Southern Brewing Co.

In the Matter Of SOUTHERN BREWING COMPANY and INTERNATIONAL UNION OF UNITED BREWERY , FLOUR, CEREAL & SOFT DRINK WORKERS OF AMERICA , LOCAL #186 Case No. R-3888 -Decided July 21, 1942 Jurisdiction brewing industry Investigation and Certification of Representatives : existence of question, con- flicting claims of rival iepiesentatines, elections necessary Unit Appropriate for Collective Bargaining : single or separate units comprising. '(1) all engineers, excluding the chief engineer and maintenance men and (2 )`the remainder of employees with specifled`inclusions and exclusions, deter- niination'of, dependent uponriesults of election-long history of collective bar- gaining on an industrial basis held not to preclude determination of proper unit foi craft by the desues of craft employees themselves, wwheie the question of their separate representation had not arisen in the past and where they were a recognized craft group among whom a substantial number were members of a craft organization Mr John C. McRee and Mr Ralph L Wiggins, for the Board McKay, MacFarlane; Jac1cs,on, `and Ferguson, by Mr. J. H Hans- brough, of Tampa, Fla , for the Company. Mr. John J Twomey, of Tampa, Fla , for the Brewery Workers. Mr Glenn McClung, of Tampa, Fla, for the Operating Engineers. Mr W E. Sullivan and Mr George Gant, of Tampa, Fla, for the Teamster's. Miss Melven R Krelow, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE' CASE r Upon petition duly filed by International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, Local #186, herein called the Brewery Workers, alleging that a question affecting com- merce had arisen concerning the representation of employees of South- ern Brewing Company, Tampa, Florida, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Charles E Persons, Trial Examiner. Said hearing was held at Tampa, Florida, on May 27, 1942. The Board, the Company, the Brewery Workers, International Union of 42 N L R B, No 132 649 a"t4 +u LY]dLLI ul jPbL [L4LILL 1JdSLI;.I S3At S.Iaaui.ona ail} IO^ AOI4iiJuaSBJ 999 ANVdWOO 9 IIAILZHa X4HI .L.IIOS 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Engineers, Local No 925, herein called the Operating Engineers, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 79, herein called the Teamsters, appeared, participated, and 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 hearing are free from prejudicial error and are hereby affirmed Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Southern Brewing Company is a Florida corporation having its principal office and place of business in Tampa, Florida, where it is engaged in brewing beer During its fiscal year ending September 1941, the Company purchased raw materials valued at between $100,- 000 and $150,000, of which all were shipped from points outside the State of Floiida During the same period the Company purchased bottled wine, valued at appi oximately $57,000, of which all was shipped from points outside the State of Florida During the same period the Company's sales were in the amount of approximately $1,250,000 The Company distributed approximately 45 percent of its pioducts to local retail vendors and appioximately 55 peicent to wholesale dis- tributors All the distributors but one are located in the State of Florida II THE ORGANIZATIONS INVOLVED International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, Local .#186, is a labor, organization, admitting to membership employees of the Company - International Union of Operating Engineers, Local No 925, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No 79, are labor organizations affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. _ III THE QUESTION CONCERNING REPRESENTATION On April 1, 1941, the Company and the Brewery Workers entered into, a collective bargaining contract terminable in 1 year, with auto- bxu"Ja 1I aU NUI.L011ulu anvoa SNOISVIIEII UGHVI IVNOILVN do SNOISIOaa SOUTHERN BREWING COMPANY 651 bargaining agent and would, therefore, not be bound by the Brewery Workers' contract On February 24, 1942, the Operating Engineers again notified the Company of its claim of representation for the engineers On February 26, 1942, the Teamsters notified the Com- pany by letter that it intended to exercise its jurisdiction over the truck drivers and helpers of the Company at the expiraticui of the Brewery Workers' contract. On February 27, 1942, the Company notified the Brewery Workers that it did not wish to renew negotia- tions concerning a new contract until such time as the jurisdictional dispute was settled Following this notification the Brewery Work- er s filed a petition with the Boar d - - A repoit prepared by a Field Examiner of the Board and intro- duced in evidence at the healing indicates that the Brewery Workers and the Opel ating Engineers each represents a substantial number of employees of the Company in the unit it alleges as appropriate 1 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 The Brewery Workers contends that all employees, excluding cleirca! employees, non-working supervisory employees, garage mechanics, the garage watchman, the garage clerical employee, sign painters 2 and "salesmen or route helpers," constitute a unit appropriate for