Joseph E. Seagram & Sons, Inc.

In the Matter of JOSEPH E. SEAGRAM & SONS, INC., EMPLOYER and DEAR- BORN GUARDS UNION, LOCAL 17 OF THE INTERNATIONAL GUARDS UNION OF AMERICA, PETITIONER Case No. 9-RC p99.Decided April 26,1949 DECISION AND ORDER Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1.. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of guards employed at the Employer's Lawrenceburg, Indiana, plant. The Employer takes the position that the proposed unit is inappropriate and that the only appropriate unit for guards would be one consisting of guards employed at all the Employer's plants. The Employer, an Indiana corporation, is engaged in the business of manufacturing distilled spirits for sale as beverages. Either directly or through subsidiary corporations, the Employer controls production at 12 plants located in Indiana, Kentucky, Maryland, Ohio, and Pennsylvania.) Manufacturing at these plants by the Employer or one of its subsidiaries fluctuates with inventory requirements. At Louisville, Kentucky, the Employer maintains its "Central Pro- duction Offices," under the direction of a vice president in charge of 'The plants are located as follows • Lawrenceburg, Indiana ; Louisville, Kentucky ; Relay, Maryland ; Bedford, Ohio; Gwynnbrook, Maryland ; Bristol, Pennsylvania ; and six smaller plants at Fairfield , Midway, St. Francis, Athertonville, Cynthiana, and Lawrence- burg, all in Kentucky. 83 N. L. R. B., No. 18. 167 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production for its entire organization. The Central Production Offices.include the purchasing department and such other departments as industrial relations, industrial education, labor relations, and safety departments. These departments determine organization-wide pol- icies. The execution of these policies is to some extent necessarily effected at the plant level. An applicant for a position as guard files, at one of the various plants controlled by the Employer, a written application for work. He may be hired for work at the plant of his application or at any other plant. Such employment is regarded as probationary until the application is forwarded to the Central Production Offices in Louis- ville for checking and review, and for approval by the bonding com- pany.2 If the application is not rejected in Louisville, the employ- ment loses its probationary status, and the new worker becomes a full- fledged employee. During the first year of his employment, the new employee receives wage increases at stated intervals, depending upon an efficiency rating given by the local police chief in charge of guards. These periodic increments can be withheld beyond the stated intervals at which the employee should begin to receive them only upon the consent of the director of industrial relations at Louisville. All proposed salary increases beyond those scheduled for the first year must be centrally approved in Louisville.' Authority to discharge guards is exercised on the plant level in the event of certain offenses, such as drunkenness or theft, but other offenses 'necessitate a conference between officials at the Central Production Offices and officials at the particular plant involved to determine an appropriate course of action. The same salary schedule applies to all guards, with the exception of those employees at the six small Kentucky plants, where the guards are paid on the basis of 80 percent of the wage rate paid at the other plants. Promotion of guards to supervisory positions above the rank of sergeant is determined at the Central Production Offices. All promotions may involve transfers of guards from one plant to another. There is no history of collective bargaining involving any of the Employer's plant guards. There does exist, however, an extensive history of collective bargaining covering most of the Employer's other employees. Over a period of 12 years, the Employer has executed collective bargaining contracts with various labor organizations rep- resenting 11 classifications of employees. These contracts have not ,established units of employees limited to a single plant; instead, the 2 A single bonding company covers all guards employed by the Employer throughout its entire organization. JOSEPH E. SEAGRAM & SONS, INC. 169 contracts have grouped the many classifications of employees into multi-plant units covering all of the Employer's plants. These con- tracts have, without exception, been negotiated for the Employer by the director of labor relations at its Central Production Offices at Louisville; local plant officials have had nothing to do with negotia- tions. The record discloses that this well-entrenched pattern of multi- plant bargaining has