Bauer-Schweitzer Hop & Malt Co.

National Labor Relations Board - Board Decisions

Jul 15, 1948

78 N.L.R.B. 327 (N.L.R.B. 1948)

In the Matter of BAUER- SCHWEITZER Hop & MALT Co., CII As. BACH Co.,
RAINIER BREWING CO., PACIFIC BREWING & MALTING Co., GRACE
BROS. BREWING CO., MILLER MALTING CO. AND JOSEPH T. GRACE
FARMs, INC., EMPLOYERS and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA,
CIO, PETITIONER
Case No. 20-R-1909
SUPPLEMENTAL DECISION
AND
DIRECTION
Jnly 15,19.48
Pursuant to a Decision and Direction of Elections,' elections by
secret ballot were conducted on April 8, 1947, under the direction and
supervision of the Regional Director for the Twentieth Region, among
the employees of the Employers in the units found to be appropriate.
At the close of 'the elections, the parties were furnished Tallies of Bal-
lots. The Petitioner was selected by a majority of the employees in
Unit No. 2, and was accordingly certified by the Board on May 8, 1947.
In Unit No. 1, the Tally of Bal lots shows that there were approximately
82 eligible voters and that 76 ballots were cast, of which 35 were for the
Petitioner, 37 were for the Intervenor, and 4 were challenged.
On April 11, 1947, the Petitioner filed objections to the conduct of
the election in Unit No. 1, on the grounds that (1) prior to the election,
the brewmaster at Pacific advised the employees that if they voted for
the Petitioner, the malt house would be shut down; (2) on March 21,
1947, "management representatives" refused to permit representatives
of the Petitioner on the premises, although representatives of the In-
tervenor were at all times permitted free access to the premises; (3) at
Bauer-Schweitzer, a management representative stated, in the presence
of employees eligible to vote in the election, that Bauer-Schweitzer had
n contract with the Intervenor; (4) all the'Employers generally pre-
vented authorized representatives of the Petitioner from coming on
their premises during the preelection period, although representatives
172N L R.B 122.1
78N L. R. B, No 42
i 327
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Intervenor were given free access to the premises; and (5) the
Board's agent refused two employees the right to vote. Thereafter, on
November 26, 1947, the Regional Director issued his Consolidated Re-
port on Challenged Ballots and Objections, finding that the objections
did not raise substantial and material issues with respect to the election,
and recommending that the challenges to the ballots of Leland L. Salo-
mon and E. Garcia be overruled and that the challenges to the ballots
of Robert A. Peterson and Charles Suske be sustained.
On December 4, 1947, the Petitioner filed exceptions to the Con-
solidated Report on Challenged Ballots and Objections, and on De-
cember 10, 1947, the Intervenor filed a reply to the exceptions. On Feb-
ruary 10, 1948, the Board ordered a hearing for the sole purpose of
determining whether or not any of the Employers, prior to the holding
of the election, permitted representatives of the Intervenor access
to their premises for campaigning purposes, while denying similar
privileges to representatives of the Petitioner and, if so, whether such
conduct was justified under the terms of the collective bargaining
contract then in effect between the Employers and the Intervenor.
Pursuant to notice, a hearing was held on April 7, 1948, at San Fran-
cisco, California, before Wallace E. Royster, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the record previously made, the Petitioner's objections to the
conduct of the election in Unit No. 1, the Regional Director's Consol-
idated Report on Challenged Ballots and Objections, the Petitioner's
exceptions, the Intervenor's reply, and the entire record in the case,
the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
A. The objections to the election
1. The Petitioner's first objection was based on statements alleged
to have been made by the brewmaster of Pacific. According to the
Regional Director's Report, the only evidence in support of this allega-
tion was a statement by a Pacific employee that he had heard "from
one of the fellows" that Brewmaster Baumgartner had stated that the
plant would close down if the Petitioner won the election. Such in-
definite hearsay testimony falls far short of proving the alleged state-
ment. We agree with the Regional Director that this objection of
the Petitioner is without merit, and it is hereby overruled.
2. The second and fourth objections allege that the Employers per-
mitted representatives of the Intervenor access to their premises for
BAUER-SCHWEITZER HOP & MALT CO. 329
the purpose of campaigning during the preelection period, while de-
nying similar privileges to representatives of the Petitioner.
