Pittsburgh Brewing Co.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 714 (N.L.R.B. 1975)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh Brewing Company and Henry F. Elisler.
Case 6-CA-7946
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
whether Respondent violated Section 8(a)(3) of the Na-
tional Labor Relations Board Act, as amended, by laying
off Henry F. Ellsler on December 8, 1974, and thereafter
failing and refusing to recall him, and whether Respondent
otherwise independently violated Section 8(a)(1) of the Act
by certain conduct to be detailed hereinafter. Briefs have
been received from the General Counsel and Respondent
which have been duly considered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses as
they testified on the stand, I hereby make the following:
On June 16, 1975, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, and hereby
orders that the Respondent, Pittsburgh Brewing
Company, Pittsburgh, Pennsylvania, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order.
i The Administrative Law Judge in his discussion of the factual back-
ground of the case stated that all of the watchmen signed authorization
cards. However, the record reveals that, out of the seven members of the
unit, six signed and returned cards to the union hall
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 31, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was heard before me in
Pittsburgh, Pennsylvania, on April 24, 1975, on a com-
plaint filed by the General Counsel of the National Labor
Relations Board and an answer filed thereto by Pittsburgh
Brewing Company, herein called Respondent.' At issue is
i The complaint, which issued on March 13, 1975, is based on charges
and amended charges filed and served on December 12, 1974, and March 4,
1975, respectively.
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Pennsylvania corporation with its princi-
pal office located in Pittsburgh, Pennsylvania, is engaged
in the manufacture and nonretail sale of malt beverages.
The sole facility involved herein is located in Pittsburgh.
During the annual period material to this proceeding, Re-
spondent received goods and materials valued in excess of
$50,000, for use at its Pittsburgh installation, directly from
points located outside the Commonwealth of Pennsylva-
nia. During the same period, Respondent sold and shipped
goods and materials valued in excess of $50,000 from its
Pittsburgh facility directly to points situated outside the
Commonwealth of Pennsylvania. The complaint alleges,
the answer admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and I find that
International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, Local Union
67-A, AFL-CIO, herein called the Union , is a labor orga-
nization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(3) of the Act by laying off Henry F. Ellsler on Decem-
ber 8, 1974,2 and thereafter failing to recall him to work
because of his membership in and activities on behalf of
the Union. The complaint further alleges that Respondent
offended the provisions of Section 8(a)(1) when, on No-
vember 1, it promised wage increases to employees if they
refrained from becoming or remaining members of the
Union, or giving support to it, and, when, on the same
date, it promised that no employees who were members of,
or supported, the Union would be discharged or laid off if
they abandoned their union membership or ceased giving
support to that labor organization. For its part, Respon-
dent denies that it engaged in any labor practices pro-
scribed by the statute.
Henry Ellsler, the Charging Party, was hired by Respon-
2 Unless otherwise indicated , all dates herein fall in 1974.
220 NLRB No. 109
PITTSBURGH BREWING COMPANY 715
dent on August 5, 1973, as a full-time watchman. From
that date until January 1974, his usual duties consisted of
checking the security of Respondent's buildings by locking
doors and turning the lights on and off. In January, he was
assigned to the task of directing truck traffic around the
construction site of a new warehouse which Respondent
was erecting on its premises . In August, Ellsler suffered an
injury which hospitalized him until October of that year.
When he returned to work, he resumed his former duties as
a security guard rather than those of directing traffic. He
was laid off on December 8, under circumstances to be
chronicled hereinafter. It is uncontroverted and I find that,
during his employment tenure , he maintained a "good
work record" as a guard.
Becoming dissatisfied with his conditions of employment
on or about October 1, Ellsler sought out employee Wil-
liam Edgar, another watchman at Respondent's facility,
and broached the subject of seeking collective representa-
tion by a labor organization. Ellsler then spoke to the other
guards at the plant , seven in total number, and a consensus
was reached among the men to enlist the aid of a union. On
October 16, Ellsler approached Robert Loidl, who worked
as a truckdriver for Respondent but was also the secretary
and business agent of the Union? Ellsler informed Loidl
that the watchmen were desirous of joining the Union.
