Jos. Schlitz Brewing Co.

National Labor Relations Board - Board Decisions

Mar 27, 1969

175 N.L.R.B. 141 (N.L.R.B. 1969)

JOS. SCHLITZ BREWING COMPANY 141
Jos. Schlitz Brewing Company and Brewery Workers
Local Union No. 9, International Union of the
United Brewery , Flour , Cereal , Soft Drink and
Distillery Workers of America . Case 30-CA-728
March 27, 1969
DECISION AND ORDER
BY MEMBERS JENKINS, BROWN, AND ZAGORIA
On August 8, 1968, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. She further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
Thereafter, the Respondent, the General Counsel,
and the Charging Party each filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found that the Respondent, in
implementing its change in relief periods during the
term of the contract, did not comply with Section
8(d) requirements, and thereby violated Section
8(a)(5) and (1) of the Act. We find merit in those
exceptions of the Respondent directed to the Trial
Examiner's failure to defer this controversy to the
grievance-arbitration procedures agreed to by the
parties.
We do not believe that exercising jurisdiction over
this case will effectuate the policies of the Act. The
Trial Examiner noted that there was no claim of
any antiunion motivation in Respondent's actions
and further noted that Respondent and this Union
have been operating under collective-bargaining
agreements since the turn of the century. Testimony
also disclosed that the parties have enjoyed many
years of a satisfactory strike-free working
relationship. The substantive controversy itself is
unaggravated on either side and emerges only if the
Union's interpretation of the contract is fully
accepted. In this regard it is interesting to note that
although the Employer believes that the contract,
properly construed, permitted the change in the
relief-man system, the Employer also acknowledges
that the core of the dispute relates to a construction
of contract language, namely, whether the provision
in question did or did not permit the Respondent to
make the change in the relief-man system which it
did in fact make. The Employer's interpretation and
implementation of the provision in question, it
asserts, if found objectionable by the Union, should
have been grieved and arbitrated pursuant to the
procedures agreed upon by the parties for just such
a controversy rather than becoming the subject of
an unfair labor practice charge. We agree with
Respondent that this case should be left for
resolution within the framework of the agreed upon
settlement procedures.
On January 3, 1968, Respondent contacted the
Union President and advised him of the proposed
plan, which had been under study for many weeks,
to abandon the relief-man system and shut down the
production lines twice each day to permit all of the
employees to take the required break at the same
time. It was the position of the Company that
although it believed it had a right under the contract
to unilaterally institute such an operational change,
it wished to discuss the matter with the Union
before proceeding with its implementation. Indeed,
the Company maintained that it had not at this time
made a final decision that the change in the relief
system would actually occur. However, the
Company did suggest January 8, 1968, as a possible
effective date for implementing the plan. Union
President Mueller stated that this change was
prohibited as a modification of the "past practices"
clause of the existing collective-bargaining
agreement, namely part V, article 1, which provided
that "past practices in the manner in which the
fifteen (15) minute relief periods were allowed shall
be continued." President Mueller, although he
refused to agree to the change, did consent to meet
with management officials the next day to discuss
the matter. At the meeting on January 4, both
parties reiterated their positions. The Company
stated that it had the right to institute the change
under part I, article X, section 2, of the
collective-bargaining agreement which provides as
follows:
When the new machinery has been installed or
any change in device or change in method of
production has been made which has the effect of
reducing the number of jobs in any department,
the Union shall be notified after the operation is
in effect and shall have the opportunity of
immediately reviewing the matter with the
Employer in the event it does not believe adequate
help is being provided. In the event of
disagreement, the Union shall pursue its objection
through the grievance procedure under Article
XXIV.
Article XXIV provides grievance and arbitration
machinery for the settlement of "all differences or
misunderstandings which may arise out of the
175 NLRB No. 23
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpretation of any of the clauses" of the contract.
Mueller again refused to discuss the change any
further. After leaving the meeting on January 4,
Mueller consulted with the Local's attorney and the
unfair labor practice charge was filed with the
Board that day. Thereafter, on January 6, 1968 at a
meeting of Company officials it was decided to go
ahead with the contemplated plan, and on January
8, the Company implemented the new relief system.
We believe that the Employer acted reasonably,
vis-a-vis its bargaining and contract obligations,
throughout the process of altering its operations.
