Brewers and Maltsters Local Union No. 6 v. NLRB

Citation301 F.2d 216
Decision Date10 April 1962
Docket NumberNo. 16580,16569.,16580
PartiesBREWERS AND MALTSTERS LOCAL UNION NO. 6, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. FALSTAFF BREWING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert J. Griffith, St. Louis, Mo., for Falstaff Brewing Corp. and James P. Mannion, Jr., St. Louis, Mo., was with him on the brief.

Harry H. Craig, St. Louis, Mo., for Brewers and Maltsters Local Union 6, etc. and Norman W. Armbruster and John T. Wiley, Jr., of Wiley, Craig, Armbruster & Wilburn, St. Louis, Mo., were with him on the brief.

Morton Namrow, Atty., N.L.R.B., Washington, D. C., for respondent. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L. R.B., and Melvin J. Welles and Morton Namrow, Washington, D. C., were on the brief.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

BECK, District Judge.

The petitioners are in these proceedings, pursuant to 29 U.S.C.A. § 160(f), seeking to set aside a July 25, 1959, final order of the National Labor Relations Board against the Union directing it to:

"(1) Cease and desist from:
"(a) Causing, or attempting to cause Falstaff Brewing Corporation, its officers, agents, successors, or assigns, to discharge employees for protesting the conduct of union officers to the Teamsters\' Monitors or otherwise engaging in concerted union activities, in violation of Section 8(a) (3) of the Act; and
"(b) In any like or other manner, restraining or coercing employees of the said Company or any employee member of Respondent Union in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.",

and as against the Company to:

"(1) Cease and desist from:
"(a) Discharging employees because they have protested the conduct of union officers to the Teamsters Monitors or otherwise engaged in concerted union activities; and
"(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959."1,

with other specific directions for offers to Gerak from the Company for immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and with the Union to "jointly and severally" make Gerak whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report, entitled "The Remedy".2

Other directives in the order as against the Company pertain to preservation and making available to the Board, payroll, social security, time cards and personnel records and reports and all other records necessary to analyze and compute the amount of back pay due under the terms of the recommended order, as against the Union a directive for a written notice to the Company of withdrawals of its objections to the employment of Gerak, coupled with request for full reinstatement to his former or substantially equivalent position, and as to both petitioners, the usual and customary follow-up procedurals relating to posting and notice as prescribed by the Act.

Also before us in these proceedings is the Board's cross petition for enforcement of the order, 29 U.S.C.A. § 160(e).

Actually, as the contentions of the respective parties are formulated in their arguments, we need only decide, whether or not on the record as a whole there is basis in form of substantial evidence to support the Board's charge, 29 U.S.C.A. § 160(e):

"that Lewis, in retaliation against Gerak for having attempted to curb his authority over the affairs of Local 6, caused the Company to discharge him."

This as against the Company's affirmative defense:

"that it discharged Gerak for just cause, independently of any union consideration.",

and the Union's defense being:

"primarily on the ground that it brought no pressure whatsoever upon the Company, but rather that the secretary-treasurer\'s primary interest was to prevail upon other union members to get along with Gerak, and to make it possible for him to continue in employment."

So scrutinized, it is admitted or undeniably established that the Union is a labor organization within the meaning of the Labor Management Relations Act of 1947, as amended, 29 U.S.C.A. § 152(5) and the collective bargaining representative for the Company's employees, including Gerak, with Robert Lewis as its secretary-treasurer, trustee, also, of Joint Council 13 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, chairman of the Joint Board of Brewery Workers, composed of three other St. Louis Brewery Locals, the head of the negotiating team for Local No. 6, in charge of grievances of its members, of certain grievances and arbitrations relating to the other three local Brewing Unions, and under his own admissions the top and headman of Local No. 6.

In this connection we note, too, that the Company, operated two breweries in St. Louis where it had its principal place of business; that it engaged in interstate commerce within the Act; that Leo Kavanaugh was and had been its superintendent since 1948, with authority to discharge employees and that no one else could, including Silvio Pucci, the Company's personnel manager.

Gerak under his own admissions and undisputed testimony in the record had been employed by the Company as a utility brewer for thirteen years before he was fired on June 4, 1959. His employment status during that period had remained the same, though others had been advanced with accompanying seniority rights, opportunity for overtime and better pay. The record as a whole, aside from any affidavits questioned as incompetent, pictured him as obnoxious, foul-mouthed and profane, prone to apply vile and indecent descriptions to others and one with a propensity for arguing and complaining. He was disliked generally, tolerated by a few, frustrated too because his employment status had not been improved, inclined to blame others rather than himself for that predicament, a trouble-maker and a constant source of irritation to the Union, its members and officers, his fellow workers, foreman, stewards and others with whom he was joined in the beer making set-up. The degree of resentment against him in the Union, is Lewis' revealed attitude toward him, as he on April 17, 1959, in a tirade of cursing and profanity declared:

"I did most of the saying. I simply said this to Oscar Gerak: `You have repeatedly, reports that I have received from a great number of members, you\'re working on my character, and you have called me names. Now I am warning you that if you ever call me any of these names again on or off the record, I\'ll knock your God damn head off.\'",

with further proof of resentment against him in the plant and the Union, provided in the staged beating Gerak received at the plant on May 4, 1959, from another employee, with others who were members of the Union, witnessing the assault.

Gerak, even so, had no Company record of reprimands.3 Profanity, vile name calling, including "muff diving fink"4 and manners ordinarily frowned upon in most instances, were a form of kidding or joshing in the beer-fumed atmosphere of the working fraternity to which he belonged and seemingly so regarded by the workers, the Union and the management, with physical assault, rather than disciplinary measures, used as the only deterrent, when uncouth habits and conducts of an employee violated standards of accepted tolerances.

In another area of established facts, we note Gerak being incapacitated from May 4, 1959, to May 13 in the same year, as a result of the beating he got and to which we have referred. Illness kept him from working for some seven days. He continued to be absent until the 26th of the same month, when Pucci by telephone call to Gerak made inquiries concerning his health, told him of his welfare coverage, instructed him how to apply, with ending instructions for Gerak to return to work on June 1.

Admitted by all parties, is Gerak's and two other employees' written protest on May 18, 1959, by letter to Monitors of the International Brotherhood of Teamsters, Washington, D. C., requesting that organization "to investigate and correct a situation which we feel is a disgrace to decent unionism". It points to active membership in the Union of the authors, one for twenty-six years, another for twenty-three and a third for twenty-two years. It charges the Local with discrimination, favoritism, loss of wages to the writers and a seniority system giving unwarranted preferences. The letter ends:

"We know we are risking our jobs and our lives by writing this letter, but we are past being afraid any more. Just last week, one of us, Oscar Jarak, was attacked by a brewer while at work, while Jarak was talking to the steward. We did not seek any publicity about this, but went to the Teamsters Building and got medical treatment for Jarak there.
"We are not trying to hurt the Union and don\'t want to. We do not intend to seek publicity about this matter if it is possible to get a square deal in any other way. Instead, we are asking you to look into this matter and force Local 6 to represent us fairly. Bob Lewis has threatened to kill any man who goes to the Labor
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