The Tivoli Union Co.

National Labor Relations Board - Board Decisions

Apr 30, 1947

73 N.L.R.B. 709 (N.L.R.B. 1947)

In the Matter of THE TIVOLI UNION COMPANY, EMPLOYER and INTER-
NATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 1, A. F. of L.,
PETITIONER
Case No. 17D-R-26.-Decided' April 30, 1947
Mr. W. P. Scholl, of Denver, Colo., for the Employer.
Mr. H. H. Herbolsheimer, of Denver, Colo., for the Petitioner.
Mr. William Koch, of Denver, Colo., for the Intervenor.
Miss Eleanor Schwartzbach, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition 1 duly, filed, hearing in this case was held at Denver,
Colorado, on February 26, 1947, before Howard W. ICleeb, 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 the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Tivoli Union Company is a Colorado corporation having its
principal office at Denver, Colorado, where it is engaged in the manu-
facture- and distribution -of beer. In addition to its plant at Denver,
the Employer maintains a warehouse at Grand Junction, Colorado.
During the past year the Employer purchased raw materials consist-
ing principally of malt, grain, hops, coal, kegs, bottles;' and paper
cartons, amounting in value to more than $1,000,000, over-75 percent of
which was purchased outside the State of Colorado. During the same
period the Employer sold finished products valued in excess of $1,000,-
000, less than 10 percent of which was sold to customers outside 'the
State of Colorado.
The-Employer admits and we find that it- is engaged in commerce
within the' meaning of the National Labor Relations Act.
3 The petition and other formal papers were amended at the hearing to show the correct
name of the Employer. , I .
73 N. L. R. B., No. 135.
709
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
Local Union No. 44, Brewery, Flour, Cereal, Malt, Grain, Elevator,
Yeast, Vinegar,. Commercial Alcohol, Cider, Cereal Beverages, Soft
Drink and Mineral Water Workers, herein called the Intervenor, is a
labor organization affiliated with the Congress.of Industrial Organi-
zations, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Employer and the Intervenor entered into a contract covering
production and maintenance employees, including boiler room em-
ployees, at the Employer's Denver, Colorado, plant, which was to
remain in full force and effect until March 7, 1947. This contract was
automatically renewable unless notice was given by either party 30
days prior to the termination date of the contract. On January 27,
1947, more than 30 days prior to the first anniversary date of the con-
tract, the Petitioner filed with the Board the petition herein. By let-
ter dated January 28, 1947, the Petitioner notified the Employer that
it claimed jurisdiction over all employees in the Employer's engine
and boiler rooms. Neither contracting party claims that the contract
is a bar to these proceedings, and we find that it does not constitute a
bar.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks to represent employees in the Employer's boiler
room as part of its existing unit of engine room employees. The Inter-
venor contends that boiler room employees should be included with
other production and maintenance employees in its residual plant unit.
The Employer takes no position with respect to their unit placement.
The group claimed by the Petitioner constitutes the staff of the
Employer's boiler room, located in a separate building about 20 feet
away from the main building, which houses the engine room and the
production facilities of the Employer. The boiler and engine_rooms
are used in the generation of power and heat for building maintenance
and manufacturing processes . The operations of the engine room and
THE TIVOLI UNION COMPANY 711
the boiler room are highly integrated, and each is dependent upon the
other. The employees in both the boiler room and the engine room
are under the supervision of the chief engineer. There is no inter-
change of employees between the boiler room and other departments
of the plant. , There is, however, interchange of employees between
the boiler room,and the engine room. _
There are six employees .in the Employer's boiler room, an` oper-
ating.engineer and fiye apprentice engineers.'- Of the five employees
in the engine room,3 four are operating engineers and one a mainte-
nance man. None of these employees are necessarily, licensed engi-
neers. The operating engineer and the apprentice engineers in the
boiler room operate the boilers and see that the stokers are fed. The
operating engineer in the boiler room, in addition, is responsible for
ordering coal and necessary supplies for the engine room. Two of
the apprentice engineers work only two •8-hour shifts a month in the
boiler room, and spend the remainder of their time on maintenance
work in the engine room. They retain their apprentice engineer
classification, however, while working in the engine room. Appren-
tice, engineers have, in the past, been promoted to the position of
