Blatz Brewing Co.

National Labor Relations Board - Board Decisions

Jun 18, 1951

94 N.L.R.B. 1277 (N.L.R.B. 1951)

BLATZ BREWING COMPANY 1277.
longer employed by the Employer, and that he would be unable to
"prove" the statements made by him. The Employer also asserted
that Superintendent Wilkins denied making the statements attributed
to him. ,_
Though We were to accord this letter the status of formal excep
tions filed in accordance with the Board's Rules and Regulations,
we would nevertheless find that they fail to raise substantial and
material issues with respect to that portion of the report based on
Witherspoon's conduct. Even if all this conduct, which goes be-
yond mere statements, was unauthorized, the employees, in the ab-
sence of notification to them by the Employer that it would not inter-
fere with the Petitioner's campaign, would have had reasonable basis
for believing that Witherspoon's conduct reflected the Employer's
views. The Employer, therefore, cannot :disclaim responsibility for
Witherspoon's conduct 4 Under the circumstances prevailing at the
time of the election, therefore, the Employer's employees were clearly
deprived of their right to a free and uncoerced election. Accord-
ingly, 'we shall adopt the Regional Director's recommendation and
set aside the election of December 21, 1950, and .shall direct that a
new election be held at such time as the Regional Director advises the
Board that an election may appropriately be held.
Order
IT IS HEREBY ORDERED that the election held on December 21, 1950,
among the employees of T. B. Martin, Jr., J. K. Martin, et al.,
d/b/a Standard Feed Milling Company, at its Hopkinsville, Ken-
tucky, place of business be, and it hereby is, set aside.
* Southshore Packing Corporation , 73 NLRB 1116.
BLATZ BREWING COMPANY ; A. GETTELMAN BREWING COMPANY ; IN-
DEPENDENT MILWAUKEE BREWERY COMPANY ; MILLER BREWING
COMPANY PABST BREWING COMPANY ; AND JOS. SCHLITZ BREWING
COMPANY ; COMPRISING THE BREWERY PROPRIETORS OF MILWAUKEE,
WISCONSIN and INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS,
LOCAL 125, AFL, PETITIONER . Case No.13-RC-1664. June 18,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Ivan C. McLeod, hearing
94 NLRB No. 182.
.1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers..
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks to sever a unit composed, in substance, of all
powerhouse employees of the Employers at their Milwaukee, Wiscon-
sin, breweries. Specifically, this unit would comprise employees gen-
erally referred to as engineers, firemen, powerhouse oilers, powerhouse
mechanics, powerhouse refrigeration personnel, coal passers and fuel
handlers, janitors (other than house janitors), and powerhouse
helpers.2 The Employers and the Intervenor contend that the unit
sought is inappropriate principally because of the past bargaining
history on a more comprehensive basis, the close integration of these
employees with the production process, and the lack of separate craft
status. A question is also raised as to the voting group placement of
certain categories of employees discussed below.
For a long period, the Employers have recognized the Intervenor, or
its predecessors, as the collective bargaining representative of their
production and maintenance employees, including the powerhouse
employees, but excluding certain crafts which have been separately
1 At the hearing, the Employers and the Intervenor , International Union of United
Brewery, Flour , Cereal , Soft Drlnli and Distillery Workers of America. Local Union No. 9,
CIO, moved to strike the various amendments to the petition made by' the Petitioner
during the course of the hearing , on the ground that such amendments completely altered
the character of the original unit sought . This motion was referred to the Board by the
hearing officer . In its original petition , the Petitioner sought a unit of all powerhouse
employees with certain specified inclusions and exclusions . Although the amendments
at the hearing particularized to a greater extent the unit composition, the basic nature
of the unit remained substantially unchanged . Neither the Employers , nor the Intervenor,
has demonstrated that these amendments resulted in surprise or prejudice . Accordingly,'
the motion to strike is denied.
Also reserved for ruling by the Board was the Employers ' motion that bargaining
representatives of crafts specifically excluded from the requested unit be notified of this
proceeding . A representative of one of such organizations , District 10, International
Association of Machinists , AFL, was present during a number of days of the hearing,
but did not seek formally to intervene . No persuasive reason was advanced for formally
notifying the other organizations . This motion by the Employers is therefore denied.