On August 1, 1946, the Employers 2 and the Intervenor signed a
1-year collective bargaining agreement covering the employees in-
volved herein.3 It provided, inter alia, for a closed shop, and contained
no specific mention of the right of the Intervenor's representatives to
enter the Employers' premises for the purpose of policing the contract.
At the second hearing, Delwin C. Moorehead, a representative of
the Petitioner,4 testified that on March 21, 1947, during working hours,
he visited the malt house of Bauer-Schweitzer, accompanied by Paul
Guenter,' for the purpose of campaigning for the Petitioner.
Peter Fugina, Bauer-Schweitzer's plant superintendent, asked
Moorehead what he was doing in the plant. Moorehead replied that
he wanted to talk to the men. Fugina then asked Moorehead and
Guenter to leave, saying that Bauer-Schweitzer had a contract with
the Intervenor and did not want representatives of the Petitioner in
the plant. Moorehead pointed out that the Board had ordered an
election, and that he felt he was entitled to discuss the coming elec-
tion with Petitioner's members in the plant. Moorehead asked Fugina
whether or not representatives of the Intervenor had access to the
plant. Fugina replied that they did, because the Intervenor had a
contract with Bauer-Schweitzer. Moorehead and Guenter then left
the plant. Guenter substantially corroborated Moorehead's testimony
in this respect. He testified that Moorehead told Fugina that he
thought he had just as much right to come into the plant as Frank
Meyer, a representative of the Intervenor, "who has been permitted
to come in here continuously and speak to the boys." Fugina testi-
fied that when Moorehead referred to Meyer's presence in the plant,
Fugina replied that Meyer was only coming into the plant "for busi-
ness reasons , to my knowledge." Fugina further testified that Moore-
head accused him of trying to keep Moorehead out while permitting
representatives of the Intervenor to enter, which Fugina denied, point-
ing out that if Moorehead wanted to see the men he could see them
after working hours.
A short while later, a conference was held in the Board's offices
to discuss details of the coming election. Present were Kevin, repre-
senting the Board; Moorehead, Attorney Leonard, and Harold H.
Bondy, representing the Petitioner ; Attorney McCarthy, representing
2 Miller did not enter into this contract . However , Miller's employees were not included
in unit No 1, and consequently are not involved herein
3 We held this contract did not constitute a bar to the elections. 72 N. L. It. B. 1223
° Moorehead was not an employee of Bauer-Schweitzer
2 Guenter was a member of the Petitioner , and was unemployed at the time
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intervenor ; and James G. Hamilton, representing the Employers."
Either Moorehead or Bondy asked Hamilton if the Petitioner's rep-
resentatives would be permitted in the malt houses during the pre-
election period. Hamilton answered in the negative. Moorehead
testified that Hamilton was then asked if the Intervenor's representa-
tives would be permitted within the plant, to which Hamilton replied
that they would, "under the terms of the contract," because he "had
faith" in the Intervenor. Bondy substantiated Moorehead's testi-
mony, testifying that Hamilton had stated that the Employers had
been friendly for years with the Intervenor and intended to allow
only the Intervenor's representatives on the premises. Bondy further
testified that Kovin then said that, if one union was allowed on the
premises, the 'other should be given similar privileges. Bondy also
testified that the Petitioner's representatives asked the privilege of
going on the premises during the noon hour, rather than on company
time, and that Hamilton denied this request.
Hamilton gave a somewhat different version of the conversation.
He admitted that he had refused to, permit the Petitioner's representa-
tives to enter the premises for the purposes of campaigning, but main-
tained that he stated that he would permit representatives of the
.Intervenor access to the premises "only for the purposes of adminis-
tering the contract" and that neither side would be permitted to
electioneer on the premises. He denied stating that he had no confi-
dence in the Petitioner and would refuse access to its representatives
because they were strangers to him. He admitted that Kovin had
said that, if representatives of one union were permitted to electioneer,
representatives of the other union should be given similar privileges,
but maintained that he replied that neither union would be permitted
to campaign on the premises.
Moorehead testified that, because he was denied access to the Bauer-
Schweitzer plant and because of Hamilton's attitude, he made no fur-
ther attempts to visit any of the plants of the Employers.
