Drewrys Ltd. U.S.A., Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1942

44 N.L.R.B. 1119 (N.L.R.B. 1942)

In the Matter of DREWRYS LIbHTED U. S. A.,-INC. and INTERNATIONAL
UNION OF UNITED BREWERY FLOUR, CEREAL, AND SOFT DRINK
WORKERS OF AMERICA, LOCAL No. 272 and INTERNATIONAL BROTHER
HOOD OF TEAMSTERS, C'IIAUFFEURS, WAREI-IOUSEMEN, &, HELPERS OF
AMERICA, -LOCAL-' NO: '364 and INTERN_^TIONAL UNION"UNITEDD CON-
STRUCTION WORKERS ORGANIZING COMMITTEE, UNION 157
Case No. RE, -0.-Decided October 13, 1942
Jurisdiction : brewing industry.
Investigation and Certification of Representatives : existence of question : con-
flicting claims of rival representatives ; contract entered into after notice of
rival claim of representation, and made subject to Board action, held no bar;
elections necessary '
Unit Appropriate for Collective Bargaining : single or separate units comprising
(1) fi'remen, engineers and watebxnen: and (2)' iemaining'pividuction,'mnain-
tenance, and delivery employees : determination of, dependent upon results of
separate elections ,
Mr. Lester Asher, for the Board.
Secbh-t, Oare cC Deahl, by Mr. 02lo'R. Deahl, of South Bend, Ind.,
for the Company. -
Mr: Martin F. O'Donoghue, of Washington, D. C., for the Brewery
Workers.
Padway c0 Goldberg, by Mr. I. E. Goldberg, of Milwaukee, Wis.,
for the Teamsters.
Mr. Oliver A. Sevitzer, and Mr. E. TV. Matthews, of South Bond, Ind.,
for the Construction Workers.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
,AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by Drewrys Limited U. S. A., Inc., South
Bend, Indiana, herein called the Company, alleging that a question
affecting commerce had' arisen concerning the representation of em-
ployees of the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Samuel Edes, Trial
Examiner. Said hearing was held at'South Bend, Indiana; ,on August
24, 1942. The Board, the Company, International Union of United
44 N. L. R. B., No. 218.
1119
1120, DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
Brewery, Flour, Cereal, and. Soft Drink Workers of America, Local
No. 272, herein called the Brewery Workers, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen '& Helpers of America,
Local No. 364, herein called the Teamsters, and United Construction
Workers, Division of District 50, United Mine Workers of America,'
herein called the Construction Workers, appeared, 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Drewrys Limited U. S. A., Inc., an Indiana corporation, with its
principal place of business in South Bend, Indiana, is engaged in the
manufacture and sale of alcoholic, malt beverages. During 1941, .the
Company purchased malt, hops, bottles, kegs, cans, and similar mate-
rials, valued in excess of $2,000,000; of which approximately 70 percent
was purchased outside the, State of Indiana. During the same period,
the Company's sales of finished products exceeded $5,000,000, of which
approximately 75 percent was shipped to points outside the State of
Indiana. The Company admits that'it is engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of United Brewery, Flour, Cereal, and Soft
Drink Workers of America, Local No. 272, is an unaffiliated labor
organization, admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehoul
men & Helpers of America, Local No. 364, is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership employees of the Company.
United Construction Workers, Division of District 50, is a labor
organization affiliated with-the United Mine Workers of America,
admitting to membership employees of the Company's power plant.
III. THE QUESTION CONCERNING REPRESENTATION
For many years the Brewery Workers has been recognized in suc-
cessive collective bargaining agreements with the three brewery,con-
I At the hearing the Construction Workers asserted that this union is the successor of
International Union United Construction Workers Organizing Committee, Union 157,
named in the petition herein.
- DREWRYS LIMITED U. ' S. ;A., . I'NC. 1121
terns operating in South Bend and vicinity, as the exclusive represein-
.tative of their employees.2 These agreements which covered all pro-
duction, maintenance, and delivery employees, provided for a closed
.shop and automatic renewal from year to year, unless notice of change
was given thirty (30) days prior to the date of expiration. .
