Hoffman Beverage Co.

National Labor Relations Board - Board Decisions

Sep 30, 1938

8 N.L.R.B. 1367 (N.L.R.B. 1938)

In the Matter Of HOFFMAN BEVERAGE COMPANY and INTERNATIONAL
BROTHERHOOD OF FIREMEN AND OILERS, LOCAL #55
In the Matter Of HOFFMAN BEVERAGE COMPANY and INTERNATIONAL
UNION OF OPERATING ENGINEERS , LOCAL 68
Cases Nos. R-993 and R-994.-Decided September 30, 1938
Brewing Industry-Soft Drink Industry-Investigation of Representatives:
controversy concerning representation of employees : employer 's refusal to bar-
gain based on prior certification of other union as exclusive representative of
unit apparently including employees here involved ; release of jurisdiction by
previously certified union-Units Appropriate for Collective Bargaining : firemen
and operating engineers , respectively; no controversy as to-Representatives:
proof of choice : membership in unions ; signed authorizations-Certification of
Representatives : upon proof of majority representation.
Mr. Albert Ornstein, for the Board.
Gilhooly e Yauch, by Mr. Edward J. Gilhooly, of Newark, N. J.,
for the Company.
Isserman, Isserman CC Kapelsohn, by Mr. Abraham J. Isserman, of
Newark, N. J., for the Firemen and the Operating Engineers.
Mr. William F. Nies, of Newark, N. J., for the Joint Local.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On May 20, 1938,', International Brotherhood of Firemen and
'Oilers, Local #55, herein called the Firemen, and International
Union of Operating Engineers, Local 68, herein called the Operating
Engineers, filed with the Regional Director for the Second Region
(New York City) petitions alleging that questions affecting com-
merce had arisen concerning the representation of employees of
Hoffman Beverage Company, herein called the Company, and re-
questing investigations and certifications of representatives pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat 449,
herein called the Act.
8 N. L. R. B., No. 164.
1367
1368 NATIONAL LABOR RELATIONS BOARD
On June 9, 1938, 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 Regulations-Series 1, as amended, ordered ,in investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice. The Board, acting pursuant
to Article III, Section 10 (c) (2), of the Rules and Regulations,
further ordered that the two cases be consolidated for the purposes
of hearing.
On June 22, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Firemen,
the Operating Engineers, and upon Joint Local Executive Board of
International Union of United Brewery, Flour, Cereal, and Soft
Drink Workers of America, herein called the Joint Local, a labor
organization appearing to be the representative of the employees
directly affected by the investigation. On June 28, 1938, the Regional
Director issued a notice of postponement of hearing, copies of which
were duly served upon the same parties. On August 4, 1938, the
Regional Director issued a notice of continuance of hearing, copies
of which were also duly served upon the parties. Pursuant to the
notice of continuance of hearing, a hearing was held on August 15,
1938, at New York City, before Edward G. Smith, the Trial Exam-
iner duly designated by the Board.
The Board, the Company, the Firemen, the Operating Engineers,
and the Joint Local were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence 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 reviewed these rulings and
finds that no prejudicial errors were committed. The rulings are'
hereby affirmed.
Pursuant to notice to all parties a hearing was held before the
Board on August, 25, 1938, in Washington, D. C., for the purpose
of oral argument. The Company, the Firemen, the Operating En-
gineers, and the Joint Local were represented by counsel and par-
ticipated in the oral argument.
Upon the entire record in the case, the Board makes the follow-
ing :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hoffman Beverage Company, a New Jersey corporation, is engaged
in the soft drink and brewery business . The Company makes a
DECISIONS AND ORDERS 1369
wide variety of beverages which it distributes under the registered
trade-mark "Hoffman." It ranks among the largest companies in the
non-alcoholic beverage industry. Since repeal of the 18th Amend-
ment, the Company has also been brewing and distributing beer
and ale, this constituting 30 per cent of its total business.
The raw materials used by the Company include fresh fruits, root
extracts, ginger root, barks, herbs, sugar, carbonic gas, malts, and
hops. More than 50 per cent of the total raw materials come from
outside New Jersey. The Company distributes its products to a
wide area, 71 per cent of its sales being made outside New Jersey.
It advertises regularly in New York daily newspapers, and uses the
facilities of radio broadcasting stations located in New York. The
Company admits, for the purposes of these proceedings, that it is
engaged in interstate commerce.
The general offices and the manufacturing plant of the Company
are located in Newark, New Jersey. Distributing plants or branches
are located in Belmar and Camden, New Jersey; New York City,
Newburgh, Long Island City, and Jamaica, Long Island, New York;
and Bridgeport, Connecticut. All manufacturing and bottling is
done at the Newark plant; the products are then delivered by means
of motor trucks and trailers, owned and operated by the Company,
to the various distributing branches. All branches and the Newark
plant distribute directly to retailers in their particular areas.
