Joseph S. Finch & Co., Inc.

National Labor Relations Board - Board Decisions

May 2, 1938

7 N.L.R.B. 1 (N.L.R.B. 1938)

DECISIONS AND ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD
In the Matter of JOSEPH S . FINCH & CO., INC. and UNITED DISTILLERY
WORIiERS UNION1 LOCAL No. 3
In the Matter of JosEPH S. FINCH & CO., INC. and INTERNATIONAL
BROTHERHOOD OF FIREMEN & OILERS, LOCAL No. 77
Cases Nos. R-394 and R-395-Decided May 0, 1938
Liquor Distilling Industry-Investigation of Representatives: controversy
concerning representation of employees: controversy concerning appropriate
unit ; employer's refusal to grant recognition of union ; rival organizations-
Closed-Shop Contract: dependent, by its terms, upon Board's decision as to
inclusion of certain categories of employees-Unit Appropriate for Collective
Bargaining: where other considerations determinative of appropriate unit are
evenly balanced, decisive factor is the desire and choice of employees involved;
determination of, dependent upon election results ; occupational differences ;
history of collective bargaining relations with employer-Elections Ordered
Mr. Robert H. Kleeb, for the Board.
Mr. Frederic P. Lee, of Washington, D. C., for the Company.
Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the United.
Mr. Leo S. Shapiro, of Pittsburgh, Pa., for the Brotherhood and
the Council.
Miss Margaret B. Bennett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 8, 1937, United Distillery Workers Union, Local No. 3,.
herein called the United, executed and subsequently filed with the
Regional Director for the Sixth Region (Pittsburgh, Pennsylvania)
a petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Joseph S. Finch & Co.,.
Inc., Schenley, Pennsylvania, herein called the Company, and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat..
449, herein called the Act. On July 19, 1937, International Brother-
hood of Firemen & Oilers, Local No. 77, herein called the Brother-
hood, filed a similar petition. On August 26, 1937, the National
106791-38 1
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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 an investigation and authorized the Regional Director to
conduct it and to provide for appropriate hearings upon due notice,
and acting pursuant to Article III, Section 10 (c) (2), of said Rules
and Regulations, further ordered that the cases be consolidated for
purposes of hearing.
On September 4, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
United, the Brotherhood, the Committee for Industrial Organiza-
tion, herein called the C. I. 0., and the American Federation of
Labor, herein called the A. F. of L. Pursuant to the notice, a hear-
ing was held on September 13 and 14, 1937, at Pittsburgh, Penn-
sylvania, before Alvin J. Rockwell, the Trial Examiner duly desig-
nated by the Board. At the hearing, a motion was made and granted
to amend the original petition of the United so as to designate all
the production and maintenance employees of the Company, except
watchmen, office workers, and persons employed in supervisory posi-
tions, as the bargaining unit alleged to be appropriate. Upon mo-
tion at the hearing, Carpenters' District Council of Pittsburgh and
Vicinity of United Brotherhood of Carpenters and Joiners of Amer-
ica, herein called the Council, was permitted to intervene and to file
a petition requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the Act. The Board, the Company,
-the United, the Brotherhood, and the Council were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and to 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 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
I. THE BUSINESS OF THE COMPANY
Joseph S. Finch & Co., Inc., whose plant is at Schenley, Pennsyl-
vania, produces whiskey and gin, and distillers' dried grains as a
byproduct. Whiskey is the principal product. In 1936 gross sales
amounted to approximately $6,112,000 and annual pay roll to about
$1,435,000.
DECISIONS AND ORDERS 3'
Over 80 per cent of the whiskey produced by the Company is
shipped to States other than Pennsylvania and to foreign countries,
and most of the materials and supplies used by the Company come
from outside of Pennsylvania.
II. THE ORGANIZATIONS INVOLVED
United Distillery Workers Union, Local No. 3, is a labor organi-
zation affiliated with the Committee for Industrial Organization,
admitting to its membership all production and maintenance em-
ployees of the Company, excluding office workers, watchmen, super-
visory employees, and other direct representatives of the manage-
ment.
