Tampa Florida Brewery, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1942

42 N.L.R.B. 642 (N.L.R.B. 1942)

In the Matter of TAMPA FLORIDA BREWERY, INC. and INTERNATIONAL
UNION or UNITED BREWERY, FLOUR, CEREAL & SOFT DRINK WORKERS
of AMERICA, LOCAL #186
Case No. R-3889.-Decided July 21, 1912
Jurisdiction : brewing industry.
Investigation and Certification of Representatives : existence of question:
conflicting claims of rival representatives; elections necessary.
Unit Appropriate for Collective Bargaining : Single or separate units com-
prising (1) engineers and firemen, excluding the chief engineer and (2) the
remainder of employees with specified inclusions and exclusions ; determi-
nation of, dependent upon results of election-long history of collective bar-
gaining on an industrial basis held not to preclude determination of proper
unit for craft by the desires of craft employees themselves, where 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.
Mr. W. H. Hendry and Mr. A. M. Morris, of Tampa, Fla., for the
company.
Mr. L. A. Grayson and Mr. John J. Twomey, of Tampa, Fla., for
the Brewery Workers.
Mr. Glenn McClung, of Tampa, Fla., for the Operating Engineers.
Mr. George Gant, of Tampa, Fla., for the Teamsters.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by International Union of United Brew-
ery, Flour, Cereal & Soft Drink Workers of America, Local # 186,
herein called the Brewery Workers, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Tampa Florida Brewery, Inc., Tampa, Florida, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Charles E. Persons, Trial
Examiner. Said hearing was held at Tampa, Florida, on May 28,
1942. The Board, the Company, the Brewery Workers, Interna-
tional Union of Operating Engineers, Local No. 925, herein called
42 N. L. R B., No. 131.
642
TAMPA FLORIDA BREWERY, INC. 643
the Operating Engineers, and International Brotherhood of Team-
sters, 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
prejudical error and are hereby affirmed.
Upon the entire record in the case, the Board makes the follow-
ing :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Tampa Florida Brewery, Inc., is a Florida corporation, having its
principal office and place of business in Tampa, Florida, where it is
engaged in the brewing of beer and ale, and the bottling of wine. It
has branch warehouses in Tallahassee, Jacksonville, Starke, Orlando,
Ft. Meyers, and Ft. Pierce, Florida. This proceeding concerns only
the Tampa plant. During 1941, the Company purchased raw materi-
als, for use at its Tampa plant, valued at approximately $45,000, of
which all were shipped to the plant from points outside the State of
Florida. During the same period, the Company purchased wine val-
ued at approximately $145,000, all but 25,000 gallons valued at $7,500,
was shipped to the plant from points outside the State of Florida.
During the same period, the Company's sales were in the amount of
approximately $861,000. Of this amount, approximately $590,000 rep-
resents sales of the Company's products; $50,000 represents sales by
the Company as a subdistributor of Drewery Beer and $20,000 of
Budweiser Beer; and $201,000 represents sales of wine. All the sales
were made to purchasers within the State of Florida.
II. THE ORGANIZATIONS INVOLVED
International Union of Unitecl. 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.
111. THE QUESTION CONCERNING REPRESENTATION
On May 2, 1941, the Company and the Brewery Workers entered
into a collective bargaining contract, effective as of April 1, 1941,
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminable in 1 yee2, with automatic renewal from year to year, unless
30 days' notice prior to expiration is given by either party. On April
27, 1941, the Operating Engineers informed the Company that the
engineers of the Company had designated it as their collective bargain-
ing agent and would, therefore, not be bound by the Brewery Workers'
contract. On February 24, 1942, the Operating Engineers again noti-
fied the Company of its claims of representation for the engineers.
On February 28, 1942, the Company notified the Brewery Workers
that in view of the truce agreed upon between the Teamsters and
Brewery Workers in their jurisdictional dispute regarding the drivers
and helpers, and the formal notice by the Operating Engineers for
a separate agreement, the Company did not wish to renew negotiations
concerning a new contract until such time as the jurisdictional dispute
was settled. Following this notification, the Brewery Workers filed
a petition with the Board.
A report prepared by a Field Examiner of the Board and intro-
duced in evidence at the hearing indicates that the Brewery Workers
and the Operating Engineers each represents a substantial number of
employees of the Company in the unit it alleges as appropriate.'
