Brewers & Maltsters Local Union No.6, Etc.

BREWERS & MALTSTERS LOCAL UNION NO. 6, ETC. 483 All our employees are free to become or remain , or refrain from becoming or remaining, members of International Union, Allied Industrial Workers of America, AFL-CIO, or any labor organization. WELSH INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3210, if they have any question concerning this notice or compliance with its provisions. Brewers & Maltsters Local Union No. 6, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Falstaff Brewing Corporation and United Brewers, Flour, Cereal, Soft Drink & Distillery Work- ers of America, AFL-CIO, and Its Local Union No. 187, Party in Interest. Case No. 14-CD-193. August 13, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by Fal- staff Brewing Corporation, herein called the Employer, alleging that Brewers & Maltsters Local Union No. 6, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Brewers, had violated Section 8 (b) (4) (D) of the Act by threatening, coercing, or restraining the Employer with an object of forcing or requiring the Employer to assign certain work to employees represented by Brewers, rather than to employees represented by United Brewers, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, and its Local Union No. 187, herein called Bottlers. A hearing was held before Hearing Officer Victor I. Smedstad on April 6 and 7, 1965, at which all parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer, Brewers, and Bottlers, all of which have been duly considered. Upon the entire record in this proceeding, the National Labor Relations Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Falstaff Brewing Corporation, a Delaware corporation, with its principal place of business in St. Louis, Missouri, is engaged in the 154 NLRB No. 29. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production of malt beverages. As stipulated by the parties, the Employer annually ships goods and materials valued in excess of $50,000 from its St. Louis brewery to customers located outside the State of Missouri. We find that Falstaff Brewing Corporation is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Brewers and Bottlers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The work in issue The work in dispute is the receiving, cleaning, filling, and all work preparatory to the filling of tapper containers and the stacking, storage, and all other work involving the filled tapper containers. B. The basic facts The Employer operates two brewery plants in St. Louis, Missouri, one of which, Plant No. 10, is involved in this proceeding. Until 1964, the Employer packaged its beer in five types of containers; namely, glass bottles, light metal cans, heavy metal half-barrels, quarter-barrels, and eighth-barrels (ponies). Bottles and cans are ordinarily purchased by the ultimate consumer for home consump- tion, whereas barrels are normally purchased by taverns and public establishments. Unlike the beer in bottles and cans, beer in barrels is draft beer. Draft beer differs from bottled or canned beer in two ways. First, bottled or canned beer is pasteurized; i.e., subjected, after sealing, to temperatures of 131 to 158 degrees Fahrenheit. This process removes yeast and bacteria from the beer and makes it unnecessary to keep the beer under constant refrigeration. Draft beer, on the other hand, is unpasteurized and must be kept under constant refrigeration. Second, bottled and canned beer is more highly carbonated than draft beer. This additional carbonation insures that the consumer will obtain a proper head of foam even if the beer is improperly poured into the glass. The instant controversy was precipitated when the Employer in 1964 began marketing beer in the newly developed tapper container. The Employer's sales campaign emphasized that the tapper enabled a consumer for the first time to enjoy draft beer in his home.' The 1 The E + mployer first placed draft beer in a tapper container at its Fort Wayne, Indiana, plant, in 1963 However, since both the bottlers and brewers are in the single bargaining unit at this plant, no work dispute developed there BREWERS & MAIIPSTERS LOCAL UNION NO. 6, ETC. 485 tapper container , which was developed for the Employer by the Reynolds Metals Company, has the appearance of a small -size barrel. The tapper is made of aluminum, is cylindrical in form, and holds 288 ounces of beer, which is the equivalent of a case of bottle or can beer. It has a spigot at one end, out of which the beer is drawn, and a pressure package at the other end which forces the beer out of the spigot. The Employer assigned the work of filling and handling the tapper container to employees represented by Bottlers, and Brewers threatened not to pump beer to the tappers unless the work was assigned to employees it represented. Thereupon, on February 5, 1965, the Employer filed the instant charges. On February 16, a petition for injunction under Section 10(1) was filed in the U.S. district court in St. Louis, and, on February 23, the parties stipulated that the Section 10(1) petition would be held in abeyance, and that the Brewers would not engage in work stoppages at the Employer's plant. The Employer's plant is divided into two adjoining buildings, the brew house and the bottling house, which are separated by a drive- way. Bottles and cans are filled and handled in the bottling house by employees represented by the Bottlers; barrels are filled and han- dled in the racking room located in the brew house by employees represented by the Brewers. After the beer is brewed in the brew house, it is pumped into the fermenting cellars, then into the lager cellars, and finally into the Government cellars, where the beer is stored in tanks. There is one Government cellar in the bottling house, which supplies the beer for bottles and cans. The two Government cellars in the brewery house, one of which is known as the racking cellar,2 supply beer for the barrels. Employees represented by Brewers work in all the Government cellars. When the Employer was in the process of developing the tapper container, it was informed by the Director of the Alcohol and Tobacco Tax Division of the Internal Revenue Service that, for Federal tax purposes, the tapper was to be treated as a bottle .3 2 The racking cellar, where draft beer is stored, is to be distinguished from the racking room , referred to above, where barrels are filled. 