National Distillers Products Co.

National Labor Relations Board - Board Decisions

Mar 7, 1938

5 N.L.R.B. 862 (N.L.R.B. 1938)

In the Matter of NATIONAL DISTILLERS PRODUCTS Co. and UNITED
DISTILLERY WORKERS OF N. A., LOCAL No. 484, AFFILIATED WITH
COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. R-573.-Decided March 7, 1938
Liquor Distillery-Investigation of Representatives: controversy concerning
representation of employees : rival organizations, refusal by employer to recog-
nize petitioning union as exclusive representative ; substantial doubt as to
majority status-Unit Appropriate for Collective Bargaining: production em-
ployees ; no controversy as to-Election Ordered
Mr. Oscar Grossman, for the Board.
Mr. Ralph A. Lind, of New York City, for the Company.
Mr. Philip B. Bizzell and Mr. Peter Campbell, for the United.
Mr. John E. Dwyer, of Washington, D. C., for the Distillery
Workers.
Mr. Spurgeon Avakian, of counsel to the Board.,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 23, 1937, United Distillery Workers of North
America, Local No. 484, affiliated with Committee for Industrial
Organization, herein called the United, filed with the Regional
Director for the Ninth Region (Cincinnati, Ohio) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of National Distillers Products Co., Louis-
ville, Kentucky, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On December 11, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On January 8, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
862
DECISIONS AND ORDERS 863
United, and upon Distillery Workers Local No. 20560, affiliated with
American Federation of Labor, herein called the Distillery Workers,
a labor organization claiming to represent employees directly affected
by the investigation. On January 14, 1938, a notice of postponement
of hearing was served upon the parties named above. Pursuant to
these notices, a hearing was held on January 24, 1938, at Louisville,
Kentucky, before Charles E. Persons, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, the United, and the
Distillery Workers were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and to cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The National Distillers Products Co., a Virginia corporation, has
its principal office and place of business in New York City, and owns
and operates plants in Kentucky, Ohio, Maryland, and Pennsylvania.
It is engaged in the manufacture, sale, and distribution of distilled
spirits. Corn, rye, barley and rye malts, and wheat are the principal
raw materials used in the manufacture of the Company's products,
and the greater portion of such raw materials are purchased in the
States of Illinois, Iowa, Indiana, and Ohio. Approximately 96 per
cent of the Company's finished products are shipped outside the State
of Kentucky to destinations in various States of the United States
and in Europe. During 1937 the Company purchased in excess of
$1,000,000 worth of raw materials, and its sales exceeded $2,000,000.1
The only plant of the Company involved here is the K. D. & W.
plant in Louisville, Kentucky. The operations at this plant consist of
receiving barrelled whiskey manufactured at other plants, regauging,
dumping, reducing, filtering, bottling, and casing it, affixing the
stamps representing taxes, and shipping the cases to various parts of
the United States and to foreign countries. .
II. THE ORGANIZATIONS INVOLVED
United Distillery Workers of North America, Local No. 484, is a
labor organization affiliated with the Committee for Industrial Or-
1 The above facts concerning the business of the Company are contained in a stipulation
entered into between the Company and the Board , and introduced as Board's Exhibit No. 2.
864
NATIONAL LABOR RELATIONS BOARD
ganization, admitting to its membership all production, maintenance,
and clerical workers employed by the Company at its K. D. & W.
plant, excluding only persons having the right to hire and fire.
Distillery Workers Local No. 20560 is a labor organization affiliated
with the American Federation of Labor. It admits to membership
all production employees of the Company at its K. D. & W. plant,
excluding guards, watchmen, clerical workers, and all persons acting
in a supervisory capacity.
III. THE QUESTION CONCERNING REPRESENTATION
The organizing efforts of the United commenced in June 1937.
Those of the Distillery Workers commenced in September 1936, but
were disrupted for a time by flood conditions in January 1937.
In September 1937 the United claimed to represent a majority of
the Company's employees, and in the same month both organizations
entered into negotiations with the Company. The Company ex-
pressed its willingness to recognize and bargain with any union
certified by the Board as the representative of its employees, but
refused to bargain with either union before such certification.
We find that a question has arisen concerning representation of
employees of the Company at its K. D. & W. plant.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the, several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing it was agreed by representatives of the Company,