The Employer believed that it had a right, under the
contract, to implement the business change
regarding the relief system and that if there were
any doubt about the matter it would be resolved
under the grievance and arbitration clauses of the
contract. In addition, of course, and in spite of its
belief in its right to so alter its operations, the
Employer did in fact offer to discuss the entire
transaction with the Union prior to actually
implementing the change. The Union's response was
an adamant denial of the Respondent's right to so
alter the reliefman system and the filing of an unfair
labor practice charge rather than to test the
Employer's offer to discuss the matter, either with
regard to the substantive issue itself or respecting
the applicability of the grievance and arbitration
clause of the contract as a means of settling the
controversy.' Moreover, it is at the very least an
arguable question as to which of the party's
interpretations of the contract should control. The
Trial Examiner found that the "past practices"
clause favored by the Union did in fact control as a
result of which she found the violations against the
Employer. On the other hand, the Employer made a
reasonable argument that part I, article X, section
2, providing for a unilateral change in certain
production methods, should control. Clearly, it
would be difficult to find a case more suitable for
applying such grievance and arbitration machinery
in order to resolve a contract dispute.
Thus, we believe that where, as here, the contract
clearly provides for grievance and arbitration
machinery, where the unilateral action taken is not
designed to undermine the Union and is not patently
erroneous but rather is based on a substantial claim
of contractual privilege, and it appears that the
arbitral interpretation of the contract will resolve
both the unfair labor practice issue and the contract
interpretation issue in a manner compatible with the
purposes of the Act, then the Board should defer to
the arbitration clause conceived by the parties. This
particular case is indeed an appropriate one for just
such deferral.' The parties have an unusually long
established and successful bargaining relationship;
'It is interesting to note that a union steward, unaware that the Union
had already filed the unfair labor practice charge on January 4 , 1968, filed
a grievance respecting the change in the relief man system on the date it
was first implemented , January 8 , 1968 The gnevance was never
processed
they have a dispute involving substantive contract
interpretation almost classical in its form, each
party asserting a reasonable claim in good faith in a
situation wholly devoid of unlawful conduct or
aggravated circumstances of any kind, they have a
clearly defined grievance-arbitration procedure
which Respondent has urged the Union to use for
resolving their dispute; and, significantly, the
Respondent, the party which in fact desires to abide
by the terms of its contract, is the same party
which, although it firmly believed in good faith in its
right under the contract to take the action it did
take, offered to discuss the entire matter with the
Union prior to taking such action. Accordingly,
under the principles above stated, and the persuasive
facts in this case, we believe that the policy of
promoting industrial peace and stability through
collective bargaining obliges us to defer the parties
to the grievance-arbitration procedures they
themselves have voluntarily established.'
Without deciding the merits of the controversy,
we shall order the complaint dismissed in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, concurring:
I concur in the decision of my colleagues to
dismiss this case in its entirety. Unlike Unit Drop
Forge Division, 171 NLRB No. 73, where a Board
majority found as insufficient the alleged contractual
waiver by the union of its right to bargain over the
change there in question, in my view, the contract in
the present case clearly gives the Employer the right
to alter its operations prior to or pending grievance
or arbitration, and union disagreement therewith is
then to be remitted to grievance and arbitration.
Moreover, I would find that Respondent's offer to
discuss the proposed change did, in the
circumstances here, amount to a good-faith offer to
bargain which would justify the dismissal, and
further distinguishes this case from Unit Drop
Forge, a decision I still adhere to.
'Cf C & S Industries, Inc , 158 NLRB 454, 459-460
'United Steelworkers of America v American Mfg Co , 363 U S 564,
United Steelworkers of America v Warrior & Gulf Navigation Co, 363
U S 574, United Steelworkers of America v Enterprise Wheel & Car
Corp , 363 U S 593 Cf International Harvester Co , 138 NLRB 923,
affd. 327 F 2d 784 (C A 7), cert denied 377 U S 1003
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case was tried
before me in Milwaukee, Wisconsin, on April 23 through
26, 1968. The complaint was issued on February 14, 1968,
upon a charge filed on January 4, 1968, by Brewery
JOS. SCHLITZ BREWING COMPANY 143
Workers Local Union No. 9, International Union of the
United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of Amenca, herein called the Union. The
complaint alleges that Respondent, Jos. Schlitz Brewing
Company, violated Section 8(a)(5) and (1) of the Act in
connection with its institution of changes in its relief-man
practice in its Bottling Department. Respondent denies
that its actions were in violation of the statute. It also
asserts that any dispute concerning Respondent's right
under its contract with the Union to take the action in
question should be handled through the grievance and
arbitration machinery of the contract rather than through
unfair labor practices proceedings before the Board
Subsequent to the hearing, each of the parties filed a
brief, which has been carefully considered. Upon the
entire record in this case and from my observation from
the demeanor of the witnesses, I make the following.