collec- tive bar gaming The Operating Engineers desires a unit comprising all engineers, including the chief engineer, but excluding two mainte- nance men who are under the jurisdiction of the chief engineer- The Teamsters desires a unit consisting of all employees classified as- "salesmen or route drivers," "salesmen or route helpers," and transport 'The Field Examiner reported that the Biewery Workeis presented 54 authorization cards , 51 of which were dated between January 1942 and Apill 1942, and bore apparently gendine signatures Of the 51 cards, 50 bear the apparently genuine signatures of persons whose names appear on the Company 's pay roll of April 21, 1942 There are approximately 83 employees in the unit alleged by the Breweiy workers as appropriate ' The Field Examiner further repotted that the Operating Engineers presented five authorization cards, none of which was dated , bearing the apparently genuine signatures of persons whose names appear on the Company 's pay roll of April 21 , 1942 There are appioximately six employees in the unit alleged by the Operating Engineers as appropriate The Field Examiner also reported that the Teamsters refused to submit any evidence in support of its claim of representation for the employees in the unit alleged by it to be appropriate At the hearing the representati%e for the Teamsters stated that he was unable to submit my e%idence in support o1 his organization ' s claim of representation because the files containing such evidence v eie at the Inteinational headquarters, that he had no knowledge of what evidence these files contained since his assistant , who had 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers The Company took no position with respect to the unit or units The Company and the Brewery Workers have had collective bar- gaining contracts since 1935 The first coati act was executed on April 1, 1935; the second on Apnl 1, 1937 These contiacts were for 1-year periods with automatic renewal from year to yeai unless 30 days' written notice prior to expiration was given by either party. The second contract remained in full force and effect until Api111941, when the last agreement was executed The contracts executed in 1937 and 1941 required membership in good standing in the Biewery Workers-as a condition of-employment - They covered substantially the same employees as those in the unit alleged by the Brewei y Workers as appropriate; - I . From-1935 to April 27, 1941, no competing labor organization made any claim to represent the engineers Hence, the question of separate representation of this group did not arise The Company does not claim that a unit composed of engineers is niappiopriate, nor does it object to, dealing with either the Bre« ery Workei s or the Operating Engineers provided the Board certifies either as the exclusive repre- sentative of the employees in such a unit Engineeis aie a recognized craft, and in view of the evidence that a substantial number of the engineers' are members of the Operating Engineers, we are of the opinion that the long history of collective bargaining between the Company and the Brewery Woikers should not pieclude a deteiniina- tion of the question of the proper unit for the engineers by the desires of the engineers themselves - As has been stated, the Biewery Workers desnes the exclusion of "salesmen or route helpers" from the unit it claims appropriate These employees are Negroes and have not been organized by the Brewery Workers, allegedly because the Brewery Workers has "always kept away from the Negro,issue " They help to load and unload the trucks and accompany the "salesmen or route driveis" on their routes We have consistently held that, absent a showing of differentiation in functions which would °warrant their exclusion, we will not exclude employees fiom a unit upon racial considerations 8 No such differen- See Matter of Southern Wood Preserving Company and Distinct 50, United Mine Work- ers of Amet tea, affiliated with the Congress of Industrial Organizations, 37 N L R -B 25 ; Matte, of Aetna Iron & Steel Co and International Association of Bridge, Structural and Oi na`mental Ironworkers Local No 664, affiliated with the A F of L , 35 N L R B 136 , Matter of Amet scan Tobacco Co , Inc and Committee for Industrial Organization, Local N0 _472, 9 N L R B 579, Matter of Union Envelope Co and Envelope Woikers Union No393, 10 N L R B 1147 , Matter of Floyd A Fridell and Granite Cutters' Interna- tional Association of America, 11 N L R B 249, Matter of In'terstate Granite Corpora- tion and Granite Cutters' International Association of America , Charlotte Branch, 11 N L R B 1046, Matter of 'Brashear Freight Lines, Inc and International 'Association of Machinists, District No 9, 13 N L R B 191 _ i SOUTHERN BREWING COMPANY 653 tiation was 'established in the instance case' -WWWe conclude `that "sales- men or route helpers" should be included ` <" ' 1 ` ` The Brewery Woi ken s wishes to exclude the` chief engineer from ;the unit it claims appropriate on the ground that he is a non-working supervisory employee and is not eligible to membership in'the Brewery Workers The Operating Engineers desires his inclusion in the unit it claims appropriate The chief engineer is