Southern Brewing Co.

National Labor Relations Board - Board Decisions

Jul 21, 1942

42 N.L.R.B. 649 (N.L.R.B. 1942)

In the Matter Of SOUTHERN BREWING COMPANY and INTERNATIONAL
UNION OF UNITED BREWERY , FLOUR, CEREAL & SOFT DRINK WORKERS
OF AMERICA , LOCAL #186
Case No. R-3888 -Decided July 21, 1942
Jurisdiction brewing industry
Investigation and Certification of Representatives : existence of question, con-
flicting claims of rival iepiesentatines, elections necessary
Unit Appropriate for Collective Bargaining : single or separate units comprising.
'(1) all engineers, excluding the chief engineer and maintenance men and
(2 )`the remainder of employees with specifled`inclusions and exclusions, deter-
niination'of, dependent uponriesults of election-long history of collective bar-
gaining on an industrial basis held not to preclude determination of proper
unit foi craft by the desues of craft employees themselves, wwheie the question
of their separate representation had not arisen in the past and where they
were a recognized craft group among whom a substantial number were members
of a craft organization
Mr John C. McRee and Mr Ralph L Wiggins, for the Board
McKay, MacFarlane; Jac1cs,on, `and Ferguson, by Mr. J. H Hans-
brough, of Tampa, Fla , for the Company.
Mr. John J Twomey, of Tampa, Fla , for the Brewery Workers.
Mr Glenn McClung, of Tampa, Fla, for the Operating Engineers.
Mr W E. Sullivan and Mr George Gant, of Tampa, Fla, for the
Teamster's.
Miss Melven R Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE' CASE
r
Upon petition duly filed by International Union of United Brewery,
Flour, Cereal & Soft Drink Workers of America, Local #186, herein
called the Brewery Workers, alleging that a question affecting com-
merce had arisen concerning the representation of employees of South-
ern Brewing Company, Tampa, Florida, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Charles E Persons, Trial Examiner.
Said hearing was held at Tampa, Florida, on May 27, 1942. The
Board, the Company, the Brewery Workers, International Union of
42 N L R B, No 132
649
a"t4 +u LY]dLLI ul jPbL [L4LILL 1JdSLI;.I S3At S.Iaaui.ona ail} IO^ AOI4iiJuaSBJ
999 ANVdWOO 9 IIAILZHa X4HI .L.IIOS
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operating Engineers, Local No 925, herein called the Operating
Engineers, and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No. 79, herein
called the Teamsters, appeared, participated, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Southern Brewing Company is a Florida corporation having its
principal office and place of business in Tampa, Florida, where it is
engaged in brewing beer During its fiscal year ending September
1941, the Company purchased raw materials valued at between $100,-
000 and $150,000, of which all were shipped from points outside the
State of Floiida During the same period the Company purchased
bottled wine, valued at appi oximately $57,000, of which all was shipped
from points outside the State of Florida During the same period
the Company's sales were in the amount of approximately $1,250,000
The Company distributed approximately 45 percent of its pioducts
to local retail vendors and appioximately 55 peicent to wholesale dis-
tributors All the distributors but one are located in the State of
Florida
II THE ORGANIZATIONS INVOLVED
International Union of United Brewery, Flour, Cereal & Soft Drink
Workers of America, Local .#186, is a labor, organization, admitting
to membership employees of the Company -
International Union of Operating Engineers, Local No 925, and
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No 79, are labor organizations
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company. _
III THE QUESTION CONCERNING REPRESENTATION
On April 1, 1941, the Company and the Brewery Workers entered
into, a collective bargaining contract terminable in 1 year, with auto-
bxu"Ja 1I aU NUI.L011ulu
anvoa SNOISVIIEII UGHVI IVNOILVN do SNOISIOaa
SOUTHERN BREWING COMPANY 651
bargaining agent and would, therefore, not be bound by the Brewery
Workers' contract On February 24, 1942, the Operating Engineers
again notified the Company of its claim of representation for the
engineers On February 26, 1942, the Teamsters notified the Com-
pany by letter that it intended to exercise its jurisdiction over the
truck drivers and helpers of the Company at the expiraticui of the
Brewery Workers' contract. On February 27, 1942, the Company
notified the Brewery Workers that it did not wish to renew negotia-
tions concerning a new contract until such time as the jurisdictional
dispute was settled Following this notification the Brewery Work-
er s filed a petition with the Boar d - -
A repoit prepared by a Field Examiner of the Board and intro-
duced in evidence at the healing indicates that the Brewery Workers
and the Opel ating Engineers each represents a substantial number of
employees of the Company in the unit it alleges as appropriate 1
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act -
IV THE APPROPRIATE UNIT
The Brewery Workers contends that all employees, excluding cleirca!