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent is a Wisconsin corporation engaged at
Milwaukee, Wisconsin , in the brewing , bottling, and
distribution of beer . During the past calendar year, which
is a representative period, Respondent sold and shipped
from its Milwaukee facilities to points outside the State,
products valued in excess of $50,000 It is undisputed and
I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background and Issues
Since the turn of the century Respondent and the
Union have been operating under collective -bargaining
agreements and there is no contention that Respondent's
conduct which is the subject of this litigation was
motivated by any opposition to unionism . The agreement
in effect during the period here in issue does not expire
until June 1 , 1969. It is alleged that Respondent failed to
comply with its obligations under Section 8(a)(5) and 8(d)
of the Act in three respects- ( 1) by failing since October 7,
1967, to give the Union information regarding its
contemplated changes in the scheduling of relief periods
for its Bottling Department (also referred to as Packaging
Department ) employees and misleading the Union
regarding such contemplated changes, (2) by unilaterally
determining about December 28, 1967, to institute changes
in the scheduling of such relief periods and by unilaterally
instituting such changes on January 8, 1968; and (3) by
modifying the labor contract on January 8, 1968, in
respect to the manner of scheduling relief periods, without
complying with the requirements of Section 8(d) of the
Act
The collective- bargaining agreement (Article XXIV)
provides a grievance and arbitration machinery for the
settlement of "all differences or misunderstandings which
may arise out of the interpretation of any of the clauses"
of the contract . The Union did not invoke these grievance
and arbitration provisions to settle its differences with
Respondent regarding the changed relief scheduling and,
instead, filed an unfair labor practice charge with the
Board.' Respondent's contention that it would not
effectuate the policies of the Act for the Board to exercise
its jurisdiction herein because of the availability of
arbitration for settling the issues will be treated infra.
B Evidenti ary Facts
For many years prior to January 8, 1968, Respondent
had followed a practice of using relief men on the
production lines in its Bottling Department to stagger the
15-minute relief periods allowed under the bargaining
agreement for each employee every morning and
afternoon. In early September 1967, First Shift
Superintendent Stammberger conceived the idea that it
might be feasible and desirable from an operational
standpoint to eliminate relief-man functions on the
production lines by shutting down the machines or
production lines for 15 minutes each morning and
afternoon while the employees took their breaks It had
been the practice to keep the machines running during
these break periods, with the relief man doing the work of
the man he relieved. The machines customarily ran 7-1/2
hours on each shift, being shut down only during lunch
periods. The elimination of the relief-man functions would
mean that the machines would run only 7 hours each day
unless they ran overtime
Superintendent Stammberger spent about half his time
in September studying and attempting to perfect his plan
or idea and frequently discussed it with other
representatives of management. About October 6,
Stammberger submitted a written report to
Superintendent Wilmering and Acting Plant Manager
Roester recommending that serious consideration be given
to the plan of shutting down packaging operations during
the 15-minute relief periods.
During the first week in October, Union Steward
Contrescen overheard supervisors in the shipping office
discussing the possibility of a change being inaugurated
which would eliminate relief men. On the following day,
Contresceni inquired of one of those supervisors, Mendini,
whether he had heard anything about the new relief
system being put into operation and Mendini replied that
Respondent was planning an elimination of the relief
system as it was then known. Contresceri thereupon
reported what he had heard to Union Representative John
Adam.
On October 9, representatives of Respondent and the
Union met to discuss a grievance arising out of a change
in the method of loading trucks and several other matters.
During the course of the meeting Union Representative
Adam asked Respondent's Manager of Union Relations,
Ward, whether there was any truth to the rumor going
around that Respondent was going to institute a new
system of relieving which would involve taking the relief
men off the machines. Ward replied that he had heard
nothing about it and that no such change was
contemplated.'
'Union Steward Contrescen did file a grievance on January 8, 1968, but
was unaware at the time that his union had already filed an unfair labor
practice charge on January 4 The grievance was never processed
'The findings regarding this inquiry and Ward's response are based upon
the credited accounts of Union Steward Contrescen and the Union's
Coordinator of Union Affairs, San Fehppo, whose testimony appears more
frank and direct than the testimony of Respondent' s witnesses , Ward and
Fessler, on this matter Ward, after twice testifying that Respondent's
Representative Fessler was asked whether "there were further changes
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As early as September, Manager of Union Relations
Fessler had studied the contractual problems involved in
making the proposed change in the relief system in the
Bottling Department and had concluded that Respondent
had a right under the bargaining agreement to take this
step without prior consultation with the Union. He was,
however, advised by Honzik, Respondent's Director of
Legal, Economic, and Union Relations, that he should
first negotiate with the Union about it.