On its pay roll of June 13, 1937, the Company listed 591 employees
at its Newark plant, of whom 74 were classified as temporary loaders
and laborers; and 421 employees at all its distributing branches.
Though some of its business is seasonal, the Company attempts to
keep its regular employees working throughout the year.
The list of employees at the Newark plant, as of August 12, 1938,
shows a total of 531 employees, classified as follows : watchmen, 5;
firemen, 4; operating engineers, 8; production, 200; loading, 122;
delivery, 80; brewery, 44; general maintenance, 58; and car washers,
greasers, gas and oil men, 10.1
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen and Oilers, Local #55, is
a labor organization affiliated with the American Federation of
Labor, admitting to its membership firemen, water tenders, stocker
tenders, oilers, coal passers, and helpers in Newark, New Jersey, and
vicinity.
International Union of Operating Engineers, Local 68, is a labor
organization affiliated with the American Federation of Labor, ad-
'Board Exhibit No. 4.
1370 NATIONAL LABOR RELATIONS BOARD
mitting to its membership persons engaged in the operation of steam
boilers, stationary, marine, electrical, and gas engines, and motor tur-
bines, in Essex County, Harrison, Kearny, and Elizabeth, New
Jersey, and vicinity.
Joint Local Executive Board is a labor organization representing
three locals of the International Union of United Brewery, Flour,
Cereal, and Soft Drink Workers of America, an affiliate of the
American Federation of Labor. These three locals are No. 2, Brew-
ers, No. 268, Bottlers, and No. 148, Drivers. The Joint Local admits
to membership all the employees of the Company working in the
Newark plant who are engaged in production, maintenance, and
delivery, except supervisors and foremen who have the authority to
hire and discharge, office workers, salesmen, those working inside in
the sales department, building maintenance workers, and window
dressers. It appears that firemen and operating engineers are not
subject to the jurisdiction of the Joint Local or the three locals which
are represented by the Joint Local.
III. THE QUESTION CONCERNING REPRESENTATION
Following the Board 's decision and certification of representatives
in Matter of Hoffman Beverage Company and Joint Local Executive
Board of International Union of United Brewery, Flour , Cereal, and
Soft Drink Workers of America,2 the Company entered into a con-
tract with the three locals represented by the Joint Local, covering
employees in the production , maintenance , and delivery departments
at the Newark plant. This contract is effective from September
15, 1937, to March 31, 1940.
Shortly after this contract was entered into, the Firemen and
the Operating Engineers requested the Company to enter into agree-
ments with them covering firemen and operating engineers , respec-
tively . The Company refused to enter into such agreements, on the
ground that the Board 's Decision finding that "production , mainte-
nance, and delivery employees" constitute an appropriate unit and
certifying the Joint Local as the exclusive bargaining representative
for that unit, was a bar to any negotiations looking to separate
agreements for firemen and operating engineers . Thereafter, the
Joint Local, by its secretary, executed written releases of jurisdiction
over firemen and operating engineers to the Firemen and the Op-
erating Engineers , respectively . The Company takes the position
that until the Board determines that firemen and operating engineers
constitute separate appropriate units and are not included within
the unit comprising "production , maintenance , and delivery em-
2 3 N. L. R. B. 584, decided September 9, 1937.
DECISIONS AND ORDERS 1371
ployees" which the Board found to be appropriate in the Company's
Newark plant in the decision above-mentioned, it will not bargain
with the Firemen or the Operating Engineers respecting the firemen
and operating engineers.
We find that a question has arisen concerning representation of
employees of the Company.
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 UNITS
The Firemen claims that the firemen employed in the Company's
Newark plant constitute a unit appropriate for the purposes of
collective bargaining. Likewise, the Operating Engineers claims that
the operating engineers constitute an appropriate unit. The Com-
pany does not dispute the merits of these claims, but grounds its
objection to the proposed units upon the Board's previous finding
that production, maintenance, and delivery employees at the Newark
plant constitute an appropriate unit.
The firemen work in the boiler room, which is separate from the
rest of the plant. Their duties consist of tending the boilers, main-
taining proper oil pressures at the burners, keeping the water level
in the boilers at the proper point, and maintaining the necessary
steam pressure. They are engaged exclusively in the work as firemen
and no other workers in the plant perform the same duties. All
firemen are required to have licenses. The engineers operate refrig-
eration machines in the soft-drink plant and the brewery. Their
duties consist of maintaining proper temperatures for the water that
goes into the bottles by adjusting the necessary valves and gauges.
,One engineer operates the ammonia machines, and his duties are to
see that the ice boxes, tanks, and coils are kept at the proper tem-
perature. The engineers are the only employees who operate refrig-
-eration machinery. It appears that all of the engineers are licensed,
although the record is not clear that engineers other than the am-
monia machine operator must be licensed. One engineer, William
A. Paddock, is a temporary employee during the vacation period.
Howard E. Grigg, the Company's personnel director, testified that
1372 NATIONAL LABOR RELATIONS BOARD
Paddock would probably remain until some time in October when
the regular engineers will have completed their vacations, at which
time Paddock will be discharged. Paddock is a member of the Op-
erating Engineers and the Company does not object to his inclusion
in a unit composed of operating engineers, if such unit is found to
be appropriate.
