The Buckeye Brewing Co.

In the Matter of THE BUCKEYE BII:WING COMPANY , BURKHARDT BREW- ING COMPANY , LIMA BEER DISTRIBUTORS , H. W. THOMPSON Dis- TRIBUTING COMPANY, INC., SHAWNEE DISTRIBUTORS , INC., MEMBERS OF LIMA ASSOCIATION OF BEER DISTRIBUTORS , EMPLOYERS and TRUCK DRI-v-ERs, WAREHOUSEMEN , AND HELPERS UNION, LOCAL No. 908 (AFL), PETITIONER Case No. 8-R-24115-Decided March 31, 1947 Messrs. Robert L. Du Pont and Robert B. Chorpening, of Lima, Ohio, for the Employers and Association. Mr. Robert C. Knee, of Dayton, Ohio, and Mr. Morris C. Taylor, of Liana, Ohio, for the Petitioner. Mr. Morton D. Barrisch, of Cleveland, Ohio, and Mr. Guy W. Grist, of Dayton, Ohio, for the Intervenor. Mr. Bernard L. Balicer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Lima, Ohio, on November 12, 1946, before John A. Hull, Jr., hearing officer. The hearing officer's rulings made at the hearing are free front preju- dicial error and are hereby affirmed? Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS' Lima Beer Distributors, H. W. Thompson Distributing Company, Inc., and Shawnee Distributors, Inc., are Ohio corporations engaged in the wholesale distribution of beer and wine at Lima, Ohio. During the 12 months preceding November 1946, each of the Employers dis- ' At the hearing, and in its brief, the Intervenor moved to dismiss the proceeding on the ground that its contract was a bar to new petition and on the further ground that an alleged supervisory employee had assisted in the Petitioner's organizational diive. For the reasons set to, th in Section III, info a, the motion is hereby denied. 73 N. L R B, No. 4. 22 LIMA ASSOCIATION OF BEER DISTRIBUTORS 23 tributed beer valued in excess of $50,000, of which more than 50 per- cent came from points outside the State of Ohio. Burkhardt Brewing Company, an Ohio corporation having its main plant and office at Akron, Ohio, is engaged in the manufacture and clis- tribution of beer at Lima, Ohio, the only operation of the Employer involved herein. During the 12 months preceding the hearing, the Employer purchased and received raw materials from points outside the State of Ohio, valued in excess of $50,000, 50 percent thereof being shipped to points outside the State of Ohio. The Buckeye Brewing Company, an Ohio corporation having its main plant and offices located at Toledo, Ohio, is engaged in the manu- facture of beer at Lima, Ohio, the only operation of the Employer involved herein. During the 12 months prior to November 1946, said Employer purchased and received raw materials of a value in excess of $50,000, of which amount in excess of 50 percent was received from points outside the State of Ohio. The Employers admit and we find that they are engaged in com- merce within the meaning of the National Labor Relations Act. II. TIIE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employ- ers. Brewery Workers LQcal Union No. 50, International Union, United Brewery Flour, Cereal and Soft Drink Workers of America, herein called the Intervenor, is a labor organization claiming to represent employees of the Employers. III. THE QUESTIONS CONCERNING REPRESENTATION The Employers refuse to recognize the Petitioner as the exclusive bargaining representative of employees of the Employers until the Petitioner has been certified by the Board in an appropriate unit- The Intervenor contends that its contract with the Employers, effec- tive for 1 year from April 16, 1943, and automatically renewable from year to year in the absence of 30 days' notice to terminate,2 is still in effect and constitutes a bar to this proceeding. The Petitioner alleges, in effect, that notice to terminate and subsequent negotiations for a new agreement have opened the contract, making it vulnerable to a new petition. It is unnecessary to resolve these conflicting contentions however, inasmuch as the contract may now be terminated in less than 2 months upon 30 days' notice by either party thereto and therefore 'The contract was automatically renewed in 1944 and 1945. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not bar a determination of representatives within the next 30 days pursuant to our usual Direction of Election.' The Intervenor further maintains that no election should be directed herein inasmuch as the Petitioner's claim to represent employees affected by the petition is based upon membership application cards secured with the assistance of Paul Payne, an alleged supervisory employee of Lima Beer Distributors. The evidence reveals, however, that Payne was in charge of the distributing plant at Lima only dur- ing the temporary absence of the bookkeeper who, in turn, was in charge merely during the several days' absence of the branch manager each week. Neither Payne nor the bookkeeper whom he temporarily replaced has authority to hire or discharge or effectively recommend changes in the status of the one other truck driver employed by Lima Beer Distributors. Furthermore, Payne had been a member of the Intervenor at least up to the time he joined the Petitioner, and the business agent of the Intervenor testified that so far as he knew Payne was still a member of the Intervenor. In view of the foregoing, we are of the opinion that Payne is not employed in a supervisory ca- pacity within the Board's definition thereof, and consequently, on this ground alone, we find no merit in the Intervenor's contention. We find that questions affecting commerce have arisen concerning the representation of employees of the Employers, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. TIIE APPROPRIATE UNIT We find, in accord with the agreement of the parties, that all drivers, helpers, and warehousemen employed by the Employers,4 ex- cluding clerical employees, salesmen, 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, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' ' Matter of Ellis Canning Company, 67 N L R B 384 4 The record reveals that for a period of over 5 years the Employers, who comprise all the wholesale beer distributors in Lima, Ohio , have conducted joint bargaining negotiations and entered into joint contracts with the exclusive bargaining representatives of their em- ployees . In 1946, the Employers formalized their joint relationship by organizing the Lima Association of Beer Distributors By this practice of acting jointly with regard to their labor relations , the Employers have demonstrated their desire to be bound by group rather than by individual action Such history of collective bargaining supports our finding that, as stipulated by the parties, a unit comprised of all the employees of all the Employers is appropriate There are approximately 29 employees in the stipulated appropriate unit. LIMA ASSOCIATION OF BEER DISTRIBUTORS DIRECTION OF ELECTION 25 As part of the investigation to ascertain representatives for the purposes of collective bargaining with The Buckeye Brewing Com- pany, Burkhardt Brewing Company, Lima Beer Distributors, H. W. t7l Thompson Distributing Company, Inc., Shawnee Distributors, Inc., members of Lima Association of Beer Distributors, 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 Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Rela- tions Board Rules and Regulations-Series 4, among the employees in the linit found appropriate in Section ITT, above, who were em- ployed 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 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 and have not been rehired or reinstated prior to the date of the elec- tion, to determine whether they desire to be represented by Truck Drivers, Warehousemen and Helpers Union, Local No. 908 (AFL), or by Brewery Workers Local • Union No. 50, International Union, United Brewery, Flour, Cereal and Soft Drink Workers of America, for the purposes of collective bargaining, or by neither. CHAnUVrAN HERZOG took no part in the consideration of the above Decision and Direction of Election. Any participant in the election herein may , upon its prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot