Daniel Burkhartsmeier Cooperage Co.

National Labor Relations Board - Board Decisions

May 4, 1943

49 N.L.R.B. 428 (N.L.R.B. 1943)

In the Matter of DANIEL BURKHARTSMEIER COOPERAGE Co: and
INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, CA. O.
-Case No. R-5169.-Decided May 4;1943
Mr. C. J. Burkhartsmeier, of Chicago, Ill., for the Company.
Mr. Ishmael P. Flory. and Mr. George Montrose, of Chicago, Ill.,
for the-C. I. O.
Mr. R. W. ,Wilkie, of Chicago, Ill., for the A. F. of L..
Mrs. Augusta Spaulding, of counsel to the Board. -
DECISION
AND
DIRECTION OF ELECTION'
STATEMENT OF THE CASE
Upon. petition duly filed by International Union of Mine, Mill &
Smelter Workers, affiliated with the Congress of Industrial Organiza-
tions, herein called the C. I. 0.,1 alleging that a question affecting
commerce had arisen concerning the representation of employees of
Daniel Burkhartsmeier Cooperage Company, Chicago, Illinois, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before David Karasick,
Trial Examiner. Said hearing was held. at Chicago, Illinois, on April
15,' 1943. The Company, the C. I. 0., and Coopers' International
Union, Local No. 40, affiliated with the American Federation of Labor,
herein called the A. F. of L.,'appeared, participated, and were afforded
full opportunity to be heard; to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case , the Board makes the following :
FINDING OF FACT
1. THE BUSINESS OF THE COMPANY
Daniel Burkhartsmeier Cooperage Company is engaged in the
manufacture, sale, and distribution of barrels, kegs, and other cooper-
age products at Chicago, Illinois. During the year 1942 the Com-
1 The petition and other formal papers were amended at the hearing to show the correct
name of the petitioning union.
49 N. L. R. B., No. 56.
428
N
DANIEL BURKHARTSMEIER COOPERAGE CO. 429
= pany purchased for its plant raw lnhterials valued at approximately
$600,000, of which 80 percent was, brought to the 'plant from places
.outside Illinois.:- During the same period, the sales of the Company's
.products amounted to -approximately. $900,000, of which 40 percent
'represented products shipped from the plant, to places outside Illinois.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill & Smelter Workers is a -labor
organization affiliated with' the Congress of Industrial Organizations,
admitting to membership employees of the Company.
Coopers' International Union, Local No. 40, is a\ labor organization -
-affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On January 26, 1942, the Company and the A. F. of L. entered into
a- contract coyering production employees at the Company's plant,
'terminable by 30 days' written notice on July 26,1942, or in the absence
of. such notice,, on July, 26, •1943. This contract' was duly terminated
on July 26,1942, and on July 27,1942, the Company and the A. F. of L.
entered into a second contract covering the same employees, terminable
by 30 days' written notice on January 27, 1943, or, in the, absence of
such notice, on July :27, 1943. Both contracts provided for a closed
shop and a,check-off of union dues. - -
In October 1942, the A. F. of L. requested a wage increase, which
the Company.refused to pay. On October 26, 1942, employees at the
plant struck.' Two weeks later, upon the advice of a conciliator of
the Department of Labor, the men returned to work. The Secretary of
Labor certified the wage issue to the War Labor Board: The War
Labor Board predicated its final decision with respect to the wage
increase upon the results of a technical survey of the Company's opera-
tions. On December 26, 1942, the A. F. of L. notified the Company
that it was giving 30 days' notice to terminate the contract on January
-27,'1943, and that it wished to enter into bargaining negotiations for
a new -contract. On January 26, 1943, the A.; F. of L. entered into a
written agreement with the Company extending the operation of the
existing contract to February 27, ,1943. During. February, upon the
result of the technical survey made, the War Labor Board denied
the wage increase. Thereupon the A. F. of L. filed with the War
Labor Board a'supplemental statement, setting forth additional in-
formation and requesting a reconsideration of the adverse decision.
On February 20, 1943, members of the A. F.' of L. called -a meeting
and voted to affiliate with the C. I. O. On the same day, the C. I. O.
430 DECISIONS OF NATIONAL ,-LABOR RELATIONS BOARD
notified the Company of its claim to represent these employees and on
