Brewery Proprietors of Milwaukee

In the Matter of BREWERY PROPRIETORS OF MILWAUKEE, WISCONSIN; PABST BREWING COMPANY; JOS. SCHLITZ BREWING COMPANY; MILLER BREWING COMPANY; BLATZ BREWING COMPANY; A. GETTELMAN BREWING COMPANY; INDEPENDENT MILWAUKEE BREWERY; MA- TUSHKA CO., INC.; CAPITOL BREWING CO. OF MILWAUKEE, INC.; Fox HEAD WAUKESHA CORPORATION; AND KINGSBURY BREWERIES COM- PANY, DISTRIBUTORS and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL & SOFT DRINK WORKERS OF AMERICA, AND ITS LOCAL, BREWERY WORKERS UNION No. 9 Case No. 13-R-2880.-Decided June 7, 1945 Mr. Benjamin B. Salvaty, Jr., for the Board. Lines, Spooner & Quarles, by Messrs. Leo Mann and M. H. Herriott, of Milwaukee, Wis., for the Proprietors, the Association, and the Com- panies. Mr. Ray A. Bailey, of Milwaukee, Wis., for the I. A. M. Mr. Martin F.-O'Donoghue, of Washington, D. C., for the Union. ll[r Donald H. Frank, of counsel to the Board. DECISION AND - DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by 'International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, and its local, Brewery Workers Union No. 9, herein called the Union,' alleging that a question affecting commerce had arisen concerning the representation of employees of the members of Brewery Proprietors of Milwaukee, Wiscon- sin, herein called the Proprietors, namely, Pabst Brewing Company ; Jos. Schlitz Brewing Company; Miller Brewing Company; Blatz Brewing Com- pany ; A. Gettelman Brewing Company ; Independent Milwaukee Brewery ; Matushka Co., Inc.; Capitol Brewing Co. of Milwaukee, Inc. ; Fox Head Waukesha Corporation ; and Kingsbury'Breweries Company, Distributors, 1 The designation of the Union appears herein as amended at the hearing 62 N. L R. B, No. 25. 163 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all of Milwaukee, Wisconsin, herein called the Companies, and National Labor Relations Board provided for an appropriate hearing upon due notice before John R. Hill, Trial Examiner. Said hearing was held at Milwaukee, Wisconsin, on April 25, 1945. The Proprietors and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearings are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Brewery Proprietors of Milwaukee, Wisconsin, is an informal voluntary organization composed of seven brewery companies and three beer-distrib- uting companies, which comprise the entire brewing and beer-distributing industry in Milwaukee. We are here concerned solely with the Milwaukee operations of the member Companies.' The Companies, other than Matushka Co., Inc., are listed, and the volume-of their business is indicated, in the following chart : Name of Company Value of raw materials purchased in 1944 Percentage coming from outside Wisconsin Amount of sales Percentage going outside Wisconsin Jos Schlitz Brewing Co $10,000,000 90 $70,000,000 90 Pabst Biewing Co 5,000,000 88 37,000,000 85 Miller Brewing Co 1,800,000 35 15,000,000 62 Blatz Biewing Co 4,000,000 55 20,000,000 6.5 A Gettelm,ui Bee%ing Co 500,000 25 1,500,000 10 Kmgsbur y 13rewei ies Co' 400,000 25 3,000,000 50 Independent Milwaukee Biewery 300,000 30 1,600,000 35 Capitol Brewing Co of Milwaukee, Inc 50,000 25 525,000 90 Fox Head Waukesha Corp -1 400,000 1 2,750,000 74 2 Counsel for the Proprietors also appeared on behalf of the individual member Companies, and on behalf of the Milwaukee Brewers' Association, herein called the Association Electucal Woik,rs' Union No 494, I B E W , A F L ; United Brotherhood of Carpenters & Joiners of America, A F L , Sheet Metal Workers Association, Local No 24, A F L ; Steam Fitters Beneficial and Protective Association, R F I. , Coopers' Local No 30, A F. L , Painters Union Local 2781, A F L ; Hod Carriers, Building Construction, Highway Pavers, Sewer and Tunnel Workers Local No 113, A F L ; Plumbers and Gas Fitters Union No 75, A F L ; Auto Truck Drivers Joint Council No 50, A F. L ; International Brotherhood of Firemen & Oilers, International Union of Operating En- gineers, Local 311, and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, A F L , were served with Notice of Hearing but failed to appear at the hearing Inteinational Association of Machinists (AFL) was likewise served, and appeared at the hearing but did not move to intervene or otherwise participate 3 Each of the member Companies is incorporated in the State of Wisconsin except Pabst Brewing Company, which is a Delaware corporation 4 Kingsbury Breweries Company operates its brewery at Manitowoc Wisconsin, and its distribution agency, known as Kingsbury Breweries Company Distributors, here involved, at Milwaukee A substantial amount of the Company's sales were made through this branch distributor The designa- tion agency, here involved, at Milwaukee The Company's sales in 1944 through its Milwaukee agency 5 Fox Head Waukesha Corporation operates its brewery at Waukesha, Wisconsin, and its distribu- tion agency, here involved, at Milwaukee The Company's sales in 1944 