3 The Federal Beer Regulations provide: "Beer may be removed from a brewery for consumption or sale only in barrels , kegs, bottles and similar containers , as provided in this part. Beer may be bottled only in bottles as defined in 245 .5. A container which the Director, Alcohol and Tobacco Tax Division , determines to be similar to a bottle or can shall be treated as a bottle for the purposes of this part . A container which the Director, Alcohol and Tobacco Tax Division, determines to be similar to a barrel or a keg and which conforms to one of the sizes prescribed for barrels or kegs . . . shall be treated as such for the purposes of this part." ( 26 CFR 245 .111a.) 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relying on the Federal Beer Regulations issued by the Treasury Department which provide that "All bottling shall be conducted in the brewery bottling house,"' the Employer installed the tapper filling equipment in the northwest portion of the bottling house, and assigned the work of filling the tappers to employees repre- sented by Bottlers. There are approximately 19 employees on each shift assigned to the tapper operation in the bottling house. The tapper is filled with beer pumped from the racking cellar, which, as noted, is one of the Government cellars in the brew house. Tapper containers are filled in a manner similar to that used in filling bottles and cans and unlike that used in filling barrels. Thus, for example, the filling of the tapper, like the filling of bottles and cans, is an automatic process, whereas the filling of barrels depends on the judgment of the operator; the closing of the tapper, like the closing of bottles and cans, is done mechanically, whereas the closing of a barrel is done by an employee driving a bung by hammer into the opening; like bottles and cans, the tapper is handled in cases on pallets and not individually as in the case of barrels; after the tapper is filled, like bottles and cans, but unlike barrels, it is put in a case; and the inspection of a tapper container is performed in a manner like the inspection of bottles and cans, and unlike that of inspection of barrels. The Employer, together with Anheuser-Busch, Inc., another brewer in St. Louis, is signatory to separate bargaining agreements with the Brewers and Bottlers, each of which extends from March 1, 1964, to February 28, 1966. The bargaining unit represented by the Brewers, apparently not based on Board certification, is described, in pertinent part, as "all employees engaged as Journeymen Brewers, Utility Brewers, Apprentice Brewers, and Other Men in the brewing department, malt house, brew house, fermenting cellars, bottling cellars, lager cellars, wash house, racking room, cooperage department, ice plant." The bargaining unit represented by the Bottlers, based on a Board certification,5 is described, in pertinent part, as "all hourly rated production and maintenance employees engaged in production, shipping, storage, receiving, and noncraft maintenance operations in bottling departments and bottling de- partment areas ... but excluding . . . employees ... in Government cellars; brewing department employees; craft maintenance em- ployees; employees in areas other than bottling department areas. . . -" 4 26 CFR 245.12. 5 See Anheuser-Busch, Inc., Falstaff Brewing Corporation, et al., 103 NLRB 1205. BREWERS & MALTSTERS LOCAL UNION NO. 6, ETC. 487 IV. CONTENTIONS OF THE PARTIES In urging that the disputed work be assigned to employees it rep- resents, Brewers argues that the custom and practice in the brewing industry is that brewers, not bottlers, be assigned the work of han- dling receptacles which are to be filled with draft beer; that the Employer has consistently assigned such work to employees repre- sented by Brewers; and that, accordingly, since the tapper con- tainers are filled with draft beer, it is entitled to the disputed work. The Brewers also relies on the similarity in appearance between the tapper and the barrel. The Bottlers and the Employer argue that the disputed work should be assigned to employees represented by the Bottlers, relying on the facts that : (1) the Internal Revenue Service has ruled that the tapper is a bottle for tax purposes; (2) the tapper operation must therefore be located in the bottling house; (3) Bottlers is rec- ognized as representative of employees in "bottling departments and bottling department areas"; (4) since other employees represented by Bottlers work in the bottling area, it would be more efficient, from the standpoint of manpower utilization, to assign the tapper work to such employees ; (5) the method of filling the tapper is largely automated and, hence similar to the method utilized to fill bottles and cans and unlike that utilized in filling barrels; and (6) the Employer has