consultation between
the Godeks and Baker, there could be no orchestration of the
employee switch. There was no showing that any ties existed
between Respondent and S & A Beverage and certainly no
ties which would have caused Baker willingly to give up his
experienced and longtime employee, McCray, for a new em-
ployee unfamiliar with his business.
3. Issue of insurance benefits
The General Counsel also contends with respect to
Dunckel that Respondent’s continuation of his health insur-
ance benefits after the lockout constitutes discrimination as
these benefits were not continued for the three locked-out
union drivers. Respondent paid Dunckel’s health insurance
premium due June 20, which covered the period from July
1 through September 30. Since October, Dunckel has paid
for his own health insurance. It is Respondent’s position that
it, at least initially, thought it was required to continue
Dunckel’s insurance payments because of the provisions of
the Comprehensive Omnibus Budget Reconciliation Act
(COBRA), which provides for continued health coverage to
employees who have lost employment for reasons other than
cause. However, these provisions do not apply to employers
like Respondent which employ less than 20 employees. Re-
spondent also contends that it paid the 3-month premium for
Dunckel to be equitable as it believed, based on a union
booklet explaining its Health and Welfare Fund, that the
three union drivers’ health insurance would be continued for
8 weeks based on contributions made earlier by Respondent.
Union Vice President Schuler testified that though there
were provisions in the health and welfare plan that would
have continued coverage for employees for an 8-week period
after separation from employment, there was sufficient ambi-
guity in the provisions to bring into question whether the in-
volved drivers were eligible for the extended coverage since
a labor dispute was involved. In the circumstances, the local
union decided to make arrangements for continued coverage
for the drivers.
I find that the Respondent’s reasons for paying the pre-
mium for one quarter for Dunckel and its understanding of
the relevant provisions of the Union’s health and welfare
plan are plausible and do not appear to be contrived, though
perhaps incorrect. I also believe that the treatment given the
involved employees was roughly comparable. I cannot, there-
fore, find that Respondent discriminated against its three
locked-out union drivers in favor of its one nonunion mem-
ber warehouseman.
4. Issue of vacation pay
The General Counsel contends that Respondent committed
an unfair labor practice by failing to pay vacation pay to the
locked-out drivers during the lockout. Respondent contends
that these employees were not entitled to receive vacation
pay during the lockout under the terms of the expired con-
tract.
One of the drivers was normally paid his vacation pay
when he took his vacation. Since this driver did not take a
vacation in 1988, Respondent asserts that he was not entitled
to be paid vacation during the lockout. The other two, more
senior drivers, were normally paid their vacation pay on their
anniversary dates in September. However, the expired collec-
tive-bargaining agreement provides that, ‘‘Vacation pay in
lieu of time off for vacation must be mutually agreed by both
Employer and employee and the Union.’’ Respondent con-
tends that it never agreed that the drivers could receive their
1988 vacation pay without taking a vacation, and under its
interpretation of the expired agreement, the drivers were not
entitled to such pay during the lockout.
Respondent paid the vacation pay in November 1988 be-
cause, according to Respondent, it desired to avoid litigating
the issue and wanted to help break the impasse. I credit Re-
spondent’s reasons for its actions in this regard and do not
find it committed an unfair labor practice as alleged. Al-
though I find Respondent’s reliance on the expired agree-
ment somewhat tenuous, it is not a frivolous reason for its
stance. In the absence of a showing of clear animus and as
it did pay the benefits within a relatively short time after
they were due, I find that Respondent’s delay in paying the
benefits does not rise to the level of unlawfulness.
E. Sales Agreement Information Request Issue
On about March 15, 1989, the Union requested a copy of
a sales agreement which had been entered into between
Brewery Products and another company, providing for the
sale of certain assets of Brewery Products to that company.
At that point, Respondent declined the request because the
sale was still contingent on several things and the sale might
not be consummated.
