Wirts Distributing Co.

In the Matter of WIRTS DISTRIBUTING CO.; CAL-III BREWERY CO.; CAL- SAC DISTRIBUTING CO.; PAR-MAC DISTRIBUTING Co.; E . A. SPARKS, D/B/A ACME BEVERAGE CO.; SACCANI DISTRIBUTING CO.; GEORGE F. GOTHMANN, D/B/A STERLING BRANDS; AND LEVY-ZENTNER, D/B/A VALLEY BEVERAGE CO., EMPLOYERS and INTERNATIONAL UNION OF UNITED BREWERY , FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA, CIO, PETITIONER Case Nos. ;20--R-1996, 20-R-1997, 20-R-2039, '2O-R-2042 , 20-R4044, 20-R-2051, 20-R-2054, and 20-R-2061.-Decided April 1, 1949 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed,' hearing in this consolidated case was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Upon the entire record in this case, the Board finds : 1. The business of the Employers : The Employers are engaged in the sale and distribution of alcoholic beverages in the vicinity of Sacramento, California. During the first 6 months of 1948, the Employers collectively purchased at least $1,838,904.69 worth of supplies, of which $195,350.57, or 10 percent, was obtained directly from sources outside the State of California. During the same period the total sales of all the Employers exceeded $2,254,469.81, of which less than 1 percent represented sales to outstate customers. Each of the Employers annually purchases at least $13,000 worth, and sells at least $22,000 worth of beverages. ' The Intervenor 's motion to dismiss the petitions because : (a) the petitions do not allege compliance by the Petitioner ; and (b ) the Petitioner was not in compliance with Section 9 (f), (g), and (h) of the Act at the time of filing the petitions, which occurred prior to the effective date of the amended Act, is hereby denied. Matter of Trueman Fertilizer Company, 81 N. L R. B. 72, In. 2; Matter of Stewartstown Furniture Compdny, 75 N L. R. B . 344, 346; cf. Matter of Rite-Form Corset Company, Inc., 75 N. L. R. B. 174, 176. 2 The admission in evidence of the Bulletins of the State Board of Equalization , in con- nection with the commerce issue, was proper. The Supreme Court has expressly sanctioned the Board 's recourse to relevant extrinsic materials. Phelps Dodge Corporation v. N. L. R. B , 313 U. S. 177, 195, 186. 82 N. L. R. B., No. 73. 669 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The totality of the Employers' operations clearly has an effect upon interstate commerce.3 Without determining whether or not the Board would assert jurisdiction as to each Employer were it before the Board separately,4 we find, contrary to the contentions of the Employers and the Intervenor, that the Employers are engaged in commerce within the meaning of the National Labor Relations Act .5 2. The Petitioner and the Intervenor, Joint Local Executive Board of California, AFL, are labor organizations claiming to represent employees of the Employers.° S Matter of Baking Industry Council, 80 N. L R. B. 1590; Matter of The Everett Automotive Jobbers Association, 81 N L R B. 304; Matter of Air Conditioning Com- pany of Southern California, 81 N. L R. B 946 ( Supp. Dee ), and cases cited therein. For this reason the fact that Levy-Zentner, d/b/a Valley Beverage Company refused to submit data on its commerce is immaterial . See Matter of Celanese Corporation of America, 73 N L. R. B 864. 4 The following table sets forth the pertinent facts relating to commerce for the eight companies named in the instant petitions : $ volume purchases 1/1/48 to 6/30/48 % out- $ volume sales Galion- age Name of employer out- State purchases 1/1/48 to 6/30/48 im orts 11/47 to Total State 6/48 Wirts __________________________________ 72,308 51 6 , 227 00 8 . 5 85,475 67 11,536 Cal-Hi -------------------------------- 172,752 00 25,164 00 14 . 0 240 , 569 00 33,581 Cal-Sac -------------------------------- 63,575 99 28 , 049.42 44 0 87,576 75 38,361 Par-Mac andBellessi ^________________ 6,118 23 ---- _____ - _ - 11,034 14 21,831 Acme Beverage ------------------------ 409,108 79 80,001 .'21 i6 8 504,623.49 85,864 Saccam ________________________________ 372,090 69 5,757 50 1 3 455,030 69 9,536 Sterling Brands _______________________ 742,950 48 50,151 54 6 7 870,160 07 47,690 Valley Beverage_______________________ Unavailable __________ __________ ______________ 199,065 a From data compiled from statements the Employers returned to the California State Board of Equalization . See supra note 2. " Par-Mac is the successor to Bellessi. The Intervenor's contention that the Employers ' activities do not affect commerce because other means exist whereby their customers might be able to secure the same products from other distributors in the same State, if a labor dispute should stop the intrastate flow to and from the Employers , lacks merit, N. L. R. B. v. Bradford Dyeing Assn., 310 U . S 318, enfg 4 N. L. R. B. 604; Pueblo Gas d Fuel Co. v. N. L. R B., 118 F. (2d) 304 (C A. 10), enfg 23 N. L. R. B. 1028 Contrary to the Employers ' contention, the Board is not required to determine that the duties of particular employees affect commerce. It is sufficient that the employees involved herein are employees of Employers whose operations affect commerce. Matter of The Houston Press Company, 70 N. L. it. B. 660, and cases cited therein d The Intervenor contends that the Petitioner is not the real party in interest, inasmuch as pending unfair labor practice complaints ( Nos. 20-C-1570, 20-C-1571. 