through its Milwaukee agency exceeded $440,000 L'REWERY PROPRIETORS OF MILWAU KEE, WISCONSIN 165 Matushka Co., Inc., is engaged solely in the distribution of beer. During 1944 the Company purchased more than $100,000 worth of beer, of which $1,200 worth was shipped to it from points outside the State of Wisconsin. During the same year, its sales were, confined entirely to the. State of Wisconsin. Each of the Companies admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, Brewery Workers Union No. 9, is a labor organiza- tion admitting to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION On January 29, 1945. Auto Truck Drivers Joint Council No. 50, A. F. L., herein called the Council, notified each of the 10 Companies involved herein that it represented employees covered by the contract then existing between the Union and the Proprietors and requested that the Companies cease bargaining with the Union and not renew the contract . On January 30, when the Union presented a contract to the Proprietors , the latter refused to negotiate with the Union until the Union had been certified by the Board in an appropriate unit. The Union thereafter filed its petition in the instant proceeding As noted above , the Council did not appear at the hearing. The Union relies on its contract to establish its interest herein. The Proprietors has recognized the Union as the collective bargaining representative of a production and maintenance unit of its members' employees , at least since 1934, and has formulated and signed with the Union written contracts con- taining a union shop clause . Upon these facts we find that the Union has demonstrated a sufficient interest among employees in the unit hereinatfer found to be appropriate to raise a question concerning representation " We find that a question affecting commerce has arisen concerning the representation of employees of the Companies within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union seeks a unit of production, maintenance, and delivery employ- ees, including malt house employees, engineers, firemen, oilers,'coal passers, repairmen, truck drivers and helpers, and leadmen and working foremen, but excluding executives, office and clerical employees, machinists, machin- ist helpers, auto mechanics, auto mechanic helpers, carpenters, millwrights, hod carriers, building and common laborers, plumbers, steamfitters, coop- ers, painters, blacksmiths, chief engineers, and foremen. The crafts which 6 Matter of Inter national Shoc Company (Rubber Plant), 55 N. L R. L' 2G7. 166 DECISIONS OF 1\T,\TIONAL LABOR RELATIONS BOARD would thus be excluded are those which are presently covered by contracts between their craft union locals and the Proprietors. The unit thus sought would- be city-wide, covering the employees in all breweries and beer dis- tributors in Milwaukee. The Proprietors and the member Companies do not dispute the classifications of employees which the Union desires to include and. exclude. Moreover, the Proprietors and the member Com- panies agree that the multiple-employer, city-wide unit sought is appro- priate. The history of collective bargaining In 1934, after the repeal of the Eighteenth Amendment, the breweries and beer distributors in Milwaukee banded together in an informal organi- zation known as the Proprietors.' This organization negotiated in that year the first of a series of collective bargaining contracts with the Union e Each of these contracts was entitled an agreement between the "undersigned Brewery Proprietors," and the Union.' The Proprietor companies were jointly designated in the preamble and substantive clauses of each contract as "the employer," and each of the participating companies signed the con- tract as one of the signatories "For the Proprietors," or "For the Em- ployer." While the record is silent with respect to the manner in which the several participating companies resolved any differences among themselves as to the terms of the contracts, and as to the manner in which their nego- tiators derived their authority, expressed or implied, all member companies in the Proprietors invariably signed the contracts. The contracts provided for wages, hours, and working conditions of all the employees of the mem- bers of the Proprietors, in the occupational categories comprising the unit herein alleged as appropriate. The Union and the Proprietors agree that this multi-employer method of bargaining has resulted in amicable labor rela- tions throughout the industry in the city. There has been no labor dispute or work stoppage since the 1934 contract negotiations . Grievances, it was testified, were handled on a multiple-employer basis,' except in those cases in which the dispute involved only the inner operation of one company or T During the history of the Proprietors , at one time or another it had among its members the Cream City Brewing Company, Milwaukee Beer Company , and Old Lager