Loidl promised that he would send letters and authoriza-
tion cards to them with instructions that the designations
be executed and returned to the Union. Ellsler then fur-
nished Loidl with the names and addresses of the men. By
October 25, all of the watchmen received their authoriza-
tion cards , signed them , and returned them to Loidl at the
union hall. The following day, Ellsler met Loidl in the
plant, and the latter announced that he planned to speak to
Kenneth McCulloch, Respondent's director of personnel
and labor relations, and seek recognition for the Union as
the exclusive bargaining representative of the watchmen.
On October 30, Loidl, in his capacity as the union business
agent, dispatched a letter to McCulloch in which the for-
mer apprised McCulloch that the Union represented a ma-
jority of the security guards and requested a meeting at
which a labor compact covering the men could be negotiat-
ed.
It is undenied and I find that, on the afternoon of No-
vember 1 Ellsler received a telephone call at his home from
McCulloch. McCulloch stated that `I heard that you guys
want to go union and I would like to talk to you about it
.... Ellsler remarked that he was about to leave for
work, and an arrangement was made whereby McCulloch
would telephone Ellsler at Respondent's shipping room
that evening. Ellsler drove to the plant and informed Loidl
about his conversation with McCulloch and the call which
he expected that night from the personnel and labor rela-
tions manager . Loidl indicated that he would be unable to
monitor Ellsler's discussion with McCulloch, but stated
that he would assign James Kelly, one of Respondent's
truckdrivers, and a union member, to perform the chore.
Shortly after 9 p.m. on November 1, McCulloch tele-
phoned Ellsler . With Kelly listening on an extension
phone, McCulloch "offered me [Ellsler] 30 cents an hour
increase if I would get the cards back from the Union and
he stated also at that time that there would be no layoffs,
no discharges or nothing else, he just wanted the cards
back and we would get a 30 cents an hour raise. Then he
stated, please don't let those big mouths down at the ga-
rage know about this conversation." Ellsler responded that
he was not empowered to accept the offer until he had
polled the men. Later that night, Ellsler conveyed the con-
tents of his conversation with McCulloch to Loidl. The
next morning, November 2, Ellsler telephoned the guards
and presented McCulloch's offer. The men replied that
"they were not interested in it, they wanted everything to
go through the union." Ellsler relayed this intelligence to
Loidl.
It is Ellsler's testimony that, after he punched in on the
afternoon of November 7, 1974, and while he was proceed-
ing to Respondent's supply house, he encountered McCul-
loch who inquired into the sentiments of the guards regard-
ing his offer. Ellsler reported that "it was no deal because
the guys wanted everything to go through the union." This
response evoked McCulloch's anger, an attitude which
Ellsler resented. At this juncture, Ellsler stated that he in-
tended to talk to Mr. Slace, Respondent's president, about
the matter, to which McCulloch retorted, "Mr. Slace, I'm
personnel manager and I'll run this show the way I want
to.,, 4
Events abided until the morning of November 11, when
Ellsler received a call at home from his supervisor, James
Casey. I find that Casey told Ellsler that McCulloch decid-
ed to conduct a meeting with the watchmen that afternoon.
Ellsler telephoned the other guards and conveyed the mes-
sage . The men subsequently met with McCulloch in his
office, together with Union Representative Loidl and
Houser. When McCulloch noticed Loidl and Houser at the
meeting, he ordered them to leave. Ellsler protested that
these individuals represented the watchmen and "if they
leave we all leave because they're here to speak for us."
The union agents and the guards then left the room.
By letter of December 6, McCulloch wrote to Loidl that:
On December 3, 1974, [the Union] presented cards ex-
ecuted by each of [Respondent's] watchmen, exclud-
ing supervisors, which authorized Local 67 as the rep-
resentative of the watchmen for bargaining purposes.
