National Distillers Products Corp.

In the Matter of NATIONAL DISTILLERS PRODUCTS CORPORATION, BERN-- HEIM LANE, LOUISVILLE, Ky. and INT'L BROTHERHOOD OF FIREMEN & OILERS, #320,401 MACON AVE., LOUISVILLE, Ky. Case No. R-1683.-Decided February 16, 1940 Liquor Distillery-Investigation of Representatives: controversy concerning- representation of employees : refusal by company to deal with petitioning union, until question determined by election-Unit Appropriate for Collective Bargain- ting; power-plant employees of the Company at its three Louisville, Kentucky, plants, including firemen, utility men, and general helpers, but excluding foremen ;. finding by Board in previous decision in representation case, involving only one- Louisville , Kentucky , plant, held not controlling herein-Representatives: con-- fiicting claims of unions-Election Ordered, Mr. Oscar Grossman, for the Board. Mr. James L. Kelley, of White Bear, Minn., and Mr. William E.. Fredenberger, of Louisville, Ky., for the Brotherhood. Mr. Peter Campbell and Mr. Miles M. Sweeney, of Louisville, Ky., for the Distillery Union. Mr. Ralph A. Lind, of New York City, for the Company. Mr. Herbert B. Galton, of counsel to the Board. .DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 20, 1939, International Brotherhood of Firemen &. Oilers, #320, herein called the Brotherhood, filed' with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging- that a question affecting commerce had arisen among the employees. of National Distillers Products Corporation, Louisville, Kentucky,. herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On De- cember 18, 1939, the National Labor Relations Board, herein called. the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, ordered an investigation and authorized the Re-- 20 N. L. R. B., No. 49. 467 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director to conduct it and- to ' provide-for an -appropriate hearing upon due notice. On January 5, 1940, the Regional Director issued a notice of hearing. copies of which were duly served upon the Company and the Brother- hood, and upon Distillery Workers Union, affiliated with the A. F. of L., Distillery Workers Local #20560, Distillery Workers, Rectifiers and Wine Workers Council, and United Distillery Workers of N. A., Local #484. Pursuant thereto, a hearing was held on January 15, 1940, at Louisville, Kentucky, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel, and the Brotherhood and Distillery Workers Union No. 758, affiliated with the C. I. 0., herein called the Distillery Union, which appeared in place of United Distillery Work- ers of N. A., Local #484, by representatives thereof. All participated in the hearing. The other organizations that were served with notices of hearing did not appear at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY National Distillers Products Corporation, a Virginia corporation, has its principal office and place of business in New York City. It owns and operates plants in Kentucky, Maryland, Ohio, and Pennsyl- vania, where it is engaged in the manufacture, sale, and distribution of distilled spirits. The plants located in Louisville, Kentucky, which are the plants involved herein, are known as the Old Grand Dad, the K. D. & W.,.and the Sunny Brook. Two other plants, the Old Taylor and the Old Crow, are situated in Frankfort, Kentucky. The principal raw materials used in the manufacture of the Com- pany's products are corn, rye, barley, rye malts, and wheat. During the year 1939 raw materials and supplies used in the manufacture of the Company's products at its Kentucky plants were of a value in excess of. $1,000,000.00. Of these, 55 per cent emanated from sources outside the State of Kentucky. In the same year, approximately 96 per cent of the products of the Kentucky plants were shipped by the Company to States other than Kentucky and to Europe. During 1939 the gross sales of the Company's Kentucky plants were in excess of $2,000,000.00. NATIONAL DISTILLERS PROD'UCTS CORPORATbON 469 11. THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen & Oilers, #320, is a labor organization affiliated with the American Federation of Labor, ad- mitting to its membership the Company's employees who are "con- nected with the maintenance or operation" of the power plants at the Louisville, Kentucky, plants. Distillery Workers Union No. 758, affiliated with the C. I. 0., is a labor organization admitting to its membership all production em- ployees of the Company at the Louisville, Kentucky, plants, in- cluding employees connected' with' the maintenance and operation of the power plants. 111. THE QUESTION CONCERNING REPRESENTATION In November 1939 the Brotherhood sent a proposed agreement to William Patrick Phillips, the Company's resident manager of the Louisville plants, requesting the Company to bargain with the Brotherhood for the power-plant employees of the Company in Louis- ville.. Phillips stated that he had no authority in that matter and would have to consult the Company's New York office. About two weeks later, according `to the testimony of the Brotherhood's busi- ness agent, Phillips stated that he would bargain with the Brother- hood if it was certified by the Board. While, at the hearing, Phillips denied having made this 'statement, the. Company took the position that it could not "deal with" the Brotherhood until the Board "de- termined whether or not the employees that might be eligible to an organization in such, nit'as'the Board might deem appropriate did by election determine whether they wanted to be represented" by the Brotherhood. We find that a question has arisen concerning representation of employees of the Company at its Louisville plants. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE • UN IT The Brotherhood claims that the power-plant employees at the three Louisville plants including firemen, utility men, and general 253031-41-vol. 20-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD helpers constitute a single appropriate unit.' The Company con- tends that each of its plants is a separate unit. The Distillery Union also claims that each plaint is a separate unit, and that the unit decided by the Board to be appropriate in a previous case' should control herein. In that case all parties agreed and the Board found that the production employees of the Company at the K. D. & W. plant, excluding superintendents, office workers, foremen and assist- ant foremen, foreladies and assistant foreladies, line supervisors, stamp-control operators, storekeepers and assistant storekeepers, guards, and mechanics, constituted an appropriate unit. However in that case no representative for the purposes of collective bargain- ing was selected by a majority of the employees 3 and we do not consider the determination in that case controlling here.4 It is apparently agreed by all parties that foremen are to be excluded from the. unit. The three Louisville plants are situated within approximately a three-mile radius of each other. The Sunny Brook and Old Grand Dad plants each employs about 70 production employees. At the K. D. & W. plant, employment ranges from 400 to 1,000 employees. At the Sunny Brook plant, there are eight power-plant employees; at the Old Grand Dad, seven; and at the K. D. &W., four. The Company claims that the plants are managed separately by separate. superintendents who hire and discharge employees and are generally in charge of their-plants. Each plant has a separate pay roll. Any shift of employees from one: plant to another is perma- nent. However, the production of all the Louisville plants is set by the Company's New York office and there is one resident manager in Louisville who is in charge of all the plants there. The power-plant employees in the three plants work a uniform number of hours. The Brotherhood claims to represent power-plant employees in the three plants. While the Distillery Union claims to represent employees in each of the plants as separate industrial units, it has not asked for an election to be held on that basis. We find that the power-plant employees of the Company at its Louisville, Kentucky, plants, including firemen, utility men; and gen- eral helpers, but excluding foremen, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure I At the hearing, the parties agreed that the firemen, utility men, and the general helper, whose names are contained in a list attached hereto as Appendix A, were the only em- ployees as of December 31, 1939, in the unit claimed by the Brotherhood to be appropriate. 2 Matter of National Distillers Products Co. and United Distillery Workers of N. A., Local No. 434, affiliated with Committee for Industrial Organization, 6 N. L. R. B. 862. 2 9 N. L. R. B. 526. * See Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Electrio Railway and Motor Coach Employees of America, 9 N. L. R. B. 557, 573. NATIONAL DISTILLERS PRODUCTS CORPORATION 471 to, employees of the Company the full benefit of their right to self- organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES . At the hearing, the Brotherhood claimed to have 17 members among the employees in'the appropriate unit; the Distillery Union, about 12. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The names of the employees in the appropriate unit, as of Decem- ber 31, 1939, were submitted in evidence and are listed in Appendix A. In the election which we shall direct, the employees listed in Appendix A, including employees in the appropriate unit who have been hired between December 31, 1939, and the date of this Direction of Election, but excluding those who have since quit or been dis- charged for.cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of National Distillers Products Corporation, Louisville, Kentucky, Within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the Act. 2. The power-plant employees of the Company at its Louisville, Kentucky, plants, including firemen, utility men, and general helpers, but excluding foremen, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 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 Rela- tions Act 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 ordered by the Board to ascertain representatives for the purposes of collective bargaining with National Distillers Products Corporation, Louisville, Kentucky, 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 of Election, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board and subject to Article III, Section 9, of said, Rules and Regulations, among the power-plant employees of Na- tional Distillers Products Corporation at its Louisville, Kentucky, plants, including firemen, utility men, and the general helper whose names are listed in Appendix A hereto, and including those hired between December 31, 1939 , and the date of this Direction of Election, but excluding foremen and those who have since quit or been dis- charged for cause, to determine whether they desire to be represented by International Brotherhood of Firemen & Oilers, #320, affiliated with the A. F. of L., or by Distillery Workers Union No. 758, affiliated with the C. I. 0., for purposes of collective bargaining, or by neither. OLD GRAND DAD APPENDIX A SUNNY BROOK K. D. & W. Firemen : Firemen : Firemen : A. R. Hoeger W. H. Cofer H. F. Lohmeyer E. B. Sinkhorn J. A. Foster James Treece J. B. Swartz W. L. Nally A. M. West W. T. Watson G. W. Parris C. J. White Utility Men : Utility Men : J. D. Carter P. C. Chandler G. E. Craig W. T. Dugan General Helper : J. Q. Foster Ed. Skeeters J. B. Hayse