February 24, 1943, filed the petition herein.
The A. F. of L. alleges that the written agreement of January 26,
1943, extending the duration of the contract from January 27 to a
fixed day, February 27, 1943, was invalid to terminate the contract on
the later day, on the ground that this agreement was made without
the consent of an international representative of the A. F. of L. and,
further, that there was also an oral arrangement between the A. F. of
L. and the Company, made in January 1943, to operate under the
terms of the contract until the War Labor Board should issue its final
decision on the wage issue and tiniely, negotiations should be' concluded
for a new contract. On the latter basis, the A. F. of L. contends that
the contract of July 27, 1942, is still in existence and constitutes a bar
to this proceeding. We find no merit in this contention. On December
26, 1942, the A. F. of L., by written notice, elected to terminate the
contract on January 27, 1943. Since the C. I. O. has asserted its claim
to represent the Company's employees before any new written contract
between the Company and the A. F. of L. has been consummated, we
find that the arrangements between the Company and the A. F. of L.
for the indefinite protraction of their contract do not operate as a bar
to a present determination of representatives pursuant to the petition
filed herein.'
A statement prepared by the Regional Director and introduced into
evidence at the hearing indicates that the C. I. O. represents a sub-
stantial number of employees in the unit herein found appropriate.'
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
In accordance with` the agreement of the parties, we find that all
employees of the Company, excluding superintendents, foremen, as-
sistant foremen, clerical employees, truck drivers and helpers, garage
men, power plant employees, maintenance employees, watchmen, and
7 Cf Matter of Escor, Inc. and District No. 8, International Association of Machinists,
A F of L, 46 N L R B, 1035, and Matter of Joseph P. Cattle & Brothers, Incorporated
and International Union of Mane, Mill & Smelter Workers , C I O , 47 N L R. B., 81.
3 The 'C I 0.' submitted 80 applications for membership , of which 72 bear apparently
genuine signatm es . of employees of the Company on the pay roll of March 19, 1943 Of
these cards 68 bear dates in February 1943, 1 in March 1943 , and 3 are undated There
are approximately 96 employees of the Company in the unit herein found appropriate
The A. F. of L submitted no evidence of its present membership among the Company's
employees The A F. of L has had a closed-shop contract with the Company since Janu4
ary 26 ,11942,' although the provision for membership in the A F of L , has not been rigidly
enforced as a, condition of employment.
1
DANIEL BURKHARTSMEIER COOPERAGE CO. 431 _
janitors,' 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 find 'that, the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The A. F.
of L. has not submitted any evidence of its present representation.
among the Company's employees. Since it has been their bargaining
agent for the past year, we shall provide that the A. F. of L. participate
in the election.
Those eligible to vote in the election shall be all employees of the
Company in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding
the date of the Direction of Election herein, subject to the limitations
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to, ascertain representa-
tives for the purposes of collective bargaining with Daniel Burkharts-
meier Cooperage Company, Chicago, Illinois, an election by secret
ballot shall be conducted as earlyras 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 Thirteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,
among all employees of the Company within the unit found appropri-
ate 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 including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding employees who have since
quit or been discharged for cause, to, determine whether they desire
to be represented by International' Union of Mine, Mill & Smelter
Workers, affiliated with the Congress of Industrial Organizations,
or by Coopers' International, Union, Local No. 40,, affiliated with the
American Federation of L'abor,.for the purposes of collective bargain-
ing, or by neither.
4 All employees included in this unit have been covered under the contracts between the
A, F. of L and the Company described in Section III. above.