Sioux City Brewing Co.

National Labor Relations Board - Board Decisions

Sep 7, 1949

85 N.L.R.B. 1164 (N.L.R.B. 1949)

In the Matter of Sioux CITY BREWING COMPANY, EMPLOYER and
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION No.
383, A. F. or L., PETITIONER
Case No. 18-R-1778
SUPPLEMENTAL DECISION
AND
DIRECTION
September 7,1949
Pursuant to a Board Decision and Direction of Election,l an election
by secret ballot was conducted in this proceeding on May 5, 1947,
under the direction and supervision of the Regional Director for the
Eighteenth Region. The names of the Petitioner and an intervening
union, International Union of United Brewery, Flour, Cereal, and
Soft Drink Workers of America, and Brewery Local No. 178, CIO,
hereinafter called the Intervenor, appeared on the ballot. Upon the
conclusion of the election, a Tally of Ballots was furnished the parties.
The Tally of Ballots showed the results of the election as follows :
Approximate number of eligible voters--------------------------- 34
Void ballots --------------------------------------------------- 0
Votes cast for the Petitioner------------------------------------ 13
Votes cast for the Intervenor------------------------------------ 11
Votes cast against participating labor organizations--------------- 0
Valid votes counted-------------------------------------------- 24
Challenged ballots-------------------------------- -------------- 13
Valid votes counted plus challenged ballots------------------ ----- 37
Because the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director caused an investiga-
tion to be made, and, on May 7, 1947, issued his Report on Challenges,
in which he recommended that a hearing be held to determine the
validity of 12 of the 13 challenged ballots. No exceptions were filed
to the Regional Director's Report on Challenges, and, on June 11,
1947, the Board ordered that a hearing be held for the purpose of
173 N. L . R. B. 325, decided April 10, 1947.
85 N. L. R. B., No. 194.
1164
SIOUX CITY BREWING COMPANY 1165
resolving the issues with respect to the 12 ballots in question.2 There-
after, pursuant to notice duly served upon the parties, a hearing for
that purpose was held at Sioux City, Iowa, on July 15 and 16, 1947,
before Clarence A. Meter, hearing officer.
Board consideration and resolution of the issues pertaining to the
challenged ballots was postponed, however, because on August 4, 1947,
the Petitioner filed charges against the Employer, in Case No. 18-C-
1417, alleging, in substance, that, in order to prevent them from voting,
four of the individuals whose ballots had been challenged had been
discriminatorily discharged by the Employer before the election of
May 5. The charge filed in Case No. 18-C-1417 was subsequently
amended, and resulted in the issuance, on June 18, 1948, of a com-
plaint against the Employer by the General Counsel for the Board.
A hearing was thereafter held in that case,3 an Intermediate Report
was issued, and the Board, on April 13, 1949, issued its Decision and
Order ,4 finding that the Employer had in fact committed certain
unfair labor practices. The Board's action of April 13, 1949, has
now made possible the resolution of the issues with respect to the bal-
lots challenged at the May 5, 1947, election. Accordingly, the Board
now directs its attention to the challenged ballots.
At the hearing held on July 15 and 16, 1947, to determine the
validity of the challenged ballots, the Employer, the Petitioner, and
the Intervenor appeared, participated, and were accorded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the record made at the hearing on challenged ballots, upon the
entire record in this proceeding, and upon the entire record and the
Board's Decision in Case No. 18-C-1417, the Board finds :
Employees separated from employment before the election: The
Employer challenged the ballots of Richard P. Harrington, Bruno
Carstedt, and Raymond Kilberg on the ground that their employment
had been permanently terminated before the pay-roll period which
determined eligibility to vote in the election. The Board agent chal-
lenged the ballot of Frank Parish, whose employment status had been
disputed by the Petitioner and the Intervenor at the original hearing
in this proceeding, and whose name was not' listed among those
' The order directing a hearing on the challenged ballots was not published.
The parties in the present representation case participated at the hearing in the unfair
labor practices proceeding.
4 82 N . L. R. B. 1061.
Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Houston and Gray].
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed during the pay-roll period determining eligibility. The
Petitioner challenged the ballot of Clifford Montang, on the ground
that he had voluntarily terminated his employment prior to the date
of the election.
