Miller Brewing Co.

National Labor Relations Board - Board Decisions

Aug 26, 1993

311 N.L.R.B. 1364 (N.L.R.B. 1993)

1364
311 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We adopt the judge’s conclusion that the Respondent did not dis-
parately enforce its plant rule pertaining to employee postings. As
the judge found, the record shows that the Respondent did not know-
ingly permit employees to post personal items. In these cir-
cumstances, the Respondent’s policy mandating removal of all em-
ployee postings, including material pertaining to Teamsters for a
Democratic Union (TDU), pursuant to its established plant rule, did
not violate Sec. 8(a)(1). In adopting the judge’s dismissal of the
complaint, however, we find it unnecessary to rely, as did the judge,
on the Respondent’s absence of specific animus toward TDU. If, un-
like here, an employer’s enforcement of its posting rules is discrimi-
natory the absence of independent evidence of animus is irrelevant.
See Lassen Community Hospital, 278 NLRB 370, 372–373 (1986).
Member Raudabaugh does not disavow the judge in this respect. The
judge was speaking about an increase in enforcement, not a disparity
in enforcement. If the increase in enforcement had been because of
animus against TDU, that would be a relevant factor in finding a
violation. Thus, the judge’s finding that this is not so is a relevant
factor in not finding a violation. Concededly, this factor is not a dis-
positive one, for the absence of motive does not necessarily mean
that no violation will be found.
1 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for Miller’s.
2 Apparently because the testimony of the second day covers 281
pages of transcript, the court reporting service split the volume,
numbering the split parts as volume I and volume II. This confused
the briefing for citations to the record. As the second day’s testi-
mony is less than 300 pages of transcript, I have reassembled it into
a single book, volume 2.
Miller Brewing Company and Teamsters for a
Democratic Union. Case 11–CA–14942
August 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 26, 1993, Administrative Law Judge
Richard J. Linton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions, a brief in
opposition to exceptions, and a brief in support of its
cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Joseph T. Welch, Esq., for the General Counsel.
John M. Capron, Esq. (Fisher & Phillips), of Atlanta, Geor-
gia, for Respondent Miller Brewing Company.
Karen Anita Keys, Esq. (Brief only), of Washington, D.C.,
for Teamsters for a Democratic Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This case
involves an alleged disparate treatment of employee postings
(on doors, walls, and other miscellaneous areas) of material
supporting Teamsters for a Democratic Union (TDU). The
evidence failing to show that the Company knowingly per-
mitted postings in miscellaneous areas in violation of its
plant rule against such, that it disparately removed some
postings, or that it was unlawfully motivated against TDU
postings, I dismiss the complaint. This case does not concern
employee solicitations or distributions.
I presided at this 2-day trial, September 2–3, 1992, in
Wentworth, North Carolina, pursuant to the May 21, 1992
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director for Re-
gion 11 of the Board. The complaint is based on a second
amended charge filed May 15, 1992, by TDU and served on
Miller Brewing Company (Miller, Respondent, Company, or
MBC) on May 18, 1992.
Although the second amended charge obviously was pre-
ceded by other documents, as the complaint originally al-
leged, at trial I granted the General Counsel’s unopposed
motion to delete those allegations (1:6–8).1 The Govern-
ment’s motion apparently was made to bypass the peculiar
situation of the charging documents naming different persons
as the charging party for the same case number. Accordingly,
in the trial complaint (that is, the complaint as amended at
the opening of the hearing) TDU is named as the only charg-
ing party.
In the Government’s complaint the General Counsel al-
leges that Company violated Section 8(a)(1) of the Act, 29
U.S.C. § 158(a)(1), on March 20 and 26, 1992, by prohib-
iting employees from posting union-related material at loca-
tions in the plant that had previously served as posting areas.
On March 20, it also is alleged, MBC removed all materials
from such locations.
By its answer Miller admits certain factual matters but de-
nies violating the Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel (whose brief includes a pro-
posed order and notice), TDU, and Miller, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
A Wisconsin corporation with a plant in Eden, North
Carolina, Respondent Miller brews beer. Respecting com-
merce, the complaint alleges the Board’s discretionary
nonretail jurisdictional standard for direct inflow (purchases)
1365MILLER BREWING CO.
and direct outflow (sales) during the past 12 months as
goods, valued ‘‘in excess of’’ $50,000, ‘‘received’’ (par. 3)
direct from points outside North Carolina, and (par. 4)
‘‘shipped,’’ without the accompanying ‘‘purchased’’ and
‘‘sold’’ as specified in the General Counsel’s NLRB Plead-
ings Manual (1991) at 50 and 60.
Although the received/shipped terminology may be suffi-
cient to establish jurisidiction, even, as here, in the absence
of an allegation that the goods received and shipped to and
from Miller’s Eden brewery were used in Miller’s business,
the better practice is to use the language set forth in the
Pleadings Manual. See NLRB v. Drywall, 974 F.2d 1000,
1002 (8th Cir. 1992); Siemons Mailing Service, 122 NLRB
81, 85 (1958).
The Board has exercised jurisdiction over Miller Brewing
Company in reported cases, including Teamsters Local 896
(Miller Brewing), 296 NLRB 1030 (1989), and Miller Brew-
ing Co., 254 NLRB 266, 270 (1981).
In light of the foregoing, and the record, I find, as Re-
spondent admits, that Miller Brewing Company is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. MBC and Teamsters Local 391
Apparently headquartered in Wisconsin, Miller operates
several breweries and container manufacturing plants around
the country (2:262, 412). These facilities include a brewery
at Eden, North Carolina (the plant involved here), and a con-
tainer plant about 20 miles away at Reidsville (2:262). Miller
employs about 700 production and maintenance employees at
its Eden brewery, and about 225 such employees at the
Reidsville container plant (2:263, 392).
Miller’s production and maintenance employees through-
out the United States are represented by various unions
(2:413). The production and maintenance units at Eden and
Reidsville are represented by Teamsters Local 391 (2:263,
413) under separate collective-bargaining agreements (CBA).
The CBA (RX 1) covering the Eden bargaining unit has an
effective term of September 30, 1990, through September 29,
1993 (RX 1 at 84). Teamsters Local 391 (Union) has rep-
resented the Eden unit since June 1978 (1:22; RX 1 at 1).
2. TDU and Edward Keith Howell
For many years employees supporting TDU (Teamsters for
a Democratic Union) have been active for the organization.
See, for example, Roadway Express v. NLRB, 831 F.2d 1285
(6th Cir. 1987). And TDU apparently was an intervenor in
the Government’s RICO lawsuit ‘‘to rid the IBT of organized
crime influence.’’ U.S. v. Teamsters, 948 F.2d 98 (2d Cir.
1992). Only members of a Teamsters local may belong to
TDU (1:60). Richard Gladden, human resources manager at
Miller’s Eden plant (2:172–173), describes TDU as a faction
within the Teamsters. He testified that there is animosity be-
tween TDU and Local 391’s leaders. (2:237–238). TDU
member Garney Griffin describes it as ‘‘dissatisfaction.’’
(1:100). By corporate policy, Miller stays out of internal con-
flicts in the various unions it recognizes (2:414–416).
Edward Keith Howell operates a forklift at Miller, where
he has worked since March 1978 (1:21). Although he has not
been a member of the Union since 1981 (1:22), and therefore
also not a member of the TDU (1:22, 60), Howell describes
himself as an ‘‘activist’’ on behalf of the TDU (1:25, 60).
3. Bulletin boards and past practice
Miller’s Eden plant, which opened in 1978 (2:185), covers
33 acres under roof (2:244, 255). At Eden MBC maintains
official bulletin boards. They are glass enclosed and locked
by key. Some of these boards are for company use, and oth-
ers, pursuant to section 3.9 of the CBA (RX 1 at 7) with the
Union, are designated for posting of contractually specified
notices of the Union. Only Miller actually posts notices on
either set of the official bulletin boards (1:43–45, 97). Miller
approves postings for the official boards of items such as
thank you notes from employees. Such authorized postings
may not be ‘‘controversial, political, or religious.’’ (RX 3.)
Miller’s plant rules (RX 2) include plant rule 30 which
reads:
Posting of notices or any associated and similar com-
munications activities shall not be permitted without the
advance approval of the Human Resources Manager.