employees, non-working supervisory employees, garage mechanics, the
garage watchman, the garage clerical employee, sign painters 2 and
"salesmen or route helpers," constitute a unit appropriate for collec-
tive bar gaming The Operating Engineers desires a unit comprising
all engineers, including the chief engineer, but excluding two mainte-
nance men who are under the jurisdiction of the chief engineer- The
Teamsters desires a unit consisting of all employees classified as-
"salesmen or route drivers," "salesmen or route helpers," and transport
'The Field Examiner reported that the Biewery Workeis presented 54 authorization
cards , 51 of which were dated between January 1942 and Apill 1942, and bore apparently
gendine signatures Of the 51 cards, 50 bear the apparently genuine signatures of persons
whose names appear on the Company 's pay roll of April 21, 1942 There are approximately
83 employees in the unit alleged by the Breweiy workers as appropriate '
The Field Examiner further repotted that the Operating Engineers presented five
authorization cards , none of which was dated , bearing the apparently genuine signatures
of persons whose names appear on the Company 's pay roll of April 21 , 1942 There are
appioximately six employees in the unit alleged by the Operating Engineers as appropriate
The Field Examiner also reported that the Teamsters refused to submit any evidence
in support of its claim of representation for the employees in the unit alleged by it to be
appropriate At the hearing the representati%e for the Teamsters stated that he was
unable to submit my e%idence in support o1 his organization 's claim of representation
because the files containing such evidence v eie at the Inteinational headquarters, that
he had no knowledge of what evidence these files contained since his assistant , who had
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers The Company took no position with respect to the unit or
units
The Company and the Brewery Workers have had collective bar-
gaining contracts since 1935 The first coati act was executed on
April 1, 1935; the second on Apnl 1, 1937 These contiacts were for
1-year periods with automatic renewal from year to yeai unless 30
days' written notice prior to expiration was given by either party.
The second contract remained in full force and effect until Api111941,
when the last agreement was executed The contracts executed in
1937 and 1941 required membership in good standing in the Biewery
Workers-as a condition of-employment - They covered substantially
the same employees as those in the unit alleged by the Brewei y Workers
as appropriate; - I .
From-1935 to April 27, 1941, no competing labor organization made
any claim to represent the engineers Hence, the question of separate
representation of this group did not arise The Company does not
claim that a unit composed of engineers is niappiopriate, nor does
it object to, dealing with either the Bre« ery Workei s or the Operating
Engineers provided the Board certifies either as the exclusive repre-
sentative of the employees in such a unit Engineeis aie a recognized
craft, and in view of the evidence that a substantial number of the
engineers ' are members of the Operating Engineers, we are of the
opinion that the long history of collective bargaining between the
Company and the Brewery Woikers should not pieclude a deteiniina-
tion of the question of the proper unit for the engineers by the desires
of the engineers themselves -
As has been stated, the Biewery Workers desnes the exclusion of
"salesmen or route helpers" from the unit it claims appropriate These
employees are Negroes and have not been organized by the Brewery
Workers, allegedly because the Brewery Workers has "always kept
away from the Negro,issue " They help to load and unload the trucks
and accompany the "salesmen or route driveis" on their routes We
have consistently held that, absent a showing of differentiation in
functions which would °warrant their exclusion, we will not exclude
employees fiom a unit upon racial considerations 8 No such differen-
See Matter of Southern Wood Preserving Company and Distinct 50, United Mine Work-
ers of Amet tea, affiliated with the Congress of Industrial Organizations , 37 N L R -B 25 ;
Matte, of Aetna Iron & Steel Co and International Association of Bridge, Structural and
Oi na`mental Ironworkers Local No 664, affiliated with the A F of L , 35 N L R B 136 ,
Matter of Amet scan Tobacco Co , Inc and Committee for Industrial Organization, Local
N0 _472, 9 N L R B 579, Matter of Union Envelope Co and Envelope Woikers Union
No393, 10 N L R B 1147 , Matter of Floyd A Fridell and Granite Cutters' Interna-
tional Association of America , 11 N L R B 249, Matter of In'terstate Granite Corpora-
tion and Granite Cutters' International Association of America , Charlotte Branch, 11 N L
R B 1046, Matter of 'Brashear Freight Lines , Inc and International ' Association of
Machinists, District No 9, 13 N L R B 191 _
i
SOUTHERN BREWING COMPANY 653
tiation was 'established in the instance case' -WWWe conclude `that "sales-
men or route helpers" should be included ` <" ' 1 `
` The Brewery Woi ken s wishes to exclude the` chief engineer from ;the
unit it claims appropriate on the ground that he is a non-working
supervisory employee and is not eligible to membership in'the Brewery
Workers The Operating Engineers desires his inclusion in the unit
it claims appropriate The chief engineer is rn'charge of fouf'eiigi-