rn'charge of fouf'eiigi- neers, and two "mamtenance'men," and has the authority to hire and discharge these employees We find that he is a supervisory employee and accordingly' we shall exclude him The Operating Engineers de- sires the exclusion of the two maintenance men from the unit it claims appropriate on the ground that these employees mai ntim and repair machinery in the entiie plant while the engineers are confined solely to the maintenance of machinery relating to either compressed air' or steam We assume that the Brewery Workers desires'their inclusion in the unit it claims appropriate We find that they should be included in the larger group claimed by the Brewery Workers We shall direct that separate elections be held (1) among the engi= neers of the Company, excluding the chief engineer, to determine whether they desire to be represented by the Brewery Workers or-by the OperAmg Eugirieers for the purposes of collective` bargaining, or by neither, and (2) among the remainder of the employees of the Company, including -salesmen or route drivers; salesmen or` route helpers, transport drivers; and-the maintenance men, but egcludmg clerical employees, nonworking supervisory employees, the chief engi- neer, gar age mechanics, the gar age watchman, the garage clerical employee, and the sigii'paintei^s, to cleteiinrne whether' or' not they de- sire to be represented by the Brewery Workers Upon the results of these elections will depend in part our determination of the appi o- priate unit or units If the majoiity in each group selects the Brew- ery Workers, they will together constitute a single appropriate unit If the engmeeis choose the Operating' Engineers, that group will con- Statute a separate ppropriate un t a i - V THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot among the groups of employees indicated in the Direction of Elections hereinafter who were employed during the pay-roll period immediately preceding the date of our Direction of Elections herein, subject to the limitations and additions set forth in said Direction Since the Teamsters has pre- sented no evidence in support of its claim of representation, we shall not accord it a place on the ballot Act, 49 Stat 449, and pursuant to Article III, Section 8, 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 proposes of collective bargaining with Southern Brewing Company, Tampa , Florida, elections by secret ballot shall be conducted as early as possible but not latex than thirty (30) days from the date of this Direction of Election-,, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations , among the fol- lowing employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction of Elections, and including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service of training of the United States, or temporarily laid off, but excluding any employees who have since quit or been dis- charged for cause (1) All engineers of the Company excluding the chief engineer, and the maintenance men, to determine whether they desire to be represented by International Union of United Brewery, Flour, Cereal & Soft Drink Workers of America, Local #186, or by International Union of Operating Engineers , Local No 925, for the purposes of collective bargaining , or by neither ; and (2) All employees of the Company , including salesmen or route drivers, salesmen or route helpers , tran-,port drivers, and the main- tenance men , but excluding clerical employees, non-working super- visory employees , engineers, the chief engineer, garage mechanics, the gar age watchman, the garage clerical employee , and the sign paint- ers, to determine whether or not they desire to be represented by Inter- national Union of United Brewery, Flour, Cereal & Soft Drink Work- ers of America, Local #186, for the purposes of collective bargaining CHAIRMAN MILLIS, dissenting' I dissent from this decision because of the history of collective bargaining From 1935 this has been on an industrial basis, with an engineer as a signatory to the contracts between the Company and the Brewery Workers in 1937 and 1941 No question of separate rep- + See Matter of American Can Company and Engineers Local No 30, Firemen & Oilers Local No 56, Matter of American Can Company and Local Union No 3, I B E IV, 13 N L R B 1252, Matter of West Coast Wood Preserving Company and Boommen and Rafters Union, Local 130, I IV A , 15 N L R B , Matter of Milton Bradley Company and International Printing Pressmen and Assistants Union of North America, A F of L, 15 N L R B 938, Matter of Revere Copper and Brass Incorporated and Chicago Die Sinkers, Local No 100, affiliated with the International Die Sinkers Conference, 30 N L R B 964, Matter of Brewster Aeronautical Corporation and Local No 365, International Union, United Automobile Workers of America, and Local 807, Teamsters and Truck Drivers, affiliated with the American Federation of Labor, 31 N L R B 776, Matter of Long-Bell Lumber Company, Rydeiivood Branch and Brotherhood of Locomotive Firemen & Enginemen and Brotherhood of Railroad Trainmen, 31 N L R B 322, Matter of Amer- ican Thermometer Company and International Association of Machinists, Local 688, Dis- trict No 9, affiliated with the A F of L, 34 N L R B 222