In order that the Company have a written record of
the desires of its watchmen employees please have
each of the guards execute the copy of this letter at the
places indicated and return it to me. Upon receipt of
this letter, [Respondent] will recognize Local 67 as the
representative of the watchmen .5
Loidl turned the letter over to Ellsler with instructions that
the watchmen append their signature to the document. The
seven guards did so, and Ellsler returned the instrument to
Loidl.
On December 8, the end of the workweek, Ellsler report-
While on the stand , McCulloch denied that he made this comment to
Ellsler . Ellsler impressed me as a sincere and forthright witness. I therefore
credit this testimonial version of this incident
3 The Union represented Respondent 's other employees at its estab - 5 Respondent commenced negotiations with the Union regarding a collec-
lishment during the times material herein . Live-bargaining agreement covering the watchmen on December 11.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed for duty and was handed a letter by James Casey.6 The
letter, dated December 7, recited that "This notice is to
advise you that you are layed [sic] off from work at the end
of your shift on Sun. December 8, until further notice. This
action is being taken due to a reduction in our Watchmen
force." The letter was signed by McCulloch. Ellsler, at the
time of the hearing herein, had not been recalled to work
by Respondent.
Ellsler's testimony relating to the events leading to his
separation from Respondent's employment rolls on De-
cember 8, was corroborated in its salient respects by Loidl
and Kelly, and was not seriously controverted by either
McCulloch or Kelly. Accordingly, I find the facts to be as
Ellsler reported them on the witness stand.
Joseph Scolaro, another guard who was laid off on De-
cember 8, testified that, in November after the abortive
meeting between the guards and McCulloch on November
11, he met Supervisor James Casey while making his
rounds. In an ensuing conversation, Casey told Scolaro
that "Ellsler is a damned fool and a troublemaker, we
should have took the [Union] cards and turned them in, he
would have went upstairs and got some kind of a paper
that there would have been no reprisal about it." In further
explication of this incident, Scolaro stated that Casey ex-
claimed that "if [Ellsler] would have gotten the [Union]
cards back and turned them back in to Mr. McCulloch,
we'd have gotten 30-cent raise and he would have went
upstairs and got some kind of paper from Mr. Slace
[Respondent's president] or whoever it was supposed to be
that there wouldn't have been no reprisal on it." Scolaro
added that Casey's characterization of Ellsler as a
"damned fool" related to Ellsler's "union activities."
During his examination, Casey was asked whether he
had ever engaged in a conversation with Scolaro in which
he verbally painted Ellsler as a "damn fool" and a "trou-
blemaker." Casey responded, "I absolutely have no recall
of ever making that statement, absolutely." In light of
Casey's testimony regarding his acquisition of knowledge
concerning Respondent's proffer of a wage increase to the
guards or the advent of the Union, which was not only
self-contradictory but also at variance with McCulloch's
version, and because I was impressed by neither the de-
meanor nor candor of this witness, I credit Scolaro and
find that, a few days following the November 11 meeting
between McCulloch and the guards, Casey informed Scola-
ro that Ellsler was a "damn fool" and a "troublemaker" for
fostering union representation. I also find that Casey told
Scolaro in this conversation that, had he and the other
guards retrieved their signed union designations and given
them to McCulloch, the men would have received a 30-
cent wage increase and no reprisals would have been vis-
ited upon them by Respondent because of their Union
aberrations.
