John J. Fitzsimmons

In the Matter of JOHN J. FITZSIMMONS (WHOLESALE BEVERAGES),. EMPLOYER and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,. CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 182,. PETITIONER Case No. 3-RC-223.-Decided June 17, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held before Merle D. Vincent, Jr., a hearing officer of the National Labor Rela- tions Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. A motion to dismiss the petition, made by the Intervenor at the hearing, was referred to the Board. For reasons hereinafter stated, the motion is denied.' Upon the entire record in the case, the Board 2 finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The following labor organizations claim to represent employees of the Employer : International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Local 182, herein called the Petitioner, and International Union of Brewery, Flour, Cereal,. Soft Drink and Distillery Workers of America, CIO, Local 54, herein called the Intervenor. 3. The Intervenor contends a presently existing contract between it. and the Employer constitutes a bar to this proceeding. The contract dated April 26, 1947, was to continue in effect for 1 year and thereafter from year to year in the absence of written notice by either party to the i We find no merit to the Intervenor's contention made in its brief that the petition is defective because it does not allege compliance by the Petitioner with Section 9 (f), (g), and (h ) of the Act. The question of a labor organization 's compliance with the Act is an administrative matter which is not subject to collateral attack by any of the parties in a representation proceeding . Matter of Lion 04 Company, 76 N. L. R. B. 565. 2 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 [ Members Houston, Reynolds, and Burdock]. 84 N. L R. B., No. 44. 349 853396-50-vol. 84-26 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other, 30 days before the anniversary date. On January 25, 1949, 2 months before the automatic renewal notice date, the Petitioner ad- vised the Employer that it represented a majority of the Employer's employees and that it was filing a petition for certification with the Board. On January 28, 1949, the Petitioner filed the instant petition. As the petition was filed before the operative date of the automatic renewal clause of the contract, the contract cannot serve as a bar to a current determination of representatives.3 The Intervenor further contends that the present petition is un- timely filed because the employees requested by the Petitioner are cur- rently represented by the Intervenor, and until the Intervenor is de- certified in a Board conducted election, the Petitioner may not petition for certification for itself. This contention is lacking in merit. There is no requirement in the Act that a labor organization which is an estab- lished bargaining agent must first be decertified by the Board before a rival labor organization may supplant it. A union may file a petition with the Board any time it stands ready to establish its majority status 4 and the petition is valid even if the requested employees are currently represented by another bargaining agent provided that there is no contract bar 5 and the established bargaining agent has not ob- tained'a,Board certification less than a year before the petition is'filed.6 As no contract bars the present petition and the Intervenor has never been issued a certificate, we find that the present petition was season- ably filed. We find that a question affecting commerce exists concerning the representation of employees of the Employers, within the meaning of Section 9 (c) (1) and Section 2 (6)' and'(7) of'the Act. 4. The Petitioner and the Employer agree that all the Employer's driver-salesmen constitute an appropriate unit. The Intervenor, on the other hand, contends that the Employer's driver-salesmen should be included in a multiple-employer unit composed of all the employers engaged in the manufacture, sale, and distribution of beer in the Utica area. The Employer is a beer distributor with a place of business in Rome, New York. At the time of the hearing, there were three driver-sales- men in the, Employer's employ who ;performed the usual duties of such employees. For at least 10 years, the driver-salesmen have been covered' by collective bargaining agreements entered into between the Em- ployer and the Intervenor. ' Matter of Norge Division, Borg Warner Corporation, 72 N L. R B 289 4 Matter of General Box Company, 82 N. L R B 678. 5 Matter of Gemco Engineering & Manufacturing Co , Inc , 76 N L R. B. 437 6N. L. R B. v Century Oxford Manufacturing Corporation, 140 F (2d) 541 (C. A 2) enfg. 47 N. L R B 835; Matter of Allen Morrison Sign Company, Inc, 79 N. L. R. B. 915 JOHN J. FITZSIMMONS 351 The Intervenor established itself as a bargaining agent in the beer industry in about 1925 when it began its dealing with the brewers. In that year, the brewers joined in common collective bargaining with the Intervenor and this joint bargaining relationship has continued until the present. The brewers have signed only joint collective contracts with the Intervenor. About 1935, the Intervenor initiated the practice which is still in effect of submitting copies of all contracts consummated with the brewers to the individual beer distributors in the Utica area and in- viting the beer distributors to accept the contracts and if they so desire to negotiate any changes with respect to its terms. So far as appears, all the beer distributors, including the Employer, have ap- proved this practice and signed the contracts in the form they were submitted. While the names of two other beer distributors appear on the Employer's last contract with the Intervenor, it seems clear at least with respect to the Employer that it acted independently and signed the contract without discussing the matter with the other signatories. Although the beer distributors and the brewers in the Utica area have had contracts with the Intervenor for almost 15 years which were identical in their terms, so far as the beer distributors are concerned their dealings with the Intervenor have always been conducted on an individual basis. They have not participated in group bargaining either between themselves or with the brewers; nor have they author- ized the brewers who actually negotiated the contracts to act on their behalf. The Employer, moreover, desires to continue its independent course in bargaining. Under all the circumstances, we conclude that the Employer's driver-salesmen constitute a separate appropriate unit.? We find that all the Employer's driver-salesmen, excluding all supervisors constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 5. The Intervenor objects to the holding of an election at this time because the Employer may increase the number of driver-salesmen on its pay roll. It appears that the Employer's operations are seasonal in character with the busy season beginning in the Spring and reach- ing its peak during the summermonths., At the hearing the Employer testified that it had not yet hired any seasonal workers because busi- ness was slow in picking up this year but that if conditions took an unexpected turn for the better, it would add at most only three more driver-salesmen to its present working force. We shall direct that an 7 Matter of Wirts Distributing Company, et at, 82 N. L R. B 669; Matter of Bauer- Schweitzer Hop and Malt Company, et at, 72 N L R B 1223. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediate election be held, because at the time of the election the Employer will be operating at its peak season. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election 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 supervi- sion 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 voting group described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including 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 ex- cluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of col- lective bargaining, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 182 or by International Union of Brewery, Flour, Cereal, Soft Drink and Dis- Employer will be operating at its peak season.