neers, and two "mamtenance'men," and has the authority to hire and
discharge these employees We find that he is a supervisory employee
and accordingly' we shall exclude him The Operating Engineers de-
sires the exclusion of the two maintenance men from the unit it claims
appropriate on the ground that these employees mai ntim and repair
machinery in the entiie plant while the engineers are confined solely
to the maintenance of machinery relating to either compressed air' or
steam We assume that the Brewery Workers desires'their inclusion
in the unit it claims appropriate We find that they should be included
in the larger group claimed by the Brewery Workers
We shall direct that separate elections be held (1) among the engi=
neers of the Company, excluding the chief engineer, to determine
whether they desire to be represented by the Brewery Workers or-by
the OperAmg Eugirieers for the purposes of collective` bargaining,
or by neither, and (2) among the remainder of the employees of the
Company, including -salesmen or route drivers; salesmen or` route
helpers, transport drivers; and-the maintenance men, but egcludmg
clerical employees, nonworking supervisory employees, the chief engi-
neer, gar age mechanics, the gar age watchman, the garage clerical
employee, and the sigii'paintei^s, to cleteiinrne whether' or' not they de-
sire to be represented by the Brewery Workers Upon the results of
these elections will depend in part our determination of the appi o-
priate unit or units If the majoiity in each group selects the Brew-
ery Workers, they will together constitute a single appropriate unit
If the engmeeis choose the Operating' Engineers, that group will con-
Statute a separate ppropriate un ta i -
V THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by elections by secret ballot among the groups
of employees indicated in the Direction of Elections hereinafter who
were employed during the pay-roll period immediately preceding the
date of our Direction of Elections herein, subject to the limitations and
additions set forth in said Direction Since the Teamsters has pre-
sented no evidence in support of its claim of representation, we shall
not accord it a place on the ballot
Act, 49 Stat 449, 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 to ascertain representa-
tives for the proposes of collective bargaining with Southern Brewing
Company, Tampa , Florida, elections by secret ballot shall be conducted
as early as possible but not latex than thirty ( 30) days from the date
of this Direction of Election -,, under the direction and supervision
of the Regional Director for the Tenth 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 the fol-
lowing employees of the Company who were employed during the
pay-roll period immediately preceding the date of this Direction of
Elections , and including employees who did not work during such
pay-roll period because they were ill or on vacation or in the active
military service of training of the United States, or temporarily laid
off, but excluding any employees who have since quit or been dis-
charged for cause
(1) All engineers of the Company excluding the chief engineer,
and the maintenance men, to determine whether they desire to be
represented by International Union of United Brewery, Flour, Cereal
& Soft Drink Workers of America, Local #186, or by International
Union of Operating Engineers , Local No 925, for the purposes of
collective bargaining , or by neither ; and
(2) All employees of the Company , including salesmen or route
drivers, salesmen or route helpers , tran-,port drivers, and the main-
tenance men , but excluding clerical employees, non-working super-
visory employees , engineers, the chief engineer, garage mechanics,
the gar age watchman , the garage clerical employee , and the sign paint-
ers, to determine whether or not they desire to be represented by Inter-
national Union of United Brewery, Flour, Cereal & Soft Drink Work-
ers of America, Local #186, for the purposes of collective bargaining
CHAIRMAN MILLIS, dissenting'
I dissent from this decision because of the history of collective
bargaining From 1935 this has been on an industrial basis, with
an engineer as a signatory to the contracts between the Company and
the Brewery Workers in 1937 and 1941 No question of separate rep-
+ See Matter of American Can Company and Engineers Local No 30, Firemen & Oilers
Local No 56, Matter of American Can Company and Local Union No 3, I B E IV, 13
N L R B 1252, Matter of West Coast Wood Preserving Company and Boommen and
Rafters Union, Local 130, I IV A , 15 N L R B , Matter of Milton Bradley Company
and International Printing Pressmen and Assistants Union of North America, A F of L,
15 N L R B 938, Matter of Revere Copper and Brass Incorporated and Chicago Die
Sinkers, Local No 100, affiliated with the International Die Sinkers Conference, 30 N L
R B 964, Matter of Brewster Aeronautical Corporation and Local No 365, International
Union, United Automobile Workers of America, and Local 807, Teamsters and Truck
Drivers, affiliated with the American Federation of Labor, 31 N L R B 776, Matter of
Long-Bell Lumber Company, Rydeiivood Branch and Brotherhood of Locomotive Firemen
& Enginemen and Brotherhood of Railroad Trainmen, 31 N L R B 322, Matter of Amer-
ican Thermometer Company and International Association of Machinists, Local 688, Dis-
trict No 9, affiliated with the A F of L, 34 N L R B 222