National Distillery Products Corp.

In the Matter of NATIONAL DISTILLERY PRODUCTS CORPORATION, and UNITED DISTILLERY WORKERS, OF NORTH AMERICA (C. I. 0.) ,Cases Nos. R-4281 and R-4282.-Decided October 22, 194y2 Jurisdiction : distilled spirits and alcohol manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; closed-shop contract executed when majority status of contracting union was in doubt, held no bar-; electidns necessary. - Unit Appropriate for Collective Bargaining : production and maintenance-em- ployees- at each of two plants of Company permitted to determine whether they should constitute a separate bargaining unit or be part of unit including employees at other of Company's plants represented pursuant to contract Mr. Morris A: Edelman, of New York City, for the Company. -Mr. Philip M. Curran and Mr. Anthony Federoff, of Pittsburgh, Pa., for the C. I. O. -Mr. Louis J. Blender, of Boston, Mass., for the A. F.-of L. Mr. Seymour J. Spelman, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by United Distillery Workers of North America- (C. I. 0.), herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of National Distillery Products Corporation, herein called the Company,' the National Labor Relations Board provided for an appropriate consolidated hearing upon due notice before W. G. Stewart Sherman, Trial Examiner. Said hearing was held at Pitts- burgh, Pennsylvania, on September 15, 1942. The Company, the C. I. 0., and Distillery, Rectifying, and Wine Workers International Union of America, A. F. of L., herein called the A. F. of L., appeared, participated, and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing ' The name of the Company appears as corrected at the hearing. 45 N. L. h. B., No. 4. 493508-43-vol 45-2 17 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the issues. The motions to dismiss filed by the Company and the A. F. of L. have been considered by the Board and, for the reasons indicated below, are hereby denied. 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 National Distillery Products Corporation, a Virginia corporation, is engaged in the business of manufacturing, bottling, and selling distilled spirits and producing alcohol for the United States Govern- ment, at 16 plants throughout the United States. The Company's plants at Large and Broadford, Pennsylvania, are the only plants involved in this proceeding. During 1942, raw materials and sup- plies-valued at approximately $800,000 were used at the Large _ and Broadford plants. During the past 12 months, these two plants produced finished products valued in excess of $2,000,000, approxi- mately 75 percent of which was shipped to places outside the -Com- monwealth of Pennsylvania.. II. THE ORGANIZATIONS INVOLVED United Distillery Workers of North America is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admit- ting to membership employees of the,Company. Distillery, Rectifying,- and Wine Workers International Union of America is a labor organization affiliated with the American Federa- tion of Labor, admitting to membership employees of the Company, III. THE QUESTION CONCERNING REPRESENTATION On August 25, 1942, the C. I.. O. instituted an organizational drive among the Company's employees. at the Large plant. On August 31, having secured the membership of approximately 66 employees,'the C. I. O. met with Gerber, the Company's resident manager, informing him that it represented a majority of the employees at the-Large plant and requesting recognition as their exclusive bargaining agent. Gerber stated that he had no authority to bargain for the Company but promised to bring in someone ,from the Company's New York office with the necessary authority. On August 29, 1942, the A. F. of L. and the C. I. O. were engaged in organizational efforts at the Company's Broadford plant. On NATIONAL DISTILLERY PRODUCTS CORPORATION 19 August 31 an employees' meeting was held at Broadfoid, at which one Autterson, who represented himself as international vice-presi- dent of the A. F. of L., and one Carroll, a C. I. O. representative, spoke in behalf of their respective organizations. After this meeting an agreement was concluded between Autterson and Carroll, whereby they agreed that the union which was declared loser in a card check conducted by a committee of employees from the Broadford plant would withdraw. On September 1, the plant committee announced the results of the card checks as follows : 141 for the C. I. O. and 42 for the A. F. of L. The A. - F. of L. contends that its contract with the Company constitutes it bar to this proceeding. The record contains a copy of a closed-shop agreement between the Company and the A. F. of L., bearing the date August 2, 1942, with provision for automatic renewal from year to year at its expiration on May 1, 