International Brotherhood of Firemen & Oilers, Local No. 77, is-
a labor organization affiliated with the American Federation of
Labor. It admits to its membership all firemen and water tenders,
employed by the Company.
Carpenters' District Council of Pittsburgh and Vicinity of United'
Brotherhood of Carpenters and Joiners of America is a labor organi-
zation affiliated with the American Federation of Labor, representing,
all the local unions of United Brotherhood of Carpenters and Joiners.
of America in Pittsburgh and vicinity. All carpenters employed by
the Company are eligible for membership in one of the local unions
subject to the jurisdiction of the Council.
III. THE QUESTION CONCERNING REPRESENTATION
It is undisputed that the United represents a majority of the
production and maintenance employees of the Company. But the-
Brotherhood asserts that it represents a majority of the firemen and
water tenders and the Council contends that it represents all of the-
carpenters. Each union requested the Company to contract with it,.
but until July 1937, the Company failed to act with respect to any
of these requests. On July 20, 1937, the Company and the United'
executed a closed-shop contract covering all of the employees of the
Company, except office workers, watchmen, supervisory employees,
and other direct representatives of the management, subject to any
decision of the Board concerning firemen and water tenders. It
purported to supersede a contract, effective as of July 15, 1936, en-
tered into between the Company and Distillery Workers Union No.
19983, affiliated with the A. F. of L., Local Lodge No. 620 of the In-
ternational Association of Machinists, affiliated with the A. F. of L.,,
the Brotherhood, and the A. F. of L. The 1936 contract was for' a:
period of 1-year, and thereafter unless altered after 30 days' notice
in writing by any party. Before the expiration of the 1-year period,
the United, to which an overwhelming majority of the employees
of the Company then belonged, filed its petition with the Board.
4 NATIONAL LABOR RELATIONS BOARD
Subsequently the Brotherhood also petitioned the Board for an inves-
tigation and certification of representatives. Under these circum-
stances, it cannot be contended that the Board is precluded by the
contract from determining and certifying representatives.
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 UNIT
The Company has a plant pay roll of approximately 1,037 em-
ployees, in classifications indicating a high degree of division of
labor. Of these employees, about 28 are firemen or water tenders
and 5 are carpenters. The firemen and water tenders work in the two
powerhouses, which are located about a quarter of a mile apart at
the two ends of the plant and which are essential to its operation.
The carpenters do general maintenance work. The firemen, the
water tenders, and the carpenters are all skilled workers and receive
relatively high rates of pay.
The United claims that all of the production and maintenance
employees, except watchmen, office workers and supervisory em-
ployees, constitute a single unit appropriate for purposes of collec-
tive bargaining. The Brotherhood contends that the firemen and
water tenders should be considered a separate unit. The Council
asserts that the five carpenters constitute a single appropriate unit.
None of the other craft groups seek to be excluded from the industrial
unit urged by the United.
The Brotherhood claims that the firemen and water tenders consti-
tute a separate unit appropriate for purposes of collective bargaining
because they perform skilled work different in character from that
done by other employees; because they work in four 6-hour shifts
instead of in the generally prevailing three 8-hour shifts; because
they work in the two powerhouses, which are physically separated
from the rest of the plant; and because a majority of them desire
craft representation.
The Council claims that the special skill required of carpenters
makes craft representation preferable for them, and that all the car-
penters prefer such representation.
DECISIONS AND ORDERS 5
It is undisputed that the A. F. of L. represented the respondent's
employees for purposes of collective bargaining until the spring
of 1937. In January or February 1936, a committee of Distillery
Workers Union No. 19983, the first labor organization established
among the employees of the Company, began negotiating with the
Company for a contract covering all production and maintenance
workers paid on an hourly basis. Distillery Workers Union No.
