Falstaff Brewing Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1960

128 N.L.R.B. 294 (N.L.R.B. 1960)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings, and upon the entire record, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Mission Manufacturing Company is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Lodge 12 and Lodge 2007 of District 37, International Association of Ma-
chinists , AFL-CIO, are labor organizations within the meaning of Section 2(5)
of the Act.
3. Respondent has refused to bargain collectively by excluding the aforementioned
labor organizations from the grievance procedure when they were the statutory
representatives of the employees and has thereby violated Section 8 (a) (1) and (5)
of the Act.
4. Respondent has not otherwise refused to bargain collectively in violation of
Section 8 (a)(5) of the Act.
5. Respondent has not discriminated against employees in violation of Section
8 (a) (3) of the Act.
[Recommendations omitted from publication.]
Falstaff Brewing Corporation and Oscar Gerak
Brewers and Maltsters Local Union No. 6, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America and Oscar Gerak. Cases Nos.
14-CA-0174 and 14-CB-789. July 25, 1960
DECISION AND ORDER
On February 11, 1960, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and briefs in support
thereof.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediateReport, the exceptions and briefs, and the entire record in the
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except as modified herein.2
'Inasmuch as the record , exceptions, and briefs adequately present the issues and posi-
tions of the parties , the Respondent ' s requests for oral argument are denied.
2At one point in his Intermediate Report, the Trial Examiner states: "[A]s in all
proceedings charging unlawful discrimination under the statute , the question is whether
128 NLRB No. 39.
FALSTAFF BREWING CORPORATION 295
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Falstaff Brewing Corporation, St. Louis, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discharging employees because they have protested the conduct
of union officers to the Teamsters Monitors or otherwise engaged in
concerted union activities.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organiaztion as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Oscar Gerak immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges.
(b) Jointly and severally with the Respondent Union make Oscar
Gerak whole for any loss of pay he may have suffered by reason of the
discrimination against him in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(c) Preserve and upon request, make available to the Board or its
agents for examination and copying all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze and compute the amount of backpay
due under the terms of this Order.
(d) Post copies of the notice attached to the Intermediate Report
marked "Appendix A," 3 at its principal office and at each of the two
or not the record as a whole supports the affirmative allegation of the complaint . . ..
[Emphasis supplied.]
Insofar as this statement may suggest that the standard of proof required of the
General Counsel is less than that imposed by the Act , we do not adopt it. The standard
to be met has been stated clearly and succinctly thusly : "In every case, a violation of
the Act must be proved by the General Counsel by the preponderance of the evi-
dence . . . ." [Emphasis supplied.] Glen Raven Silk Mills, Inc, 101 NLRB 239, enfd.
as modified 203 F. 2d 940 (CA. 4).
The Trial Examiner , in referring to Light's beating of Gerak , submitted the following
gratuitous observation* ". . . granting , as I certainly do, that he [ Gerak] also deserved
a good punch in the nose . . . . Mindful of our responsibilities and duties of a
judicial nature , we cannot align ourselves with remarks which characterize the recipient
of a beating as "deserving" of such brutality
3 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner " the words "A Decision and Order" In the event that this Order is
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants it operates in the city of St. Louis, Missouri. Copies of said
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by Respondent Company, be,
posted by it immediately upon receipt thereof and maintained for at
least 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent Company to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Post at the same places and under the same conditions as set
forth in (d) above, as soon as they are forwarded by the Regional
Director, copies of the notice attached to the Intermediate Report
marked "Appendix B."
(f) Mail to the Regional Director for the Fourteenth Region signed
copies of said notice attached to the Intermediate Report marked
"Appendix A" for posting by the Respondent Union at its business
office and meeting hall in St. Louis in places where notices to members
are customarily posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being signed as provided above, be
forthwith returned to the Regional Director for such posting.
(g) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of receipt of this Order, what
steps it has taken to comply herewith.
B. Respondent Brewers and Maltsters Local Union No. 6, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Causing, or attempting to cause Falstaff Brewing Corporation,
its officers, agents, successors, or assigns, to discharge employees for
protesting the conduct of union officers to the Teamsters Monitors or
otherwise engaging in concerted union activities in violation of Sec-
tion 8 (a) (3) of the Act.
(b) In any like or other manner, restraining or coercing employees
of the said Company or any employee member of Respondent Union
in the exercise of rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which we find will effectu-
ate the policies of the Act :
(a) Notify the Company in writing that it withdraws all objection
to the employment of Oscar Gerak, with copy to Oscar Gerak indi-
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order "
FALSTAFF BREWING CORPORATION 297
vidually, and that it requests the Company to offer him immediate
and full reinstatement to his former or substantially equivalent
position.
(b) Jointly and severally with the Respondent Company make
Oscar Gerak whole for any loss of pay he may have suffered by reason
of the discrimination against him in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Post at its business office and meeting hall in St. Louis, Missouri,
and all other places where notices to members of the Respondent
Union are customarily posted, copies of the notice attached to the
Intermediate Report marked "Appendix B." 4 Copies of said notice,
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the representative of Respondent
Union, be posted immediately upon receipt thereof and maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to the members are customarily posted.
