Star Union Products Co.

National Labor Relations Board - Board Decisions

Jun 15, 1960

127 N.L.R.B. 1173 (N.L.R.B. 1960)

STAR UNION PRODUCTS COMPANY 1173
ing office clerical employees, the estimator, the mimeographing and
utility man, junior and apprentice draftsmen, the project engineer,
mechanical engineers, inspectors, professional employees, watchmen,
guards, the president, the production manager, the superintendent, the
office manager and purchasing agent, the personnel interviewer, the
foremen in the fabrication, assembly and welding, sheet metal or
skirting, piping and wiring and painting departments, the night shift
foreman, and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Star Union Products Company and International Union of
United Brewery, Flour, Cereal , Soft Drink and Distillery
Workers of America, AFL-CIO , Local Union No. 33, Petitioner
Star Bottling Company and International Union of United
Brewery, Flour, Cereal , Soft Drink and Distillery Workers
of America , AFL-CIO, Local Union No. 33 . Cases Nos. 13-RC-
6487, 13-RC-6678, 13-RC-6489, and 13-RC-6636. June 15, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Julius Draznin, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. Local 722 contends that three current collective-bargaining agree-
ments with the Employer bar the petitions filed herein. The Peti-
tioner and District 50 contend that these contracts are not a bar
because they have been prematurely extended.
The original termination dates of the three contracts involved
were : July 1, 1959, August 1, 1959, and September 15, 1959. By
separate extension agreements dated February 5, 1959, each contract
was extended until January 31, 1960. The contracts were thus pre-
' Local 722, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, intervened on the basis of a contractual interest. District 50,
United Mine Workers of America , intervened on the basis of a showing of interest.
Petitioner objected to Local 722's intervention asserting that it was not the successor to
Local 46 which signed the original contracts . Since it appears that the members of
Local 46 voted in open meeting to merge with Local 722, and Local 722 has taken over
all contracts of Local 46 , we find the intervention was properly permitted . Cf. Graphic
Finishers, Inc, 119 NLRB 374.
127 NLRB No. 151.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maturely extended and do not bar an election since the petitions were
-filed over 60 but not more than 150 days before the terminal dates of
the original contracts.2
Accordingly, we find that a question affecting commerce exists con-
,cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. The Employer operates a brewery, Star Union Products Com-
pany, and a soft drink plant, Star Bottling Company, at Peru,
Illinois. At Star Union Products Company, Petitioner seeks a unit
of all production and maintenance employees including drivers, or,
in the alternative, a unit of drivers including those part-time drivers
who spend 50 percent of their time driving. At Star Bottling Com-
pany, Petitioner seeks a single unit of all production and maintenance
employees including drivers.
Local 722 contends that the three units in which it has contracts are
appropriate. These are: A unit of production and maintenance
workers at Star Bottling Company, a separate unit of drivers at Star
Bottling Company, and a separate driver unit at Star Union Products
Company. The production and maintenance workers other than
drivers at Star Union Products Company have been represented by
the Petitioner under a contract that expired August 18, 1959. Dis-
trict 50 takes the position that the units currently represented by
Local 722 are appropriate. The Employer takes no position as to
what units, if any, it deems appropriate.
There are approximately 35 employees at Star Union Products
Company and they are all tinder common supervision. There are
five employees who spend all their time driving and two platform
men who are classified as inside workers although they may spend as
much as half their time driving. The full-time drivers have been
represented by a Teamsters Union for about 15 years. There are
approximately 12 employees at Star Bottling Company, 4 of whom
are known as route salesmen and spend all their time driving. The
drivers and inside workers at the bottling company have been sepa-
rately represented by the Teamsters Union.
In view of the lengthy past bargaining history for a separate pro-
duction and maintenance unit and a separate drivers unit at each
2 Deluxe Metal Fvrnitvre Company , 121 NLRB 995.
a Local 722 moved to dismiss the petitions because of outstanding unfair labor practice
charges against District 50 The charges allege Section 8(b) (1) (A) violations involving
threats, violence , mass picketing , and similar conduct during a strike for recognition by
District 50 which began in January 1959 and continued until March 28, 1959 This was
the culmination of a longstanding dispute between Local 46 (the predecessor of Local 722)
and a group of its former officers who had joined District 50 . There has been no re-
currence of the alleged unfair labor practices since the end of the strike on March 28,
1959 , and the Petitioner is in no way involved in the unfair labor practice charges. In
the particular circumstances of this case, the Board finds that despite the pending unfair
labor practice charges, an election should be directed so that the employees may decide
themselves which, if any , of the three claimants they desire as their collective-bargaining
representative.