the United, and the Distillery Workers that the production employees
of the Company at its K. D. & W. plant, excluding superintendents,
office workers, foremen and assistant foremen, foreladies and assist-
ant foreladies, line supervisors, stamp control operators, storekeepers
and assistant storekeepers, guards, and mechanics, constitute an ap-
propriate unit for the purposes of collective bargaining.
The evidence at the hearing disclosed that there is little variation
in the wages, hours, and other conditions of employment of the
employees in the suggested unit, that none of the operations require
great skill, and that the various operations are to a great degree
DECISIONS AND ORDERS 865
dependent on each other. A cessation of work in one department
would curtail activities in the others.
We find that the production employees of the Company at its
K. D. & W. plant, excluding superintendents, office workers, fore-
men and assistant foremen, foreladies and assistant foreladies, line
supervisors, stamp control operators, storekeepers and assistant store-
keepers, guards, and mechanics, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to the
employees of the Company at its K. D. & W. plant the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The operations at the K. D. & W. plant are highly seasonal. Dur-
ing the peak months of October, November, and December as many
as 1,000 persons are employed. The rest of the year, with the excep-
tion of March, is known as the slump season, and employment dur-
ing that period drops to as low as 300 persons. Copies of the Com-
pany's pay roll introduced at the hearing show that the weekly em-
ployment during October, November, and December, 1937, fluctuated
from a low'of 363 to a high of 965.
Most of the seasonal employees are women who do not often find
other employment during the year. The Company gives preference
to them when additional employees are needed. Approximately 80
per cent of the seasonal employees of one year are employed during
the peak period of the succeeding year. It is evident that seasonal
employees who have worked for any substantial length of time dur-
ing a peak season are likely to be reemployed at some future date,
and accordingly have an, interest in conditions of employment which
might be agreed upon during the year even though not employed at
the particular time the agreements are made. That interest entitles
them to participate in the 'selection of representatives. ' '
We hold that all employees in the appropriate unit whose names
appear on the pay-roll records of the Company during any four
weeks in the months of October, November and December, 1937, are
entitled to participate in the selection of representatives.
At the hearing the United placed in exhibit a list of 538 names,
purporting to be the names of regular and seasonal employees at
the Company's K. D. & W. plant. The Distillery Workers placed
in exhibit a similar list containing 187 names. No attempt was made
to classify these names on the basis of length of employment. Fur-
thermore, it was admitted that there was some duplication of names.
We hold that an election by secret ballot is necessary to resolve the
question concerning representation.
866 NATIONAL LABOR RELATIONS BOARD
On the basis of the above findings of fact and upon the entire record
:in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of National Distillers Products Co., Louisville,
Kentucky, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The production employees of the Company at its K. D. & W.
plant, Louisville, Kentucky, excluding superintendents, office work-
ers, foremen and assistant foremen, foreladies and assistant fore-
ladies, line supervisors, stamp control operators, storekeepers and
assistant storekeepers, guards and mechanics, constitute an appro-
priate unit for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
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, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
1, as amended, it is hereby
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with National Distillers Products Co., Louisville, Kentucky, an elec-
tion by secret ballot be conducted within fifteen (15) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Ninth Region, acting in this matter as
agent for the National Labor Relations Board and subject to Article
II, Section 9, of said Rules and Regulations, among the production
employees of the Company at its K. D. & W. plant, Louisville, Ken-
tucky, whose names appear on the pay-roll records of the Company
during any four weeks in the months of October, November, and
December, 1937, excluding superintendents, office workers, foremen
and assistant foremen, foreladies and assistant foreladies, line super-
visors, stamp control operators, storekeepers and assistant storekeep-
ers, guards, and mechanics, and excluding those who have since quit
or been discharged for cause, to determine whether they desire to be
represented by United Distillery Workers of North America, Local
No. 484, affiliated with Committee for Industrial Organization, or
Distillery Workers Local No. 20560, affiliated with the American
Federation of Labor, or by neither.