Burke Brewery, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1944

54 N.L.R.B. 1061 (N.L.R.B. 1944)

In the Matter of BuRKE BREWERY , INC. and AMERICAN FEDERATION OF
OFFICE EMPLOYEES , FEDERAL LOCAL 20940, A. F. OF L.
Case No. f3-R-4314.----Decided February 4,194J
Mr. Gerald A. Walsh, of New York City, for the Company.
Mr. Howard Coughlin, of New York City, for the Union.
Mr. A. Summer Lawrence, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon petition duly filed by American Federation of Office Em-
ployees, Federal Local 20940, A. F. of L., herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Burke Brewery, Inc., Long Island City,
New York, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Cyril W. O'Gorman, Trial Examiner. Said hearing was held at New
York City, -on December 9, 1943. The Company and the Union ap-
peared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Burke Brewery, Inc., a Delaware corporation and wholly owned
subsidiary of Edward and John Burke, Ltd., of Dublin, Ireland, has
its principal office, brewery, and warehouse in Long Island City, New
York, where it is engaged in the brewing of ale and stout beverages.
During the year immediately preceding December 1, 1943, the Com-
pany used at its Long Island City plant raw materials valued in excess
of $100,000, of which-90 percent was obtained from points outside the
54 N. L. R. B., No. 156.
1061
1062 DECISIONS OF NATIONAL' LABOR- RELATIONS BOARD
State of New York. During the same period, the Company brewed
products of a value ' in excess of $500 ,000, of which 15 percent was for
war purposes . The Company admits that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
American Federation of Office Employees, Federal Local 20940, is a
labor organization, affiliated with the American Federation of Labor,
admitting to membership employees 'of the Company.
III. THE ALLEGED APPROPRIATE UNIT; THE ALLEGED QUESTION CONCERNING
REPRESENTATION
The Union contends that the non-supervisory office employees of
the Company , comprising two employees , constitute a unit appro-
priate for the purposes of collective bargaining . The Company
maintains that the proposed unit is inappropriate upon the ground
that one of the two employees therein should be excluded as a confi-
dential employee.
The employees herein concerned are by name John W . Schumacher
and Charles L. Wills. The Company concedes that Schumacher does
work which is not of a nature to bar him from inclusion in' an office
workers ' unit . With respect to Wills, however , the Company coil-
tends that the work done by this employee and his alleged oppor-
tunity to acquire confidential information relating to the business of
the Company require that he be denied the - privilege of collective
bargaining.
The record reveals that while Wills has no supervisory capacity and
has no part in or confidential knowledge concerning the labor rela-
tions of the Company, he is, nevertheless , generally responsible for
all accounting records and pay rolls and occupies the combined posi-
tions of office manager , head bookkeeper , and secretary to the com-
pany president , to whom he is also related by marriage.' Under the
circumstances . we are of the opinion , and- find .that ;Wills has•interests
and functions which are more closely aligned,to those of management
than are the interests and functions of the ordinary employees of the
Company .2 Accordingly, we conclude that Wills does not properly
comprise part of the alleged unit.
I The president of the Company is Wills' stepfather, and testified that because of Wills'
long service of 91/2 years and, family relationship he would attach greater importance to
Wills' recommendations than be would to the recommendations of the other employees
of the Company.
2 See Matter of Westinghouse Electric Mans facturing Co., 45 N. L R. B. 826 at 829.
The Board has frequently excluded from an appropriate unit employees who are on an
intimate relationship with officers of the company. See Matter of Jerry and Edythe
Belanger, partners, doing business under the fictitious name of Aluminum Alloy Casting Com-
pany, 32 N. L. R. B . 1276, and cases cited therein.'
BURKE BREWERY, IN C. 1063
The Board has frequently held that the principle of collective bar-
gaining presupposes that there is more than one eligible person who
desires to bargain and that the National Labor Relations Act there-
fore does not empower the Board to certify where only one employee
is involved.3 Since in the absence of a sufficient number of eligible
employees the bargaining unit sought by the petition is inappro-
priate,' we find no question has arisen concerning the representation
of employees of the Company.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the petition for investigation and
certification of representatives of employees of Burke Brewery, Inc.,.
Long Island City, New York, filed by American Federation of Office
Employees, Federal Local 20940, A. F. of L., be, and it hereby is,
dismissed.
s See Matter of The Central Foundry Company , 20 N. L R . B. 31, and cases cited therein-
See Matter of Zanesv,lle Stoneware Company, 53 N. L. R. B. 1408.