In its Decision in Case No. 18-C-1417, the Board found that during
January and February of 1947, Harrington, Carstedt, and Parish were
discriminatorily discharged by the Employer in furtherance of an
attempt to break up the organizational drive by the Petitioners For
that reason, the Board ordered that the Employer offer them reinstate-
ment to their former positions. No evidence was introduced, more-
over, at the hearing on challenged ballots showing that these employees
intended to leave their employment before the election date, May 5,
1947. It appears, therefore, that but for the discrimination practiced
against them, Harrington, Carstedt, and Parish would have been em-
ployees in good standing on May 5, 1947. For that reason, we find
that they were entitled to vote in the election. Accordingly, the
challenges to their ballots are overruled, and the ballots are declared
valid.
In its Decision in Case No. 18-C-1417, the Board found that Kilberg
voluntarily left the employ of the Employer in January 1947, and
that, contrary to the contention of the Petitioner first made in this
proceeding and repeated and considered by the Board in Case No.
18-C-1417, no promise of subsequent employment was made to Kil-
berg by the Employer when Kilberg quit his employment. The
Board further found that Kilberg's subsequent request for reinstate-
ment was not refused by the Employer because of Kilberg's member-
ship in, and activities on behalf of, the Petitioner. Accordingly, as
Kil.berg voluntarily left his employment before the pay-roll period
which determined eligibility, he was not eligible to vote in the election.
We therefore sustain the challenge to his ballot, and it is declared
invalid.
Montang, a past president of the Intervenor's Local 178, worked
continuously for the Employer for approximately 11 years. He was
an employee in good standing during the pay-roll period ending April
10, 1947, which was the prescribed eligibility period. On April 23,
1947, Montang purchased a tavern. On April 25, 1947, he requested
a 30-clay leave of absence from the Employer's brewery. The request
was granted by Galinsky, the Employer's president. When request-
ing the leave, Montang told Galinsky that he was planning to have his
wife operate the tavern, and that he would return to the brewery at
The Board , relying in part upon the discriminatory discharges of Harrington, Carstedt,
and Parish , also found in Case No. 18-C-1417 that the Employer unlawfully interfered
with, and contributed support to , the Intervenor.
SIOUX CITY BREWING COMPANY 1167
the end of the 30-day period. In fact, however, Montang did not
return to work, and, on May 25, 1947, the Employer terminated his
employment. As voting eligibility is determined on the facts as they
exist on the election date,7 and as it appears that Montang retained
his employee status on May 5, 1947, we find that he was eligible
to vote in the election of that date. Accordingly, the challenge to
Montang's ballot is overruled, and it is declared valid.8
Employees hired shortly before the election: The Petitioner chal-
lenged the ballots of Charles McCann, Henry Dunkak, and George
Sundt, on the ground that they had been hired to influence the election
in favor of the Intervenor.
McCann was hired on February 7, 1947, as the replacement for the
discriminatorily discharged Bruno Carstedt, who was discharged on
that date, and whom we have here held to be an eligible voter. Mc-
Cann, who had worked for the Employer in 1944, had thereafter made
two previous requests for reemployment, which were refused. When
hired in 1947, McCann was a member of the Intervenor. In view of
the fact that the Board, in Case No. 18-C-1417, considered that the
discriminatory discharges of four employees, including that of
Carstedt, were accomplished to thwart the Petitioner's organizational
efforts, and that the discharges constituted evidence of assistance
rendered by the Employer to the Intervenor, we believe that the ballot
of Carstedt's replacement should not be counted. To hold otherwise
would enable the Employer to reap the fruits of its unfair labor
practices, as found by the Board. We therefore sustain the challenge
to McCann's ballot, and it is declared invalid.
Dunkak was hired on February 24, 1947. At the time of his hiring,
Dunkak held membership in both the Petitioner and the Intervenor.
Like McCann, Dunkak had previously worked for the Employer. He
was assigned to work in the Employer's bottling department, the same
department in which three of the four employees whose discharges
were found by the Board to be discriminatory had also worked. These
three employees were discharged, respectively, on January 12, Janu-
ary 15, and February 7, 1947. Because of the brief time interval
between these discriminatory discharges and the hiring of Dunkak,
and because Dunkak was given employment in the same department
4 See Matter of Glenn L . Martin Company, Supplemental Decision and Direction, 76
N. L. R. B . 755, 766 ; Matter of Agar Packing & Provision Corporation , 62 N. L . R. B. 358.
8 The Petitioner contends that Montang was ineligible to continue in the status of an
employee because of a provision in the Constitution of the Intervenor 's International Union,
which states that employees who operate saloons, or whose wives operate saloons , must with-
draw from the International Union , and cannot maintain a position in breweries. We find
no merit in this contention . Montang's status as an employee in this case must be deter-
mined by the relationship which existed between him and the Employer , and not by the
relationship which existed between Montang and the Intervenor under the latter's
Constitution.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which the discharged employees had worked, we are convinced, and
we so find, that Dunkirk was hired to replace one of the discharged
employees, and as part of the Employer's scheme to render assistance
to the Intervenor. Accordingly, for the same reasons that compelled
a determination that McCann's ballot is invalid, we sustain the chal-
lenge to Dunkak's ballot, and it is declared invalid.
