Canada Dry Ginger Ale, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1947

73 N.L.R.B. 460 (N.L.R.B. 1947)

In the Matter Of CANADA DRY GINGER ALE, INCORPORATED, EMPLOYER-
PETITIONER and BOTTLERS LOCAL UNION No. 293, INTERNATIONAL
UNION OF UNITED BREWERY, FLOUR, CEREAL, AND SOFT DRINK
WORKERS OF AMERICA, CIO and JOINT LOCAL EXECUTIVE BOARD OF
CALIFORNIA, INTERNATIONAL BROTIIERIIOOD OF TEAMSTERS, CIIAUF-
FEURS, WAREIIOUSEMEN AND HELPERS OF AMERICA, AFL
Case No. 20-RE-59.-Decided April 2., 1947
Mr. H. DI. Cubberley, of Los Angeles, Calif., Mr. Arthur C. John-
son, of Berkeley, Calif., and Mr. William J. Williams, of New York
City, for the Employer.
Gladstein, Anderson, Resner, Sawyer di Edises, by Messrs. Herbert
Resner and Harold H. Bondy, of San Francisco, Calif., for the Brew-
ery Workers.
Messrs. P. H. McCarthy, F. Nason O'Hara, and William H. Ahern,
of San Francisco, Calif., for the Teamsters.
Mr. Henry W. de Kormian, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at San
Francisco, California, on September 24 and 25, and October 1, 1946,
before John Paul Jennings, hearing officer. The hearing officer's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Canada Dry Ginger Ale, Incorporated, is a Delaware corporation
engaged in the manufacture and distribution of carbonated beverages.
The Employer's plants in Berkeley and San Francisco, California, are
solely involved in this proceeding. The Employer annually purchases
73 N. L R. B, No. 90.
460
CANADA DRY GINGER ALE, INCORPORATED 461
raw materials of substantial value, approximately 30 percent of which
is shipped to the Employer from points outside the State of California.
The Employer annually sells finished products from its Berkeley, Cali-
fornia, plant, valued in excess of $500,000, approximately 30 percent of
which is shipped to points outside the State of California.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Bottlers Local Union No. 293, International Union of United
Brewery, Flour, Cereal, and Soft Drink Workers of America, hereili
called the Brewery Workers, is a labor organization affiliated with the
Congress of Industrial Organizations, claiming to represent em-
ployees of the Employer
Joint Local Executive Board of California, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Teamsters, is a labor organization affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Brewery Workers has represented employees of the Employer
since 1940. On August 15, 1945, the Employer executed a contract
with the Brewery Workers covering the employees in the unit herein
involved, which provided that it should remain in effect until August
15, 1946, and from year to year thereafter in the absence of notice to
modify or change given by either party 30 days prior to August 15,
1946, or any subsequent anniversary date. On July 14, 1946, William
Ahern, at that time secretary of the Brewery Workers and an inter-
national representative of its International, wrote to the Employer
stating that he desired to reopen the 1945 contract, and enclosing It
copy of a proposed agreement.' Thereafter, the Employer received
conflicting claims, from the Brewery Workers on July 26, 1946, and
from the Teamsters on July 29, 1946, each asserting that it was the
representative of employees of the Employer. On August 5, 1946,
the Employer filed the petition in this proceeding.