Prior to the expiration of the 1940 contract between these parties
on May 1,1942, negotiations for a new contract with the three-concerns
were opened by the Brewery Workers, resulting in the consummation
of a contract for 1 year, covering the same employees and incorporat-`
ing, practically all of the terms of the previous contracts, except for
increases in the wage scale. While the negotiations for this contract
were still pending, a transfer of affiliation of the employees of the
Company from the Brewery Workers to the Teamsters occurred, and
on April 20,1942, the Company received a telegram from the Teamsters
advising the Company of that organization's claim of majority rep-
resentation of the Company's employee's, demanding withdrawal of
recognition from the Brewery Workers, and requesting negotiation
of a bargaining agreement. On April 21, 1942, the Company and the
other two brewery concerns signed the current contract with the Brew-
ery Workers,3 after the Brewery Workers, upon the Company's de-
mand, had submitted evidence in the form of membership cards that
it represented a majority of the Company's employees. The Com-
pany,'however, retained possession of the contract and did not deliver
,it to the Brewery Workers until April 30, 1942, upon demand of the
-other signatories thereto, and upon the express condition that it was
not binding upon the Company until and unless it was determined
that- the Brewery Workers Was the duly authorized, collective bargain.
ing representative of the Company's employees. On April 22, 1942,
the. Teamsters renewed its claim of majority representation and ad-
vised that a strike would ensue -unless the Company entered into a
collective bargaining agreement with the Teamsters. The Company
requested that the dispute between the Brewery Workers and the
Teamsters be resolved by the National Labor Relations Board, and on
April 29, 1942, filed the petition herein.
On May 1, 1942, all the Company's production, maintenance, and
delivery employees, with the-exception of its power-plant employees,
i. e., the firemen, engineers, and the watchman, went on strike on orders
from the.Teamsters. The strike continued until May 11, 1942, when
2 South Bend IBreNNing Company , Kamm & Schellinger Co., Inc., and , the Company,
formerly known as Meussel Brewing Company.
3 The record discloses that this contract was rejected by the membership of- the - Brewery
Workers at - a general meeting, and although the contract heal s the signatures of the
International Representative of the Brewery Workers, and the employee -representatives
of the South Bend Brewing Company and. Kamm - & Schellinger• Co., Ice,' ' it . was not
signed by the employee-representative of the Company. The record does not disclose whether
iatification of the contiact by the membership of the Brewery Workers was necessary.
457498-42-vol. 44-71
1122 DECISIONS Or. NATIONAL LABOR -RELATIONS BOARD
-the Company, and the Teamsters entered into a union-shop- contract,
-granting recognition to the Teamsters as exclusive bargaining "repre-
sentative of the Company's production, maintenance, and delivery
employees, whereupon the employees returned to work and the Com-
pany resumed its operations.
The Construction Workers organized the Company's power-plant
employees at their special -instance and request in October 1941. On
December 11, 1941, the Construction Workers, by letter, advised the
-Company of its claim of representation of these employees and at the
,same time submitted a form of contract providing for the recognition
of the Construction Workers. The Company requested the Construc-
tion Workers to hold its claim in abeyance, pending a settlement of
the controversy between the Brewery Workers and the Teamsters, par-
ticularly because both these organizations had indicated a willingness
.to accept the power-plant employees as a separate unit. However,
on April 28, 1942, upon the Company's continued refusal to grant
recognition, the Construction Workers filed a petition for investigation
and certificati011.4 On May 20, 1942, the Company and the Construc-
tion Workers entered into an exclusive bargaining contract covering
.the Company's "firemen, engineers, and policemen." On June' 15,
1942, the Construction Workers' petition was withdrawn without
-prejudice.
The Brewery Workers contends that its current contract with the
Company and the other two brewery concerns is a bar to a.-present
determination- of representatives. Since the Teamsters and the Con-
struction Workers made known their respective claims of majority
.representation prior to the execution of the contract with the Brewery
Workers, which, in addition, was not to become effective as to the
Company until or unless the latter organization had been determined
to be the duly authorized representative of the Company's employees,
we find that the current Brewery Workers' contract does not bar
'such determination. Neither the Company, the Teamsters,5 nor the
Construction Workers asserts that the contracts with either of these
organizations constitute a bar to a present-determination of repre-
sentatives. Since both these contracts were entered into after the
filing of the petition herein, it is clear that neither contract is a bar
to the present proceeding.