STAR UNION PRODUCTS COMPANY 1175
plant, and as the Board consistently allows separate representation
for drivers," we find that separate units of drivers and separate
units of production and maintenance employees at both plants are
appropriate.
Accordingly, we shall direct elections in the four following units of
employees at the Employer's Peru, Illinois, plants, excluding from
each unit office clerical employees, guards, and supervisors as defined
in the Act :
1. All production and maintenance workers at Star Union Products
Company excluding drivers.
2. All drivers at Star Union Products Company.
3. All production and maintenance workers at Star Bottling Com-
pany excluding drivers.-'
4. All drivers at Star Bottling Company.
As the Petitioner alone has a showing of interest among the em-
ployees in unit 1, we shall place only the Petitioner's name on the
ballot in the election among these employees. As all three unions have
a showing of interest among the employees in units 2, 3, and 4, we
shall place the names of all unions on the ballot in the election among
those employees.
If the Petitioner wins the elections in both units 1 and 2, or 3 and
4, the employees in these units will be taken to have indicated their
desire to constitute two separate combined units and the Regional
Director is instructed to issue certifications of representatives to the
Petitioner for `such combined units, including therein the employees
in both units 1 and 2, or 3 and 4, which units the Board, in such cir-
cumstances finds to be appropriate for purposes of collective
bargaining.
Consistent with our decision in the recent Waikiki case,' we have
not provided for pooling of votes in the elections herein directed.
On the contrary, we have provided that the Petitioner may represent
an overall unit only if it demonstrates that it has separate majority
status in each unit comprising the broader unit. As in Waikiki, we
believe that pooling would only serve to bestow upon the Petitioner,
the only labor organization seeking overall production and main-
tenance units, an unfair advantage over the incumbent Intervenor
which desires to preserve the separate status of the units represented
See International Furniture Company , 119 NLRB 1462, 1464
Petitioner contends that Melvin Siebert, the leadman at Star Bottling Company, should
be excluded as a supervisor . Siebert has no authority to hire or fire, make men work
overtime , grant time off, or effectively recommend changes in employee status. He takes
orders from the plant superintendent who comes in at the beginning of each workday and
gives instructions as to the day 's operations. Siebert is merely a more experienced em-
ployee who acts as a conduit between the superintendent and the other employees whom
he routinely directs we find he is not a supervisor and include him in the unit. See
Park Drug Company, 122 NLRB 878.
0 Waikiki Biltmore, Inc., 127 NLRB,82.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it. Our direction of election simply puts all parties on an equal
footing. If the Petitioner succeeds in winning one group, but not
the other, it will not be disadvantaged thereby by being denied rep-
resentation of the group it does not win 7
Moreover, in the instant cases we have found that all four units
involved are, and have been, separate appropriate units. According
to established Board principles, we have granted each separate group
of employees the right to determine for themselves the choice of bar-
gaining representatives, or, as the case may be, no representation at
all. In our opinion it would be a clear deprivation of such right were
we to allow the preferences of the employees in one unit to override
the express wishes of the employees in another unit desiring no rep-
resentation, by pooling their votes. We do not believe, in the circum-
stances here present, that because a broader unit may also be appro-
priate, employees' rights to self-determination should thereby be
curtailed.
[Text of Direction of Elections omitted from publication.]
CHAIRMAN LEEDOM, concurring in part and dissenting in part:
I agree with the majority opinion insofar as it finds appropriate
for purposes of collective bargaining a separate production and main-
tenance unit and a separate drivers unit at Star Union Products
Company. I do not believe that pooling is desirable in a situation
such as that presented in the Star Union case. In that case the
Petitioner is seeking to enlarge its production and maintenance con-
tract unit by including therein the drivers currently represented by
Local 722 of the Teamsters, while Local 722 and District 50 of the
Mine Workers seek the current drivers unit. In such a situation if
none of the unions win in the established drivers unit, and pooling
is nevertheless applied, it might be possible for the Petitioner through
a favorable vote in the unit it currently represents, to win in the over-
all unit, even though it lost the separate election in the drivers unit.
,On the other hand, a loss in the drivers unit would have no impact on
any victory the Petitioner might win in the unit it currently repre-
sents, since the majority finds such a unit to be appropriate and the
Petitioner will be certified in such a unit. In my opinion, the Star
Union case is analogous to Adams Coal Company, Inc.,8 where the
Board also did not apply pooling.
However, I do not agree with the majority's unwillingness to pool
in the Star Bottling case. In that case, there is no incumbent union
which could benefit, or be disadvantaged, by pooling. The incumbent
union does not seek a more comprehensive unit than its current two
7,See Adams Coal Company , Inc., 118 NLRB 1493.
