Daniel Burkhartsmeier Cooperage Co.

In the Matter of DANIEL BURKHARTSMEIER COOPERAGE Co: and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, CA. O. -Case No. R-5169.-Decided May 4;1943 Mr. C. J. Burkhartsmeier, of Chicago, Ill., for the Company. Mr. Ishmael P. Flory. and Mr. George Montrose, of Chicago, Ill., for the-C. I. O. Mr. R. W. ,Wilkie, of Chicago, Ill., for the A. F. of L.. Mrs. Augusta Spaulding, of counsel to the Board. - DECISION AND DIRECTION OF ELECTION' STATEMENT OF THE CASE Upon. petition duly filed by International Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organiza- tions, herein called the C. I. 0.,1 alleging that a question affecting commerce had arisen concerning the representation of employees of Daniel Burkhartsmeier Cooperage Company, Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before David Karasick, Trial Examiner. Said hearing was held. at Chicago, Illinois, on April 15,' 1943. The Company, the C. I. 0., and Coopers' International Union, Local No. 40, affiliated with the American Federation of Labor, herein called the A. F. of L.,'appeared, participated, and were afforded full opportunity to be heard; to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues. 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 : FINDING OF FACT 1. THE BUSINESS OF THE COMPANY Daniel Burkhartsmeier Cooperage Company is engaged in the manufacture, sale, and distribution of barrels, kegs, and other cooper- age products at Chicago, Illinois. During the year 1942 the Com- 1 The petition and other formal papers were amended at the hearing to show the correct name of the petitioning union. 49 N. L. R. B., No. 56. 428 N DANIEL BURKHARTSMEIER COOPERAGE CO. 429 =pany purchased for its plant raw lnhterials valued at approximately $600,000, of which 80 percent was, brought to the 'plant from places .outside Illinois.:- During the same period, the sales of the Company's .products amounted to -approximately. $900,000, of which 40 percent 'represented products shipped from the plant, to places outside Illinois. II. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill & Smelter Workers is a -labor organization affiliated with' the Congress of Industrial Organizations, admitting to membership employees of the Company. Coopers' International Union, Local No. 40, is a\ labor organization - -affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 26, 1942, the Company and the A. F. of L. entered into a- contract coyering production employees at the Company's plant, 'terminable by 30 days' written notice on July 26,1942, or in the absence of. such notice,, on July, 26, •1943. This contract' was duly terminated on July 26,1942, and on July 27,1942, the Company and the A. F. of L. entered into a second contract covering the same employees, terminable by 30 days' written notice on January 27, 1943, or, in the, absence of such notice, on July :27, 1943. Both contracts provided for a closed shop and a,check-off of union dues. - - In October 1942, the A. F. of L. requested a wage increase, which the Company.refused to pay. On October 26, 1942, employees at the plant struck.' Two weeks later, upon the advice of a conciliator of the Department of Labor, the men returned to work. The Secretary of Labor certified the wage issue to the War Labor Board: The War Labor Board predicated its final decision with respect to the wage increase upon the results of a technical survey of the Company's opera- tions. On December 26, 1942, the A. F. of L. notified the Company that it was giving 30 days' notice to terminate the contract on January -27,'1943, and that it wished to enter into bargaining negotiations for a new -contract. On January 26, 1943, the A.; F. of L. entered into a written agreement with the Company extending the operation of the existing contract to February 27, ,1943. During. February, upon the result of the technical survey made, the War Labor Board denied the wage increase. Thereupon the A. F. of L. filed with the War Labor Board a'supplemental statement, setting forth additional in- formation and requesting a reconsideration of the adverse decision. On February 20, 1943, members of the A. F.' of L. called -a meeting and voted to affiliate with the C. I. O. On the same day, the C. I. O. 430 DECISIONS OF NATIONAL ,-LABOR RELATIONS BOARD notified the Company of its claim to represent these employees and on February 24, 1943, filed the petition herein. The A. F. of L. alleges that the written agreement of January 26, 1943, extending the duration of the contract from January 27 to a fixed day, February 27, 1943, was invalid to terminate the contract on the later day, on the ground that this agreement was made without the consent of an international representative of the A. F. of L. and, further, that there was also an oral arrangement between the A. F. of L. and the Company, made in January 1943, to operate under the terms of the contract until the War Labor Board should issue its final decision on the wage issue and tiniely, negotiations should be' concluded for a new contract. On the latter basis, the A. F. of L. contends that the contract of July 27, 1942, is still in existence and constitutes a bar to this proceeding. We find no merit in this contention. On December 26, 1942, the A. F. of L., by written notice, elected to terminate the contract on January 27, 1943. Since the C. I. O. has asserted its claim to represent the Company's employees before any new written contract between the Company and the A. F. of L. has been consummated, we find that the arrangements between the Company and the A. F. of L. for the indefinite protraction of their contract do not operate as a bar to a present determination of representatives pursuant to the petition filed herein.' A statement prepared by the Regional Director and introduced into evidence at the hearing indicates that the C. I. O. represents a sub- stantial number of employees in the unit herein found 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 National Labor Relations Act. IV. THE APPROPRIATE UNIT In accordance with` the agreement of the parties, we find that all employees of the Company, excluding superintendents, foremen, as- sistant foremen, clerical employees, truck drivers and helpers, garage men, power plant employees, maintenance employees, watchmen, and 7 Cf Matter of Escor, Inc. and District No. 8, International Association of Machinists, A F of L, 46 N L R B, 1035, and Matter of Joseph P. Cattle & Brothers, Incorporated and International Union of Mane, Mill & Smelter Workers , C I O , 47 N L R. B., 81. 3 The 'C I 0.' submitted 80 applications for membership , of which 72 bear apparently genuine signatm es . of employees of the Company on the pay roll of March 19, 1943 Of these cards 68 bear dates in February 1943, 1 in March 1943 , and 3 are undated There are approximately 96 employees of the Company in the unit herein found appropriate The A. F. of L submitted no evidence of its present membership among the Company's employees The A F. of L has had a closed-shop contract with the Company since Janu4 ary 26,11942,' although the provision for membership in the A F of L , has not been rigidly enforced as a, condition of employment. 1 DANIEL BURKHARTSMEIER COOPERAGE CO. 431 _ janitors,' constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find 'that, the question concerning representation which has arisen can best be resolved by an election by secret ballot. The A. F. of L. has not submitted any evidence of its present representation. among the Company's employees. Since it has been their bargaining agent for the past year, we shall provide that the A. F. of L. participate in the election. Those eligible to vote in the election shall be all employees of the Company in the unit found appropriate in Section IV, above, 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 Direction. 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to, ascertain representa- tives for the purposes of collective bargaining with Daniel Burkharts- meier Cooperage Company, Chicago, Illinois, an election by secret ballot shall be conducted as earlyras 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among all employees of the Company within the unit found appropri- ate 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 em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding employees who have since quit or been discharged for cause, to, determine whether they desire to be represented by International' Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, or by Coopers' International, Union, Local No. 40,, affiliated with the American Federation of L'abor,.for the purposes of collective bargain- ing, or by neither. 4 All employees included in this unit have been covered under the contracts between the A, F. of L and the Company described in Section III. above.