Reasonable steps shall be taken by the Respondent Union to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Post at the same places and under the same conditions, as set
forth in (c) above, as soon as forwarded by the Regional Director,
copies of the notice attached to the Intermediate Report marked
"Appendix A."
(e) Mail to the Regional Director for the Fourteenth Region signed
copies of said notice attached to the Intermediate Report marked
"Appendix B," for posting by the Respondent Company at its princi-
pal office and at each of the two plants it operates in the city of St.
Louis, Missouri, where notices to its employees are customarily posted.
(f) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps it has taken to comply herewith.
See footnote 3.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before the duly designated
Trial Examiner in St. Louis, Missouri , on December 14 and 16, 1959 , on separate
complaints , consolidated for purpose of hearing , against Falstaff Brewing Corpora-
tion , herein called the Company or the Respondent Company, and against Brewers
and Maltsters Local Union No. 6, affiliated with International Brotherhood of Team-
sters, Chauffieurs , Warehousemen and Helpers of America, herein called the Union
or the Respondent Union, and on answers duly filed by each of the Respondents.
The main issue litigated was whether the Respondent Union had violated Section
8(b)(1)(A ) and (2) of the Act and whether the Respondent Company had violated
Section 8(a)(3) and ( 1). A brief from the General Counsel was received by the
Trial Examiner after the close of the hearing.
Upon the entire record , and from my observation of the witnesses , I make the
following:
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
Falstaff Brewing Corporation is a Delaware corporation, with its principal office
at St. Louis, Missouri, where it operates breweries. In connection with the operation
of its said breweries, the Company annually purchases commodities shipped to it
directly from points and places outside the State of Missouri, valued at an amount
in excess of $50,000, and annually ships beer directly from said breweries to points
and places outside the State of Missouri valued at an amount in excess of $50,000.
I find that the Company is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find that Brewers and Maltsters
Local Union No. 6, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A picture of the case
Gerak, the Charging Party, an employee of the Company for 13 years, was dis-
charged on June 4, 1959. He was always classified a utility brewer, and had long
felt aggrieved for having been denied any opportunity to progress into the classi-
fication of brewer with its seniority prerogatives and financial advantages in a sea-
sonal industry. He placed the blame for this situation primarily upon Respondent
Local 6, which has long represented all brewery employees with the Falstaff Com-
pany, and Robert Lewis, its secretary-treasurer. On May 18, 1959, Gerak, and two
other utility brewers, wrote a letter to the Teamsters Monitors in Washington, D C ,
requesting that they "force Local 6 to represent us fairly The basic contention
of the General Counsel in this case is that Lewis, in retaliation against Gerak for
having attempted to curb his authority over the affairs of Local 6, caused the
Company to discharge him. The Company defends affirmatively on the ground
that it discharged Gerak for just cause, independent of any union consideration. The
Union defends primarily on the ground that it brought no pressure whatsoever
upon the Company, but rather that the secretary-treasurer's primary interest was
to prevail upon other union members to get along with Gerak, and to make it
possible for him to continue in employment.
The testimony and exhibits can be said to place the "facts" into two categories.
First, there are those as to which no question is raised, either because the parties
agree, or because the testimony of both General Counsel's witnesses and witnesses
for the Respondents is not in conflict, or because direct testimony is not only uncon-
tradicted, but also plausible and credible on its face. Second, there are facts resting
upon testimony of witnesses for the Respondents which is open to question because
their testimony is not internally consistent or mutually in accord, because the story
of individual witnesses at times seems inherently incredible, or because the oral testi-
mony is in conflict with the extended prior affidavit of the personnel manager of the
Company. For purposes of clarity, therefore, I will set out first those facts as to
which no question is or can be raised.
B. The unquestioned evidence
Local 6 has a membership that varies between 1,250 and 1,500 members, and
Robert Lewis has been its secretary-treasurer for the past 14 years. Although there
is a full slate of constitutionally and periodically elected officers, Lewis agreed with
his counsel on the record that he was ",the top as far as head of Local 6" is con-
cerned. For collective-bargaining purposes, he is the chairman of a joint board
of brewery workers-a group consisting of four Teamsters locals for brewery work-
ers in St. Louis, Missouri. He heads up the negotiating team, and handles griev-
ances for Local 6. He referred to Local 6 several times during his testimony as
"my organization." On one occasion after Gerak's discharge, while addressing the
full membership of the local at a regular monthly meeting, Lewis ridiculed the
charges which the employees had placed in the hands of the Monitors as an attempt
to label him a "dictator." He admitted he then found occasion to say to them: "I
told them that at times democracy can become rather sickening."
On April 17, 1959, Lewis caled at the plant and asked the union steward to bring
Gerak to an outside door near an alley. In the presence of Van Hoogstra^at, the
FALSTAFF BREWING CORPORATION 299
leadman, and Light, a shop delegate, Lewis accused Gerak of speaking ill of him
among union members and proceeded to berate him for several minutes in ex-
tremely offensive language. He said he would "break his God damn head." Light,
called by the Union and corroborated by Gerak, agreed Lewis used diversified and
extended profanity. No one else spoke a word, and Gerak returned to work.