Accordingly, on Wednesday, January 3, 1968, after
having been advised by management representatives in the
Bottling Department that the planned change was feasible
and advisable and that it could be put into effect as early
as January 8, Fessler telephoned Union President Mueller
about the proposed action. When he explained to Mueller
Respondent's proposal to shut down production for relief
rather than using relief men to spell the men in the
Bottling Department while they took their relief, Mueller
asserted that such action would be in violation of the
union contract and asked when Respondent planned to do
this Fessler replied that Respondent had planned to
effectuate the change on the following Monday morning,
January 8, but indicated a willingness to discuss the
effective date Mueller stated that he wanted some time to
think about what Fessler had told him and promised to
call Fessler back Mueller did telephone Fessler the same
afternoon He cited a provision, "Part V, Bottling
Department, Article i" of the union contract in support of
his statement that Respondent's action was in violation of
its contractual commitments and told Fessler that the
Union would have to take legal action to stop Respondent
from effecting the change The provision referred to
states
A relief period of fifteen (15) minutes . shall be
provided for all employees. Past practices in the
manner in which the fifteen (15) minute relief periods
were allowed shall be continued.
At Fessler's suggestion, Mueller agreed to meet with
management representatives on the following morning to
discuss the matter.
At the meeting on the following day, January 4, Fessler
explained in more detail the manner in which the new
relief system would operate and Respondent's reasons for
wanting to make the change and assured Mueller that
"the changes contemplated for January 8, 1968, would not
result in a reduction of manpower through layoff or use of
banked weeks as the men involved would be assigned to
other lines "' At one point during the meeting, Bottling
Department Manager Wilmering stated that he would
have to know by noon on the following day whether the
change would be put into effect on Monday, January 8, so
that he could arrange the new schedules Mueller insisted,
however, as he had done on the preceding day, that
Respondent would be violating its contract if it put the
proposed change into effect. He steadfastly refused to
consent to the proposed change.
contemplated with respect to relief ' and that Fessler did not answer the
question directly , later testified , inconsistently , that to the best of his
recollection the word "relief' was not even mentioned at the meeting
Fessler testified that after the meeting broke up , Ward talked to some
individuals but that Fessler could not hear what was said He testified that
he did not "recall" relief men being mentioned during the meeting I do
not consider it significant that the three -page "minutes" of the 1-1/2 hour
meeting, wntten by Ward and never submitted to the Union for its
information or approval , does not mention the subject of relief men
'Under the union contract an extra week of paid vacation was provided
which the employer could require an employee to take at a time different
from his normal vacation penod The purpose of this provision was to
After leaving the meeting on January 4, Mueller
consulted his Union's counsel and they filed an unfair
labor practice charge against Respondent alleging, inter
alia, that Respondent had "on January 3, informed the
Union that it was unilaterally changing its method of
relief in the bottling department as of January 8, 1968."
Thereafter, on January 6, management representatives
met with the supervisors in the Bottling Department to
explain the details of the proposed change and to hear any
ideas they might have with respect to implementing the
change planned for January 8. New work schedules were
then worked out for the Bottling Department employees
and they were notified on January 6 and 7 of their new
starting times for Monday, January 8
There were normally between 800 and 900 employees in
the Bottling Department. About half of them worked on
machines or production lines which, before January 8,
were not shut down to provide the twice daily 15-minute
relief breaks guaranteed the employees under their union
contract Instead, these lines or machines remained
operating while a relief man spelled each employee on a
staggered basis during his relief period Although the
number of relief men varied some from time to time
depending on such factors as workload, the number of
machines operating, and the number of men working, the
proportion of relief men to regular production workers
remained substantially the same on most of the
operations Respondent's work schedules for December
12, 1967, December 29, 1967, January 3, 1968, and
January 5, 1968, list 66, 71, 54, and 51 relief men
respectively working on those dates. In addition, as
Canfield, Supervisor of Labor Scheduling, explained, there
were a number of other employees who performed relief
functions but who are not described as relief men on the
schedules' The precise number of relief men employed on
any given date is not important for purposes of this
proceeding
A relief man's job, although not drawing higher pay
than other production jobs, was generally considered more
desirable because of the variety of duties attached to it In
view of the fact that under the union contract, relief
periods may not start sooner than l hour after the start of
each half-shift and must be completed an hour before the
end of each half-shift, a relief man can be engaged in
actually relieving duties for no more than 4-1/2 hours on
each shift. The remainder of his time is spent at various
other tasks, sometimes including regular production work
on the line he relieves In the Labeling Division, for
instance, in addition to production line work, the relief
man would report for work early in order to get the
machines ready for operation. He would bring in empty
cases and glue for the labelers, see that the lights were
properly spaced for the bottle inspectors, haul away short
fills and dirty bottles, and help pull bottles out of a
pasteurizer During the lunch period, he would clean the
machines and set up the lines again.
