Medley Distilling Co.

40 In the Matter of JOHN A., WATHEN, THOMAS AND BENJAMIN MEDLEY, D/B/A MEDLEY DISTILLING COMPANY and INTERNATIONAL BROTHER- HOOD OF FIREMEN & OILERS, A. F. L'. In the Matter of JOHN A., WATHEN , THOMAS AND BENJAMIN MEDLEY, D/B/A MEDLEY DISTILLING COMPANY and DISTILLERY, RECTIFYING & WINE WORKERS INTERNATIONAL U NION OF AMERICA , A. F. L. Cases Nos. 11-R-770 and 11-R-783, respectively.-Decided June 9, 1945 Mr. Clifford L. Hardy, for the Board. Cary, Miller & Kirk, by Mr. Wilbur K. Miller, of Owensboro, Ky., for the Company. Messrs. William E. Fredenberger and L. Shirley McGary, of Louisville, Ky., for the Firemen. Mr. Charles R. Owen, of Louisville, Ky., for the Distillery Workers. Mr. Bruce C. Heath, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petitions duly filed by International Brotherhood of Firemen & Oilers, A. F. L, herein called the Firemen, and by Distillery, Rectifying & Wine Workers International Union of America, A. F. L., herein called the Distillery Workers, alleging that a question affecting commerce had arisen concerning the representation of employees of John A., Wathen, Thomas and Bejamin Medley, d/b/a Medley Distilling Company, herein called the Company, the National Labor Relations Board provided for an appro- priate consolidated hearing upon due notice before William O. Murdock, Trial Examiner. Said hearing was held at Owensboro, Kentucky, on April 20, 1945. The Company, the Firemen, and the Distillery Workers appeared and participated. All parties were afforded full opportunity to -be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner's rulings made at the hearing are 62 N. L. R. B., No. 41. 261 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free from prejudicial error and are hereby affirmed All parties were afforded an opportunity to file briefs with the Board At the close of the hearing the Company moved that both petitions be dismissed because neither unit sought was appropriate Igor reasons set forth in Section TV infra, said motion is hereby denied. -Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY John A. Medley. Wathen Medley. Thomas Medley, and Benjamin Med- ley, compose a partnership doing business under the firm name of Medley Distilling Company, at Owensboro. Kentucky. The Company normally manufactures, stores, and ages whiskey, but at present is engaged in the manufacture of alcohol for the United States Government. The principal raw materials used during the year 1944. valued at in excess of $50,000, were corn, wheat, and coal, all of which were produced and purchased locally. Sales of distilled products during the same period were in excess of $50,000, all of which were sold to the United States Government. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen & Oilers, affiliated with the American Federation of Labor, is a labor organization admitting to mem- bership employees of the Company. Distillery, Rectifying & Wine Workers International Union of America. affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to either the Firemen or the Distillery Workers as exclusive bargaining representative of its employees until either or both of the Unions are certified by the Board in an appropriate unit. A statement of a Board Examiner, introduced into evidence at' the hear- ing, indicates that both the Firemen and the Distillery Workers represent a substantial number of employees in the alleged appropriate units.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 'The Field Examinee iepoited that the Freemen subnutted five udhoivatIou cards dated \1 ugh 1945; there are eight employees in the alleged lppiopt late unit The Distillery Workers submitted 36 authorization cards dated EJn uai y and Mai ch 1945, and 1 undated. There are 58 employees in the alleged appropuate unit MEl)LEY DISTILLING COMPANY IV. THE APPROPRIATE UNITS 263 The Firemen seeks a unit composed of all employees in the Company's powerhouse, including firemen, ash haulers, maintenance employees, and handymen, but excluding office and clerical employees, the chief engineer, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of emp- loyees, or effectively recommend such action. The Distillery Workers is seeking a unit of all production employees, including yard laborers and watchmen, but excluding firemen, ash haulers, maintenance employees, and handymen, office and clerical employees, the chief engineer, and all or any other supervisory employees. The Company objects to the pro- posed units and contends that only a plant-wide unit is appropriate. In support of its position the Company relies upon the fact that occa- sionally there is some interchange of the men between the powerhouse and the distillery proper when an emergency arises; also because the mainte- nance men in the powerhouse are responsible for the upkeep of the dis- tillery machinery in the main part of the plant and therefore spend part of their time working with the residual production employees sought by the Distillery Workers. The record discloses that the powerhouse is under the supervision of the chief engineer and that it operates on a 24-hour basis. Its employees consist of three firemen, three ash haulers, and two maintenance men. In the powerhouse the steam and water are produced for the operation of the distillery. The powerhouse is in a building physically separated from the distillery, and the work of its employees is confined to the powerhouse, with the exception of the maintenance men. The maintenance men, in addi- tion to their duties in the powerhouse, are responsible for the upkeep and repair of machinery, steam and water pipes throughout the Company's operations ; however, their headquarters are in the powerhouse and the chief engineer directs all of their work. The record further indicates that the Distillery Workers does not oppose the powerhouse employees being in a separate unit and it does not contend that they should be included in the unit sought by it. We find that the employees of the powerhouse constitute a closely related group, having special skills and common interests and, that, under the circumstances here present, they constitute an appropriate bargaining unit.' The evidence establishes that the residual production and maintenance employees of the Company comprise general laborers in the meal house, dis- tillery, warehouse, and the bottling departments. These employees per- form duties as are indicated by the titles of their respective departments; i.e., milling grain, distilling liquors and alcohol, storing, bottling, and pre- paring the various products for sale and shipment. They have common 2 See Matter of General Foods Corp., 54 N. L. R. B. 596. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interests and work in close proximity with each other. We find that they constitute all appropriate bargaining unit. The Cistern Room Foreman.-During normal production, the cistern room requires a crew of five or six people in addition to the foreman, R. V. Hicks. Because the Company is now producing only alcohol, Hicks works alone. The Distillery Workers would include him until such time as the Company resumes normal operations; the Company would exclude him. Since Hicks is presently engaged in ordinary production duties, we shall include him for so long as he does not perform supervisory duties.' We find that the following groups of the Company's employees consti- tute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. (1) All the Company's employees in the powerhouse including firemen, ash haulers, maintenance employees, and handymen, but excluding office and clerical employees, the chief engineer, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. (2) All production and maintenance employees, including yard laborers and watchmen,' but excluding firemen, ash haulers, maintenance employees (powerhouse), and handymen, office and clerical employees, the chief engineer, foremen," and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period imme- diately 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 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 John A., Wathen, Thomas 3 See Matter of H. Branton Co, 57 N L R. B 1442 4 Although the two watchmen employed by the Company are under the supervision of the chief engineer of the powerhouse , their duties are unrelated to those of the other powerhouse employees and the Firemen has no objection to their inclusion in the residual unit of production and main. tenance employees. 5 Excluding R. V. Hicks. MEDLEY DISTILLING COMPANY 265 and Benjamin Medley, d/b/a Medley Distilling Company of Owensboro, Kentucky, an election by secret ballot shall be conducted as early as possi- ble, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the units found appro- priate 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 vaca- tion 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, to determine ( 1) whether or not the employees in the powerhouse unit desire to be represented by International Brotherhood of Firemen & Oilers, A. F. L., for the purposes of collective bargaining ; and (2 ) whether or not the residual production and maintenance employees desire to be represented by the Distillery, Rectifying & Wine Workers International Union of America , A. F. L., for the purposes of collective bargaining.