2 Alternatively , the Petitioner requests afly powerhouse unit the Board finds appropriate.
BLATZ BREWING COMPANY . :- 1279
represented.3 Since about 1934, this bargaining has been, conducted
on a multiemployer basis and has followed, since June 30, 1945, the
certification of the Intervenor as the bargaining representative of the
employees in this comprehensive unit.-'
The Employers are engaged in,the brewing and bottling of beer in
the Milwaukee area. At each of their breweries, the individual Em-
ployers operate powerhouses5 in which all the steam generating and
most of the refrigerant producing 'equipment is located, and from
which such steam and refrigerant are piped to the various parts of the
breweries. The steam is used to heat the plant, to maintain proper
temperatures during the brewing process, to secure a chemical reaction
in the mash, to assist in the germination process of the beer, and to
clean and sterilize the bottles before filling. The refrigerant is em-
ployed to stabilize the temperature both when the beer is transferred
from one process to another and during the period when the beer is
stored in the cellars. In some of the powerhouses, electricity.: is: also
generated, which is used to operate production equipment .4n, . the
brewery.
The powerhouse at each brewery is located in a separate- building or
separate enclosed area. The employees concerned work in or-;have
their headquarters in the powerhouse and are generally subject to
separate immediate supervisions They perform the usual duties- of
operating, maintaining, and repairing the boilers, coal conveying ma-
chinery, compressors, condensers, generators, pumps, and the like,
housed, for the most part,' in the powerhouse. At some of the brew-
eries, the carbon dioxide compressors used to inject carbon dioxide
gas, or "fizz," into the beer are also serviced by powerhouse employees.
The powerhouse, unlike most of the other departments, operates on a
24-hour basis, 7 days each week, with the licensed personnel alternat-
ing shifts at varying intervals during the month. The engineers and
firemen, who comprise a substantial portion of the employees sought,
are required by city ordinance to be licensed I and receive pay equal
' These crafts included the machinists , carpenters , millwrights , steam fitters, plumbers,
bricklayers, electricians , sheet metal workers , and coopers . Bargaining covering the
powerhouse employees along with the production employees apparently commenced in
about 1886.
4 See Brewery Proprietors of Milwaukee , Wisconsin, 62 NLRB 163 . The most recent
contract between the Employers and the Intervenor was executed on December 26, 1950,
to extend from March 1, 1951, to February 28, 1953. This contract , which was entered
into after the filing of the petition herein, is not asserted as a bar.
5 Sometimes referred to as power plants or engine and boiler rooms.
6 At Gettelman and Independent Milwaukee , the supervisor of-the powerhouse employees
also supervises the maintenance men.
4In some instances , there is refrigeration equipment located outside the powerhouse,
substantially all of which is serviced by employees headquartered at the powerhouse.
8 The Milwaukee ordinance requires a first class engineer to have had 4 years ' experience
in the operation of steam boilers or steam engines ; a second class engineer must have
3 years, a third class engineer 2 years, and a licensed fireman 1 year , of such experience.
In addition , engineers and firemen are required to pass examinations on their qualifications.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to or higher than that received by other brewery workers .9 Certain
employees in the production departments perform duties, such as oil-
ing production machinery or regulating valves for temperature con-
trol, comparable to those of some powerhouse employees. However,
there is little interchange between powerhouse and other employees
and transfers into or out of the powerhouse are relatively infrequent.
Layoffs are made on a modified departmental basis. And all power-
house employees use the same facilities.