A statement of the Regional Director, supplemented by evidence
adduced at _ the hearing, indicates that the Brewery Workers, the
Teamsters, and the Construction Workers each represents a substan-
`+ Matter of Drcwrys Limited, U. S A., Inc and United Constrwction Workers of America,
Local 326, C 1 0, XITI R-1263.-
6 We reject the contention of the Teamsters that the petition should be dismissed upon
the ground that the dispute between the Brewery Workers and the Teamsters is juris-
dictionaland that the Brewery Workers has failed to make sufficient showing of " interest.
C' DREWRYS • LIMITED 1123
tial number of employees in the unit which it alleges to be appropriate s
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. TIIE APPROPRIATE UNIT
The Brewery Workers and the Teamsters, although both urge
dismissal of the petition, are in general accord with respect to the
appropriateness of a unit of production,' maintenance, and delivery
employees, exclusive of all supervisory, clerical, office, and sales em-
ployees. They differ in that the Brewery Workers claims that such
unit should be a multiple-employer unit composed of the employees
in the enumerated classifications of the three brewery companies,
including the Company; in that the Brewery Workers would include
and the Teamsters exclude, the power-plant employees, i. e., the fire-
men, engineers, and watchman; and in that the Brewery Workers
would exclude and the Teamsters include, the Company's long-distance
drivers.? The Construction Workers contends, and the Teamsters
concedes, that the power-plant employees constitute a separate craft
, The Regional Director reported that the Brewery Workers submitted 135 "Authoriza-
tion for Representation " cards , 90 dated in December 1941 and January 1942, and 45
dated in April 1942 ; that 129 of these 'cards bear apparently - genuine signatures of per-
sons on the Company 's pay roll of April 15 , 1942, which contains 203 production , mainte-
nance, and delivery employees . At the hearing , the Company introduced into evidence
a list of names of 132 of its employees and the dates of their signatures on Brewery
Workers ' membership cards, which was prepared by a comparison of these cards against
the Company ' s pay roll of April 15 , 1942 , and which confirms the evidence submitted by
-the Brewery Workers.
The Regional Director further reported that the Teamsters declined to submit evidence
of their representation of the employees of the Company in the unit alleged by it to be
appropriate and preferred to rely on its contract with the Company. At the hearing, the
Teamsters introduced into evidence a series of undated petitions of withdrawal from the
Breweiy Workers and affiliation with the Teamsters , bearing apparently genuine
signatures of 190 employees of the Company , - which according to the Teamsters, were
obtained bet« een April 16 and 20, 1942 . Pursuant to a stipulation of all parties , counsel
for the Board introduced into evidence the affidavits of J. W Hansen , business agent,of
the Teamsters , and Haiold F Welde , assistant treasures of the Company , both signed
May 13 , 1942 , w Herein it is certified that on May 12, 1942 , the Teamsters submitted to the
Company 202 authorization cards bearing apparently genuine signatures of employees-of
the Company whose names appeared on its pay roll The pay roll referred to in the
affidavits is that of April 30, 1942, according to the testimony of Assistant Treasurer
Welde
At the hearing , the Construction Workers introduced into evidence 12 membership cards ;
11 dated in October and November , 1941, and 1 dated August 8, 1942 ; all cards bear appar-
ently genuine signatures and, according to the testimony of Assistant Treasurer Welde,
8 of these cards bear the names of employees of the Company as of May 20 , 1942 , the date
of its contract with the Construction Workers, at which time the Company had 9 employees
in the unit alleged by the Construction Workers to be appropriate.
'+The Brewery Workers contracts of 1940 and 1942 with the three companies contain
provisions relating to long-distance drivers. However, the Company ' s vice president testi-
fied that since 1937 , the Company has had separate contracts with the Teamsters covering
the long-distance drivers only. As above indicated , the Brewery Workers does not claim
the Company 's long-distance drivers.
' 1124 DECISIONS OF _ NATIONAL 'LABOR, RELATIONS BOARD
unit. The Company takes no position with respect to the propriety
of any of the units urged.
