Chas. W. Bauermeister Co., Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1944

59 N.L.R.B. 1127 (N.L.R.B. 1944)

In the Matter of CHAS. W. BAUERMEISTER CO., INC. and INTERNA-
TIONAL BliOTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
& HELPERS OF AMERICA, LOCAL No. 144 and INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR, CEREAL & SOFT DRINK AVORKERS OF
AMERICA, LOCAL No. 85
Case No. 11-RE-4.1-Decided December 18, 1941,
Mr. Hugh D. McNew, for the Board.
Mr. Floyd E. Dix, of Terre Haute, Ind., for the Company.
Mr. John H. Reynolds, of Terre Haute, Ind., for the Teamsters.
Mr. George Hage, of Terre Haute, Ind., for the Brewery Workers.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Chas. W. Bauermeister Co., Inc., Terre
Haute, Indiana, herein called the Company,z alleging that a question
affecting commerce had arisen concerning the representation of its
employees, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Keith W. Blinn, Trial Ex-
aminer. Said hearing was held at Terre Haute, Indiana, on October
24, 1944. The Company, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local No. 144,
herein called the Teamsters,' and International Union of United
Brewery, Flour, Cereal & Soft Drink Workers of America, Local No.
85, herein called the Brewery Workers, appeared and participated.
All parties were afforded an 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. The Brewery
Workers' request for oral argument is denied.
'The original case number of this proceeding was 14-RE-S. By order of the Board
dated December 2, 1944 , its case number was changed to read as set forth above.
2 At the 'hearing, the Company 's name was amended to read as set forth above.
8 At the hearing, the Teamsters' name was amended to read as sot forth above.
59 N. L. R. B., No. 202. 1127
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
0
1. THE BUSINESS OF THE COMPANY
Chas. W. Bauermeister Co., Inc., an Indiana corporation, has its
principal place of business at Terre Haute, Indiana, where it is engaged
in the distribution of wholesale groceries. During the first 6 months
of the calendar year 1944, the Company purchased grocery products
valued in excess of $250,000, of which approximately 90 percent was
shipped to the Company from points outside the State of Indiana.
During the same period, the Company sold and distributed groceries
valued in excess of $250,000, of which approximately 5 percent was
shipped to points outside that State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
0
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Local No. 144, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the Company.
International Union of United Brewery, Flour, Cereal & Soft Drink
Workers of America, Local No. 85, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
For many years the Company and the Teamsters have had a col-
lective bargaining agreement covering all the Company's truck drivers.
The contract provides for automatic annual renewal unless 30 days'
written notice is given by either party prior to its March anniversary
date, and it is in effect at the present time. Contractual relations
between these parties date back to 1917.
Sometime prior to March 1938, the Company and the Teamsters
executed a collective bargaining agreement covering the Company's
beer truck drivers. The contract contains a closed-shop provision
and 'states that it is "to remain in force and effect to March 10' 1938, and
will continue thereafter unless written notice is given by either party
45 days prior to March 10, 1938, or 45 days prior to March 10 of any
,year thereafter." No notice was' ever given by either party to ter-
minate this agreement. -
Since 1935 the Company has also had contractual relations with the
Brewery Workers covering its beer truck drivers. • On July 1, 1943, the
CHAS. W. BAUERMEISTER CO., INC. 1129
Brewery Workers and Chas. W. Bauermeister Co., Inc., and Paul E.
Pfeifer, Inc., as employers, made a closed-shop contract, construed
by the parties to cover only beer truck drivers.. This agreement pro-
vided that it was to remain in effect until July 1, 1944, and from year
to year"thereafter, unless either party gave written notice of intention
to terminate 30 days prior to any anniversary date. Both the Com-
pany and the Brewery Workers gave notice to terminate this contract
before June 1, 1944.
The Brewery Workers contends that its contract of July 1, 1944, is
a bar to the instant proceeding. In addition, in its brief, filed after
the hearing, the Brewery Workers contends that the Company's con-
tract with the Teamsters, covering all the Company's drivers, also
constitutes a bar to a present determination of representatives.
Neither the Company nor the Teamsters urges any of the contracts as a
bar and both desire an election.
In view of the notices to terminate the July 1, 1943 contract given
by both the Company and the Brewery Workers prior to June 1, 1944,
that contract clearly does not preclude a present determination of
representatives. The Brewery Workers' contention that the over-all
contract of the Company and the Teamsters is a bar, is equally without
merit, inasmuch as the Brewery Workers is not a party to that con-
tract and neither of the parties thereto raises it as a bar. ,
In view of the conflicting claims to representation made by the'
Teamsters and the Brewery Workers with respect to its beer truck
drivers, the Company filed the instant petition on August 31, 1944.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that both the Teamsters and the Brewery Workers repre-
sent a substantial number of employees in the unit which each of them
alleges to be appropriate 4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Teamsters contends, and the Company apparently agrees, that
all the Company's truck drivers constitute an appropriate unit. The
Brewery Workers contends that the truck drivers who deliver beer
within the city of Terre Haute and the-adjoining town of West Terre
Haute, an area hereinafter called the city limits, constitute an appro-
* The Field Examiner reported that the Teamsters submitted a membership roll with
seven names , all of which appeared on the Company 's July 29, 1944 , pay roll, which con-
tained the names of nine truck drivers. The Brewery Workers submitted two membership
books, each of which bore the name of a beer truck driver on the said pay roll. None
of the names submitted by the Teamsters is that of a beer truck driver.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit apart from the remaining drivers. In its brief, the
Brewery Workers makes the alternative contention that all beer truck
drivers of the Company and of Paul E. Pfeifer, Inc., another Terre
Haute company, comprise a single appropriate unit.