20-C-1572) aver that Local 227 of the petitioning International represents the employees at Acme, Sterling Brands, and Valley Beverage. However, we are satisfied that the Petitioner has a substantial interest in this proceeding . Matter of Louis Pizitz Dry Goods Company, 71 N. L it. B. 579. Furthermore, as we have declared in numerous cases , the question of whether or not a petitioner has made a sufficient prima facie showing of interest to warrant the conduct of a representation election is an administrative matter, and is, therefore, not subject to direct or collateral attack by any of the parties to the proceeding. Matter of 0. D. Jennings & Company, 68 N. L. R. B . 516. For this reason the contention of the Intervenor that the petition should be dismissed because the show of interest is stale is likewise without merit. WIRTS DISTRIBUTING CO. 671 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner requests (1) a multiple-employer unit composed of the eight Employers named in the instant petitions or (2) individual units for each of the eight Employers. The Intervenor contends that the following multiple-employer units are appropriate (in order of preference) : (1) a State-wide unit of all the beer distributors of Cali- fornia; (2) the beer distributors of Northern California; (3) all mem- bers of the Sacramento Beer Distributors Association who do not have contracts with Teamsters' Local 150, i. e. the eight presently before the Board and five Stockton members; (4) the eight Employ- ers named in the instant petitions. The Employers adopt the position that the unit requested by the Intervenor as its third alternative is appropriate. None of the associations described below participated in the proceeding. The instant Employers are 8 of the 16 members of the Sacramento Beer Distributors Association, herein called the Sacramento Distribu- tors. The remaining 8 members include 5 distributors located in Stockton, California, who joined the Sacramento Distributors in 1948, and 3 in the Sacramento area who have outstanding contracts with Teamsters' Local 150, which is not affiliated with the Intervenor. As noted below the 8 companies involved herein have been bargaining with the Intervenor. In 1939, the employer associations and individual employers within the Sacramento region formed the Sacramento Valley Associated In- dustries. The membership included the beer and beverage employers. All members of the Sacramento Valley Associated Industries agreed not to make any contracts, either with individuals or with labor organi- zations, until the offer had been presented to and acted upon by the entire group. In 1943, the beer-distributor members formed their own affiliated association, the Sacramento Distributors. From 1944 to 1946, members of the Sacramento Distributors conferred before contracting, pursuant to the Sacramento Valley Associated Indus- tries policy. From 1944 to 1946, members of the Sacramento Dis- tributors operated, as did the other distributors within the State, under the so-called "operating rules" which the Intervenor had se- cured through negotiations with the various brewery proprietors, the brewers' contracts providing the terms applicable to the distributor associated with the brewery. In July of 1946, the Sacramento Dis- tributors, for the first time, acted on behalf of some members by ac- 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cepting for them the contract which the Intervenor had negotiated with the Brewery Proprietors of Northern California.? In 1947, the Intervenor negotiated an agreement with the brewery proprietors for the entire State, which the Sacramento Distributors again ac- cepted on behalf of the members not under contract with Teamsters' Local 150.8 The 1947 contract terminated in the spring of 1948 and is the last contract which the Sacramento Distributors have made with the Intervenor. There is no current contract. In 1948, the Intervenor for the first time negotiated with distributors independent of the brewers. The Southern and Northern Beer Dis- tributors Associations, excluding only the Sacramento Distributors, accepted a common contract, separate for the State-wide brewers' con- tract. The Sacramento Distributors were invited to participate in these negotiations but declined because they felt precluded from con- tracting by the pendency of unfair labor practice charges against some members.9 The record indicates many factors suggesting the propriety of some multiple-employer unit : a 10-year history of collective Employer ac- tion, which has grown from mere consultation among