It is clear, from the entire record, that the powerhouse employees
comprise a homogeneous, identifiable, and functionally coherent group
of a type which the Board has frequently permitted separate repre-
sentation in the brewing 10 and other industries.- Neither the .long
history of bargaining nor the Board's prior certification on a more
comprehensive basis precludes such representation.12 And, contrary
to the Employers' and Intervenor's contentions, the record fails to
reveal an integration of the powerhouse employees with the production
processes sufficient to render the requested unit inappropriatel3 We
find that the powerhouse employees may, if they so desire, constitute
a separate bargaining unit and we shall direct an election in the voting
group set forth hereinbelow.14
There remains for consideration the placement of the following
employees :
Plant oilers, house oilers, and outside oilers: In general, plant oilers
at all the breweries are engaged in oiling production machinery
throughout the plant and neither service nor operate any of the equip-
ment in the powerhouse. While certain plant oilers, referred to as
"house oilers" at Schlitz, may service some refrigeration equipment
The engineers and firemen are separately listed as to wages and hours in the current
agreement between the Employers and the Intervenor.
10 See Dallas-Fort Worth Brewing Company , 84 NLRB 681 ; The Consumers Brewing
Company, 77 NLRB 1244 ; Southern Brewing Company, 42 NLRB 649 ; Tampa Florida
Brewery, Inc., 42 NLRB 642. Cf . New Jersey Brewers Association , 92 NLRB 1404;
Philadelphia Brewing Co ., 4-RC-511, December 20, 1949 , not reported in printed volumes
of Board decisions, where a unit composed generally of power , mechanical , and maintenance
employees of 9 breweries in and around Philadelphia , Pennsylvania , was established.
111. B. Kleinert Rubber Company , 92 NLRB No . 271; Anaconda Wire and Cable Com-
pany., 91 NLRB No. 37 ; American Box Board Company , 90 NLRB 122; Armour & Company,
88 NLRB 309.
12 See, e. g., American Box Board Company , supra.
13 American Box Board Company, supra ; Armour & Company, supra ; Borden's Soy
Processing Company , Division of the Borden Company, 88 NLRB - 1208 ; The Beattie
Manufacturing Company , 86 NLRB 694 ; Ralston Purina Company , 86 NLRB 107.
General Mills, Inc., 84 NLRB 831, cited by the Employers as "indistinguishable" from
the present case, is clearly not controlling . There, although mention was made of the
functional integration of the boiler room employees , the Board further specifically noted
that these employees lacked any special skills, were not separately supervised , and shared
the same wages, hours, and other working conditions as the production employees.
14 The Employers ' contention in their brief that the unit is inappropriate because the
Petitioner lacks the "power or intention" properly to represent the bulk of the employees
requested is clearly without merit. See Consolidated Vultee Aircraft Corporation,
88 NLRB 49.
BLATZ BREWING COMPANY 1281
located outside the powerhouse , they devote no more than 10 percent
of their entire time to such activity . The plant oilers are not licensed.
and are under different supervision. They do not regularly inter-
change with any of the powerhouse personnel or use the same plant.
facilities . There are , however, five plant oilers at Blatz who operate
under the same supervision as the powerhouse employees and report
any trouble to the plant engineer . They oil refrigeration and other
equipment throughout the plant, maintain strict temperature control
of the refrigeration equipment wherever located, and , in emergencies,
may work either in the boiler or engine room. They receive the same
wages as oilers reularly assigned to the engine room, and use then
sane time clock and locker room as the other powerhouse employees.
The two outside oilers at Miller have duties and working conditions
similar to those of the five plant oilers at Blatz. As both the five plant
oilers at Blatz and the two outside oilers at Miller have the same super-
vision, devote a substantial portion of their time to servicing and
checking refrigeration equipment , and have interests in common with
other powerhouse employees , we shall include these employees in the
voting group as powerhouse oilers," but shall exclude all other plant.
oilers.16
Relief firemen: Two relief firemen , designated as "maintenance
men," are employed by Gettelman and spend from 4 to 5 weeks a
year serving as boiler room firemen when the regular firemen are
sick or an vacation. During the remainder of their time , they work
in other parts of the brewery performing mechanical maintenance du-
ties and, although they have the same supervision , the hours and
nature of their work varies from that of the powerhouse employees:
As their interests and the nature of their ordinary duties differ sub-
stantially from those of the regular powerhouse employees, and as
only a small proportion of their time is devoted to firing boilers, we
shall exclude relief firemen at Gettelman.17
At Independent Mihvaukee , the relief fireman spends between 40
and 60 percent of his time in the boiler room performing fireman's
work. The remainder of his time is devoted to taking temperatures
in the cellars and acting as a powerhouse refrigeration man. He is
a licensed fireman and at all times has the same supervisor and gen-
eral working conditions as the other powerhouse employees . Accord-
15 Also clearly included as a powerhouse oiler is the day oiler at Schlitz , who has the
same supervision and working conditions as the powerhouse oilers.