Pink lilies do not sprout out of Gerak's mouth either. He said he once heard an
unidentified man voice an ugly and very dirty phrase about the father of a fellow
worker, Mr. Light, Jr., the shop delegate mentioned above. After inquiring around
to learn its meaning Gerak admittedly went about the plant repeating the phrase
and applying it to Light's father in conversation with a number of workmen. Early
on the morning of May 4, a union steward, Caselli, asked Gerak to accompany him
to the washhouse, a room used primarily for rest or posting of notices and in which
very little work was done. To reach it, he and Gerak traversed a number of rooms.
Light, who was already in the washhouse at the time, had told Caselli that he wished
to speak to Gerak, that he was "going to have it out with him." In the washhouse
Caselli told Gerak he must appear before the Union's executive board, Gerak insisted
he was entitled to written notice, and Caselli said he would inquire of Lewis what
the regulations were. At that point, Light stepped up to Gerak and confronted him
with the slander Gerak had voiced about his father. Caselli stepped away a few
paces and Light thereupon viciously struck Gerak in the face, beating him to the
ground. Caselli helped Gerak to his feet, his face bleeding. Without further ado,
the three left the washhouse and returned to their work. Gerak informed his lead-
man that he was leaving and went home. His departure and the attack upon him
were reported to the plant superintendent, Kavanaugh, that same morning.
Later that morning, Gerak went to a hospital to have his nose X-rayed. He stayed
away from work until May 13, when he returned and worked a full day. There is
no indication that on that day there was any difficulty between Gerak and any other
employees. On the morning of May 14, on his way to work, Gerak felt a cold
coming on and instead went to his sister's house, she living near Gerak's doctor. The
doctor came to see him there, and found him suffering from a virus condition.
Gerak's sister called the plant and reported her brother ill. Gerak eventually went
home, and a medical certificate shows that at least for a period of 1 week thereafter
he was under a doctor's care.
On May 18, Gerak and two other utility brewers, Link and Pond, wrote a two-
page letter to the Teamsters Monitors in Washington. The letter asked the Monitors
"to investigate and correct the situation which we feel is a disgrace to decent union-
ism," on behalf of over 300 members of Local 6. It blamed the Union for prevent-
ing "utility brewers" from progressing to "brewer" status notwithstanding they per-
formed the same work, paid the same union dues, and held utility brewer status
for many years. It ended by saying "we are asking you to look into this matter
and force Local 6 to represent us fairly. Bob Lewis has threatened to kill any man
who goes to the Labor Board about this. . . The letter was sent to Messrs.
Martin F. O'Donaghue, Daniel Maher, and Godfrey Schmidt, 831 Teamster Build-
ing, International Brotherhood of Teamsters, Washington, D.C., with copies to
James R. Hoffa, general president of the International Teamster Brotherhood, and
to Harold J. Gibbons, president of Joint Council 13 of the International Teamster
Brotherhood in St. Louis, Missouri. Robert Lewis a a trustee of Joint Council 13.
On the evening of May 26, Pucci, the Company's personnel manager, telephoned
Gerak at his sister's home. He inquired after his health and asked when Gerak
would be able to return for work. He advised Gerak the latter was entitled to
welfare benefits under the contract because of his illness, and asked whether Gerak
had filed the necessary claim papers. He also arranged with Gerak that he should
return to work Monday morning. June 1, with the understanding that Gerak would
advise the assistant brewmaster, Miller, if by Monday he was still unable to come in.
Pucci thereupon mailed to Gerak the necessary forms for the sick benefit payments;
he then told Miller to schedule Gerak for work on June 1.
Gerak did not return on Monday. He next heard from the Company when he
received a discharge notice dated June 4. The letter said only "the decision to
discharge you is the result of an investigation of several undesirable matters which
were brought to our attention during your absence." There is no contention that
Gerak's absence was in any way the cause of his discharge.
C. The questionable evidence relating to the Company's reason for the discharge and
the Respondent Union's participation in that decision
The Company's personnel manager and the Union's secretary-treasurer discussed
Gerak's continued employment with the Company in a telephone conversation on
May 28. Precisely what was said at that time was much disputed at the hearing.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition , Kavanaugh and Pucci testified concerning certain conversations that
took place between them , and which , according to the Respondents , prove the dis-
charge had nothing to do with Gerak 's complaint respecting Lewis or his letter to
the Monitors . It is the testimony concerning these intra -Company, or inter-Respond-
ents' conversations , as it were, which must support, if possible, the affirmative
defenses.
Kavanaugh testified that when he learned, on the morning of May 4, of the
"fight," he called Steward Caselli to his office, and that the latter denied any knowl-
edge about it. Kavanaugh then asked his assistant , Miller, to investigate, and
Miller later reported ; exactly when , Kavanaugh was vague . First he said it was
about 3 weeks, later 2 or 3 weeks-maybe a month-maybe 1 week . Finally, con-
fronted with his prior affidavit, he said Miller reported 10 days later . According
to Kavanaugh , Miller reported that the men complained of Gerak's dangerous
carelessness with important valves, that Gerak had made derogatory statements
about others, and that he had been a general agitator : "That is roughly what he
brought in to me." Nothing was put in writing. Miller did not testify.