stabilized labor relations throughout the Em- ployer's operations. The decisions of the Board establish the principle that the evolving pattern of organization for a special classification of employees, such, for example, as the guards in this case, should generally follow the pattern of bargaining of other employees of the particular employer involved 3 The application of this principle as a means of furthering industrial harmony is especially important where, as here, the estab- lished pattern of bargaining has produced stability in employer-em- ployee relationships. Our dissenting colleagues appear to argue that because the 1947 amendments of the Act impose restrictions upon the Board in certifying representatives of guards, we should in effect accord guards special treatment by refusing to apply long-established criteria to the determination of the appropriate unit in guard cases. However, the Act states only that the Board may not include guards in a unit with other employees, and that the Board may not certify certain types of labor organizations as the collective bargaining repre- sentatives of guards.' These two specific changes in no way alter the status of guards as "employees" under the Act,5 nor do they require that units of guards be found appropriate upon other than the usual principles applicable to unit determinations involving other employees. We find no warrant in the statute, therefore, for refusing to measure the proposed unit of guards by similar criterion used by the Board 3 Matter of Wheeling Steel Corporation , 69 N. L. R. B. 208, 210 ; Matter of Western Electric Company, Incorporated, 68 N. L. R B . 493, 497 ; Matter of Westinghouse Electric Corporation, 66 N. L. R. B. 1297, 1303; Matter of Central New York Power Corporation, 64 N. L. R B. 461, 465 ; Matter of Chrysler Corporation, Chrysler Motor Division, 58 N. L R. B 239 , 241-242 ; Matter of Murray Corporation of America, 45 N L. R. B. 854, 856; and Matter of Lockheed Aircraft Corporation , 53 N L R. B. 427, 430 . Cf. Matter of Capital Motor Lines, 68 N. L. R. B . 139, 141 ; Matter of Chrysler Corporation, 58 N L. R. B. 700, 702 ; Matter of Federal Telephone and Radio Corporation, 58 N. L. R. B. 473, 475; and Matter of Paramount Pictures, et al., 77 N. L. R. B 438. 4 The applicable portion of Section 9 (b) is as follows : "Provided, that the Board shall not . . . (3 ) decide that any unit is appropriate for such purposes if it includes , together with other employees , any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer 's premises ; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership , or is affiliated directly or indirectly with an organization which admits to membership , employees other than guards." 5 This much the legislative history makes clear . For the most comprehensive state- ment on the intent of the amendments relative to guards, see 93 Cong . Rec. 6601 (June 5, 1947). 170 DECISIONS OF NATIONAL LABOR —RELATIONS BOARD in the past in determining the appropriateness of proposed units for special classifications of employees, namely the over-all bargaining pattern established for other employees of the Employer herein. Accordingly, in view of the fact that the past collective bargaining of the Employer's other employees has been conducted successfully on a multi-plant basis; and as the Employer's plant operations are closely integrated by virtue of the comprehensive control exercised through its Central Production Offices at Louisville, Kentucky, and as the guards at all plants work under virtually the same conditions of employment with those terms and conditions of employment, trans- fers, and promotions determined by the Central Production Offices, we believe that the proposed unit of guards at the Lawrenceburg plant is too limited in scope to be appropriate for purposes of collective bargaining.' We shall therefore dismiss the petition .8 ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. MEMBERS HOUSTON and GRAY, dissenting : In holding the requested unit of guards at the Employer's Law- renceburg, Indiana, plant to be inappropriate, our colleagues have been motivated by the fact that the unit does not follow the bargain- ing pattern established for other employees in multi-plant units cov- ering the Employer's 12 plants scattered from Maryland to Indiana. The Employer has 12 plants located in 5 States from Maryland to Kentucky. At each plant are employed a group of guards rang- ing from 4 to 29, the largest number of 29 being employed at the 8 See footnote 3, supra. Contrary to the suggestion in the dissenting opinion, Members Reynolds and Murdock do not believe that the Board's rulings in Matter of Chrysler Corpo- ration, 69 N. L. R. B . 