11 Cf . Borden 's Soy Processing Company, supra ; American Smelting and Refining
Company, 86 NLRB 1172.
17 Cf. Buckley R Mann, Inc., 93 NLRB No. 163 ; Schiefelin if Co., 90 NLRB No. 130,
not reported in printed volumes of Board decisions.
For similar reasons, we shall also exclude the relief engineer at Independent Milwaukee,
who spends 80 percent of his time in other maintenance work outside the powerhouse.
9 i 3 8 41-5 2-v o]. 9 4-8 2
1282 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
ingly, we shall include this relief fireman in the voting group as a
regular fireman 18
Kiln firemen and grain dryer operators: These employees are lo-
cated in a separate part of each brewery, away from the powerhouse,
and are engaged in the operation of furnaces to treat the malt or to
dry grain previously used in the brewing process.. They do not oper-
ate steam engines or steam boilers and are not required to be licensed.
They work under different supervision and have working conditions
diverse from those of the powerhouse employees. We shall exclude
them.
Filter men at Miller and Schlitz: The filter man at Miller works
throughout the brewery checking the operation of the equipment used
to change the air. He works out of the powerhouse under the same
supervision as employees stationed in the powerhouse and has the same
hours of work. Any repairs deemed necessary are reported to the
powerhouse supervisor. He associates with the powerhouse employees
and uses the same time clock. The filter man at Schlitz, on the other
hand, spends no more than 10 percent of his time servicing any power-
house equipment, with the remainder'being spent on equipment unre-
lated to powerhouse operations. He is not under powerhouse super-
vision and has working conditions that differ from those of the
powerhouse employees. We shall exclude the filter man at Schlitz
from the voting group, but shall include the filter man at Miller as a
powerhouse refrigeration man 19
The "temperature" men at Pabst: These men work in the malt house,
brewhouse, and Government cellars, checking and controlling the
temperature during the fermentation or storage cycle or upon the
transfer of the beer to the bottle house. In the bottle house, they
regulate the temperature of water used to sterilize the bottles. In
the performance of such duties, they are directly engaged in the pro-
duction process. In contrast to the regular refrigeration 'personnel
working out of the powerhouse, they spend no time in the power-
house or in servicing refrigeration equipment. They are not under
the same supervision as powerhouse employees ' and do not use the
same plant facilities. In view of'the foregoing, we shall exclude the
"temperature" men at Pabst.20
3s See American Cyanamid Co., 90 NLRB No. 278, not reported in printed volumes of
Board decisions , where powerhouse attendants who spend from 40 to 60 percent of their
time outside the powerhouse proper were included in a powerhouse unit.
19 Ibid.
20 Of. Armour & Co., supra. While it is not clear from the record whether employees
similar to the "temperature" men at Pabst are employed by the other Employers, any
such employees are also excluded from the voting group.
It is equally clear that the carbon dioxide injection men, who manipulate valves to
draw off and inject carbon dioxide gas into the product , are directly engaged in a
production process rather than functions such as powerhouse refrigeration men perform.
They work under supervision separate from that of the powerhouse employees and do
not have the same working conditions. We shall exclude these employees.
BLATZ BREWING COMPANY 1283.
The day, labor gang and house janitors at Schlitz: There are nine
employees who comprise the day labor gang at Schlitz, of whom one is
an oiler, one a janitor,, and seven are miscellaneous day laborers.