Brewing Company , which are no longer in business, and the Premier-Pabst Corporation which is today the Pabst Brewing Company The distributor formerly designated as North Side Kingsbury Distributors and Gerlack -Kingsbury Branch is now designated as Kingsbuiy Breweries Company , Distributors s Subsequent contracts were executed in 1937 , 1939, and 1942 The 1942 contract , which was an - amendment and extension of the prior contract , was for a 3 -year term ending February 28, 1945 e The 1937 contract was made in the name of the International Union. The subsequent contracts were made in the names of the Local Union and the International Union. The record does not reveal whether the 1934 contract was made in the name of the Local, the International , or both. r° I e , the recoi d indicates that for the most part grievances were handled by the committee which negotiated the contracts The only possible exception indicated by the record was as to employees of the distributor Companies . An employer witness explained at the hearing that this exception existed because of the circumstances that the distributors employed relatively few employees , only drivers and helpers, as compared to the larger number of employees in many occupational classifications employed by the breweries. L'ltli\\'I R PROPRIETORS OF M I LWAUI:EE, WISCONSIN 167 the interpretation of the contract by a -single company. In 1935, eight of the Companies involved herein, together with companies which have since ceased operations, incorporated under the name, Milwaukee Brewers' Association.' The Labor Committee which has conducted the negotiations for the Proprietors was thereafter appointed by the president of this Trade Association. The subsequent contracts of 1937 and 1939, and the 1942 extension agreement to the 1939 contract, followed the outlines of the 1934 contract, and continued to show the contracts to be between the Union and the Proprietors. The two members of the Proprietors who are not members of the Association allowed each labor agreement after 1934 to be nego- tiated on their behalf by the Labor Committee, and these Companies in each instance signed the contracts without objection. These Companies stated on the record that they believe the city-wide unit, including themselves, to be appropriate, and that it is their desire to continue the practice of designating the Association's Labor Committee their agent for the purpose of formulat- ing their collective bargaining contracts. The record reveals that the Union had, until 1922, four separate local organizations. It appears that from 1909 until 1922 these four unions en- gaged in collective bargaining and signed contracts in the city of Milwaukee on a multiple-employer basis, and that until 1922 the Companies involved called themselves, in those contracts, the "Association." During that period, also, labor relations were on the whole amicable, there being a 1-day work stoppage in 1914, and a 16-month strike.beginning in 1922, which resulted from the passage of the Eighteenth Amendment and the subsequent work shortage at these plants. Due to the Eighteenth Amendment, there is no bargaining history from 1922 to 1934. The evidence revealed that it is cus- tomary in the brewing industry for bargaining to be conducted on a multiple-employer basis, and that such units include beer distributors as well as breweries in New York City, Buffalo, Rochester, Syracuse, Pitts- burgh, St. Louis, Philadelphia, San Francisco, and Los Angeles. In a dis- pute before the National War Labor Board, involving breweries and beer distributors in Philadelphia, the case was processed as a single litigation, despite the presence of more than one employer. During the entire period of collective bargaining history, the Union and its four predecessors were the only representatives of a production and maintenance unit in these Companies, and they have represented a produc- tion and maintenance unit in all of the Companies herein involved 11 Pabst Brewing Company , Jos Schlitz Brewing Company , Miller Brewing Company, Blatz Brew- ing Company, A. Gettelman Brewing Company, Independent Milwaukee Brewery, and Fox Head Waukesha Corporation are the original corpoiations which comprise the Association today. Capitol Brewery Co of Milwaukee , Inc , withdrew from the Association in February 1945, due to the fact that it no longer sells beer in the Milwaukee area This Company, nevertheless, remains a member of the Proprietors and desires to be included in the multiple -employer unit sought herein. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion On the basis of the facts above and upon the entire record in the case, we are of the opinion that the course of collective bargaining, which over a period of many years has been conducted on a multiple-employer, city-wide basis, must govern the scope of the appropriate unit in the instant case. In reaching this conclusion, we have considered the fact that all of the parties involved herein desire to continue their relationship upon that basis, that there exists a marked similarity in labor problems among all of the Com- panies involved; that the employers in question have for many years estab- lished a practice of joint action in regard to labor relations and have handled grievances in the majority of instances upon that basis, and that the custom in the brewery industry and the history of bargaining in Milwaukee have convinced the parties of the value to be derived from bargaining upon that basis.' Accordingly, we find that the multiple-employer unit sought by the Union is appropriate for the purposes of collective bargaining. In accord- ance with the agreement of the parties, we find that all of the production, maintenance, and,delivery employees of the members of the Brewery Pro- prietors of Milwaukee, Wisconsin, including malt house employees, engi- neers, firemen, oilers, coal passers, repairmen, truck drivers and helpers, and leadmen and working foremen, but excluding executives, office and clerical employees, machinists, machinist- helpers, auto mechanics, auto mechanic helpers, carpenters, millwrights, hod carriers, building and colii- mon laborers, sheet metal workers, electrical workers, plumbers, steam- fitters, coopers, painters, blacksmiths, chief engineers, foremen, and any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effec- tively recommend such action, 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 shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot. Testimony at the hearing revealed that among the employees of the Companies there are certain "temporary" and "part-time casual" workers. The parties would include the temporary employees in and exclude the part-time casual employees from the group of employees eligible to vote. The temporary employees work full time, at a different rate of pay than the regular employees but subject to the same working conditions. Before the war these employees worked only during the peak season, but since the manpower shortage, these em- 12 See Matter of Dolese & Shepa+d Company, 56 N L. R B 532, Matte, of George F Carleton & Company, Inc., 54 N L R. B 222; Matter of Rayonier Incorporated, Grays Harbor Division, 52 N L. R. B 1269; Matter of New Bedford Cotton Manufacturers ' Association, 47 N L. R. B 1345 We distinguish Matter of Advance Tanning Company, et at, 60 N L R. B 923, wherein the facts differed from those here present. In that case, the employers made individual, albeit uniforni , contracts. BREWERY PROPRIETORS OF MILWAUKEE, WISCONSIN 169 ployees are given a 90-day trial period, and if found satisfactory, are made regular employees. The Union issues these employees work permits for the trial period, and processes their grievances during that time. The commu- nity of interest of these employees with the other production and main- tenance employees in the conditions of employment is clear, and we shall accord these so-called temporary employees a voice in the determination of their representatives. The part-time casual employees, many of whom are regularly employed in other industries, work between 15 and 30 hours per week for the Companies here involved. Uncontradicted testimony revealed that there is a 300 percent turn-over among these employees in a year. The Union issues work permits to these employees also, and likewise processes their grievances. We are of the opinion, however, that due to the high rate of turn-over these employees do not have a sufficient interest in the condi- tions of employment to entitle them to vote and we shall not include them in the group of eligible voters. We shall direct that the employees of the Companies eligible to vote in the election shall be, with the exception of the part-time casual employees, those employees in the appropriate unit 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.'S 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Brewery Proprietors of Mil- waukee, Wisconsin, as representative of Pabst Brewing Company, Jos. Schlitz Brewing Company, Miller Brewing Company, Blatz Brewing Com- pany, A. Gettelman Brewing Company, Independent Milwaukee Brewery, Matushka Co., Inc., Capitol Brewing Co. of Milwaukee, Inc., Fox Head Waukesha Corporation, and Kingsbury Breweries Co., Distributors, all of Milwaukee, Wisconsin, 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period inmie- diately preceding the date of this Direction, including employees who did 13 The Union requested at the hearing that it be designated on the ballot as "Brewery Workers' Local Union No 9." This request is hereby granted 1 70 DECISIONS Or NATIONAL LABOR RELATIONS BOARD not work during the 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 any 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 or not they desire to be represented by Brewery Workers' Local Union No. 9, for the purposes of collective bargaining.