The Company has been engaged in the wholesale grocery business
since 1908. Before 1933 it distributed non-alcoholic beer, and in 1933
added draft beer to its line of merchandise. Draft and bottled beer
constitute 15 percent of the Company's business. It employs approxi-
mately nine truck drivers.
Prior to the -spring of 1944, the Company's drivers, regardless of
their union affiliation, delivered draft and bottled beer in the city
limits as well as beyond, in addition to other items, as business re-
quirements dictated. There was a "gentlemen's agreement" between
the Company and the Brewery Workers that at least one of the Com-
pany's drivers would always be a member of the Brewery Workers,
and apparently the Teamsters did not object.
Since April 12, 1944, all beer within the city limits has been de-
livered by two drivers 5 who are members of the Brewery Workers.
The Brewery Workers first asserted its allegedly exclusive jurisdiction
over, the delivery of beer, when, in November 1943, the Company did
not employ a single driver belonging to the Brewery Workers. On
April 12, 1944, the Company, on the basis of the Brewery Workers'
closed-shop contract, consented to a State Court decree enjoining it
from employing any person not a member of the Brewery Workers
to handle beer within the city limits, while the Teamsters orally
promised not to assert jurisdiction over beer truck drivers during the
life of the injunction which, by its terms, expired on July 1, 1944,
simultaneously with the Brewery Workers' contract.
All the Company's drivers (work under a single supervisor and are
primarily engaged in transporting merchandise. They all work a
40-hour week, the two beer truck drivers being paid $35 and the other
seven drivers $34 weekly.6 All of them collect cash payments for
deliveries, issue company receipts, are covered by one blanket surety
bond, and attend the same safety meetings. All drivers, except the
two beer truck drivers, work out of the Company's warehouse. Be-
cause of" wartime shortages, the two beer truck drivers haul from
transports directly to consumers.' In normal times the Company
stores beer in its warehouse where cold storage facilities are available.
All truck drivers have State chauffeurs' licenses and require no others.
'These two drivers deliver both draft and bottled beer but handle no other type of
merchandise . They never work beyond the city limits The iemaining drivers, who
deliver the Company's general merchandise , also deliver bottled beer , but only beyond the
'city limits No draft beer is delivered beyond the city limits.
This difference in wages'is due to the separate contracts in effect prior to July 1, 1944.
CHAS. W. BAUERM'EISTER CO., INC. 1131
In support of its contention for a multiple -employer unit, the
Brewery Workers points to its recent 1943 contract with the Company,
signed by both the Company and Paul E. Pfeifer , Inc., as employers.
Apart from this fact , however, the record is barren of any evidence
revealing a history of collective bargaining on the basis of a multiple-
employer unit , we note, moreover , that the Company , while not specifi-
cally opposing a multiple -employer unit since it was never suggested
at the hearing , apparently agrees with the Teamsters that all its truck
drivers comprise an appropriate unit and consequently does not
affirmatively manifest a desire to act concertedly with others regarding
its labor relations .? Therefore , we find no basis on which to establish
it multiple -employer unit. .
We turn now to the question of whether all the Company 's truck
drivers should be included in a single unit or whether the beer drivers
on the° one hand, and the remaining drivers on the other , may appro-
priately constitute two separate units . The similar supervision,
duties, skill , and working conditions of all the Company 's truck drivers
clearly indicate that they comprise a functionally coherent , homogene-
ous group having common interests with respect to collective bargain-
ing. The Board has consistently refused to set apart as an appropriate
unit any subdivision or group of employees, the nature of whose work
is indistinguishable from that of other employees , or whose work is
not in itself functionally coherent and distinct.
The Brewery Workers argues that its contracts with the Company
covering beer truck drivers during the past 9 years and the Company's
uninterrupted employment of at least one truck driver in good stand-
ing with the Brewery Workers, constitute a pattern of collective bar-
gaining which compels the establishment of a unit limited to the
Company's beer truck drivers. We cannot agree with this contention.
The multiplicity of contracts affecting the same employees of the Com-
pany and the disregard of the closed -shop features of the contracts
specifically treating with beer truck drivers, render this purported
history of collective bargaining meaningless with respect to the deter-
mination of an appropriate unit in this proceeding.
Consequently , in view of the homogeneity , functional coherence, and
common interests of all the Company 's truck drivers, and the absence
of a compelling history of collective bargaining, we find that all the
Company's truck drivers , excluding all supervisory employees with
authority to hire, promote , discharge , discipline , or otherwise effect
changes in the status of employees , 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.
7 See Matter of George F. Carleton & Company, 54 N. L. R. B 22.
1132 DECISIONS OF NATIONAL LABOR RELATION' S BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitation and additions set forth in the
Direction."
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant io Article III, Section 9, of National Labor Relations
- Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Chas. W. Bauer-
meister Co., Inc., Terre Haute, Indiana, 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 super-
vision of the Regional Director for the Eleventh Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations, 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
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but exclud-
ing those employees who have since quit or been discharged for cause
and have-not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local No. 144, A. F. L., or by International Union
of United Brewery, Flour, Cereal & Soft Drink Workers of America,
Local No. 85, for the purposes of collective bargaining, or by neither.
The Brewery workers may withdraw from the election by serving written notice of
such intention upon the Regional Director for the Eleventh Region within 5 days after
the date of the Direction of Election herein.