the Employers prior to signing a contract to participation through representatives in the execution of common contracts for the represented members; 10 the pattern of bargaining within the industry ; the similarity of work- ing conditions and interests of the employees; and the agreement among the Employers and the unions on the desirability of some multiple-employer unit 11 However, the appropriate multiple-employer unit remains to be determined. Nothing in this record demonstrates the propriety of the State-wide unit urged by the Intervenor. Although the Sacra- mento Distributors are affiliated with the Northern California Beer Distributors, which joined with the Southern California Beer Distrib- utors in a 1948 contract, they did not participate in the single joint action by those associations. Nothing in the record evidences their intent to be bound by future action of the Northern California Beer 7A representative signed the contract on behalf of Rainier, Cal-Sac, Acme, Bellessi, Saccani, and Sterling Brands. In 1946, the Sacramento Distributors also acted on behalf of Regal Pale, Lenz, and Blucher, by negotiating for them a contract with Teamsters' Local 150. 'A representative signed the contract on behalf of Cal-Hi, Cal-Sac, Acme, Bellessi, Saccani, Sterling Brands, and Valley Beverage. 9 Acme, Sterling Brands, and Valley Beverage. See supra, note 7. Inasmuch as waivers have been filed, the pendency of these unfair labor practice cases is immaterial to this pro- ceeding. Matter of Linde Air Products Co, 77 N. L. R. B. 1206. "The record indicates that the Sacramento Distributors negotiates for its members who reserve the right to reject or accept the contract as negotiated. A member who rejects a contract which was representatively negotiated for him must resign. n See Matter of Associated Shoe Industries of Southeastern Massachusetts, Inc., et a?., 81 N. L. R. B. 224. WIRTS DISTRIBUTING CO. 673 Distributors. Under this circumstance, their inclusion only in a Northern California unit, as urged by the Intervenor, would be in- appropriate. Inasmuch as some members have persistently contacted with a third union, independently of the members who have dealt with the Intervenor, the total membership of the Sacramento Distributors, is likewise not an appropriate unit 12 A fourth alternative urged by the Intervenor and the Employers would include those members of the Sacramento Distributors who have not contracted with Teamsters' Local 150, namely the 8 Employers herein and the 5 Stockton members. who joined the association in 1948. However, the Stockton companies have not been party either to group negotiations or to common con- tracts. The mere existence of other members of the Sacramento Dis- tributors who have persistently bargained independently of all other members clearly indicates that the joining of the association by the Stockton companies provides no assurance that they intended to join in common collective bargaining. We therefore find no basis, on the facts now before us, for finding appropriate only a multiple-employer unit of the 13 members of the Sacramento Distributors who have not contracted with Teamsters' Local 150. There remains for consideration the appropriateness of a unit con- fined to the eight Employers before us in the instant proceeding. On the basis of the facts set forth above, including the joint conduct of these Employers in the past,13 and the general community of interest shared by their employees, we, are persuaded that the employees of these Employers may appropriately function as a single collective bar- gaining unit. Accordingly we find that all drivers and bottlers 14 in the Sacra- mento, California, plants of the Employers, excluding all other em- ployees, guards, and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Wirts Distributing Co.; Cal-Hi Brewery Co.; Cal-Sac Distributing Co.; Par-Mac Distributing Co.; E. A. Sparks, d/b/a Acme Beverage Co.; Saccani Distributing Co.; 12 Matter of Alaska Salmon Industry, Inc, 61 N. L. R. B 1508, and cases cited therein. 18 Although the Wirts Distributing Company has not participated in group negotiations culminating in a contract or in a group contract, we are persuaded by the position taken by that company at the hearing that it intends to join with the other seven Sacramento companies in any future collective bargaining. "The parties agree on the internal composition of the unit. See Matter aj Mutual Distributing Company, 81 N. L. R. B. 208. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George F. Gothmann, d/b/a Sterling Brands ; Levy-Zentner, d/b/a Valley Beverage Co.; in Sacramento, California, and environs, an elec- tion by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election , and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, CIO; or by the Joint Local Executive Board of California, AFL, comprised of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Locals Nos. 203, 683, 884, 888, 893, and 896; or by neither.