Kavanaugh continued that this information caused him to decide then and there
to discharge Gerak . Again he vacillated as to how long it took him to do anything
about it. Finally, he said that about May 26 he spoke to Pucci, the personnel man-
ager, about the matter . He advised Pucci what Miller had reported and "told him
to take action to protect the Company ." He used this phrase to avoid the direct
question whether he told Pucci to discharge the man. His tesitmony was also that
he wished to protect the Company against an undesirable "character," and that his
talk with Pucci was equivalent to discharge instructions . Kavanaugh stated un-
equivocally that no one from the Respondent Local asked him to discharge Gerak
or influenced his decision in any way.
Pucci was called as a witness by the General Counsel . During his examination
he was shown a 15-page affidavit which he had signed on August 10, 1959, telling
the story of the pertinent events. Pucci acknowledged the affidavit , which he admitted
signing and understanding to have been a sworn statement . As will appear below,
his oral testimony was at many critical points in sharp conflict with his earlier affi-
davit. At many points he revealed a studied effort to shade the meaning of words
appearing in the affidavit, to add or detract from its affirmative wording by suggested
inuendos intended to impart a contrary meaning, and , in substance , to nullify its
significant effect . Although insisting that the affidavit did not set forth his exact
words, and that he had a further conversation with the Labor Board investigator
on a later occasion, when he made other , different statements to him, Pucci ad-
mitted that what appeared in his affidavit was true. ' In view of his official position
as personnel manager of two plants , of the direct conflict between his testimony
and important parts of his earlier affidavit , and of his admission of the truth of
the affidavit at the time he made it , I received it into evidence as an exhibit by
the General Counsel.
Pucci testified that he first learned of the Gerak affair when Kavanaugh spoke
to him about it on May 26. He said Kavanaugh had already decided to discharge
Gerak and so instructed Pucci that day. His affidavit instead reads that Kavanaugh
"asked me to investigate the absence from work of Oscar Gerak . he told me
that Gerak had been in the fight and he figured that he had been absent because
of it . Kavanaugh asked me to check into the matter to see when Gerak was returning
to work. . . . At that time there was no thought of discharging Gerak due to the
altercation : we just wanted to learn when he would be available for work " In direct
conflict with Kavanaugh's testimony relating to the May 26 conversation, the affidavit
makes no mention of Miller 's investigation or any complaints regarding Gerak's
behavior or employee animosity toward him.
As related above, Pucci telephoned Gerak that evening and inquired about his
health. asked did he want the welfare forms, arranged for Gerak to come to work
the following Monday, and then sent out the sick leave forms. Pucci continued
to testify that he spoke to Kavanaugh again about Gerak on the telephone early
on May 28 He insisted that as of that moment Kavanaugh still told him nothing
about any dissatisfaction with Gerak 's character , about emnloyee complaints con-
cerning him, or gave any indication that the employees might refuse to work with
him on his return . He said his understanding with the superintendent up to this
1 After acknowledging his affidavit Pucci was asked
Q. TRIAL EXAMINER : Now, you wouldn 't sign anything unless you knew it was
true, would you 9
A The WITNESS : That 's correct , I would not sign it.
FALSTAFF BREWING CORPORATION 301
moment was that Gerak would be confronted, upon his return to work, with the
decision to discharge him, and then, if his reasons for his absence were unacceptable,
disciplinary action be taken. Again his affidavit completely contradicts his oral
testimony. There Pucci stated that on May 28 Kavanaugh told him the men voiced
their protest on hearing Gerak was scheduled to return and that they "thought
Gerak should have been discharged."
I am utterly unable to reconcile either the respective oral testimony of these two
men, or the hopeless disagreement between their contradictory testimony and
Pucci's affidavit.
Later on May 28 Lewis, the secretary-treasurer of Local 6, spoke to Pucci on the
telephone. He told Pucci that he had received a number of anonymous telephone
calls from union members who were "up in arms" over the Light fight, that the
situation was "hot and serious," and that he could not be responsible for what
might happen the following Monday if Gerak returned to work. Pucci denied from
the stand that Lewis told him to discharge Gerak, but admitted "he [Lewis] probably
suggested we . . . try to do something to keep the man from working. . " At
this point in Pucci's testimony, there appeared another important contradiction of
his earlier affidavit. He denied having told Lewis on the telephone there was no
ground for discharging Gerak. His affidavit instead reads: "I told Lewis that I felt
there was nothing which could justify discharge action at this time, but that we
would investigate further."
Lewis also testified concerning his telephone conversation with Pucci. The tenor
of his entire testimony was that he was concerned with the possibility of conflict in
the plant when Gerak returned because of anonymous calls he had received from
employees who were disturbed. He would have it that he called Pucci in order to
gain time to bring peace in the plant, to restore amicable relations between Gerak
and his fellow employees, and eventually to make it possible for Gerak to resume
working at peace. He said he asked Pucci "not to let Mr. Gerak work for the time
being. When Pucci asked who would pay the man, Lewis said Falstaff would
have to do so. He quoted Pucci as saying on the telephone that the Company did
not know if it was going to retain Gerak. Asked directly by his attorney whether
he had asked Pucci to discharge Gerak, Lewis replied: "Mr. Craig, you know I'm
much too smart for that. No, I didn't."