John Brosnan toiled as a security guard for Respondent
for 7 years and James Casey was also his supervisor. It is
Brosnan's testimony that, on December 8, the day of the
layoff of Ellsler and Scolaro, Casey approached Brosnan
and showed the latter the termination slips for the two
6 Casey, the chief of security at Respondent's enterprise, is admittedly a
supervisor within the meaning of Sec. 2(1 I) of the Act
men. Brosnan confronted Casey and inquired, "why these
two men, why Hank Ellsler and why Joe Scolaro, Joe Sco-
laro is the second man from the top of the list, Hank Ellsler
is the second one from the bottom of the list, why these two
men? We always had followed seniority before without a
union, why not follow it now ...?" Casey replied, "Hank
[Ellsler] has been talking too much, he's talking union all
over the plant and I'm sick and tired of it, Mr. McCulloch
is tired of it and it's going to the front office to Mr. Slace
and we have had it."
Brosnan further testified that, about the middle of Janu-
ary 1975, a discussion arose with fellow employee William
Edgar concerning the guards' seniority roster. Brosnan
complained that, with the layoff of Scolaro, Brosnan was
entitled to be ranked second on the seniority list, but a
former salesman named Spence, who had the least senior-
ity of all the watchmen, had been elevated to the top spot.
Sometime thereafter, Brosnan spoke with Casey about the
matter, and inquired "could you tell me how did it work
out that Bill Spence got at the top of the list now, since you
had him at the bottom of the list?" According to Brosnan,
Casey responded, "Well, John, that's tough luck, that's
your fault, you're over twenty one, he [Casey] said you
didn't have to join Hank Ellsler. He said you could have
stuck with me and I could get you something. Instead you
join Hank Ellsler and he said, now you have to take what
you got."
When questioned as to whether he had any conversation
with Brosnan on December 8 regarding the furloughs of
Ellsler and Scolaro, Casey answered, "No conversation
other than a greeting that we had on Sunday...." Casey
then denied that he made any mention to Brosnan about
the layoffs. Under further interrogation, Casey also dis-
claimed that he had told Brosnan early in January 1975,
that Brosnan's lack of seniority was "tough luck, you're big
boys now, you're over twenty one," although Casey was
not asked, nor did he deny Brosnan's testimony that the
chief security stated that "you could have stuck with me
and I could get you something. Instead you join Hank Ells-
ler and . . . now you have to take what you got."
As indicated heretofore, Casey did not overwhelm me
with his veracity as a witness. I credit the testimonial utter-
ances of John Brosnan and find that, on December 8, Ca-
sey confessed that Ellsler was removed from Respondent's
payroll on that date because he had "been talking too
much, he's talking union all over the plant . . . and we
have had it." I also find that, in early January 1975, Casey
informed Brosnan that the latter's seniority stance would
have escalated had he not thrown his lot in with Ellsler and
the collective representational movement which Ellsler es-
poused.
The brunt of Respondent's defense to its treatment of
Ellser by laying him off and failing to recall him is that, as
stated by counsel at the hearing, "the economic conditions
and physical change of the plant dictated a reduction in
force from seven to five guards," and that this separation
from employment therefore bore no overtones of antiunion
discrimination. I perceive no merit in this defense.
When questioned as to the reason of Ellsler's layoff on
December 8, McCulloch replied that economic conditions
dictated a retrenchment in personnel and "Mr. Ellsler was
PITTSBURGH BREWING COMPANY
let go because he was one of the lowest people on the se-
niority group as they term it and had been there less time
than most of them and had had the least experience of any
of the people who were in that category ...." However,
McCulloch acknowledged that an individual named Mc-
Cray was less senior than Ellsler , but justified McCray's
retention on the ground that he held a special badge with
the Pittsburgh police force .? McCulloch then confessed
that he did not know whether Ellsler also possessed such a
badge. Moreover, McCulloch recanted in his testimony
when pressed on the matter and conceded that seniority
was not utilized in separating unrepresented employees
from Respondent's employ. Finally, McCulloch testified
that, with the completion of the warehouse project, there
was no need for traffic guards and this was a factor in
laying off Ellsler. However, it is undisputed that for almost
3 months prior to his separation from work , Ellsler toiled
as a security guard rather than a traffic guard.
In short, I find and conclude that Ellsler was selected for
layoff on December 8 solely and exclusively because he
enlisted the aid of the Union and supported that labor or-
ganization in obtaining representational status among the
watchmen at Respondent 's plant . By engaging in such con-
duct, I find and conclude that Respondent thereby violated
Section 8(a)(3) of the Act.
I further find and conclude that Respondent offended
the provisions of Section 8(a)(1) of the Act by McCulloch's
statement to Ellsler and Casey's statements to Scolaro and
Brosnan to the effect that the employees would have re-
ceived a 30-cent wage increase and would not suffer repri-
sals if they rescinded their union designations and aban-
doned the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent 's opera-
tions described in section I, above , have a close and inti-
mate relationship to trade , traffic , and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
V. THE REMEDY
Having found Respondent has engaged in and is engag-
ing in certain unfair labor practices , I shall order that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I have found that Respondent laid off Henry F. Ellsler
on December 8, 1974, for reasons proscribed by Section
8(a)(3) of the Act. I shall therefore recommend that Re-
spondent make him whole for any loss of pay which he
may have suffered as a result of the discrimination prac-
ticed against him. The backpay provided for herein shall be
computed in accordance with the Board's formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
7 McCulloch also admitted that Spence had less seniority as a guard than
Ellsler.
717
interest thereon at the rate of 6 percent per annum comput-
ed in the manner prescribed in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). I shall also recommend that
Respondent offer Henry F. Ellsler immediate and full rein-
statement to his former job or, if it no longer exists, to
substantially equivalent employment.
Upon the basis of the foregoing findings of fact and con-
clusions, and upon the entire record in this case, I hereby
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off Henry F. Ellsler, thereby discriminating
in regard to his hire and tenure of employment, in order to
discourage his engagement in activities on behalf of the
Union, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices banned by Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER8
Respondent, Pittsburgh Brewing Company, Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Laying off employees, thereby discriminating in re-
gard to their hire and tenure of employment, in order to
discourage their engagement in activities on behalf of In-
ternational Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, Local 67-A,
AFL-CIO.
(b) Promising wage increases to employees if they re-
frain from becoming or remaining members of the above-
mentioned labor organization or any other labor organiza-
tion, or from giving support to said unions.
(c) Promising that no employees who were members of,
or supported, the above-mentioned union, would be dis-
charged or laid off if they abandoned their union member-
ship or ceased giving support to said labor organization.
(d) In any other manner interfering with, restraining, or
8 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to Henry F. Ellsler immediate and full rein-
statement to his former job or, if it no longer exists, to
substantially equivalent employment, and make him whole
for any loss of pay which he may have suffered as a result
of the discrimination practiced against him, in the manner
set forth in the section of this Decision entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords social security records and reports, and all other re-
cords necessary to analyze the amount of backpay due
herein.
(c) Post at its facility in Pittsburgh, Pennsylvania, copies
of the attached notice marked "Appendix." 9 Copies of
said notice, on forms to be provided by the Regional Di-
rector for Region 6, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
9 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off our employees, thereby discrim-
inating in regard to their hire and tenure of employ-
ment, in order to discourage their membership in In-
ternational Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, Local
Union 67-A, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT promise wage increases to our employ-
ees if they refrain from becoming or remaining mem-
bers of the above-mentioned Union or any other labor
organization.
WE WILL NOT promise that no employees who are
members of, or supported the above-mentioned Union
will be discharged or laid off if they abandon their
union membership.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights guaranteed under Section 7 of the Nation-
al Labor Relations Act, as amended.
WE WILL make Henry F. Ellsler whole for any loss of
pay he may have suffered as a result of our discrimina-
tion practiced against him, and WE WILL reinstate him
to his old job or, if it no longer exists, to a substantial-
ly equivalent one.
All our employees are free to become, remain or
refrain from becoming or remaining members of the
above-named or any other labor organization.
PITTSBURGH BREWING COMPANY