On January 8 when Respondent shut down its
production lines in the Bottling Department for relief
periods, the relief men had to be assigned to other duties
For the most part they were among Respondent's most
senior employees and had the right under the contract to
stabilize production and attempt to avoid the necessity of economic layoffs
This extra week of vacation was called a "banked" week
'The remaining approximately one-half of the employees in the Bottling
Department worked on nonproduction operations or work which permitted
the employee merely to stop working, without a relief man taking over,
apparently with no interference with the work of others resulting These
employees were referred to in the record as self-relieved
JOS. SCHLITZ BREWING COMPANY 145
bump other employees in their divisions and on their shifts
in exercising their preferences for jobs for which they were
qualified . Following the elimination of the relief men's
functions , many employees lost their shift preferences or
were moved out of their home divisions Thus,
Contresceri , who worked on the first shift in the Shipping
Division , testified that only two of the five to seven
regular relief men continued to do relief work ; the others
were absorbed into the division and three employees were
transferred to the night shift Alpert, who worked on the
second shift in the Filling Division , testified that
immediately after the elimination of the jobs of the 15 or
16 relief men on his shift , 5 men lost their shift and 7 lost
their divisions . Some men with 15 to 17 years seniority
with Respondent were sent to the 12 midnight to 8 a m
shift . Bonde, who prior to January 8 had been a
serviceman on the first shift in the Filling Division,
earning a 10-cent -per-hour premium , lost his division and
also his premium pay for several days before being
transferred to service work in the Filling Division on the
night shift . After 4 weeks on the night shift, he was
transferred back to the day shift , at his request , and was
assigned to work in the Shipping Division , without
premium pay . Grossmeyer , who prior to January 8 was I
of 10 or 13 relief men on the first shift in the Filling
Division, testified that with the elimination of the relief
men's jobs , 4 or 5 employees in his division lost their shift
preference and 16 lost their division . Grossmeyer himself
was made a utility relief man - a newly created position
His duties included cleaning up around the machines,
checking brushes , relieving for health calls, and assisting
in crown and beer changes. Bova, who worked on the first
shift in the Labeling Division , testified that as a result of
the elimination of the jobs of 18 or 19 relief men in his
division on January 8, about 24 or 25 employees lost their
shift preference and about 10 lost their division . The work
schedule changes furnished by Respondent to the Union
for January 8 show a total of 66 of the least senior of the
Bottling Department employees had their shifts changed
on that date.
The record shows that during the week of February 5,
1968, over 200 employees were assigned banked week
vacations , although Respondent had never before required
any employees to take banked week vacations except in
September or October The General Counsel contends in
his brief that the assignment of these banked week
vacations for February 5, 1968, "was due to the fact that
when the jobs of the relief men were eliminated and those
employees were transferred to other jobs, this created an
over supply of labor and thereby necessitated the
assignment of banked week vacations , which really are a
form of layoff , less than a month later " Respondent,
however, denies that the January 8 change had anything
to do with the banked week vacations in February.
Honzik explained that the banked week vacations were
scheduled because Respondent anticipated an insufficient
number of orders to warrant it running all of its
production lines that week. Respondent had determined
that it would need to run only 15 instead of the 19 to 21
lines it had been running I accept Respondent's
explanation in this respect and find no relation between
the January 8, 1968, change and the banked week
vacations.
Respondent also contends that factors other than the
January 8 elimination of relief men could well have
accounted for the shift changes and loss of home divisions,
and points out that a certain number of changes occur
each week which cause a movement of employees between
shifts and divisions. The reason for the transfer of each
employee from his shift or division is peculiarly within the
knowledge of Respondent and it has not attempted to
show the reason with respect to any employee Although it
is impossible on the basis of the record in this case to
determine the precise number of shift and division changes
which were caused by Respondent' s change in its relief
system , I am satisfied from all the testimony that a
substantial number of Bottling Department employees did
lose their preferred shifts and home divisions as a result of
the shutting down of the machines for an extra one-half
hour each day and the assignment of the relief men to
some of their jobs It is also clear that the relief men
themselves suffered a detriment in the loss of jobs which
they had considered desirable.