These employees spend virtually all their time in the powerhouse, oil-
ing equipment and cleaning boilers, condensers, water, tubes, pipes,
tanks, other equipment, and walls. They work under the same super-
vision as the rest of the powerhouse personnel, and have the same hours
and general working conditions. They have relatively little contact
with employees outside the powerhouse and there is almost no inter-
change with other employees. As these employees comprise a compo-
nent part of the powerhouse group, with the same supervision and
working conditions, *e shall include them in the voting group.21
There are, in addition to the janitor in the day labor gang, four
house janitors who also spend all their time in the powerhouse cleaning
the floors, walls, and equipment wells. Although they are salaried
rather than hourly paid employees, they are directed in their work by
the powerhouse foreman,22 work the same hours, and have the same
general conditions of employment as the powerhouse employees. As
the four janitors, who are not currently represented, appear to have in-
terests in common with those of the other powerhouse employees, we
shall include them in the voting group 23
Steam fitters, machinists, and their helpers, and electrician at
Schlitz: At Schlitz, there are two machinists and their helpers, and
a steam fitter and his helper, permanently detailed to work in the
powerhouse. An electrician also spends a considerable amount of time
in the' powerhouse. These employees are engaged in maintenance,
repair, and construction activities involving their respective craft
skills. Administratively, they are deemed part of the mechanical
department which has separate supervision, and for more than 10
years they, along with employees performing like skills in the mainte-
nance department, have been separately represented by other labor or-
ganizations. We ' are of the opinion that the interests of these em-
ployees, who are not customarily included in powerhouse units, and
are currently separately represented, are different from those of the
powerhouse employees and we shall exclude them from the voting
group. 24
n See American Hoist ct Derrick Company, 87 NLRB 654; West Virginia Pulp and
Paper Company, 81 NLRB 261.
22 The house janitors are also supervised by a maintenance department foreman. While
it appears that these employees "may" be rotated , the record does not reveal the nature
or extent of any such rotation.
23 See footnote 21, supra.
14 Cf. Safeway Stores, Inc., 88 NLRB 1335; Buffalo Weaving cf Belting Co., 85 NLRB
1179; Sunbeam Corporation, 74 NLRB 976. See also Milk and Ice Cream Dealers of the
Greater Cincinnati, Ohio, area, at al., 94 NLRB 23; Acme Brewing Company, 72
NLRB 1005.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct an election in the following voting
group: All powerhouse employees at the Employers' breweries in Mil-
waukee, Wisconsin, including operating and watch engineers, firemen,
powerhouse oilers,25 powerhouse nieclla.nics, powerhouse refrigeration
personnel,26 coal passers and fuel handlers,27 janitors, including day
labor gang and house janitors at Schlit;z, and powerhouse helpers,-'s
but excluding machinists and their helpers, steam fitters and their
helpers, electricians, plant, oilers, relief firenien at Gettelman, relief
engineer at Independent Milwaukee, kiln firemen and grain dryer
operators, filter man at Schlitz, "temperature" linen at Pabst, carbon
dioxide injection men, all other employees, and Supervisors is defined
in the Act.
However, we shall make no final unit determination at this time, but.
shall first ascertain the desires of these employees as expressed in
the election hereinafter directed. If a majority vote for the Peti-
tioner, they will be taken to have indicated that they desire to con-
stitute a separate appropriate unit.
[Text of Direction of Election omitted from publication in this,
volume.]
" Includes turbine oilers at Schlitz.
26 Includes "temperature" men at Schlitz and the utility man at Pabst , who perform
regular refrigeration control duties under powerhouse supervision and about whom there
is no substantial dispute.
27 The Employers ' contention that certain laborers who, during emergencles in the
winter months , assist in the unloading of coal should also be included as fuel handlers is
clearly without merit. These employees are assigned to a different department , and have
different supervisors . They are excluded from the voting group.
28 Includes the feed water control men at Pabst.
MACK MOTOR TRUCK CORPORATION avid INTERNATIONAL UNION, UNITED'
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMP1 .101ENT WORKERS OF'
AMERICA, CIO, PETITIONER. Ca$e No. 7-Ri1-1290. June 18, 1,951
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor-
Relations Act, a hearing was held before George A. Sweeney, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby atlirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to it three-member,
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in connuerce within the meaning of
the Act.
94 NLRB No. 184.