19983 was an A. F. of L. federal union, admitting to its membership
all hourly and some salaried employees. While negotiations were
pending, all firemen and water tenders employed by the Company
who were members of Distillery Workers Union No. 19983 were
transferred to the Brotherhood. About this time, also, the machinists
were transferred to the International Association of Machinists.
These transfers were made in accordance with the policy of the
A. F. of L. of withdrawing craft groups from federal unions as soon
as the formation of craft locals appears to be practicable. The bar-
gaining undertaken by Distillery Workers Union No. 19983 resulted
in the contract, effective as of June 15, 1936, referred to above, which
governed general working conditions and was signed by Distillery
Workers Union No. 19983, by Local Lodge No. 620 of the Interna-
tional Association of Machinists, by the Brotherhood, and by the
A. F. of L. through David Williams, general organizer.
No further. efforts toward collective bargaining on behalf of the
employees of the Company are shown by the record until June 1937,
except that some grievances were settled by the Brotherhood.
About the first week in June 1937 the Council, claiming to repre-
sent the carpenters, orally requested the Company to enter into a
contract making certain wage increases obtained by carpenters else-
where in the Pittsburgh district applicable to carpenters employed
by the Company. About a week later, the Brotherhood orally re-
quested the Company to confer with it concerning a contract for the
firemen and water tenders. Those negotiations were dropped when
the Company replied that it understood it was required to deal with
representatives of the majority of the employees.
On July 20, 1937, the United, as indicated in Section III above,
obtained a closed-shop contract with the Company, covering, subject
to any order the Board might issue concerning the bargaining agency
entitled to represent the firemen and water tenders, all production
and maintenance employees, except office workers, watchmen, super-
visory employees, and other direct representatives of the management.
In view of the facts stated above, it appears that the Company's
production and maintenance employees can be considered either as a
single unit appropriate for purposes of collective bargaining, as
claimed by the United, or as three such units, as claimed by the
Brotherhood and the Council. In such a case, where the considera-
6 NATIONAL LABOR RELATIONS BOARD
tions are so evenly balanced, we hold that the determining factor is
the desire of the employees themselves.
The Brotherhood introduced into evidence three papers , dated June
12, August 25, and September 13, 1937, respectively , signed by firemen
and water tenders employed by the Company and designating the
Brotherhood their representative for purposes of collective bargain-
ing. A majority of the firemen and water tenders signed one or the
other of these papers. But there is some evidence of fluctuation of
allegiance on their part between the Brotherhood and the United;
and the United challenges the Brotherhood 's authority now to repre-
sent a majority of the firemen and water tenders, although the United
itself claims only 11 firemen and water tenders as members. In
addition , there is some evidence to the effect that not all the firemen
and water tenders who signed the last paper circulated by the
Brotherhood realized exactly what they were signing.
During the hearing, on September 13, 1937 , the Council obtained
'the signatures of all of the carpenters to a paper authorizing the
Council to act as their collective bargaining representative. Two
of the carpenters who signed this paper had previously joined the
United.
We feel that on the basis of the record there is some doubt as to
the wishes of the firemen and water tenders and the carpenters
respecting representation . We will, therefore, order- an election
among the firemen and water tenders on the one hand and the car-
penters on the other to determine whether the firemen and water
tenders wish to be represented by the Brotherhood or the United, or
by neither , and whether the carpenters wish to be represented by the
Council or the United , or by neither . If a majority of the firemen
and water tenders select the Brotherhood , the firemen and water tend-
ers will be constituted a separate unit . If the United is accorded
a majority, the firemen and water tenders will be included in the unit
embracing all the production and maintenance employees of the
Company, excluding watchmen , office workers , supervisory employees,
and other direct representatives of the management , and excluding
the carpenters , if they elect to bargain as a separate unit. If a
majority of the carpenters select the Council as their representative
for purposes of collective bargaining , the carpenters will be con-
stituted a separate unit. If a majority favor the United, the car-
penters will be included in the unit embracing all the production and
maintenance employees, excluding watchmen , office workers , super-
visory employees , and other direct representatives of the manage-
ment, and excluding firemen and water tenders , if the firemen and
water tenders elect to bargain separately.