assigned the disputed work to employees repre- sented by Bottlers. V. APPLICABILITY OF THE STATUTE Section 10(k) of the Act empowers the Board to determine the dispute out of which a Section 8(b) (4) (D) charge has arisen. However, before the Board proceeds with a determination of dis- pute it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. As the record establishes that the Brewers threatened not to pump beer to the tappers unless the disputed work was assigned to employees it represented, we find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has been committed, and that a jurisdictional dispute is properly before the Board for determination under Section 10(k) of the Act. VI. MERITS OF THE DISPUTE Section 10(k) of the Act requires the Board to make an affirma- tive award of the disputed work, after giving due consideration to relevant factors. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brewers' claim to the disputed work is based largely on the_ fact that brewers have traditionally handled receptacles, such, as barrels, which are filled with draft beer. However, since the filling of the tapper container is an entirely new operation, there is, strictly speaking, no past practice respecting the filling of the tapper. Moreover, while the tappers, like barrels, are filled with draft beer, at the same time, the tappers are similar to bottles and cans since, like bottles and cans, they are marketed to the ultimate consumer and they are handled in large measure by automated methods. We attach no significant weight to the fact that the tapper container is similar in appearance to a barrel. We therefore find that the past practice factor favors neither Union. There are, on the other hand, a number of factors considered by the Board in jurisdictional dispute proceedings which favor the claim of Bottlers. We note that the Internal Revenue Service has ruled that the tapper is a bottle for tax purposes. Although this ruling, in itself, has no controlling force in a proceeding to deter- mine which Union is entitled to the disputed work, its significance lies in the fact that, because of this ruling, the Employer was re- quired by the Federal Beer Regulations to place the tapper opera- tion in the bottling house. Since the tapper operation is located in the bottling house, where other employees represented by Bottlers work, the record shows, and we find, that it is more efficient to assign the tapper work to bottlers. Thus, the filling of tappers is a somewhat irregular operation, and if an employee represented by Bottlers working on the tapper was no longer needed on that opera- tion, he could easily be transferred to the bottle and canning opera- tions; but if an employee represented by Brewers working on the tapper was no longer needed on that operation, such employee would have to be transferred across the driveway to the brew house .6 Further, the location of the tapper in the bottling house is signifi- cant because Bottlers, as noted, is currently recognized as represent- ative of employees in "bottling departments and bottling depart- ment areas"; and while Brewers represents several employees working in the Government cellar in the bottling house, these employees work in the basement of the bottling house, and not on the main floor, where the tapper operation is located, and the Bottlers' con- tract expressly excludes employees "in Government cellars." Although it is conceded that both groups of competing em- ployees are qualified to perform the disputed work, the fact, dis- "The record discloses that there is only one brewer working on each shift in the Gov- ernment cellar in the bottling house. BREWERS & MALTSTERS LOCAL UNION NO. 6, ETC. 489 cussed above, that the method of filling and handling the tapper is largely automated and therefore similar to the method utilized by bottlers to fill bottles and cans also favors the claim of the Bottlers. As we have weighed the factors favoring the Bottlers' claim and those favoring Brewers' claim, and on the basis of the record as a whole, we conclude that bottlers represented by Bottlers are entitled to the disputed work, and we shall determine the dispute in their favor. We rely particularly on the location of the tapper filling operation; the efficiency of the Employer's operations; the coverage of the Bottlers' collective-bargaining agreement; the possession by bottlers of the necessary skills to do the disputed work; and the similarity of this work to work which they have performed in the past. In making this determination, we are awarding the disputed work to employees of the Employer who are represented by Bottlers, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10 (k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following deter- mination of dispute. 1. Employees of Falstaff Brewing Corporation currently repre- sented by United Brewers, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, and its Local Union No. 187, are entitled to perform the work of filling and handling tapper beer containers at the Employer's Plant No. 10, in St. Louis, Missouri. 2. Brewers & Maltsters Local Union No. 6, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Falstaff Brewing Corpo- ration to assign the aforementioned work to brewers, who are cur- rently represented by it. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Brewers & Maltsters Local Union No. 6, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forc- ing or requiring Falstaff Brewing Corporation, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to employees represented by Brewers rather than to those represented by Bottlers.