Early on May 31 Pucci telephoned the assistant brewmaster, Miller, and told
him that if Gerak reported to work as previously scheduled he should be paid and
sent home. Gerak did not report as arranged. Later that day Pucci appeared
at plant No. 5 where Gerak worked, and, outside the brewmaster's office, took
written statements from 14 employees, each generally critical of Gerak. Only two
of them referred to any problem over carelessness with proper shutting or opening
of valves, and these only suggest indirectly that Gerak may have been the negligent
employee. None of them refers to the Light incident in the washhouse on May 4.
They are couched in general terms, vague, and largely full of references back to
ancient recollection.2
As set out above, on June 4 Pucci sent a discharge letter to Gerak, who never
sought to obtain any explanation or justification from the Company. On July 6
Gerak went to Lewis' office accompanied by his sister (Gerak: "I didn't think it was
proper for me to go through the Company") and asked why he had been fired. All
he succeeded in hearing from Lewis was: "You know . It is out of my hands."
Also, in July, Gerak went to an attorney, Mr. Gilpin, for assistance. The attorney
wrote to the president of the Falstaff Corporation, inquiring as to the reason for its
action. Pucci responded by telephone. Asked by Gilpin why Gerak had been
2 The following statement in full, by employee Watson, is typical of the 14,
I, Lawrence Watson, wish to state that I feel that Oscar Gerak is an undesirable
employee and wish to see action taken against him to remove him from the job
For the following reasons: (1) On a number of occasions when he arrived for
work he would ignore any recognition of friendliness and display an arrogant atti-
tude. (2) He seldom had a good word for any of his fellow workers, particularly
the men from Illinois-he continually referred to them as "Illinois Hoosiers" or
"stump jumpers " (3) When assigned to work on what he called "hard jobs" he
almost always made insulting remarks about the foreman who placed him on these
jobs. (4) He was always jealous of the men who worked in the fermenting cellars
(for making overtime) and let it be known that since he was not getting the over-
time thefermenting men were called names (profanity). In general I have always
felt that Gerak was a hard man to work with and a person had to be on his guard at
all times to avoid actually fighting with him.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
released, Pucci said the Company had received "complaints from union representa-
tives." Asked to give specific details, he refused.3
D. Further pertinent evidence, analysis, and conclusions
Charged with having released Gerak at the Union's insistence, the Company chose
to defend on the affirmative ground that it discharged him because he was an unde-
sirable character. On the total evidence in the case, I do not think the Respondent
Company has proved this affirmative defense; in any event, I am convinced it did not
discharge Gerak for that reason. The issue of the case, however, is not why Gerak
was discharged. Rather, as in all proceedings charging unlawful discrimination
under the statute, the question is whether or not the record as a whole supports the
affirmative allegation of the complaint that the Company discharged the employee
at the Union's insistence in order to discourage his exercise of rights guaranteed in
Section 7 of the Act.
For the reasons appearing below I reject the Company's asserted basis for dis-
charge. Gerak testified without contradiction that cussing went on in the plant as
a commonplace occurrence, and that all the men were permitted to drink beer on the
job without limitation. Lewis' unrestrained profanity of April 17 at the plant did
not offend the sensibilities of the leadman or the union delegate who silently ac-
quiesced. Both Pucci and Kavanaugh said there have been fights in the plant before;
Pucci said someone had been discharged years ago but he could not recall details.
He also said that so far as discharges are concerned "there has not been any
practices in this area." He then added that no one was ever discharged for fighting.
On this point, his affidavit reads: "There have been several other instances where
some employees would not get along well with each other, and where arguments
and fights may have occurred. This was never the basis for discharge because usu-
ally such personality problems could be handled in other ways, either by transfers
to other departments or otherwise separating the individuals at fault." Kavanaugh
said, "We don't fire anyone for fighting because it is pretty well, I mean, that
happens, we don't fire them on the grounds of fighting. We are not judges, we
don't know which one is the guilty one, they might both be guilty. We have never
fired anyone for fighting." Moreover, although the Company kept advancing the
Light "fight" as one of the provoking causes of the discharge, the truth of the
matter is that there was no "fight" in the washhouse on May 4. Instead, as the
record clearly shows, by prearrangement between Light and Steward Caselli, Gerak
was lured into the isolated washhouse expressly so that Light could "have it out"
with him. Whether or not Gerak deserved reprimand for his offensive language
concerning Light's father, indeed, granting, as I certainly do, that he also deserved
a good punch in the nose, any kind of a real investigation should have revealed to
the Company that Gerak did not fight, but rather was brutally and deliberately
assaulted. He never struck a blow, never had an opportunity, and left quietly
without even attempting to hit back at his tormentors.
The very basis of the discharge urged at the hearing-a comprehensive investiga-
tion conducted by the assistant brewmaster-if it ever did take place, is highly suspect
because of its unilateral character. Gerak was never asked his version either of the
washhouse incident or of his relationship with other employees. Quite contrary to
the fairness which Pucci sought to convey, even to the extent of saying it had been
decided to confront Gerak with his accusers before taking action against him, Gerak
was not given any opportunity to exculpate himself.