As early as November 1980 Miller posted a memo to all
employees reminding them of rule 30 and advising them that
unauthorized postings throughout the plant would be re-
moved and discarded (RX 3–4). Notwithstanding the Novem-
ber 1980 memo, over the years a practice has developed in
which employees post items such as personal thank you
notes, baby photos, and fishing tournament notices on doors,
walls, and other ‘‘miscellaneous areas.’’ When Miller’s offi-
cials become aware of these items, Miller, or its commercial
janitorial service, Sunstates Maintenance Corporation, re-
moves the items.
Gladden testified that no employee has ever been dis-
ciplined for this posting in violation of rule 30 (2:187). In-
deed, Miller makes no effort to determine who has posted
these items. This is true even as to signed thank you notes
because, Gladden testified, the employee could deny having
posted it (2:257, 260). Other than (as we shall see) for Ed-
ward Howell in this case, no one has ever notified Miller in
advance that he or she intended, in violation of rule 30, to
post something on a door, wall, or other miscellaneous area
(2:189, 259, 318–319).
Although Miller’s policy and general practice have been to
remove the items on learning of their presence, there have
been a couple of exceptions in practice. Through her mis-
understanding of Company’s policy, Rebecca Garrison, the
labor relations clerk whose duties the last 3 to 4 years have
included removal, on discovery, of such items (2:328–329),
failed to remove personal items such as thank you notes. She
also failed to remove scores of the Miller-sponsored bowling
league. Garrison thought these postings were permitted
(2:331–332). Gladden, Garrison testified, corrected her mis-
understanding about December 1991 or January 1992 (2:333,
341).
The other exception has been made by Don Lee Foye, one
of Sunstates’ 17 janitors at Eden. Foye elected not to remove
personal items such as family death notices if it concerned
an employee who was one of his friends. Foye has per-
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed janitorial duties at the plant for 13 years, and he ap-
parently has many friends among Miller’s employees. Foye
testified that he would allow postings by his friends to re-
main for a day or so before he removed them (2:364, 366).
Foye’s superior, Manager John Stegall, testified that he has
found Foye, against instructions, leaving personal cards of
his friends posted for 2 or 3 days. Foye is a good employee,
Stegall testified, but he has friends among Miller’s employ-
ees and has to be reminded of his duty (2:380–381).
Labor Relations Representative Steven Cates has checked
the breakrooms since about March 1991, and removes any
postings, but before the events in this case he made his in-
spections only about every week to 10 days (2:323–326).
B. The March 1992 Incidents
1. Facts
Complaint paragraph 7 alleges that about March 20, 1992,
Respondent, through Labor Relations Representative Jim
McInerney, violated Section 8(a)(1) of the Act by prohibiting
and preventing ‘‘the posting of union related material by re-
moving all materials from locations in the plant that had pre-
viously served as posting areas,’’ and, about March 26, 1992,
by prohibiting an employee ‘‘from posting union related ma-
terial at locations in the plant that had previously served as
posting areas.’’
Although Miller denies the violation alleged, the material
facts are largely undisputed. About March 17 (1:24) or 18
(2:293) McInerney called Edward Keith Howell into his of-
fice. (1:24; 2:293; RX 13–1.) In the presence of a union
steward and Steven Cates, another labor relations representa-
tive, McInerney told Howell that in the course of the Com-
pany’s investigation of another matter, it was reported that
Howell had been soliciting in a manner violating plant rule
25. Reassuring Howell that he was not being accused,
McInerney said he simply wanted to make sure Howell was
aware of rule 25. Toward the end of the brief discussion,
Howell said he was an activist for TDU and would be post-
ing items on behalf of the TDU. McInerney, only a month
or so into his position, made no comment.
Howell testified that on March 18 he posted a TDU item
(no copy in evidence) on a breakroom door. He observed
other items posted, including sympathy cards, thank you
notes, sale items, and baby photos (1:26–27). The next day,
March 19, he discovered that his TDU posting had been re-
moved, yet the other employee items were left posted. At
noon Howell posted another copy of the TDU item. The fol-
lowing day, March 20, Howell observed that all the em-
ployee postings had been removed and the doors cleaned. So
far as Howell knows, no member of management observed
him posting his TDU items (1:37–38, 92). There is no evi-
dence showing who removed Howell’s TDU notice on
March 18.
