Henry J. Nortz, Inc.

In the Matter Of HENRY J. NORTZ, INC., EMPLOYER C00 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP- ERS OF AMERICA, LoCAL No. 182, A. F. L., PETITIONER Case No. 3-RC-292.-Decided October 17, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before John McRee, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Intervenor 1 moved to dismiss the petition upon jurisdictional grqunds, and also upon the basis that the unit sought is inappropriate. This motion will be considered hereinafter. 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 Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds: 1. The Employer, a New York corporation with its sole place of business at Lowville, New York, is engaged in the wholesale distribu- tion of beer and soft drinks. During 1948, the Employer purchased beer in the amount of $326,000, all of which was bought, brewed, and bottled within the State of New York.' During 1948, the Employer's sales of beer and soft drinks exceeded $500,000, all of which were made within the State of New York. Four weeks prior to the hearing the Employer ceased distribution of one of the local brews and began the distribution of Duquesne beer, which is shipped to the Employer from Pittsburgh, Pennsylvania, and the returnable bottles are shipped back to Pittsburgh. The sale of this brand during such 4-week period amounted to $4,500, or approximately 15 percent of the Employer's total sales. It appears that the Employer intends to continue in- definitely the distribution of Duquesne beer. It is the sole distributor 1 International Union of United Brewery, Flour , Cereal, Soft Drink & Distillery Workers of America , Local No . 54, C. I. O. 2 With the exception of a $2 , 000 purchase of La Batt 's and Heinekin 's beer, which are brewed and bottled in Canada and Holland, respectively. 86 N. L. R. B., No. 79. 580 HENRY J. NORTZ, INC. 581 of this brand in six counties in the State of New York. Our policy has been to assert jurisdiction over franchised wholesale distributors of wine, liquor, or beer which is made outside the State.' In accord- ance with our customary policy, we find that the Employer is engaged in commerce within the meaning of the Act 4 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit; the determination of representatives : The Petitioner seeks a unit composed of all employees of the Em- ployer's Lowville, New York, plant, including drivers, helpers, and warehousemen. The Employer and the Intervenor do not dispute the composition of the proposed unit, but the Intervenor contends that a multi-employer unit is the only appropriate one. In 1941, a number of beer and soft drinks distributors, including the Employer, decided to negotiate jointly with the Intervenor. Each distributor was separately represented, and acted as an independent contracting party. Contracts were signed individually by each dis- tributor.' This group had no name until 1947, when it was called the "Jefferson-Lewis County Beer Distributors Association." In December 1947, the organization's treasury became depleted, and the association has now ceased to exist. The Intervenor contends that since the beer distributors in the area have traditionally negotiated jointly for their employees, and have been signatories to identical contracts growing out of such negotia- tions, collective bargaining, insofar as the Employer is concerned, has been established on a multi-employer basis. The record does not estab- lish that there is any organization presently in existence which is authorized to bargain jointly for the Employer and the other beer distributors. Moreover, the record clearly indicates a desire on the part of the Employer at this time to pursue a course of individual bar- gaining. Apart from all other considerations, and in accordance with our prior decisions,e we find that this factor is controlling. Accord- ingly, we reject the Intervenor's contention that a multi-employer unit 3 See e. g. Matter of Wins Distributing Company, 82 N. L. R. B. 669; Mutual Distribut- Co., 81 N . L. It. B. 208 ; General Beverages Co., 81 N .L. R. B. 647. 4 The Intervenor's motion to dismiss the petition upon jurisdictional grounds is hereby denied. 6 Bargaining contracts contain the following preamble : "Between the undersigned firms of Watertown and Lowville , New York , herein called the Employer , and Brewery Workers 6 Matter of Kintty Optical Company, 85 N. L. R. B. 1940 , and cases cited therein. 8c7an l-SO-vol. 86--38 .582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the only appropriate one, and find that a single-employer unit is .appropriate.' We find that all employees at the Employer's Lowville, New York, ;plant, including drivers, helpers, and warehousemen, but excluding -office and clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 8 As part of the investigation to ascertain representatives for the -purposes 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 super- vision 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, 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, 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 rein- .:stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether ,or not they desire to be represented, for purposes of collective bargain. ing, by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Local No. 182, A. F. L.9 4 The Intervenor's motion to dismiss the petition on the basis that the unit sought is 'inappropriate is hereby denied. 8 Either participant in the election directed herein may , upon its prompt request to, and .approval thereof by, the Regional Director, have its name removed from the ballot. 8 As the Intervenor is presently out of compliance with the filing requirements of the Act, its name is omitted from the ballot. In the event the Intervenor effects compliance -within 2 weeks from the date of this Direction , the Regional Director is hereby instructed to accord it a place on the ballot.