I do not credit any of the testimony offered by Kavanaugh and Pucci at the
hearing with respect to the conversations they said they had on May 26 and
thereafter. Kavanaugh testified he told Pucci on the 26th to discharge Gerak.
Pucci's affidavit flatly contradicts this. Kavanaugh also testified he detailed to
Pucci on that same day the derogatory reports resulting from Miller's 10-day inves-
tigation. Pucci swore to the contrary, and his affidavit shows clearly Kavanaugh
never mentioned criticism of Gerak until after Lewis had called Pucci.
While insisting, contrary to his affidavit, that he had been ordered on May 26 to
discharge Gerak, Pucci's actions thereafter were completely insistent with any such
3 Attorney Gilpin's testimony was supported by his office memorandum concerning the
telephone conversation, a note which he prepared and placed in his file at the time of his
talk with Puce!. At the hearing, Pucci denied having used the phrase "union representa-
tives," and said that at best he may have -referred to complaints of "union members."
I credit the attorney, who was a clearly disinterested and reputable witness. Against
him, the totality of Pucci's testimony, evaluated in the light of his completely in-
consistent extended prior affidavit, makes it impossible for me to accept his conflicting
testimony.
FALSTAFF BREWING CORPORATION 303
determination. He inquired of Gerak's health, insisted on mailing him welfare
benefit forms, arranged for his return to work on the following Monday, and so
advised the immediate supervisor in Gerak's department. All this, without once
mentioning to anyone-except for the well concealed, unrecorded, and confidential
talking between superintendent and personnel manager-that the Company was in
any way dissatisfied with him.
But most destructive of the company officials' testimony that they wished to get
rid of Gerak, is Pucci's failure to mention the fact to Lewis on the telephone.
Pucci's purported explanation of the long delay in carrying out the decision to
discharge, of his ostensible and deceptive solicitude toward Gerak in inviting him
to work, and of the written gripes which the Company solicited from certain em-
ployees, was that all of this was but a scheme which he had envolved to protect
the Company's interest in the situation. And even on this asserted concern over
the Company's interest, Kavanaugh and Pucci could not agree at the hearing. The
superintendent said he told Pucci to protect the Company against persons of Gerak's
"character." The personnel manager said he was seeking to protect the Company
from the "Union." I do not believe either of them. What more protection from
the "Union" could Pucci need when Lewis himself told him to keep Gerak out of
the plant? Instead he tells Lewis there were no grounds to justify discharging the
man and impliedly suggests Local 6 pay Gerak's wages if it wants him to be kept out.
This was hardly the way to carry out Kavanaugh's instructions to discharge.
And the timing of what Pucci did, as distinguished from the self-serving conversa-
tions between them which the two company officers now advance, is most significant
of all. Up to the moment of his talk with Lewis, Pucci had taken no action against
Gerak; instead he had treated him as though the Company had no special interest
in him at all. Immediately following Lewis' telephone call on May 28, Pucci
countermands his instruction to Miller and tells him to refuse to permit Gerak to
work Monday. He even tells him to pay Gerak a gratuity to go home-precisely in
keeping with Lewis' highhanded order. Now for the first time he does something
to make a "record" to protect the Company-as he said-by having employees
come to Kavanaugh's house and sign general, vague, and not very unusual com-
plaints against a fellow employee. With these now in the file for future "protec-
tion"-despite the established practice over the years, no previous record of com-
plaints have ever been placed in Gerak's personnel folder-Pucci forgets all about
his strategy to confront Gerak and summarily discharges him without notice. What
protection was he building up for his Company? Could it be that all this amounted
to was a last minute effort to remove the spotlight from the Union as a moving
cause of Gerak's discharge and make it appear instead that the union "members"
were the motivating pressure?
And finally, when Pucci had an opportunity to come forth with Gerak's asserted
misconduct and undesirable personal characteristics in defense of the Company's
action, he told Gilpin, Gerak's lawyer, only that there had been complaints from
"union representatives." If the written statements from employees were to protect
the Company, all he had to do was start reading from them to Mr. Gilpin, when
asked for specific details.
Gerak not having been discharged for cause, the next question is whether or not
he was discharged because the authoritative agent of Local 6 so wished. I have
no doubt that that is exactly what happened in this case. As found above, before
Lewis spoke to Pucci on the telephone on May 28, the Company had made no
decision to discharge Gerak at all. He was to report to work the following Monday,
but did not do so. Three more days went by and he did not communicate with his
Employer. I recognize 'a considerable element of doubt as to Gerak's credibility as
a witness in this case. He saw a doctor between May 14 and 21, and he admitted
that thereafter for the next 13 days he had no medical attention. It may well be
that his reason for continued absence was something other than ill health. In the
total context of the record of this case, and with a due appraisal of the tenor of
Robert Lewis' statements from the witness stand, I can easily imagine other possible
reasons for Gerak's continued absence. The question here, however, is not why did
Gerak absent himself. Rather: why did the Company, having no intention of dis-
charging him on Friday, change over the weekend, decide to pay him to stay home,
and then fire him without any communication at all?