operating engineer.
It is clear from the foregoing facts that the employees in the boiler
room form a homogeneous group with interests akin to those of the
engine.room employees, and distinguishable from those of the pro-
duction and maintenance employees. The only remaining issue is
whether the bargaining history at the Employer's plant precludes
them- from placement in a unit other than the production and main-
tenance unit. - '
° For at least 10 years, the Intervenor has,entered into bargaining
contracts with the Employer, covering production and maintenance
employees, including boiler -room employees. Notwithstanding this
coverage, there has been a controversy between the Petitioner and
the Intervenor for a.number of years with respect to representation
of employees in the boiler room. The Petitioner has, since about 1933,
supplied' the' Employer': with all its boiler room employees. Until re-
cently both unions had representation among these employees, and the
'rate of their pay followed the wage rates established by the 'respective
unions to:which the particular, employees belonged. At the time of
the hearing, however, all boiler room employees were members of the
Petitioner, and the wage rates paid were determined by the rate classi-
fication in the Petitioner's contract, covering. engine room employees.
The bargaining unit covered by the contract between the Employer
and the Intervenor, yhich included boiler. room employees;-was not
2 Apprentice engineers are also referred to as firemen in the record.
3 The Intervenor does not represent or claim the employees in the engine room.
712 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
based upo'n''-'any Board 'deteimiliatioii` as to''-the appropriate unit:
The employees in the boiler room have had no'opportunity in a Board
di'rected' election to express their' own desires 'as to' their ,unit place-
ment:' We'havd` frequently, held that boiler and engine room em-
ployees with duties 'similar to ' tho`se' performed by the' employees
herein involved, constitute a craft-group 4 'and there' is no indication
that such units do not function successfully' to promote harmonious
labor"-relations.'
'Under the circumstances noted above, we, are of the opinion that
the boiler- room` empl'oyees' should now be given an opportunity to
demonstrate in a Board' el"ection'whether or not they desire repre-
sentation as part "of' a craft group.' Inasmuch as` the' apprentice engi-
neers who work as maintenance employees in the engine room retain
their job classification' as apprentice engineers,, *e shall-'permit them.
to vote in the election among-the boiler room employees:
'Accordingly, we'shall direct an election among operating and ap-
prentice engineers' employed in the' boiler room of the Employer's
Denver, Colorado, plant, excluding all supervisory employee's with
authority to hire; promote, discharge, discipline, or' otherwise effect
changes in the status of employees, or effectively recommend'" such
action.
We shall make no determination of the appropriate unit at this time.
Such determination will depend, in part, upon the results of the'elec-
tion. "'If'the employees in the voting group select the' Petitioner; they
will be taken to'have indicated their desire to be bargained for as part
of the 'craft unit now represented by the Petitioner; if they choose
the Intervenor, they will be taken- to have indicated a desire to remain
part of the existing production and maintenance unit.
'DIRECTION OF ELECTION 5
As part of, the investigation to ascertain- representatives,,for the
purposes of collective bargaining-with The,Tivoli =Union Company,
Denver, Colorado, 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 Seventeenth Region, . acting in this matter as agent
for the National Labor Relations Board, and subject to,Sections 203.5,5
and 203.56 of National Labor Relations.Board Rules. and Regular
4Matter" of ` The American Fork & 'Hoe Companj;'72 N. L'. R. B.'-1025; Matter of L.' E.
Shunk Lateen Products , Inc., 67 ,N., L. R. B . 552 ; ,Matter ,of E. I. DuPont de Nemo'urs &
Company, 66 N. L. R., B . 631 ; Matter of Swzft & Company , 59 N. L . R. B. 1417.
' 5 Any participant 'in'the 'election herein may , upon its prompt request to , and approval
thereof by, the Regional Director , have its name removed from the ballot.
i
THE TIVOLI UNION COMPANY 713
Lions-Series 4,-among the employees in the group described 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
-forces of the United States who present themselves in person at the
polls, but excluding those employees 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 repre-
.sented by International Union of Operating Engineers, Local No. 1,
A. F. of L., or by Local Union No. 44, Brewery, Flour, Cereal, Malt,
Grain, Elevator, Yeast, Vinegar, Commercial Alcohol, Cider, Cereal
Beverages, Soft Drink and Mineral Water Workers, C. I. O:, for the
purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.