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 of the Company
at its Tampa plant, excluding clerical employees, non-working super-
visory employees, garage mechanics, the sign painter,' "salesmen of
route helpers," a transport helper, and the wine room employees, con-
stitute a unit appropriate for collective bargaining. The Operating
Engineers desires a unit comprising all engineers, including the chief
'The Field Examiner reported that the Brewery Wo'kers presented 40 authorization
cards , 37 of which were dated between December 1941 and April 1942, and bore appar-
ently genuine signatures . Of the 37 cards , 31 bear the apparently genuine signaluree of
persons whose names appear on the Company 's pay roll of April 21 , 1942. There are
approximately 57 employees in the unit alleged by the Brewery workers as appropriate.
The Field Examiner further reported that the Operating Engineers presented 4 authoriza-
tion cards , none of which were dated , bearing the apparently genuine signatures of persons
whose names appear on the Company 's pay roll of April 21 , 1942. There are approximately
6 employees in the unit alleged by the Operating Engineers as appropriate.
The Field Examiner also reported that the Teamsters refused to submit any eiidence in
support of its claim of representation for the employees in the unit alleged by it to be
appropriate . At the hearing the representative for the Teamsters stated that he was unable
to submit any evidence in support of his organization 's claim of representation because
the files containing such evidence were at the International Headquarters; that he had no
knowledge of what evidence these files contained since his assistant who had been handling
the matter was now in the Navy.
It appears that the Company has an informal agreement which is presently in full
force and effect with the Sign Painters Union, covering the sign painter in the employ of
the Company.
TAMPA FLORIDA BREWERY, INC. 645
engineer, and all firemen. The Teamsters desires a unit consisting of
employees classified as : transport drivers, "salesmen or route drivers,"
"salesmen or route helpers," and a transport helper. The Company
took no position with respect to the unit or units. - .
The Company and Brewery Workers have had collective bargaining
contracts since 1935. The first contract was executed on February 23,
1935, and remained in force until April 1, 1936; the second, on April 1,
1937, terminable in 1 year. This contract remained in full force and
effect until the last contract was executed in May 1941. These con-
tracts provided for automatic renewal subject to 30 days' notice prior
to expiration. They required membership in good standing in the
Brewery Workers as a condition of employment, and covered sub-
stantially the same employees as those in the unit alleged by the
Brewery Workers as appropriate.
From 1935 to April 27, 1941, no competing labor organization made
any claim to represent the engineers and the firemen. Hence, the ques-
tion of separate representation for these groups did not arise. The
Company does not claim that a unit composed of engineers and firemen
is inappropriate; nor does it object to dealing with either the Brewery
Workers or the Operating Engineers provided the Board certifies
either as the exclusive representative of the employees in such a unit.
Engineers and firemen are recognized crafts, and it appears that a
substantial number of the employees in the unit the Operating Engi-
neers claims to be appropriate desire the Operating Engineers to rep-
resent them. We are therefore of the opinion that the long history of
collective bargaining between the Company and the Brewery Workers
should not preclude a determination of the question of the proper unit
for the engineers and firemen by the desires of the engineers and firemen
themselves.
As has been stated, the Brewery Workers desires the exclusion of
"salesmen or route helpers" and a transport helper 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." The "salesmen
or route helpers" help to load and unload the trucks and accompany
the "salesmen or route drivers" on their routes. The transport helper's
duties are to help load and unload the transport trucks. He also acts
as a porter and a bartender. We have consistently held that, absent a
showing of differentiation in functions which would warrant their
exclusion, we will not exclude employees from a unit upon racial
considerations.3 No such differentiation was established in the instant
8 See Matter of Southern Wood Preserving Company and D,strict 50, Uncted Mine Work-
ers of America, affiliated with the Congress of Industrial Organizations , 37 N. L. R. B. 25;
Matter of Aetna Iron & Steel Co. and International Association of Bridge , Structural and
Ornamental Ironworkers Local No. 664, affiliated with the A. P. L., 35 N. L. R. B. 136;
Matter of American Tobacco Co., Inc. and Committee for Industrial Organization, Local
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case. We conclude that "salesmen or route helpers" and the transport
helper should be included.
The Brewery Workers desires the exclusion of the employees who
work in the wine room from the unit it claims appropriate because
they have not been organized by the Brewery Workers and because
the wine department is entirely separate from the brewery plant. It
appears that in accordance with the Federal Regulations of the Alcohol
Tax Unit, the wine department and the brewery must be entirely sep-
arate. Under all the circumstances, we are of the opinion that the
employees of the wine room should be excluded.
The Brewery Workers wishes to include all foremen and assistant
foremen, except R. L. Leavine, the bottle shop foreman, in the unit it
claims appropriate. Although they have the authority to recommend
hiring and discharge of the employees in their departments, these
foremen, except Leavine, are engaged in duties similar to those of the
other employees. It does not appear that they exercise substantial
supervisory authority. We find that all, except R. L. Leavine, should
be included.