' We find no merit in the Teamsters' contention that the Brewery workers is not a labor
organization within the meaning of the Act because of its suspension tiom the American
Federation of Labor in 1941 The Brewery workers has represented employees of the
Employer for the purposes of collective baigaining since 1940 and seeks to continue to do so
Thus, it is clearly a labor organization within the meaning of the Act
2 We find no merit in the Brewei y workers' contention that the contract was reopened for
limited purposes only and therefore constitutes a bar to an election at this time Aheiu's
letter reopening the contract requested changes in wages and working conditions, and con-
tained no language indicating an intent to limit the reopening of the 1945 agreement
Furthermore. we note that the 1945 agreement does not provide for reopening for limited
purposes in addition to the general reopening provisions
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Ahern's notice to reopen the 1945 contract was given prior
to that agreement's automatic renewal date,3 we find that the 1945
agreement did not renew itself.4 There is therefore no bar to a cur-
rent determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties stipulated that, if the Board were to find a unit limited
in scope to employees of the Employer, the appropriate unit should
include all employees of the Employer at its Berkeley and San Fran-
cisco plants, excluding drivers and helpers, car washers, office and
clerical employees, salesmen, and all supervisory employees.5
The Teamsters contends, however, that the appropriate unit should
be a multiple-employer unit. The Brewery Workers urges that a
single-employer unit is appropriate. The Employer took no position
at the hearing concerning the scope of the appropriate unit.
The Teamster's contention is predicated upon a prior history of
collective bargaining between the Brewery Workers and a committee
of the so-called Bottlers Association representing bottling plants in
the San Francisco area. Although there is some evidence of a prior
history of collective bargaining on a multiple-employer basis between
the Bottlers Association, in which the Employer participated, and the
Brewery Workers, we believe that a unit limited to employees of the
Employer is appropriate, since the Employer, whatever its prior pol-
icy on collective bargaining may have been, has now indicated that it
intends to pursue an independent course with respect to its labor rela-
tions.E
This conclusion is based upon the following facts. Between the
time the Employer received Ahern's letter of July 14, 1946, and the
receipt of conflicting claims by the Employer from the Brewery Work-
ers on July 26, 1946, and from the Teamsters on July 29, 1946, the Em-
ployer negotiated with Ahern directly without reference to the Bot-
tlers Association. Furthermore, after the receipt of those claims the
Employer promptly filed the petition in this proceeding on August 5,
3 See Matter of Craddock-Terry Shoe Corp , 55 N. L. R. B. 1406.
4 Nor do we find merit in the Brewery workers' argument that it should not be held re-
sponsible for Ahern's letter inasmuch as Ahern was at that time acting in the interest of
the Teamsters Whatever Ahern's motive may have been, he was an officer of the Brewery
workers at the time lie reopened its contract and had at least apparent authority to do so.
We will look no further than that. See Matter of Adirondack Transit Lines, 54 N. L.
R B 994
The parties stipulated that the warehouse and assistant warehouse superintendents
at the Berkeley plant and the assistant warehouse superintendent at the San Francisco
plant were supervisory employees within the meaning of our customary definition.
6 Matter of Hummel Furniture Manufacturing Company, 72 N. L R. B. 301.
CANADA DRY GINGER ALE, INCORPORATED 463
1946, thereby adopting an individual course of conduct. This course
of conduct was different from that followed by the Bottlers Associa-
tion, which on September 17, 1946, executed a recognition agreement
with the Teamsters. The conclusion is inescapable that the Employer
is no longer accepting the actions of the Bottlers Association and that
a unit limited to employees of the Employer is appropriate.
Accordingly, we find that all employees of the Employer's Berkeley
and San Francisco, California, plants, excluding drivers and helpers,
car washers, office and clerical employees, salesmen, the warehouse and
assistant warehouse superintendents at the Berkeley plant, the assist-
ant warehouse superintendent at the San Francisco plant, and all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We reject the Teamsters' contention that it should be certified on
the record. We shall direct that the question concerning representa-
tion which has arisen be resolved by an election by secret ballot,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Canada Dry Ginger Ale, Incor-
porated, Berkeley, California, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Twentieth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Sections 203.55 and 203.56, of National Labor Relations Board Rules
and Regulations-Series 4, among the employees in the unit found
appropriate in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by Bottlers Local Union No.
7 Any participant in the election herein may, upon its prompt request to and approval
thereof by the Regional Director, have its name withdrawn from the ballot.
739926-47-vol. 73-31
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
293, International Union of United Brewery, Flour, Cereal, and Soft
Drink Workers of America, CIO, or by Joint Local Executive Board
of California, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, for the purposes of
collective bargaining, or by neither.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Direction of Election.