At the time of our certification of the Joint Local as the exclusive
bargaining representative of production, maintenance, and delivery
employees employed by the Company in its Newark plant, no com-
peting labor organizations made claims to represent firemen and
operating engineers. Hence, the question of separate representation
for these groups did not arise. As stated in Section III above, the
Joint Local, during the year which has elapsed since our prior cer-
tification, has relinquished jurisdiction over firemen and operating
engineers to the Firemen and the Operating Engineers, respectively.
Hence, these employees are no longer represented by the Joint Local.
The Company does not claim that units composed of firemen and
operating engineers, respectively, are inappropriate; nor does it ob-
ject to dealing with the petitioning unions provided the Board
certifies them as the exclusive representatives of the employees in
such units. Firemen and operating engineers are recognized crafts,
and for a number of years representatives of these groups have had
collective bargaining agreements with breweries in the vicinity of
Newark, New Jersey. While under other circumstances firemen and
operating engineers might be held to constitute a part of a larger
unit, in the present case, as appears in Section VI below, the Firemen
and the Operating Engineers have been designated and selected by
a majority of the employees in each craft as their representative for
the purposes of collective bargaining.3 Under the circumstances of
this case, we will sustain the claims of the Firemen and the Oper-
ating Engineers regarding the appropriate units.
We find that all firemen employed by the Company at the Newark
plant constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to these employees the full
benefit of their right to self-organization and collective bargaining
and otherwise effectuate the policies of the Act.
We find that all operating engineers employed by the Company
at the Newark plant constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to these
employees the full benefit of their right to self-organization and
collective bargaining and otherwise effectuate the policies of the Act.
8 See Matter of Globe Machine and Stamping Co., 3 N. L. R. B. 294.
DECISIONS AND ORDERS
VI. THE DETERMINATION OF REPRESENTATIVES
1373
On August 12, 1938, the Company employed at its Newark plant
four firemen and eight operating engineers , including Paddock, a
temporary employee during the vacation period. All of the firemen
and operating engineers are members of the Firemen and the Op-
erating Engineers , respectively . All of the operating engineers, with
the exception of Paddock, signed an authorization , dated May 1,
1938, designating the Operating Engineers as their representative for
purposes of collective bargaining. This authorization was introduced
in evidence without objection . All of the firemen signed an author-
ization, which was introduced in evidence without objection , desig-
nating the Firemen as their representative for purposes of collective
bargaining. This document is undated , but appears to have been
signed some time in October 1937 , as it bears a stamp indicating that
it was received at the Board's office for the Second Region on October
22, 1937. There is no evidence that the firemen have since withdrawn
their authorization.
We find that the Firemen has been designated and selected by
a majority of the employees in the appropriate unit as their repre-
sentative for the purposes of collective bargaining. It is, therefore,
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining, and we will so certify.
We find that the Operating Engineers has been ' designated and
selected by a majority of the employees in the appropriate unit as
their representative for the purposes of collective bargaining. It is,
therefore , the exclusive representative of all the employees in such
unit for the purposes of collective bargaining, and we will so certify.
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 Hoffman Beverage Company at Newark,
New Jersey , within the meaning of Section 9 (c) and Section 2 (6)
and (7 ) of the National Labor Relations Act.
2. The firemen employed at the Company's Newark plant con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the National Labor Relations
Act.
3. International Brotherhood of Firemen and Oilers , Local #55,
is the exclusive representative of all the employees in such unit for
the purposes of collective bargaining, within the meaning of Sec-
tion 9 (a) of the National Labor Relations Act.
1374 NATIONAL LABOR RELATIONS BOARD
4. The operating engineers employed at the Company's Newark
plant constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
5. International Union of Operating Engineers, Local 68, is the
exclusive representative of all the employees in such unit for the
purposes of collective bargaining, within the meaning of Section 9
(a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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 1, as amended,
IT IS HEREBY CERTIFIED that International Brotherhood of Firemen
and Oilers, Local #55, has been designated and selected by a major-
ity of the firemen employed by Hoffman Beverage Company at its
plant at Newark, New Jersey, as their representative for the purposes
of collective bargaining and that, pursuant to the provisions of Sec-
tion 9 (a) of the Act, International Brotherhood of Firemen and
Oilers, Local #55, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment; and
IT IS HEREBY CERTIFIED that International Union of Operating En-
gineers, Local 68, has been designated and selected by a majority
of the operating engineers employed by Hoffman Beverage Company
at its,plant at Newark, New Jersey, as their representative for the
purposes of collective bargaining and that, pursuant to the provisions
of Section 9 (a) of the Act, International Union of Operating
Engineers, Local 68, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Certification of Representatives.