1944, in the absence of a notice of termination by either party not less than 30, days before the end of any yearly period. The contract embraces all production and maintenance employees, with certain exclusions, at the Company's Large and Broadford plants. The C. I. O. main- tains that neither it nor the employees it had contacted were informed or aware of this contract until on or about September 2. The Com- pany did not deny that it made no mention of this contract in its dealings with the C. T. O. during'the last week of August. There was introduced in evidence a handbill which an' employee of the Large -plant stated was given ' to him by Autterson on August 28, 1942. The handbill urged employees at the Large plant to attend an-A. F. of L. meeting on August 29, and stated that the A. F. of L. had under contract all the plants of the Company except the Large and Broadford plants. Robert Berry, the Company's director of labor relations, testified that, the contract bearing the date of August 2 was consummated after a period of negotiations with the A. F. of L., at a time when the Company had no knowledge of the interest of any other labor organization in these plants. He stated that the A. F. of L. made no showing of majority representation in the Large and Broadford plants before the execution of the contract. Berry explained that no showing was requested or offered because the employees could later have the contract "upset" by the Board in the event that the A. F. of L. did not represent a majority of the employees. It is evident that when the contract was executed, the majority status of the A. F. of L. in the Large and Broadford plants was in doubt. We therefore find that the contract constitutes no bar to a determination of representatives at this time. 20 DECISIONS OF NATIONAL "LABOR RELATIONS BOARD -A• statement of the Trial Examiner at the 'hearing shows that the C. I. 0. represents a substantial number of employees in the unit alleged to be appropriate.' 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 DETERMINATION OF REPRESENTATIVES The C. I. 0. seeks to establish a separate unit of production and maintenance employees in each of the two plants. The A. F. of L. and the Company contend that the employer-wide unit, embracing the production and maintenance employees in the Company's 16 plants throughout the country, is the appropriate unit. The Company owns and operates 16 plants at various places in the,United States. The two plants involved here are 33 miles apart, the Large plant employing approximately 112, and the Broadford plant approximately 227 in the alleged appropriate unit. All plants are devoted to the production of -various kinds of distilled spirits under different trade, names, and alcohol for the United States Gov- ernment. Each plant has its own manager, who, except -in minor matters, carries out orders emanating from the Company's New York, offices. From 1935 to 1940 the A. F. of L. established many Federal locals to organize the distillery industry. In 1938 a National Council was established by the A. F. of L. to unite the Federal locals in the indus- try into a national organization. During 1940 the National Council and the Federal locals executed 10 contracts with the Company, cover- ing employees in 10 plants. In December 1940, Distillery, Rectifying, and . Wine Workers International Union of America, the intervenor herein, succeeded the National Council, and the Federal locals then- affiliated themselves with the intervenor., In 1941 and 1942, up to August 2,1942, the A. F. of L. and the Company concluded closed-shop contracts covering all of the Company's plants except the two involved herein. In addition, on or about April 1942, the Company and the intervenor entered into a blanket contract covering all plants then in 2 The Trial Examiner stated that the C I. 0 submitted 83 membership cards from the Large plant , dated between August 26 and September 3, 1942, of which 81 bore apparently genuine original signatures Of these, 81 bore names of persons on the Company's pay roll for the week ending August 29, 1942, which pay roll contained 112 employees in the alleged appropriate unit. The Trial Examiner further stated that the C. I 0 submitted 151 mem- bership cards from the Bi oadford plant , 116 dated in August and September 1942, and 35 undated , of which all bore apparently genuine original signatures . All of the 151 signa- tures are names of persons on the Company's pay roll for the week ending August 29, 1942, ,%i hich pay roll contained 227 employees in the alleged appropriate unit. In support of its interest in this proceeding, the A. F. of L relies upon its contract of August 2 covering the two plants in question and on its other contracts covering employees in the other plants of the Company