Kenosha Liquor Co.

KENOSHA LIQUOR COMPANY 189 IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for the Sixteenth Region for the purpose of conducting a new election at such time as he deems that the circumstances permit a free choice of a bargaining repre- sentative. Chairman Herzog and Member Murdock took no part in the consideration of the above Supplemental Decision and Order. KENOSHA LIQUOR COMPANY; METROR-K, INCORPORATED; MATAGRANO'S, INC.; A & K BEVERAGES, INC.; SAM GEROLMO d/b/a GEROLMO WHOLESALE BEVERAGE COMPANY; RACINE BEVERAGE COMPANY, INC. and IN- TERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLING WORKERS OF AMERICA, CIO, Petitioner . Cases Nos . 13-RC-3132, 13-RC- 3133, 13-RC- 3134 , 13-RC-3135, 13-RC-3136, and 13-RC- 3137. April 17, 1953 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, separate hearings were held in each of the above listed cases before Virginia M. McElroy, hearing officer. The hearing officer's rulings made at the hearings are free from prejudicial error and are hereby af- firmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in these cases' the Board finds: 1. The Employers, Kenosha Liquor Company, A & KBever- ages, Inc., and Racine Beverage Company, Inc., all of which are wholesale distributors of alcoholic beverages in Kenosha, Racine, and Walworth counties, Wisconsin, are engaged in com- merce within the meaning of the Act.2 Metro R-K, Incorporated, Matagrano's, Inc., and Gerolmo Wholesale Beverage Company are also wholesale distributors of alcoholic beverages. All three sell only in Wisconsin. Metro R-K's total annual purchases are approximately $760,000 of which 25-30 percent is for goods received from outside the State of Wisconsin. Eighty percent of Metro R-K's purchases consist of nationally advertised brands of liquor produced by Hiram Walker, Schenley Distilleries, and Stitzel Weller Distil- leries. $ Metro R-K sells these brands only in Kenosha, Racine, 1 The Board has considered these 6 cases together because in all of them 1 or more of the parties , including the Petitioner, urge that the appropriate unit is a single unit comprising certain employees of all 6 Employers. 2 Federal Dairy Co.. Inc., 91 NLRB 638. SAil purchases of Hiram Walker products and an undisclosed percentage of the purchases of Schenley products -are reflected in the $190,000-$228 , 000 paid for produce shipped directly to 104 NLRB No. 5. 190 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD and Walworth counties and no other wholesaler sells these brands in those counties. The record does not establish, how- ever, whether this selling practice results from agreements between Metro R-K and the three distillers.4 Matagrano's annual purchases approximate $500,000 and Gerolmo's $220,000, of which not more than $125,000 and $176,000, respectively, represent goods shipped directly to these wholesalers from outside the State. Nationally advertised brands sold by these wholesalers are Glenmore whiskies, Fleischmann whiskies, and Petriwines.6 These two wholesalers have oral understandings with Glenmore Distilleries whereby Matagrano's sells Glenmore products only in Kenosha county, Gerolmo only in Racine county, and Glenmore agrees not to furnish its products to any other wholesalers in Kenosha or Racine counties. Matagrano's is the onlydistributor of Fleisch- mann 6 and Petri products in Kenosha county, and Gerolmo is the only distributor of these products in Racine, but the record does not establish that this results from agreements between either of these two wholesalers and Fleischmann. There is such an oral understanding, however, between Gerolmo and Petri and presumably, therefore, one between Matagrano's and Petri, although the record does not establish the latter. Metro R-K, Matagrano's, and Gerolmo have no outflow; their individual inflow, direct and indirect, is not sufficient to war- rant our assertion of jurisdiction over any of the three.? More- over, the record affords no basis for finding that the business of any of these three wholesalers is an integral part of a multistate enterprise. In the absence of evidence of any control over the business of the wholesalers by any of the various producers whose products they distribute, the arrangements between them for exclusive sales territories do not establish a degree of integration sufficient to warrant the exercise of jurisdiction over the wholesalers.• Accordingly we shall dismiss the petition in these three cases. 2. The labor organizations involved claim to represent cer- tain employees of the Employers. Metro R-K from outside the State. The remainder of the Schenley products and all of the Stitzel Weller products are purchased by Metro R-K from Metropolitan Liquor, a wholesaler in Milwaukee. Although Metropolitan and Metro R-K have some owners in common, they are independent companies. 4Metro R- K's warehouse foreman, the only witness testifying as to its business, on direct examination stated that there were oral understandings , terminable at will, between Metro and the 3 distillers that Metro would sell their products only in the 3 named counties and that the distillers would not furnish their products to any other wholesaler in that area . However, on cross- examination it appeared that the witness did not have personal knowledge of the existence of such agreements. SApproximately 40 percent of Matagrano 's total purchases consist of these 3 brands. The record does not disclose what percentage of Gerolmo's purchases are of these brands. 6 Matagrano's does not purchase Fleischman whiskies from the distiller but from the Edeson Distributors in Milwaukee. 