Licoreria Roses, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1944

55 N.L.R.B. 1324 (N.L.R.B. 1944)

In the Matter of LICORERIA ROSES, INCORPORATED and UNION DE TRABA-
JADORES DE LA INDUSTRIA LICORERA, ARECIBO LOCAL (C. G. T.)
Case No. 24-R-13.-Decided April 14, 1944
Fiddler, McConnell , and Gonzalez , by Mr. Herbert S. McConnell, of
San Juan, P. R., for the Company.
Mi% Victor M. Bosch , of San Juan, P. R., for the C. G. T.
Mr. HipQlito Marcano, of San Juan, P. R., for the F. L. T.
Mr. William R . Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon petition duly filed by Union de Trabajadores de In, Industria
Licorera, Arecibo Local, affiliated with the Confederacion General de
Trabaj adores de Puerto Rico, herein called the C. G. T., alleging that a
question affecting commerce had arisen concerning the representaion
of employees of Licoreria Roses, Incorporated, Arecibo, Puerto Rico,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before David Kara-
sick, Trial Examiner. Said hearing was held at Arecibo, Puerto Rico,
on February 18, 1944. The Company, the C. G. T., and Union de Tra-
bajadores de la Industria Licorera de Arecibo, affiliated with the Fed-
eracion Libre de los Trabajadores de Puerto Rico, herein called the
F. L. T., appeared, participated, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses and to introduce evi-
dence bearing on the issues. At the hearing the Company moved for
dismissal of this proceeding on the ground that the definition of com-
merce as contained in the National Labor Relations Act does not apply
to Puerto Rico, and that therefore the Board is without jurisdiction.
The Trial Examiner reserved ruling upon this motion for the Board.
This motion is hereby denied.' The Trial Examiner also reserved rul-
ing on a motion by the F. L. T. for dismissal on the grounds that the
C. G. T. had not presented evidence of designation by a substantial
I See Matter of Ronrico Corporation and Puerto Rico Distilling Company, 53 N. L. R. B.
1137, and cases therein cited
55 N. L. R. B., No. 240.
1324
LICORERIA ROSES, INCORPORATED 1325
number of employees, and that its designations authorized representa-
-Lion by an individual rather than by the C. G. T. For reasons here-
inafter appearing this motion is also hereby denied. The Trial Ev-
aminer's rulings made at the hearing are free from prejudicial error
-and are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board. The F. L. T. requested oral argument. This
request is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Licoreria Roses, Incorporated, is a Puerto Rico corporation having
its principal place of business and only plant at Arecibo, Puerto Rico,
where it is engaged in the bottling of distilled spirits for insular
consumption and for exportation. During the year 1943 the Company
purchased rum from local distilleries, amounting in value to more than
$100,000, and purchased bottling supplies amounting in value to ap-
proximately $108,000, of which 90 percent was obtained from points
outside of Puerto Rico. During the same period the Company sold
finished products amounting in value to approximately $1,300,000 in-
elusive of taxes, of which amount $800,000 represented shipments to
points outside of Puerto Rico. We find, contrary to the contention
of the Company, that it is engaged in commerce within the meaning
of the National Labor Relations Act.
If. THE ORGANIZATIONS INVOLVED
Union de Trabajadores de la Industria Licorera, Arecibo Local, is a
labor organization affiliated with the Confederation General de Traba-
jadores de Puerto Rico, admitting to membership employees of the
Company.
Union de Trabajadores-de la Industria Licorera de Arecibo is a labor
organization affiliated with the Federation Libre de los Trabajadores
de Puerto Rico, which in turn is the State Branch of the American
Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated December 20, 1943, the C. G. T. notified the Company
of its claim to represent a majority of the Company's employees, and
requested a collective bargaining conference. The Company replied
by letter of December 21, 1943, that it had a contract with the F. L. T.
which would expire on December 31, 1943, and that in view of the con-
flicting claims of the C. G. T. and the F. L. T. it could not recognize
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the C. G. T. unless it was certified as bargaining representative by the,
Board.
On January 1, 1943, the Company and the F. L. T. entered into a
contract in writing for the term of 1 year, with provision for automatic
renewal in the absence of written notice for termination to be given by
either party to the other not less than 30 days prior to its expiration
date. The Company contends that this contract was renewed on Janu-
ary 1, 1944, and is presently in effect. The record discloses that there
is some doubt as to whether the automatic renewal clause, correctly
interpreted, indicates that following its initial term of 1 year the con-
tract was thereafter to be renewed for successive yearly periods, or
whether it was to become of indefinite duration subject to termination
at any time by giving of the required notice. Assuming, however, the
former interpretation to be correct, the record nevertheless discloses
that prior to December 21, 1943, the F. L. T. had presented to the
Company the terms of a proposed new collective bargaining agreement,
and the Company in its letter to the C. G. T., above-mentioned, stated
that its contract with the F. L. T. would terminate on December 31,
1943. Inasmuch as the parties themselves had evinced their intent to
waive the operative effect of the automatic renewal clause, and to treat
the contract as terminable on December 31, 1943, we find that the claim
of the C. G. T. made shortly prior to the expiration date of the 1943
contract was timely and that the contract is not a bar to a determina-
tion of representatives in this proceeding.