8118 NLRB 1493.
STAR UNION PRODUCTS COMPANY 1177
separate units, and the Petitioner, which seeks the more compre-
hensive unit, has not represented any of the employees involved.'
In such a situation, I believe pooling is the most equitable approach
to determine the bargaining status of the Petitioner in the event the
employees in each voting group reject representation by the unions
which seek them on a separate basis.
MEMBER FANNING, dissenting :
The unwillingness of the majority to pool the votes in this case
carries the Board one step further in its unwarranted departure from
the longstanding policy of pooling. In the recent Waikiki case,10 the
Board announced that it would no longer pool the votes of employees
where it directed separate elections among voting groups composed of
represented and unrepresented employees. Now the Board refuses
to pool in a case where all the voting groups involved are composed
of previously represented employees and where all of the bargaining
units requested-including the overall units-are appropriate units
under Board precedent.
In these cases, there are two unions that are seeking to retain the
separate representation that has existed in the past among production
and maintenance employees and truckdrivers at both the brewery and
the bottling company. The employees in those units should properly
be given an opportunity to preserve that separate representation. But,
once these employees have used this opportunity to reject separate
representation, I believe that the pooling technique should be invoked
to determine if the Petitioner has a majority in the clearly appropriate
overall units that it has requested. Under this procedure, the incum-
bent union is given an opportunity to preserve its separate repre-
sentation, but pooling is utilized in the event such separate representa-
tion is rejected. The logic and equity of pooling demand its
application to the situations presented here just as they demanded
its application in Waikiki.
The essential point to be grasped in these cases, as in the Waikiki
case, is that the Act requires only that a collective-bargaining repre-
sentative achieve a majority of the employees in an appropriate unit.
It is true, as the majority points out, that separate units of production
and maintenance employees, and drivers, at both the brewery and
the bottling company may be appropriate. However, it is equally true
that since the early days of the Act the Board has always held that
a plantwide unit is presumptively appropriate." Indeed Section
9(b) of the Act specifically refers to the "plant unit" as one of the
6 The factors which persuaded me to eliminate pooling in the Waikiki case, supra, are
not present here.
10 Waikiki Biltmore, Inc ., 127 NLRB 82, Member Fanning dissenting.
11 Beaumont Forging Company, 110 NLRB 2200, 2202.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
types of unit that the Board may find appropriate for purposes of
collective bargaining. Despite these facts, the majority will permit
the Petitioner to be certified for plantwide units only if it wins in
both the production and maintenance unit and driver unit at the
brewery, or both the production and maintenance unit and the driver
unit at the bottling company. The Petitioner must therefore win
two separate majorities in two separate units before it may represent
the overall unit.
But, as I read Section 9 (a) of the Act, all that it requires is that a
collective-bargaining representative be selected "by the majority of
the employees in a unit appropriate for such purposes." The ma-
jority's refusal to pool thus requires more of the Petitioner than the
Act itself requires.12
Finally, I do not agree with Chairman Leedom's view that the
Adams Coal case supports the refusal to apply the pooling technique
in the Star Union Products case. The unwillingness of the Board
to apply pooling in Adams Coal stemmed from a desire to protect an
incumbent union in its existing unit where a petitioner sought an over-
all unit that would include the incumbent's unit and a fringe group
of previously unrepresented employees.
It would seem that the Board's decision not to pool in Adams Coal
was broader than it need have been. The Board properly protected
the incumbent union by refusing to pool if the incumbent won in its
existing unit even though it might be possible in such a case for the
petitioner to have a majority in the overall unit. However, in order
for the petitioner to be certified in the overall unit, the Board required,
as the majority does here, that the petitioner win a majority in both
the currently represented group and the previously unrepresented
group. Thus even if the petitioner won enough votes in the currently
represented group to give it an overall majority when combined with
the unrepresented group, the Board would not certify the petitioner
in the overall unit.
It is true, as Chairman Leedom's opinion points out, that a heavy
majority in the currently represented unit at Star Union Products
Company might enable the Petitioner to carry the drivers unit in the
case where the drivers election does not result in selection of the union
seeking the drivers separately. But there is nothing unfair about
such a result for pooling is invoked only after it is clear that the
drivers do not desire separate representation. As long as the Peti-
tioner can show a majority in the overall unit, it seems to me that it
should be certified in that unit which is an appropriate one, and not
be required to achieve two separate majorities in two separate units.
13 For further discussion on this point, see my dissent in Waikiki Biltmore, Inc., 127
NLRB 82.