Collective bargaining between the Brewery Workers and the three
brewery companies has always followed a pattern of a multiple-
employer unit on an industrial basis. These three companies, how-
ever, are independently owned and operated. Although the con;
tracts with the Brewery Workers have been jointly negotiated, each
company has been separately represented and has acted as an inde-
pendent contracting party. Moreover, it is established that substan-
tially the entire membership of the Brewery Workers among the
employees of the Company transferred their affiliation to the Team-
sters and participated in the strike called by the Teamsters. Under
the circumstances, we are of the opinion that the production, main-
tenance, and delivery employees of the Company, excluding super-
visory, clerical, office, and sales employees, may properly constitute
an appropriate bargaining. unit. Spice the long-distance drivers have
been covered by separate contracts with the Teamsters and have not
been represented by the Brewery- Workers in a unit of production,
maintenance, and delivery employees, we shall exclude them from
this unit. -
The Company's firemen and engineers are a separate department
in the 'Company's' plant, under the special supervision of the chief
engineer. • Their work is connected'witli•po^ver'production for plant
operation and it is essentially different from that of the employees of
all other departments. Firemen and engineers are a recognized craft,
and the record establishes that all of the Company's firemen and engi-
neers have designated the Construction Workers as their exclusive
bargaining representative. The watchman, who is under the super-
vision of the chief engineer, is also 'a member of the 'Construction
'Workers. The Teamsters have relinquished their claim to the watch-
man as well as to the firemen and engineers. The circumstances pre-
sented are such that the desires of the power-plant employees, uiclud-
;ing the watchman, is the principal factor in determining whether they
shall function' as, a separate unit or as part of a larger industrial unit.
Accordingly, we shall -direct' that separate elections be held; one,
among all firemen, engineers,, and the watchman of the Company, to
determine whether they desire to be represented by the Brewery
Workers or the ,Construction Workers, for. the, purposes of collective
.bargaining, or by neither; and another, among the remaining produc-
tion, maintenance, and delivery, employees of the Company, excluding
the supervisory, clerical, office, and - sales employees, to determine
whether they desire to be represeiited,by the Brewery Workers or, the
Teamsters, for the' purposes ' of collective bargaining,--or by. neither.
The appropriate unit or units will depend in part upon the results of
DREWRYS ' I;IIGIITED •' U. 'S: A., INC .- { = ' Y125'-
these elections . If the firemen, engineers , and the watchman - select
a bargaining representative other than the representative selected by'
the production , maintenance , and delivery employees ,- they will con--
stitute a separate and distinct appropriate unit. If they select the'
same representative as that selected by the production , maintenance,,
and delivery employees , they will be combined with the latter into a•,
single industrial unit.
v. THE DETERMINATION OF REPRESENTATIVES
We shall , direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
the employees within the above-described categories, who were em-
ployed during the pay-roll period immediately preceding the date of
the Direction of Elections herein , subject to the limitations and addi-
tions set forth in the Direction.
DIRECTION OF ELECTIONS
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 to Article III, Section 8, of National Labor Re-
lations 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 Drewrys Limited
U. S. A., Inc., South Bend, Indiana, elections by secret ballot shall
be conducted as early as possible , but not later than thirty (30) days
from the date of this Direction of Elections 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 9, of said Rules and Regulations, among
the employees within the categories set forth below, who were em-
ployed by the Company during the pay-roll period immediately pre-
ceding the date of this Direction - of Elections , and including em=
ployees who did not work during such pay-roll period because they
were ill or in the active military service or training of the United
States, or temporarily laid off , but excluding any employees who have
since quit or been discharged for cause : -
(1) All firemen, engineers , and the watchman of the Company, to
determine whether they desire to be represented by International
Union of United Brewery , Flour, Cereal , and Soft Drink Workers of
America, Local No.-272; or by United Construction -Workers, Division
of District 50, United Mine Workers of America, for the purposes of
collective bargaining, or by neither;
1126v DECISIONS,' OF NATIONAL - LABOR ` RELATIONS BOARD-
(2) All production ,, maintenance , and delivery employees of the
Company, excluding long-distance drivers , firemen , engineers, the
watchman , and supervisory, clerical , office, and sales employees, to
determine whether they desire to be represented by International
Union of United Brewery, Flour , Cereal , and Soft Drink Workers of
America, Local No. 272, or by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local No. 364, for,
the purposes of collective bargaining , or by neither.
MR. Wii. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Elections.