Sundt was hired on April 3, 1947, and remained in the Employer's
employ until May 26, 1947, when he voluntarily quit.° He was hired
as a permit worker.10 Sundt, like Dunkak and McCann, was assigned
to work in the Employer's bottling department. However, in view
of the fact that 2 months elapsed between the discharge of the last
of the discriminatorily discharged employees and the hiring of Sundt,
we are unable to find, on the nature of Sundt's assignment alone, that
Sundt was a replacement for the discharged employees. Accordingly,
as Sundt was otherwise eligible to vote in the election, the challenge
to his ballot is overruled, and it is declared valid.
Supervisors: The Petitioner challenged the ballots of Hyman
Rutstein, Otto Charvat, Earl Frederick, and Carl Teichert, on the
ground that they were supervisors.
In Case No. 18-C-1417, the Board found that Rutstein and Charvat
were supervisors. The evidence adduced at the hearing on challenged
ballots supports these findings; the parties, moreover, there stipulated'
that Rutstein was a supervisor. Accordingly, the challenges to the
ballots of Rutstein and Charvat are sustained, and their ballots are
declared invalid.
On the evidence adduced in Case No. 18-C-1417, the Board found
that Frederick, although not a supervisor within the meaning of the
Act, exercised some authority over the Employer's employees, and
occupied a strategic position which enabled him to translate to subordi-
nate employees the policies and desires of management. Evidence
adduced at the hearing on challenged ballots shows that Frederick was
the chief engineer at the Employer's brewery, charged with the main-
tenance of the plant machinery, including the boilers and icing equip-
ment. Three subordinate engineers worked under Frederick's
direction, and received a wage of five cents per hour less than that
received by Frederick. The evidence at the hearing on challenged
ballots shows, moreover, that Frederick had the power to make, and in
fact did make, effective recommendations regarding the hire, the dis-
9 There was some evidence at the hearing on challenged ballots showing that Sundt
became ill and underwent an operation.
10 An existing contract between the Employer and the Intervenor provided that if the
Union was unable to supply help during the busy season , the Employer could employ extra
help who were required to obtain from the Intervenor permit cards, good for only 1 month,
but renewable during the permit card season.
SIOUX CITY BREWING COMPANY 1169
charge, and the transfer of employees of the Employer. On the basis
of such evidence, we now find that Frederick was a supervisor within
the meaning of Section 2 (11) of the Act. Accordingly, the chal-
lenge to his ballot is sustained, and it is declared invalid.
Teichert was employed as a kettle man in the fermentation cellar
of the Employer's brewery. He worked with another individual, both
performing manual labor. Teichert had no authority to hire, dis-
charge, or otherwise affect the status of employees of the Employer.
He did not possess the power responsibly to direct employees. Ac-
cordingly, we find that Teichert was not a supervisor as defined in
the Act. The challenge to his ballot, therefore, is overruled, and the
ballot is declared valid.
Elzior Millette: The Intervenor challenged Millette's ballot at the
time of the election, but orally withdrew the challenge immediately
after the counting of the unchallenged ballots. At the hearing on
challenged ballots, the representative of the Intervenor reiterated the
withdrawal of the challenge. Accordingly, Millette's ballot is hereby
declared valid.
It appears that the counting of the challenged ballots we have here
held to be valid will determine the outcome of the election, and we
shall therefore direct that these ballots be opened and counted.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Sioux City Brewing Company,
Sioux City, Iowa, the Regional Director for the Eighteenth Region
shall, pursuant to the Rules and Regulations of the Board, within ten
(10) days from the date of this Direction, open and count the ballots of
Richard P. Harrington, Bruno Carstedt, Frank Parish, Clifford Mon-
tang, George Sundt, Carl Teichert, and Elzior Millette; and thereafter
prepare and cause to be served upon the parties a Supplemental Tally
of Ballots embodying therein his findings as to the outcome of the
election; and take such further steps in the investigation as may be
necessary in accordance with Rules and Regulations of the Board.