C Analysis and Conclusions
As already noted , Respondent strongly urges that the
Trial Examiner and Board should decline to decide the
issues posed in this case and relegate the parties to a
resolution of the issues under the grievance and arbitration
provisions of the bargaining agreement . Were I free to do
so, I might , in accord with the views of the dissenting
Board members in Unit Drop Forge Division , 171 NLRB
No. 73, defer to the grievance and arbitration provision of
the contract and require the parties to settle the dispute in
the manner agreed upon by them However , I feel myself
bound by the majority opinion in that case and by the
Board ' s decision in another recent case, C & S Industries,
Inc., 158 NLRB 454. See also NL.R B. v Scam
Instrument Corp, 394 F.2d 884 (C A. 7), decided May
15, 1968. Since I see no relevant distinction between those
cases and this one on the issue involving the propriety of
deferral to arbitration , I must proceed to decide the case
on its merits
First, there must be considered the General Counsel's
contention that Respondent in October 1967, violated
Section 8(a)(5) of the Act by failing to give the Union
information regarding its contemplated changes in the
scheduling of relief periods and in misleading the Union
regarding those contemplated changes. On October 9
when this violation is alleged to have occurred,
Superintendent Stammberger was still studying the
feasibility and desirability of a change Respondent had
not at that time decided whether i t wanted to propose
such a change. Any discussion of the matter with the
Union at that time would obviously have been premature
Accordingly , although Manager Ward' s response to the
Union 's inquiry at the October 9 meeting was plainly less
than frank, if not misleading , I do not consider the
response , in itself, a violation of Respondent's duty to
bargain.
Next, I turn to the General Counsel' s contention that
Respondent violated its duty to bargain in good faith by
unilaterally deciding upon and putting into effect the
change in its relief system without bargaining with the
Union about such change It should be noted that
Respondent did notify the Union by telephone on the
Wednesday preceding the Monday when it proposed to
put the change into effect about its proposal and offered
to talk about the matter Although the union
representatives may well have believed that Respondent
had already firmly determined to eliminate the relief
men's functions on the bottle lines and that a discussion of
the matter would have been futile , the Union's position
then and thereafter was that the contemplated change
would be in violation of part V, article I of the contract
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the Union was unwilling to agree to it It may
well be, as the Union contends, that Respondent had
already made up its mind to put the change into effect on
Monday, January 8, before it mentioned the subject to the
Union and that any attempt by the Union to bargain
about the matter would have been futile. The record,
however, does not compel this conclusion. I need not
decide this issue because the Union's position on both
January 3 and 4, when Respondent broached the subject,
was that the contemplated change would be in violation of
the bargaining agreement and that the Union was not
consenting to the change If, as the Union then contended
and still contends, Respondent's conduct constituted a
modification of the contract, without the Union's consent,
within the meaning of Section 8(d) of the Act, Respondent
violated Section 8(a)(5) regardless of whether it sought to
bargain about the matter with the Union prior to
effectuating the change.
The Board, in C & S Industries, Inc , 158 NLRB 454,
457, has clearly explained the intent and purpose of
Section 8(d) of the Act, as follows:
The statutory intent to stabilize during a contract
term agreed-upon conditions of employment is apparent
from the provisions of Section 8(d) of the Act, which
defines the obligation to bargain. That section not only
imposes an obligation on each party to a contract to
refrain from modifying the contract without complying
with the notice and waiting period requirements therein
set forth, but also expressly provides that the "duties so
imposed shall not be construed as requiring either party
to discuss or agree to any modification of the terms and
conditions contained in a contract of a fixed term, if
such modification is to become effective before such
terms and conditions can be reopened under the
provisions of the contract." In line with that provision,
the Board has consistently held that a party does not
violate its bargaining obligation when it refuses to
discuss changes proposed by the other party in the
terms of an existing contract. The Board has also held
that an employer acts in derogation of his bargaining
obligation under Section 8(d), and hence violates
Section 8(a)(5), when he unilaterally modifies
contractual terms or conditions of employment during
the effective period of a contract - and this even
though he has previously offered to bargain with the
union about the change and the union has refused.
To similar effect, see N L R B. v. Scam Instrument Corp.,
394 F.2d 884 (C.A. 7. 1968), enfg. 163 NLRB No. 39;
N.L R.B v. Jacobs Manufacturing Company, 196 F.2d
680, 684 (C.A. 2); N.L.R B. v. Huttig Sash & Door Co.,
377 F.2d 964, 967 (C A. 8), Brotherhood of Locomotive
Firemen and Enginemen, 168 NLRB No. 93.
The Union contends that Respondent's action was
prohibited under the following provisions of part V, article
1, relating to the Bottling Department:
... Past practices in the maner in which the fifteen (15)
minute relief periods were allowed shall be continued.
This sentence is preceded by detailed provisions as to the
time limitations within which the relief periods were to be
furnished.' Respondent interprets the past practices
provision as referring only to the manner in which
employees could use their allotted relief periods and not to
whether the bottle lines should be run dunng that time I
do not believe, however, that a natural reading of the
provision suggests such a narrow construction
'Another provision of the contract applicable to all other departments
(part 1, article XVIIi, section 7) states.