7 Because of our finding in paragraph 4, infra. that a multiemployer unit is not appropriate, assertion of jurisdiction must be grounded on the facts as to the individual e• Moyer and not on the combined totals of interstate transactions of the six employers wnose employees the Petitioner seeks to represent. Ben Franklin Stores, 94 NLRB 779. KENOSHA LIQUOR COMPANY 191 3. A question affecting commerce exists concerning the representation of employees of Kenosha, A & K, and Racine within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent the salesmen employed by all liquor wholesalers, six in number, in Kenosha, Racine, or Walworth counties , in any unit or units which the Board may find appropriate. It prefers a single multiemployer unit. The Intervenor- -Liquor Salesmen, Bottle and Beverage Employees Union, Local 80, Distillery, Rectifying and Wine Workers International Union, AFL--contends that only a multiemployer unit can be appropriate.9 Racine Beverage Company also prefers a multiemployer unit. Gerolmo, A & K, and Kenosha prefer separate units for the salesmen of each individual employer. Matagrano's and Metro R-K take no position as to the appro- priate unit. There is no history of collective bargaining on a multiem- ployer or any other basis with regardtothe salesmen of Metro R-K, Gerolmo, or Matagrano's. Kenosha, A & K, and Racine were members of the Wisconsin Wholesale Liquor Dealers Association which sometime in the period between 1941 and 1946 or 1947 negotiated an agreement or agreements covering salesmen employed by Kenosha, A& K, Racine, and four other liquor wholesalers in the Kenosha- Racine area which are no longer in that business there.10 There is no evidence tending to show any bargaining on a multi- employer basis with regard to the salesmen of these companies or any other companies in the Kenosha-Racine area later than 1946 or 1947.11 In view of this history and the conflicting positions of the various parties with respect to a multiemployer unit, we find that such a unit is not appropriate. Accordingly we find three separate units to be appropriate within the- meaning of Section 9 (b) of the Act, consisting respectively of the salesmen of Kenosha Liquor Company at Kenosha, Wisconsin, Racine Bever- age Company, Inc., and A & K Beverages, Inc., at Racine, Wisconsin, excluding all other employees of these Employers and all supervisors as defined in the Act. 9Local80 has no showing of interest with respect to the employees of Gerolmo and Matagrano's. 10 The 1941 agreement, theonlyl in evidence, is a supplemental agreement to which Local 80 and both the Wisconsin Wholesale Liquor Dealers Associations and each of the 7 named em- ployers were parties. It refers to a previous agreement , apparently between the same parties, executed in 1937. 11 The Wisconsin Wholesale Liquor Dealers Association is no longer in existence. At the present time there is an organization knownas the Wisconsin Wine and Spirits Institute which, although in some respects a successor to the Wisconsin Wholesale Liquor Dealers Association, has never negotiated any contracts covering any employees of liquor wholesalers in the Kenosha-Racine area . Although the liquor wholesalers and the beer distributors of this area have appointed a committee to represent them jointly in negotiations with the Racine and Kenosha locals of the International Brotherhood of Teamsters , which represent the truck- drivers employed by these dealers , this fact does not in itself establish the appropriateness of a multiemployer unit for the employees here involved. Joseph E. Seagram & Sons , Inc., 101 NLRB 101. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER IT IS HEREBY ORDERED that the petitions in Metro R-K, Incorporated , 13-RC-3133; Matagrano ' s, Inc ., 13-RC-3134; and Gerolmo Wholesale Beverage Company, 13-RC-3136, be, and they hereby are, dismissed. [Text of Direction of Elections omitted from publication.] FRANKLIN TANNING COMPANY and INTERNATIONAL FUR AND LEATHER WORKERS UNION OF THE UNITED STATES AND CANADA, Petitioner. Case No. 6-RC-1108. April 17, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil E. Narick, hearing officer., The hearing officer's' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Murdock and Peterson]. Upon the entire record in this case., the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent cer- tain employees of the Employer. The Employer and the Intervenor2 move to dismiss contending, inter alia, that District 3 and District Council 3 of the Peti- tioner, both encompassing the same geographical area, consti- tute a single entity, and that District 3 is a labor organization, having an interest in the employees sought, which has not complied with Section 9 (f), (g), and (h) of the Act.3 The Peti- tioner, in opposing the motion to dismiss, contends that District I The original hearing was held on July 28, 1952. On December 10 and 11, 1952, a second hearing was held pursuant to an order to reopen to obtain additional evidence on the status and activities of District 3 and Curwensville Organizing Committee as labor organizations, and with regard to the extent of their respective interests in the employees sought by the Petitioner. 2 United Leather Workers, Local No. 31, Congress of Industrial Organizations. sin moving to dismiss, the Employer and the Intervenor further contend that (1) the non- complying Curwensville Organizing Committee is a labor organization having an interest in the employees sought and must , therefore, comply; (2) the Petitioner 's president, although having filed a non-Communist affidavit , did so fraudulently, and is in fact in accord and sympathy with the aims and purposes of the Communist Party , so that Petitioner is not in full compliance; and (3) that District Director Woolis is an officer of the International and that the Board, pursuant to its Rules and Regulations, should conduct an investigation to determine whether the Petitioner failed to designate the alleged office in its constitution so as to circum- vent the filing requirements of the Act. We find no merit in ( 1) and ( 2) for the reasons assigned in United Tanners, Inc., 103 NLRB 760, where similar contentions were raised with regard to a local organizing committee and to the president of the same petitioner as in the case at bar. We also find that contention (3) is without merit for the reason that the question of whether a union has failed to identify all of its officers is not litigable. Sunbeam Corporation, 93 NLRB 104 NLRB No. 11.