NATIONAL -DISTILLERY. PRODUCTS CORPORATION, -21 operation.3 Finally, the con tract : covering employees at the, Large and Broaclford plants eras' executed, bearing the date of August 2, 1942. The C: I. O. and the A. F. of L. agreed, and we find, that all produc- tion and maintenance employees excluding supervisors, foremen, fore- ladies, nurses, office employees,4 humidity and, safety engineers, chem- ists and laboratory assistants and all other employees having the power to hire' and discharge, constitute a voting group. The parties were in disagreement with respect to watchmen, the C. I. O. seeking their inclusion. The Company employs 9 or 10 watch- men and a chief watchman at each plant. These employees are armed, uniformed, and paid on a weekly basis. They have authority to recommend discharge but possess no disciplinary powers. They pro- tect the plants against theft and sabotage, police ingress and egress of the employees and visitors and generally preserve the peace. The contract excludes watchmen, and we shall exclude them from the voting group. In view of the position occupied by the Large and Broaclford plants in the' Company's bargaining history and the other circumstances of the case, - noted above and in Section III, we find that all production and maintenance employees, with the exclusions noted above, at each of the two plants in question may properly be considered as separate units or as part of the employer-wide unit desired by the A. F. of L. Under such circumstances, we apply the principle that the determining factor is the desires of the production and maintenance employees in each of: the two plants.r, We shall, therefore, make no final determina- tion of unit' at this time but shall direct that the question concerning 'representation which his arisen be resolved'by separate elections-by secret ballot among the employees in the categories indicated above, at each of the plants, respectively, to determine whether they desire to be represented by United Distillery Workers of Nortlr America (C. I. 0.) or by Distillery,-' Rectifying, and 'Wine Workers Interna- tional Union of America, A. F. of L., for the purposes of collective bargaining, or by neither. Upon the results of these elections will depend in.part the appropriate unit or units. If a majority of em- ployees in either group selects the C. I. 0., that group shall constitute a separate unit. If a-majority in either group selects-the A. F. of L., the A. F. of L. may then bargain for such employees as part of a unit including such other employees of the Company as it already represents pursuant to contract. 11 - 3 The Large and Bi oadford plants were not operating at that time. , 4 Also excluded as office employees, by agreement of the parties, are Eleanor McDonald and-George Shreve; who, although nominally shipping clerks at the Broadford plant, perform office work. - 6 See Matter of The Globe Machine and Stamping Company and Metal Polisheis Union, Local No 3, et al, 3 N L R . B. 294 and subsequent cases. '22 DECISIONS ,OE NATIONAL LABOR -RELATIONS" BOARD 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 Relations 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 National Distillery ,Products Corporation, Large and Broadford, Pennsylvania, 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 Sixth 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 following employees of theCompany who were employed during the pay-roll period immediately preceding, the date of this Direction of Elections, and including employees who did not, work during said pay-roll period because they were ill or on vaca- tion 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 production and maintenance employees of the Company. at the Large plant, excluding foremen,, chemists, dlaboratory-assistants, office employees, nurse, and all other employees having the power to hire and_discharge, to determine whether they desire-to be represented by the United Distillery Workers of North America (C. I. O.), or by Distillery,, Rectifying, and Wine Workers International Union of America, A. F. of L., for the purposes of collective bargaining, or by neither; and (2) All production and maintenance employees of the Company at the Broadford plant, excluding, foremen, foreladies, chief chemist and laboratory assistant, humidity-and safety engineers, office employees, nurses, and all other employees having the power to hire and discharge, to determine whether they desire to be represented by United Distillery Workers of North America (C. I. O:) or by Distillery, Rectifying, and Wine Workers. International Union of America, • A. F., of L., ,for ,the purposes of collective bargaining; or by neither. .- MR. Wm. M. LEISERSON took no part in the consideration of the above Decision and Direction of Elections.