Lewis did not like Gerak. The profane diatribe that he let loose on April 17,
when he made a trip to the plant for the express purpose of roundly insulting the
employee, coupled with the enmity bordering on hate he revealed on the witness
stand, leave no doubt that the personal animosity was deeply felt. I need not
speculate as to what was the cause for Lewis' dislike before Gerak, with the two
other employees, complained to the Teamster Monitors in Washington about Lewis'
method of administering the affairs of Local 6. Perhaps he took umbrage at Gerak's
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loose language . This is unlikely , for the record shows clearly that Lewis is not too
sensitive to offcolor language himself . More likely, the subject of irritation was the
continuous and outspoken complaint by Gerak and other utility brewers that they
were precluded from progressing to the "brewer " classification by Local 6 itself.
Brewers and utility brewers work side by side and perform duties that are not sub-
stantially distinguishable . Nevertheless , as the contract in evidence provides, those
employees classified as brewers enjoy seniority prerogatives which permit them to
stay in the frequent seasonal layoffs , in consequence of which their overall earnings
are greater than those of the utility brewers. This system has long also provided
that utility brewers may progress through a short apprenticeship and acquire the
status of brewers . Gerak testified that although he has been a utility brewer for
upwards of 20 years he was always denied such opportunity, and the record as a
whole leaves no doubt that , right or wrong , he was convinced Lewis, who effectively
controlled the policies of the Union, deliberately was responsible for the resultant
discrimination against Gerak and other members similarly situated in this industry
in St. Louis. Indeed, it was this very dissatisfaction which formed the basis of the
complaint by Gerak, as spokesman for a large group of members of Local 6, when
when they wrote to the Monitors and said they were being treated as second-class
members of the Union. They wrote their letter on May 18, and I find the letter was
received in due course within a few days, by both the Monitors in Washington and
the Teamster District Council in St. Louis, of which Lewis is a trustee. I need no
further evidence than the parties' stipulation that the letter was sent to both these
destinations, to support the finding, which I make, that Lewis, within a matter of 2
or 3 days after May 18, learned that it had been sent. It was only a few days later
that he spoke with the personnel manager about Gerak. And he told Pucci to
keep Gerak out of the plant.
The record evidence is also sufficient to convince me, and I find, that Lewis told
Pucci to discharge Gerak. There is no other plausible explanation for the Com-
pany's change in attitude toward the employee. Before the conversation with Lewis,
all that appears credibly is that Pucci was concerned with ascertaining when Gerak
would return. The officers believed Gerak was out sick; they wanted him to enjoy
the contract welfare benefits. After the telephone call, Pucci wanted to pay Gerak
to stay home, he sought affidavits to support the justification for a discharge, and
without more terminated the man.
In resisting the complaint allegation that Local 6 "caused" the Company to dis-
charge Gerak, both Respondents rely largely on the absence of direct evidence that
Lewis used the word "discharge" when speaking with the personnel manager. In
the circumstances of this case, I do not deem the absence of such a literal word a
fatal defect. There are cases and circumstances in which the absence of direct and
positive proof precludes certain factual findings. There are others in which an in-
direct suggestion, a hint, a "wink or a nod." as it were, more than suffices. Lewis
is the admitted power in Local 6; he is impatient with "too much democracy."
Pucci is afraid , and feels the Company must protect itself against the Union. Both
Pucci and Lewis said that Lewis requested the Company not to permit Gerak to
return to work. I view Lewis' almost contemptuous reply to his own lawyer that
he was "much too smart" to use the word "discharge" as a revelation of unbounded
confidence in the ability to hoodwink the entire judicial process. It may be he enjoys
exclusive control over the destiny of all the members of Local 6 in St. Louis; he does
not have a monopoly of human intelligence , even within the confines of a single
courtroom.
Lewis' words and demeanor on the witness stand reveal an unmistakeable arrogance
toward individual employee rights and union members' prerogatives . In the total
picture, I find his uncorroborated explanation of why he wanted Gerak out of the
plant totally unconvincing . According to him his only purpose was to placate the
disturbed employees and to protect Gerak's employment . If this was his purpose, I
hardly understand the special union meeting he called on September 11 when he spoke
at length of the May 18 letter to the Monitors and roundly ridiculed Gerak and
the other two members who had signed it . On his own admission of the hearing,
Lewis defended what he had done in connection with Gerak 's discharge, gave Gerak
an opportunity to make his grievance stick before 500 or 600 union members, and
ended by calling for a mass demonstration of confidence in himself . I do not believe
Lewis sought to reconcile any differences between Gerak and other union members.
I find. instead , on the entire record , that he very much resented Gerak 'g attempt to
question his stewardship of the affairs of Local 6 and had him discharged for that
reason . I am satisfied Lewis saw in these members' appeal to the Monitors a menace
to his continued status as secretary -treasurer of the Union and virtual sole master
of its affairs.
FALSTAFF BREWING CORPORATION 305
If Gerak's statutory privilege to raise a dissenting voice against Lewis as a union
official had not been involved, if employment had not been lost because of Gerak's
insistence upon exercising his statutory rights, there would have been no occasion
for Lewis, at this same September 11 meeting, to express this contempt of the
National Labor Relations Board, to advise all the union members to refuse to give
any information of any kind to any of its representatives, and to curse openly, in
the most offensive street gutter language, one of the very devoted and hard working
Labor Board attorneys stationed in the St. Louis Regional Office.