1424 and in Matter of The Wichita Eagle, et at , 69 N L. R B. 1270, are inconsistent with our determination herein. In neither the Chrysler nor the Wichita Eagle case was there evidence that a controlling over-all pattern of collective bargaining had.been established among other employee classifications of the respective employers. Instead , an examination of the cases involving the other employee classifications mentioned in the Chrysler and Wichita Eagle cases discloses the existence of a multiplicity of bargain- ing patterns among those classifications. (Matter of Chrysler Corporation, 17 N. L. R. B_ 737, and 42 N. L. R. B . 1145-hourly paid production and maintenance employees . Matter of Chrysler Corporation, 44 N L . R. B. 881 , 46 N. L. R. B. 411 , 48 N. L. R. B. 512, and 58 N. L. R. B . 700-plant-protection employees . Matter of The Wichita Eagle, at at, 69 N. L. R. B., 1270, footnote 4, and 67 N . L. R. B. 1427-mailing room employees , printers, and stereotypers ) Chairman Herzog believes Matter of Chrysler Corporation, 69 N. L. R. B 1424 , distin- guishable from this case on the ground that the history of organization therein was a single-plant history which was only combined in one unit by agreement of the parties after bargaining had been carried on on the basis of separate plants. In the present case the evidence shows that the bargaining has been on a multi-plant basis at all times. i See Matter of Chrysler Corporation, 79 N. L. R. B. 462. 8 Cf. Matter of Lockheed Aircraft Corporation, supra. JOSEPH E. SEAGRAM & SONS, INC. 171 Lawrenceburg, Indiana, plant for which this petition has been filed. There is no interchange between the guards among the various plants. Wage increases during the first year depend upon an efficiency rat- ing given by the local chief of police in charge of the guards at that plant. All grievances are handled on a local plant level, as is the authority to discharge guards for certain specified offenses. There is no bargaining history covering guards. Section 9 (b) requires the Board to "decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." Section 9 (b) (3) requires the exclu- sion of guards from units containing employees who are not guards and prohibits the certification of units of guards for unions which admit to membership or are affiliated with unions which admit to membership employees other than guards. We do not believe that the facts and circumstances in this case warrant giving such controlling weight to the bargaining pattern 9 established for rank-and-file employees as to deny to the guards at the Lawrenceburg, Indiana, plant the opportunity to engage in col- lective bargaining should they win an election. In view of the de- liberate Congressional mandate to isolate guards from rank-and-file employees, it seems highly anomalous to us to hold, as does the ma- jority, that the collective bargaining opportunities of guards should be determined by the pattern established by the very employees from whom they must be insulated. Nor do the cases cited by the majority require such a result. In some of those cases the problem involved was the composition of the unit in a single plant as distinguished from the scope of the unit over many plants; 10 in others there were present additional persuasive factors not present in this case, such as close geographical location, substantial transfer of employees among the several plants, central hiring department, the final handling of grievances at one plant, or an established bargaining history on a broader basis covering the same classifications sought by the peti- tioner."' In every case cited by the majority the plants involved were 9 As new plants were acquired by the Employer , they were added by agreement of the contracting parties to the multi -plant unit then in existence until it covered all 12 plants owned by the Employer at the time of the hearing. 10 Matter of Wheeling Steel Corporation, 69 N. L. R. B. 208 ; Matter of Western Electric Company, Incorporated, 68 N. L. R. B. 493; Matter of Westinghouse Electric Corporation, 66 N. L. R. B. 1297. 