Since the trial in this matter, the Union has come into pos-
session of a copy of the agreement. Respondent had pre-
viously provided a copy of the agreement to the Board for
its use only, but a copy of the agreement was attached by
the Board to its petition for temporary restraining order and
preliminary injunction under Section 10(j) of the Act. The
Union received a copy of the agreement when it received a
copy of the petition.
However, even though the Union has come into a posses-
sion of the agreement, I find that Respondent’s refusal to
comply with the Union’s request to be in violation of the
Act. The document was clearly relevant and necessary for
the Union to intelligently prepare for bargaining with Re-
spondent over the effects of the sale, which Respondent is
legally obligated to do.
Conclusions with Respect to the Alleged Unfair
Labor Practices
I have heretofore found for the reasons set forth that Re-
spondent violated Section 8(a)(1) and (5) of the Act by un-
duly delaying providing relevant and necessary information
during negotiations. I have also found immediately above
that Respondent similarly violated the Act by not complying
with the Union’s request for the sales agreement on or within
a reasonable time after March 15, 1989. I do not find that
that Respondent has committed any of the other alleged un-
fair labor practices.
Although my finding that Respondent unlawfully delayed
providing information during negotiations necessarily con-
stitutes a finding of an instance of not bargaining in good
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
7 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
faith, I also find that Respondent has not engaged in a course
of bad-faith conduct with respect to its contract negotiations
with the Union or unlawfully discriminated against its
locked-out employees who are members of the Union. I find
that at the time of the lockout the parties were at impasse
and that the lockout was lawful at its inception and remained
lawful to the close of the record in this proceeding. I do not
find in this record proof of antiunion animus on the part of
Respondent.
CONCLUSIONS OF LAW
1. Respondent Brewery Products, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. Since 1967, the Union has been the exclusive collective-
bargaining representative of an appropriate unit of Respond-
ent’s driver/salesmen and warehousemen within the meaning
of Section 9(a) of the Act.
4. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (5)
of the Act by:
(a) Unduly delaying compliance with the Union’s request
for necessary and relevant information regarding wages dur-
ing 1988 negotiations for a new collective-bargaining agree-
ment.
(b) Refusing to comply with the Union’s March 15, 1989
request for a copy of a sales agreement between Respondent
and another company, which agreement is necessary and rel-
evant to the Union’s obligation to bargain over the effects of
the sale.
5. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor
practices as alleged in the amended complaint.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I recommend that Respondent be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Brewery Products, Inc., Ann Arbor,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to supply to the Union in a timely
manner information relating to wages paid to warehouse em-
ployees, which information is necessary and relevant to the
Union’s performance of its function as the exclusive bargain-
ing agent of the unit employees.
(b) Failing and refusing to supply to the Union a copy of
its sales agreement whereby it proposes to sell certain of its
assets to another company, which agreement is necessary and
relevant to the Union’s obligation to bargain over the effects
of the proposed sale.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly furnish on request by the Union necessary
and relevant information requested by it, including informa-
tion relating to wages of warehouse employees and copies of
any proposed sales agreement whereby the Respondent pro-
poses to sell all or a portion of its assets to another company.
(b) Post at its place of business copies of the attached no-
tice marked ‘‘Appendix.’’7 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by the Union, if it willing, at
its office and meeting halls, including all places where no-
tices to members are customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to supply to Local 247, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, AFL–CIO, in a timely manner, information relating
to wages paid to warehouse employees, which information is
necessary and relevant to the Union’s performance of its
105BREWERY PRODUCTS
function as the exclusive bargaining agent of our employees
in the appropriate unit.
WE WILL NOT refuse to supply to the Union a copy of our
sales agreement whereby we propose to sell certain of our
assets to another company.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed them by Section 7 of the National Labor
Relations Act.
WE WILL promptly furnish on request by the Union nec-
essary and relevant information requested by it, including in-
formation relating to wages of warehouse employees and
copies of any proposed sales agreement whereby we propose
to sell all or a portion of our assets to another company.
BREWERY PRODUCTS, INC.