At some point in March 1992 (the date is not specified)
McInerney called John Stegall to verify that employee post-
ings in miscellaneous areas were being removed. Stegall as-
sured McInerney that they were (2:300, 386–391). I find that
this conversation occurred on March 18 or 19, after
McInerney’s March 18 conference with Howell, and that on
March 19 Stegall made sure the miscellaneous areas were
clean and free from postings of notes and the like. Cleaning
the area and removing postings is a contractual matter for
Sunstates. Indeed, the firm is to do so daily. While it may
fall short in this respect, its written records reflect that
breakroom doors were cleaned of debris, such as notices, and
scrubbed on February 24, 1992 (RX 19a; 2:372, 384–385).
The February 24 event apparently was a major cleaning as
distinguished from the standard cleaning which, Stegall testi-
fied (2:376–377), is done for the doors each day.
Following his March 18 conference with Howell,
McInerney conferred with his superior, Labor Relations Man-
ager Hollis B. Gaynor Jr., about Howell’s in-your-face an-
nouncement of intended postings. Thereafter, on March 26
(RX 13–2), McInerney called Howell back and cautioned
him about the need to comply with rule 30 respecting post-
ings, or face possible discipline. Howell said there had been
many violations of the rule. McInerney assured Howell that
everyone must follow the rule and that the cleaning service
had been reminded to remove all postings in miscellaneous
areas.
Since March 20 Howell, according to his testimony (1:41),
has honored rule 30 and made no postings. On several occa-
sions since March 26 Howell has called McInerney to report
employee postings of egg sales, sympathy cards, and the like
(1:42–43), and McInerney promptly has notified the cleaning
service manager, John Stegall, to remove them (2:300–301).
McInerney credibly testified that unauthorized postings are
removed as soon as his department learns of them (2:317–
318).
2. Discussion
There is no evidence that a responsible official of Miller,
after being alerted about specific postings unauthorized under
plant rule 30, has allowed them to remain posted. Deviations
from official policy by one clerk and one commercial service
janitor were unknown to Miller’s management.
There is no evidence that Miller, through Jim McInerney
or any other management person, has singled out TDU post-
ings for removal from miscellaneous areas yet, after notice,
has permitted other unauthorized postings in miscellaneous
areas to remain.
On March 18 or 19, 1992, I have found, Miller, through
Labor Relations Representative Jim McInerney, telephoned
Sunstates Maintenance Corporation to verify that Miller’s
cleaning service contractor was removing all postings in mis-
cellaneous areas. Such an inquiry was not a change of Mil-
ler’s policy or practice. Contrary to the complaint’s allega-
tion, Miller has not knowingly permitted employees to post
personal items in miscellaneous areas of the Eden brewery.
The evidence shows that Miller, on learning of such post-
ings, has removed them.
After management cautioned Edward Keith Howell on
March 26, Miller renewed its efforts—sometimes in response
to calls from Howell—to see that any postings in miscella-
neous areas are removed. To the extent that renewal reflected
an increase in enforcement of plant rule 30, the enforcement
was not a significant change in past practice, and no change
in policy, and in any event was not a disparate enforcement.
Moreover, any increased enforcement was not because of
animus against TDU.
Had Edward Keith Howell merely posted his TDU item in
a miscellaneous area without giving Miller an in-your-face
notice of intention to post, Miller would have done nothing
more than it does respecting thank you notes and other post-
1367MILLER BREWING CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ings—it would have removed it on learning of its presence
or notify its cleaning service contractor to do so. Indeed,
Miller and Sunstates did just that on March 19 when
Sunstates removed Howell’s TDU item along with all other
postings.
The evidence fails to show a violation of 29 U.S.C. §
158(a)(1) as alleged. Accordingly, I shall dismiss the com-
plaint.
CONCLUSIONS OF LAW
1. Miller Brewing Company is an employer within the
meaning of 29 U.S.C. § 152(2), (6), and (7).
2. Respondent Miller has not, as alleged, violated 29
U.S.C. § 158(a)(1) respecting its March 1992 enforcement of
plant rule 30 by removing employee postings in miscella-
neous areas of its Eden, North Carolina brewery.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.