National Distillers Products Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1940

20 N.L.R.B. 467 (N.L.R.B. 1940)

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