The Board has vacated elections where the employer has permitted
representatives of one union to campaign on the employer's property
during the preelection period while denying the same privilege to rep-
resentatives of the rival union.' The record in the instant case re-
veals that representatives of the Petitioner were not permitted access
6 Hamilton was secretary and administrator of the California State Biewers Institute,
of which some of the Employeis weie members. He testified that as secretary of the
Institute he represented Rainier, Pacific and Grace Bios ., and that as an individual he
represented Bauer -Schweitzer and Bach He also testified that neither he nor anyone else
present represented Grace Farms or Miller
T Matter of The Crosley Corporation, 60 N. L R . B. 623, and Matter of Joshua Hendy
Iron Works , Division Crocker-Wheeler Electrical Manufacturing Company, 53 N. L. R. B.
1411. Compare Matter of American -West African Lines, Inc ., 21 N. L. R. B. 691.
BAUER-SCHWEITZER HOP & MALT CO. 331
to the premises of the Employers for the purpose of campaigning.
There is no evidence, however, that representatives of the Intervenor,
which was administering an existing contract and might reasonably
have required access to the premises for this purpose, were actually
permitted to campaign on the premises of any of the Employers. It
appears that Moorehead told Fugina that he had as much right to
come into the plant as Meyer, who had "continuously" spoken to the
employees. Fugina's answer was that, so far as he knew, Meyer only
entered the plant for "business reasons." No testimony was adduced
that Meyer or any other representative of the Intervenor had, in fact,
indulged in any campaigning on the premises. In this posture of the
case, we are constrained to hold that the Petitioner has not sustained
the burden of proving any irregularities sufficient to set the election
aside. We therefore overrule these objections.
3. The third objection was based on the alleged statement of a rep-
resentative of Bauer-Schweitzer, in the presence of employees eligible
to vote in the election, that Bauer-Schweitzer had a contract with the
Intervenor. The Regional Director did not discuss this objection in his
Report. Inasmuch as a contract did exist, at the time, between the
Intervenor and the Employers, we are unable to perceive'any merit
in this objection.' Accordingly, it is overruled.
4. The fifth objection is based on the alleged action of the Board's
agent in refusing to allow two employees to vote in the election. The
Regional Director found that the only person appearing at the polls
whose right to vote was questioned was E. Garcia. As will appear
below, he was permitted to vote under challenge. We concur in the
Regional Director's overruling of this objection.
We find that the Petitioner's objections to the conduct of the elec-
tion in Unit No. 1 do not raise substantial and material issues with
respect to the election. They are therefore overruled.
B. The challenged ballots
The ballots of Leland L. Salomon and E. Garcia were challenged by
the Board's agents because their names did not appear on the approved
list of eligible voters. The Regional Director recommended that the
challenges to these two ballots be overruled. None of the parties has
excepted. In view of the absence of exceptions, we shall adopt the
Regional Director's recommendations and shall overrule the challenges
to these two ballots, and direct that the ballots be opened and counted.
The ballots of Robert A. Peterson and Charles Suske were likewise
challenged by the Board's agents for similar reasons. The Regional
I In view of the fact that the contract contained aclosed-shop provision, it is reasonable
to assume that the employees were aware of its existence.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director recommended that the challenges to these two ballots be sus-
tained, and the Petitioner has excepted. Peterson and Suske were
employed at Rainier as maltsters, and were laid off on January 31,
1947. Unfair labor practice charges were thereafter filed against
Rainier alleging that they had been discriminatorily discharged.9 The
Regional Director, however, refused to issue a complaint based upon
these charges, and, on June 4, 1948, the General Counsel of the Board
dismissed an appeal from the Regional Director's ruling. In view of
the action of the General Counsel, we hereby sustain the challenges to
the ballots of Peterson and Suske.
DIRECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Bauer-Schweitzer Hop & Malt
Co., San Francisco, California, Chas. Bach Co., San Francisco, Cali-
fornia, Rainier Brewing Co., San Francisco, California, Pacific Brew-
ing & Malting Co., San Jose, California, Grace Bros. Brewing Co.,
Santa Rosa, California, and Joseph T. Grace Farms, Inc., Sacramento,
California, the Regional Director for the Twentieth Region shall, pur-
suant to the Rules and Regulations of the Board, within ten (10) days
from the date of this Direction, open and count the ballots of Leland
L. Salomon and E. Garcia, and thereafter prepare and cause to be
served upon the parties a Supplemental Tally of Ballots, including
therein the count of said challenged ballots.
MEMBER GRAY took no part in the consideration of the above Sup-
plemental Decision and Direction.
9 Matter of Rainier Brewing Company, Cases Nos. 20-C-1675 and 20-C-1679.