Respondent contends that its action was permissible
under part I (relating to "General Provisions Applying to
All Departments"), article X (entitled "Limitation of
Production"), section 2, which reads as follows:
When any new machinery has been installed or any
change in device or change in method of production has
been made which has the effect of reducing the number
of jobs in any department, the Union shall be notified
after the operation is in effect and shall have the
opportunity of immediately reviewing the matter with
the Employer in the event it does not believe adequate
help is being provided .
The elimination of the functions of the relief man and the
shutting down of production lines for relief, Respondent
asserts, is a "change in the method of production" within
the meaning of the above provision The General Counsel
and the Union, on the other hand, construe that provision
as applying to changes in the method of production
brought about by the introduction of new machinery or
new processes. This interpretation has some support in
that part of the same section which gives the Union an
opportunity to grieve about the change if it believes that
inadequate help is provided as a result of the change.'
The bargaining history of the contract provisions relied
upon by Respondent and the Union furnishes little aid in
interpreting them. The "past practices" provision of Part
V, Article I, relating to the Bottling Department as well
as the similar provision (Part I, Article XVIII, Section 7)
relating to the other departments, have been in the
bargaining contracts since 1955. The language was added
to the relief-period provisions following a union proposal,
rejected by the Employer representatives, that a 15-minute
relief period "in the lunchroom" be provided, thereby
implying that extra time would be allowed for walking to
the lunchroom. A 20-minute relief penod was proposed by
the Union and rejected by the Employer representatives in
1957, 1959, and 1961. In the Union's 1957 proposal, there
was a provision that "Past practices in the manner in
which the relief periods were allowed shall be continued";
in the 1959 proposal "20 minute" was inserted before the
word "relief"; and in the Union's 1961 proposal the past
practices provision was omitted
Respondent' s minutes of the 1961 meetings show that
on April 6, 1961, the relief provision was "clarified to
include in the 15-minute period any walking time to or
from lunch rooms"; that on April 14 a Respondent
representative had commented that it was his recollection
that the past practices provision "was put into the
contract to take care of specific walking time that was
allowed for certain employees in certain areas" and that
he therefore could not understand why the Union wanted
the provision eliminated, whereupon Mueller, for the
Union, stated that he did not intend to make any change
in the sentence but thought that the same matter was
covered by another provision of the contract; and that at
the April 19 meeting, both parties agreed that there was
no intention to change the past practice with respect to
the amount of relief time which had been allowed.
Respondent's minutes of the meetings further show only
one mention of the subject of shutting down operations for
Except as specified in Part V , Article I, past practices for taking of
relief penods shall be maintained
'Respondent introduced in evidence copies of two decisions of arbitrators
which , it claims, involved a dispute over the meaning of this clause (Resp.
Exh 9 and 10 ) I have carefully read these arbitration decisions and find
no help from them in resolving any issue in this case. Only one, Resp Exh
9, involved section 2, quoted above, and neither involved part V, article 1,
of the contract , upon which the Union relies
JOS. SCHLITZ BREWING COMPANY 147
relief. This occurred in the 1957 negotiations in connection
with the Union's proposal for an additional 5 minutes of
relief time. The Union explained that it was asking for the
additional 5 minutes because of "high speed machines"
which the brewers had installed, because the employees
were located some distance from the lunchrooms and
because the brewers had in some instances recognized the
right of men to walking time. Union Representative
Mueller mentioned that in the automobile industry, at
least at one plant in Milwaukee, a 10-minute relief period
was provided every hour on the hour. There was then a
discussion of the manner in which relief was taken in the
automobile industry, with self-relief on noncontinuous
operations, and with one of the big three companies
shutting down all its operations each morning and
afternoon for relief periods which "in practice" extended
beyond the 10-minute periods agreed upon Employer
Representative Schmidtt then remarked, "I guess you
could call us a continuous operation in a sense in that we
do have relief people like on the assembly lines. However,
there are other operations in the brewery where an
employee can take his own relief; but in most cases, at
least in the bottle house, it is on a continuous operation
basis."
Although the past practices provision with respect to
relief periods was first inserted in the contract following
the Employer's rejection of a union demand for more time
for relief periods, and the only proposed changes of the
relief provisions discussed at any of the bargaining
conferences related to enlarged relief periods, it does not
follow from this fact that the parties intended the broad
language of the past practices provision to apply only to
the amount of relief time allowed. Nor does it follow that
because there was mention, during the 1957 bargaining
negotiations, of the breweries' practice of having relief
men on the assembly lines in the bottling house, the
parties must have expressly contemplated at that time that
the past practice provision would encompass such practice.