The firemen and water tenders and the carpenters eligible to vote
in the said elections shall be those employed by the Company during
DECISIONS AND ORDERS 7
the pay-roll period next preceding the date of the issuance of this
Decision and Direction of Election.
The United offered to introduce into evidence membership cards
showing that it represented an overwhelming majority of the pro-
duction and maintenance employees of the Company , excluding
watchmen, office workers, and supervisory employees . Since the
parties at the hearing did not dispute that the United represented
this majority , the Trial Examiner stated that it would not be neces-
sary to put the cards in evidence . A division of the firemen and water
tenders on the one hand and the carpenters on the other into separate
units would not disturb this majority . We will not , therefore , direct
an election among the production and maintenance employees, ex-
clusive of watchmen, office workers, supervisory employees and other
employees directly representing the management , but after the elec-
tions have been conducted among the firemen and water tenders and
the carpenters, we will certify the United as the representative for
purposes of collective bargaining of all production and maintenance
employees , except watchmen, office workers, and supervisory em-
ployees, and other direct representatives of the management , including
or excluding the firemen , water tenders, and carpenters, according to
the results of the elections.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Joseph S. Finch & Co., Inc. , Schenley,
Pennsylvania , within the meaning of Section 9 (c) and Section 2
( 6) and (7) of the National Labor Relations 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 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Joseph
S. Finch & Company, Inc., Schenley, Pennsylvania, an election by
secret ballot shall be conducted within fifteen (15) days from the
date of this Direction , under the - direction and supervision of the
Regional Director for the Sixth 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 firemen and water
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NATIONAL LABOR RELATIONS BOARD
tenders on the one hand and among carpenters on the other, who
were employed by Joseph S. Finch & Company, Inc., at any time
during the pay-roll period next preceding the date of the issuance
.of this Decision and Direction of Election, excluding employees who
left the employ of the Company or were discharged for cause between
such date and the date of election, to determine whether the firemen
and water tenders wish to be represented by International Brother-
hood of Firemen & Oilers, Local No. 77, or by United Distillery
Workers Union, Local No. 3, for the purposes of collective bargain-
ing, or by neither, and whether the carpenters wish to be represented
by United Brotherhood of Carpenters and Joiners of America or by
United Distillery Workers Union, Local No. 3, for the purposes of
-collective bargaining, or by neither.
Mx. EDWIN S. Sivirrii, dissenting :
The history of collective bargaining in the Company, as well as
the character of the Company's operations, point to the propriety of a
determination that those employees claimed by the United, the in-
dustrial union, constitute the appropriate bargaining unit.' The con-
tract signed by the A. F. of L. unions with the Company in 1936
was the result of bargaining on an industrial basis. This fact is
not invalidated by the circumstance that after the Federal Union
was formed two craft unions affiliated with the A. F. of L. success-
fully claimed jurisdiction over certain employee groups in the plant.
The record shows that after these transfers of membership to the
craft unions had been accomplished, the negotiating committee rep-
resenting the Federal Union wag not enlarged specifically to cover
separate representation for the membership of the International
Association of Machinists or the Brotherhood. That the two craft
organizations signed the contract so negotiated merely sets their
stamp of approval on the terms of a contract which was executed in
favor of all the employees including their own members.
The subsequent efforts of the Council and the Brotherhood to es-
tablish separate collective bargaining for the crafts which they sought
to represent are not sufficient in themselves to raise a doubt as to the
appropriateness of the more inclusive unit.
I would dismiss the petitions of the Council and the Brotherhood
and certify the United as the exclusive representative for those em-
ployees which it claims constitute the appropriate unit.
1 See my dissent in Matter of Allis-Chalmers Manufacturing Company and International
Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, and similar
cases.