Central New York Beer Distributing Co. et al.

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Ladies' Garment Workers' Union A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b) (2) of the Act and that the Respond- ent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have not been sustained. [Recommendations omitted from publication CENTRAL NEW YORK BEER DISTRIBUTING COMPANY, ET AL.i and BEER DRIVERS, BREWERY, SOFT DRINK AND MAINTENANCE WORKERS, LOCAL 263, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, Peti- tioner .' Case No. 3-RC- 1280 . March 31, 1954 DECISION, DIRECTION OF ELECTION, AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leonard Leventhal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed.' 1. The Petitioner seeks a multiemployer unit consisting of employees of all the Employers involved herein. In the alter- native, the Petitioner desires to represent the employees of the Employers in any units, if any, the Board should find ap- propriate. Because Luchini-Utica Corporation does not desire to be included in a multiemployer unit, but desires to pursue an independent course of bargaining, we shall not consider its commerce facts together with the four other Employers .4 The following are the commerce facts concerning the four Em- ployers who have expressed their desires to bargain for their employees on a multiemployer basis .r, Central Beer Distributing Company is engaged, at Utica, New York, in the wholesale distribution of Blatz, Iroquois, and Stein beers. It has, by oral agreements terminable at will, the exclusive rights to distribute these beers in certain designated areas in Utica and vicinity. During the past year it purchased about $60,000 of Blatz beer which was shipped from Blatz [Rock City Beer Distributing Co.; Valley Distributing Co.; Mohawk Beverage Company, Inc.; Luchini-Utica Corporation. (The latter's name appears as corrected at the hearing). 2 The Petitioner's name appears as amended at the hearing. 3 Although International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, and its Local 54 intervened herein and asserted. inter alia, that their contracts with the Employers are a bar to the proceeding, they have since the hearing disclaimed any interest in the proceeding. We shall not concern ourselves with the contract- bar issue as no party to the proceeding is presently urging a contract-bar issue raised by the former Intervenor. 4See Pacific Metals Company, Ltd., 91 NLRB 696 and cases cited therein. 5In addition to the fact that the Petitioner and these four Employers have agreed that a multiemployer unit is appropriate, these employees have a substantial history of bargaining on a multiemployer basis. 108 NLRB No. 28. CENTRAL NEW YORK BEER DISTRIBUTING COMPANY, ET AL. 133 Brewing Co. at Milwaukee, Wisconsin. All other beer purchased by Central, during the past year, was shipped from breweries within the State. Rock City Beer Distributors, Inc., a New York corporation, is engaged at Utica, New York, in the wholesale distribution of Budweiser and other brands of beers. Like Central, Rock City has oral agreements with the various breweries whereby it is given the exclusive rights to sell these brands in certain areas in and around Utica. During the past year, it purchased about $200,000 of Budweiser which was shipped from Newark, New Jersey. For the same period, Rock City's total purchases for the other brands amounted to about $75,000, all of which were shipped to it from within the State. Valley Distributing Co., a partnership, is engaged at Herkimer, New York, in the wholesale distribution of Schlitz, Genessee, and other brands of beers. During the past year, it purchased about $300,000 of both Schlitz and Genessee beers, all which were shipped from breweries within the State. Purchases of all other brands were shipped to Valley from within the State. Valley has a written agreement from Schlitz and Genessee whereby it is given the exclusive rights to dis- tribute these beers in Herkimer County, New York. Mohawk Beverage Co., Inc., a New York corporation, is engaged at Utica, New York, in the wholesale distribution of Schlitz, Schaeffer's, and other brands of beers. During the past year Mohawk's total purchases of all brands of beer amounted to about $320,000, all of which was shipped to it from within the State. By written agreement it has the exclusive rights to distribute Schlitz and Schaeffer beers in certain areas within the Utica vicinity. Assuming that upon the merits in this case, we would find appropriate a multiemployer unit consisting of employees of the four Employers, none of the Employers has any outflow in commerce and their inflow, whether considered individually or collectively is insufficient to warrant our assertion of juris- diction over any of them separately or over them as a group. e Moreover, the record affords no basis for asserting jurisdic- tion over any of these Employers upon the theory that the business of any individual Employer is an integral part of a multistate enterprise. Although it appears that each of these Employers has some type of distribution agreement with one or more breweries of a multistate character, we find, in the absence of evidence of any control over the businesses of these Employers by any of the various brewers whose products they distribute, that the arrangements between them for exclusive sales territories do not establish a degree of integration suf- ficient to warrant the exercise of jurisdiction over any of them.7 Accordingly, we shall dismiss the petition, in so far as it pertains to Central New York Beer Distributing Company, 6The total annual inflow for all four Employers amounts to only about $260,000. 7See Kenosha Liquors Company, et al., 104 NLRB 189. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rock City Beer Distributors, Inc., Valley Distributing Co., and Mohawk Beverages Co., Inc. There remains for consideration the question of jurisdiction over Luchini-Utica Corporation here above mentioned. Luchini- Utica Corporation a New York corporation, is engaged, at Utica, New York, in the wholesale distribution of Ballantine beer. Its annual out-of-State purchases amount to between $300,000 to $400,000. All of the stock of Luchini Utica Corpora- tion is owned by Paul A. and Marjory J. Luchini who are also the exclusive owners of two other Ballentine Beer distrib- utorships, Luchini-Syracuse Corporation at Syracuse, New York, and the Luchini partnership at Binghamton, New York. The annual out-of-State purchase made by Luchini-Syracuse Corporation amount to about $400,000, and the annual out-of- State purchases made by the Luchini partnership at 'Bingham- ton exceed $500,000. In view of the common ownership and control by the Luchini family of all interest in the Luchini-Utica Corporation, Luchini- Syracuse Corporation and the Luchini partnership at Bingham- ton, we find these distributorships constitute a single employer within the meaning of the Act.' Because the annual total out- of-State purchases by the group found to constitute a single employer exceeds $1,000,000, we find that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction over this enterprise.' 2. The labor organization involved claims to represent the employees of the Employers. 3. A question affecting commerce exists concerning the rep- resentation of employees of Luchini-Utica Corporation within the meaning of Section 9 (c) (1) and Section2 (6) and (7) of the Act. 4. The parties herein are in agreement as to the specific composition of the unit or units, if any, established by the Board. Accordingly, in view of the foregoing and upon the entire record in this case, we find that all drivers, helpers, platform men, and warehousemen of Luchini-Utica Corporation employed at its Utica, New York, plant, excluding office clerical employees, guards, and supervisors, as defined in the Act, constitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election ommitted from publication.] [The Board dismissed the petition.] Chairman Farmer and Member Beeson took no part in the consideration of the above Decision, Direction of Election, and Order. 8See Norman S. Corporation, d/b/a Sandy's, 105 NLRB 928, and Rushville Metal Products, Inc., 107 NLRB 1146. Cf. Consolidated Gas Company of Savannah, Consolidated Gas Com- pany of Brunswick, 107 NLRB 148; Dan Dee Central Ohio Corporation, 106 NLRB 1303. 9See Federal Dairy Co., Inc., 91 NLRB 638. By his assertion of jurisdiction here, Member Rodgers is not deemed as adopting the Board's jurisdictional standards as a permanent policy.