11 Matter of Central New York Power Corporation , 64 N. L . R. B. 461 , 464-465 ( Central division-wide unit of technical , clerical, and office employees was granted in view of the "integration in the operations of the Central Division" and a bargaining history on a divi- sion-wide basis, not only of units of production and maintenance employees , but also of units in other divisions covering the same classifications sought to be represented by the 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located in the same city or within a relatively close area in the same State. On the other hand, the Board has refused to follow the more recent bargaining pattern of rank-and-file employees on a multi- plant basis in another Chrysler case 12 where the petitioner itself sought a single multi-plant unit of supervisors. In granting four separate plant units the Board was of the opinion that the multi- plant bargaining history was outweighed by other factors, such as that "there is no interchange of supervisory employees among the plants. Although the plants are subject to over-all control, the plants are some distance apart and each plant maintains a considerable degree of autonomy under a plant manager." The great geograph- ical spread between the plants located in five widely separated States would seem to make the case before us much more compelling. In the Wichita Eagle 13 case, the Board again refused to follow the broader bargaining history established on a multiple-employer basis for other groups of employees. In finding appropriate a unit of editorial employees confined to a single employer, the Board stated that the multiple-employer bargaining history did not cover "the specific employees for whom representation was sought." This is the exact situation in the instant case. -, Despite the concern of Congress in enacting Section 9 (b) (3), it may not be gainsaid that it is now more difficult for collective bargain- ing to be achieved by guards. In view of the declared policy in the statute of "encouraging the practice and procedure of collective bar- gaining," the Board should not unnecessarily exercise its discretion so as-to make this achievement still more difficult. It would neither be petitioner. The record also indicated that all the employees in the Central Division were under the supervision and direction of the division's chief executive officer and that there was a substantial transfer of employees among all the districts in the division) ; Matter of Chrysler Corporation, Chrysler Motor Division, 58 N. L. R B. 239 (multi-plant unit in Detroit, Michigan ) ; Matter of Chrysler Corporation, 58 N. L . R. B. 700 (plants in Detroit, Michigan, area and small number of fire marshals at each plant , many having no more than one, two, or three ) ; Matter of The Murray Corporation of America, 45 N. L. R. B. 854 (two plants only 14 miles apart, the main plant at Detroit and the other at Ecorse, Michigan ; grievances which cannot be settled by the manager of the Ecorse plant are referred to the officials at the main plant ; transfers of employees between the plants ; in normal times most salaried employees for the Ecorse plant are hired at the main plant) ; Matter of Lockheed Aircraft Corporation, 53 N. L. R. B. 427 ( plants in vicinity of Burbank, California ; main plants only 1 mile apart ; employees freely loaned and permanently trans- ferred by one company to the other ; all employees hired through central hiring depart- ment ) ; Matter of Capital Motor Lines, 68 N. L. R. B . 139 (interchange between the two garages involved , one single general shop supervisor , both unions were in a position to rep- resent all employees involved ) ; Matter of Federal Telephone and Radio Corporation, 58 N. L. R. B. 472 (central hiring and personnel department , close functional integration, sub- stantial interchange of personnel ) ; Matter of Paramount Pictures, Inc., et al., 77 N. L. R. B. 438 ( salesmen were recruited from clerical employees whose bargaining pattern was followed, small number of salesmen in an office , transfers granted upon request, final ap- proval of discharge in all cases rested in home office). is Matter of Chrysler Corporation, 69 N. L. R B 1424, 1433. is Matter of Marcellus M., Murdock, Sole Surviving Trustee of The Victoria Murdock -Estate, Doing Business as The Wichita Eagle, 69 N. L. R. B. 1270, 1271-1272. JOSEPH E. SEAGRAM & SONS, INC. 173 unreasonable nor a true departure from precedent for our colleagues to join us in holding that the other considerations and factors which we have pointed out (e. g., the unusually wide geographical separation of the plants over 5 States, the lack of interchange between guards among the various plants, and the handling on a plant level of griev- ances, wage increases during the first year, and discharge for certain offenses) outweigh the failure of the requested unit to cover the guards at all 12 plants from Maryland to Indiana so as to be coextensive with units of rank-and-file employees. Under all the circumstances, a single-plant unit of guards at Lawrenceburg, Indiana, is certainly appropriate in this case "in order to assure to employees [guards] the fullest freedom in exercising the rights guaranteed by this Act." We would direct an election in the unit requested by the Petitioner.