The statute protects the rights of any union member to express his dissatisfaction
over the stewardship of elected union officers, and it has been held that activities
of employees aimed either at removing elected union officers, or at compelling a
change in their methods of running the Union, is protected against discharge by the
Company .4 In conclusion I find that by discharging Gerak on June 4, 1959, at
the request of Local 6, the Respondent Company discriminated against him in
violation of Section 8(a)(3) and (1) of the Act, and that by causing such dis-
crimination by the Respondent Company, the Respondent Union violated Section
8(b)(2) and (1)(A) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent Local 6 and Respondent Falstaff Brewing Cor-
poration have engaged in certain unfair labor practices, I will recommend that
they cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As to Local 6, I will recommend that it cease and desist from causing or
attempting to cause Falstaff Brewing Corporation to discharge employees for pro-
testing the conduct of union officers to the Teamsters Monitors or otherwise engag-
ing in concerted union activities. As to the Respondent Company I shall recom-
mend that it be ordered to cease and desist from discharging employees for engaging
in such conduct.
I shall also recommend that the Respondent Union and the Respondent Company
jointly and severally make Oscar Gerak whole for any loss of pay he may have
suffered by reason of the discrimination against him, said loss of pay to be com-
puted on a quarterly basis in accordance with the formula adopted by the Board
in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that the
Respondent Union be required to notify Oscar Gerak and the Respondent Company
in writing that the Respondent Union has no objection to his employment by the
Company. The Respondent Union shall not be liable for any backpay which may
accrue for the period beginning 5 days after it notifies the Company and Oscar
Gerak as aforesaid. It is also recommended that the Company make available to
the Board, upon request, payroll and other records to facilitate computation of the
amount of backpay due.
In view of the nature of the unfair labor practices committed, the commission by
the Respondents of similar and other unfair labor practices may be anticipated.
The remedy should be coextensive with the threat. I will therefore also recommend
that the Respondents be ordered to cease and desist from infringing in any manner
on the rights of employees guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Falstaff Brewing Corporation, St. Louis, Missouri, is an employer within the
meaning of Section 2(2) of the Act.
2. Brewers and Maltsters Local Union No. 6, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
*Local 138, International Union of Operating Engineers , AFL-CIO (A. Cestone Com-
pany ), 118 NLRB 669, enfd. 254 F. 2d 958 (C.A. 2) ; Acme Mattress Co. Inc., 91 NLRB
1010, enfd. 192 F. 2d 524 (C.A. 7).
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employment of Oscar
Gerak, the Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
4. By the above conduct, thereby interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I) of the Act.
5. By causing the Respondent Company to discriminate against employees in
violation of Section 8(a) (3) of the Act, the Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(b)(2) of
the Act.
6. By causing the Respondent Company to discriminate as aforesaid, thus re-
straining and coercing employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT discharge employees because they have protested the conduct
of union officers to the Teamsters Monitors or otherwise engaged in concerted
union activities, or in any other manner discriminate against them in regard to
hire or tenure of employment or any term or condition of employment, except
to the extent permitted by Section 8(a)(3) of the Act, as modified by the Labor-
Management and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL make whole Oscar Gerak for any loss of pay he may have suffered
as a result of our discrimination against him.
FALSTAFF BREWING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF BREWERS AND MALTSTERS LOCAL UNION No. 6,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF FALSTAFF
BREWING CORPORATION
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify you that:
WE WILL NOT in any manner cause or attempt to cause Falstaff Brewing Cor-
poration to discharge employees because they have protested the conduct of
union officers to the Teamsters Monitors or otherwise engaged in concerted
union activities, or to discriminate against its employees in any manner in
regard to their hire or tenure of employment, or any term or condition of
employment, except to the extent permitted by Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
DOUGLAS MOTORS CORP. 307
WE WILL NOT in any other manner restrain or coerce employees of Falstaff
Brewing Corporation , or any employee member of this Union , in the exercise
of rights guaranteed in Section 7 of the Act , except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization,
as a condition of employment , as authorized by Section 8(a)(3) of the Act, as
amended by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole Oscar Gerak for any loss of pay he may have suffered
as a result of the discrimination against him.
BREWERS AND MALTSTERS LOCAL UNION No. 6,
AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By--------------- ----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered Eby any other material.
Douglas Motors Corp. and Shopmen 's Local Union No. 471 of
the International Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO, Petitioner . Case No. 13-RC-
7070. July 25, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert G. Mayberry, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer has been engaged in the manufacture of plaster and
mortar mixers, snowplows, wrecking cranes, rollers, trailers, and
towing accessories. In addition, the Employer has as a regular busi-
ness practice subcontracted to other firms the manufacture of con-
crete mixers, towing tools, engine stands, tire spreaders, and towing
bars.
The Petitioner herein seeks an immediate election among the pro-
duction and maintenance employees of the Employer. At the time of
128 NLRB No. 31.