The Brewery Workers wishes to include the chief engineer in the
unit it claims appropriate on the ground that he performs duties sim-
ilar to those of the engineers in his department. The Operating En-
gineers desires his inclusion in the unit it claims appropriate. The
chief engineer is in charge of three engineers and two firemen and has
the authority to hire and discharge these employees. We find that he
is a supervisory employee and as such should be excluded from the
appropriate unit.
We shall direct that separate elections be held (1) among the en-
gineers and firemen of the Company, excluding the chief engineer, to
determine whether they desire to be represented by the Brewery
Workers or by the Operating Engineers for the purposes of collective
bargaining, or by neither, and (2) among the remainder of the em-
ployees of the Company, including salesmen or route drivers, salesmen
or route helpers, transport drivers, the transport helper, and all fore-
men and assistant foremen (except R. L. Leavine), but excluding
clerical employees, nonworking supervisory employees, the chief en-
gineer, R. L. Leavine, garage mechanics, the sign painter, and the wine
room employees, to determine whether or not they desire to be rep-
resented by the Brewery Workers. Upon the results of these elections
will depend in part the determination of the appropriate unit or units.
If a majority in each group selects the Brewery Workers, the two
No. 473, 9 N L R. B. 579; Matter of Union Envelope Co and Envelope Workers Unnon
No. 393, 10 N . L. R. B. 1147; Matter of Floyd A . Fridell and Granite Cutters' Intel national
dssoeiatson of America, 11 N. L. R. B. 249 ; Matter of Interstate Granite Corporation and
Granite Cutters ' International Association of America , Charlotte Branch, 11 N. L. R. B.
1046; Matter of Brash ear Freight Lines, Inc. and Internatonal Association of Machinists,
District No. 9, 13 N. L. R . B. 191.
TAMPA FLORIDA BREWERY, INC. 647
groups will constitute a single appropriate unit. If the engineers
and firemen choose the Operating Engineers, that group will consti-
tute a separate appropriate unit.
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.
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 Relations
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 purposes of collective bargaining with Tampa Florida
Brewery, Inc., Tampa, Florida, elections by secret ballot shall be
conducted as early as possible-but not later than thirty (30) days from
the date of this Direction of Elections, under the direction and super-
vision 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
following 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 or training of the United States, or temporarily laid off, but
excluding any employees who have since quit or been discharged for
cause:
(1) All engineers and firemen of the Company excluding the chief
engineer to determine whether they desire to be represented by Inter-
national Union of United Brewery, Flour, Cereal & Soft Drink Work-
ers 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, transport drivers, the transport
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helper, and all foremen and assistant foremen (except R L Leavine),
but excluding clerical employees, non-working supervisory employees,
engineers rind firemen, the chief engineer, R L Leavine', garage me-
chhnics, the sign painter, and the wine room employees, to determine
whether or net they desire to be represented by International Union
of United Breweiy, Flour, Cereal & Soft Drink Workers of Ameiica,
Local $ 186, for the purposes of collective'baigaining
CHAIRMAN MILLIS, d i ssenting
I dissent from this decision because of the history of collective bar-
gaining From 1935 this has been on an industrial basis, with an en-
gineer as a signatory to the contracts between the Company and the
Brewery Workers in 1935, 1937, and 1941. No question of separate
representation for the engineers and firemen was raised until 1941.
In view of this history and in the interest of stability, I would not per-
mit the engineers and firemen to set themselves apart as a bargaining
unit separate from the rest of the employees' -
- 4 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 W, 13
N L R B 1252, Matter of R est Coast Wood Preserving Company and Boommen and
Rafters Union, Local 130, I W A , 15 N L R B 1, Mattes of Milton Bradley Company
and International Printing Pressmen and Assistants Union of North America, A F of L,
15 N L R B 938 , Mattei of Revere Copper and Brass Incorporated and Chicago Did
Sinkers, Local No 100, affiliated with the Intei national Die Sinkers Conference, 30 N L
R B 964 , Matter of Brewster Aeronautical Corpoi ation and Local No 365, International
Union, United Automobile IYorkers 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 , Ryderwood Branch and Brotherhood of Locomotive Firemen and Engine-
men, and Brotherhood of Railroad Tiainmen , 31 N L R B 322, Matter of American
Thermometer Company and International Association of Machinists, Local No 688, District
No 9, affiliated with the A F of L, 34 N L R B 222