A statement of the Field Examiner introduced in evidence and of
the Trial Examiner read into the record at the hearing indicate that
the C. G. T. represents a substantial number of employees in the unit
hereinafter found to be appropriate.2
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 parties are agreed that the appropriate unit comprises all em-
ployees of the Company, excluding executive, administrative, office
and clerical employees, watchmen, and supervisors. A question arose
at the hearing, however, concerning blending room assistants, whom
2 The Field Examiner reported that the C . G. T. submitted a petition containing 39
signatures , of which 37 were the names of persons on the Company 's pay rolls for Decem-
ber 15 and 22, 1943 , containing the names of 116 permanent , temporary and part-time
employees. The Trial Examiner stated that of 45 employees listed on the above pay rolls
as permanent employees the C. G. T. appeared to have been designated by 34, and of 71
listed as temporary employees the C. G T. appeared to have been designated by 23.
Although the petition was in the form of collective bargaining authorization to an individual
rather than to a labor organization , the record clearly discloses that such authorization was
intended to be of the individual solely in his representative capacity , and we therefore find
that it effectively indicates designation of the C. G T.
The F. L T relies upon its contract as sufficiently establishing its interest.
LICORERIA ROSES, INCORPORATED 1327'
the C. G. T. and the F. L. T. would include, but whom the Company
contends should be excluded on the ground that they bear a confidential
relationship to management.
The Company employes two blending room assistants whose duty
it is to blend rum, under the direction and supervision of the Com--
pany's chemist . Although considerable training is necessary for the-
proper performance of their duties , no technical education is required.
They are not given information concerning the Company's blending-
formulas, but acquire some familiarity therewith through experience
in the performance of their work. Although they may thus possess
some information which the Company considers to be in the nature
of trade secrets , it does not appear that they possess any confidential
information relating to the Company 's labor relations . In view of
the foregoing, we shall include the blending room assistants.
We find that all employees of the Company , including blending room
assistants , but excluding executive , administrative , office and clerical
employees , watchmen, and all supervisory employees with authority
to hire, promote , discharge , discipline , or otherwise effect changes in
the status of employees , or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Since July 1943 , at which time the Company began the bottling of
rum for export purposes, the Company has frequently employed nu-
merous employees additional to those whom it regularly employs when
preparing rum only for insular consumption . Such extra employees,
although considerable in number, have nevertheless been hired only
for short periods of temporary employment and, because of factors in
the Company 's business , relating to the availability of bottling sup-
plies and shipping space , their periods of employment have been at
irregular intervals and of varying duration . It is the Company's prac-
tice, when additional employees are needed , to cause notice of this
fact to be circulated in the community by word of mouth, and to hire-
all that thereafter seek employment . Not always the same employees,
however, are on each occasion hired, and there is great variation among-
the individual employees in the number of hours worked . Although
the Company has been operating under a closed -shop contract with
the F . L. T., neither party has sought to require these temporary em-
ployees to become members of the Union. The C. G. T. and the F. L. T.
agree that the temporary employees should not be eligible to vote.
The Company takes no position in regard thereto. The record clearly
discloses that they are not regular part-time employees , such as to have-
substantial interests in common with the Company 's permanent em-
ployees in the results of collective bargaining ; we find, accordingly,
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the temporary employees are not eligible to vote in the elect' 1011.3
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 limitations and additions set forth in the Direc-
tion. The Regional Director is hereby authorized to use appropriate
symbols in connection with the names of the parties upon the official
ballot, in the conduct of the election.4
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 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Licoreria Roses,
Incorporated, Arecibo, Puerto Rico, 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 Twenty-fourth 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 said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed fors of
the United States who present themselves in person at the polls, but
excluding any 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 Union de Traba-
jadores de la Industria Licorera, Arecibo Local (C. G. T.), or by Union
de Trabajadores de la Industria Licorera de Arecibo (F. L. T.), for
the purposes of collective bargaining, or by neither.
3 At the hearing the C. G T. and the F L T suggested that the Board define those eligible
to Note as all employees, within the unit, NNho have been continuously and permanently em-
ployed for 6 consecutive months or more up to December 31, 1943, and that all other
employees be considered as temporary and not entitled to vote we are of the opinion,
ho«ever, that the temporary employees are better defined as those who are employed only
at such times as the Company is preparing orders for exportation The refcience to
temporary employees, herein, therefore, is to such employees as fall within the latter
definition
I The record discloses that many of those eligible to vote are not able to lead or write,
and that familiar symbols indicative of the respective labor organizations are available for
use The C. G. T. requested that its name appear on the ballot above its symbol, consisting
of an "Anvil," and the F L. T. that its name appear above its symbol, a "Hammer " These
,requests are hereby granted