It is more reasonable to assume that in providing that
past practices "in the manner" in which the 15-minute
relief periods had been allowed should continue, the
parties were not attempting to visualize all possible
changes which could be effected but, by broad language,
meant to cover them. If they had meant narrowly to
confine the provision to the problem immediately before
them, it would have been a simple matter to say so.
Respondent also suggests that an incident occurring in
1963 at Miller Brewing Company, one of the parties to
the contract, indicates that the Union itself has not
theretofore considered the past practices provision as
precluding the Employer from unilaterally converting
from a relief man to a self-relief system on the bottle
lines. Respondent produced as a witness Miller's manager
of union relations, Sherman, who testified that in
December 1963, Miller notified union representatives of
certain changes it intended to institute, involving a change
in the starting time of relief men as well as those to be
relieved, so that the relief men could relieve a larger
number of people, and also involving a shutting down of
some bottling lines for relief at certain times when,
because of a shortage or surplusage of manpower, it was
desirable to do so in order to stabilize employment The
Union did not object to these proposals but following the
institution of the changes, a 10-day unauthorized strike
occurred. After the termination of the strike, Miller and
union representatives met and mutually agreed upon how
and when relief periods were going to be taken. Since at
the Miller Brewing Company the Union never objected to
Miller's proposed changes in the manner in which relief
was to be allowed and subsequently specifically agreed to
them, I do not regard what happened there as a precedent
for Respondent's right under Part V, Article I of the
contract to make the changes here involved without the
Union's consent.
Respondent contends, in any event, that past practice in
the Bottling Department has been continuously to
fluctuate between using relief men and using self-relief
The record makes clear, however, that although as a
matter of practice some of the jobs in the Bottling
Department have from time to time fluctuated between
self-relieved and being relieved by men, other jobs such as
those here in issue had for many years prior to the
January 8 change employed only the relief-man system
There can be no question but that Respondent's past
practice had been to use relief men for the twice daily
15-minute breaks on the bottle lines.
After a careful consideration of the record and the
arguments of all the parties, I am persuaded and find that
even if Part I, Article X, Section 2 of the contract could
arguably support Respondent's right to effect its January
8 changes in the relief system, such a construction is not
tenable in view of the more specific language of Part V,
Article I which provides that "Past practices in the
manner in which the fifteen (15) minute relief periods were
allowed shall be continued " It is a well recognized
principle of contract construction that where two
provisions of a contract appear to be inconsistent, the
parties will be held to have intended that the more specific
rather than the general provision shall be given effect
As the Board pointed out in C & S Industries, Inc., 158
NLRB 454, 458, a breach of contract is not ipso facto an
unfair labor practice, but where, as here,
an employer unilaterally effects a change which has a
continuing impact on a basic term or condition of
employment more is involved than just a simple
default in a contractual obligation Such a change
manifestly constitutes a "modification" within the
meaning of Section 8(d) And if not made in
compliance with the requirements of that section, it
violates a statutory duty the redress of which becomes a
matter of concern to the Board
It is accordingly found that Respondent by changing on
January 8, 1968, the manner in which it had been allowing
the 15-minute relief periods on the production lines in its
Bottling Department, modified part V, article I, of its
contract with the Union, without complying with Section
8(d) of the Act, and thereby engaged in an unfair labor
practice within the meaning of Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1 The Union is and has been at all times material
herein the exclusive bargaining representative of
Respondent's employees in a unit certified by the National
Labor Relations Board as appropriate.
2. By putting into effect during the term of its
collective-bargaining agreement with the Union a change
in the manner provided in the agreement for allowing
relief periods, without the consent of the Union,
Respondent has failed to comply with the requirements of
good-faith bargaining prescribed in Section 8(d) of the Act
and has thereby violated Section 8(a)(5) and (1) of the
Act
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(5) and
(1) of the Act, my Recommended Order will require that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
To remedy the unlawful unilateral action taken by
Respondent, my Recommended Order will require
Respondent to restore as nearly as possible the status quo
ante existing in the Bottling Department just prior to
Respondent's January 8, 1968, change in the relief system.
In restoring the status quo ante, Respondent will be
required , inter alia , to transfer back to their relief-man
duties those employees who were performing relief-man
work during the period immediately prior to January 8,
1968, to offer restoration to their former shifts and
divisions all employees who may have lost their shifts or
divisions by reason of Respondent's change in its relief
system and to make whole any employee who may have
suffered any loss in pay as a result of the January 8
changes in the relief system
[Recommended Order omitted from publication.]