South Florida Liquor Distributors, Inc. of Tampa

SOUTH FLORIDA LIQUOR DISTRIBUTORS, INC. OF TAMPA 109 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices , and thereby to mini- mize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, I will recommend that Respondent cease and desists from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Etiwan Fertilizer Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. During the first several months of 1954, by inquiring of employees whether they had voted in a National Labor Relations Board election, with the purpose of using the information in an impending layoff; by telling employees they were laid off for voting in a Board election; by telling an employee he would not be given a raise because he had "dragged" the other employees off to vote ; Respondent in- terfered with, restrained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Jacob Stewart, Robert Gadsden, Francis Wise, Sam Mack, Ferdie Glenn, Paul Buncombe, and James Geathers, thereby discouraging membership in the Union named in para- graph numbered 2, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] South Florida Liquor Distributors, Inc. of Tampa i and Inter- national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, Petitioner. Case No. 10-RC-3042. July 11, 1955 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 Allen Sinsheimer, Jr., hear- ing officer. 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 Employer is a Florida corporation engaged in business in Tampa, Florida, as a wholesale liquor distributor. The Employer makes no sales outside the State of Florida. In 1954 the Employer paid a total of approximately $1,500,000 for bottled liquors shipped directly to it from out of the State by various distilleries. Of this sum, approximately $1,002,000 represents Federal excise taxes paid by the distillers. The $498,000 balance represents the basic price, or tax ' The name of the Employer appears as amended at the hearing 113 NLRB No.1. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD base, of the bottled goods, as determined by the distillers. The Em- ployer contends that the excise taxes should not be considered in deter- mining the value of its out-of-State purchases, and that so calculated, the $498,000 balance is insufficient to meet the Board's $500,000 direct inflow standard.2 The invoices received by the Employer do not list taxes separately. However, regardless of the particular billing practice followed, the taxes here involved are paid by the distillers prior to shipment of the bottled goods, and are passed along to the Employer in the final price which the Employer must pay to obtain the products. Clearly then, the taxes, having already been paid, are part of the value of the bot- tled goods when they cross State lines. Accordingly, we find that the Employer herein has received goods directly from out of State during 1954, valued at approximately $1,500,000. The Employer also contends, in substance, that, because of the many Federal and State regulatory measures applicable to liquor distribu- tors, the Board should treat this industry specially for jurisdictional purposes. It thus would have the Board apply to it the jurisdictional standards of the Greenwich Gas case 3-a case in which the Board announced its jurisdictional standards for public utilities. We find no merit in this contention. In view of the foregoing, we find that the Employer is engaged in interstate commerce, and that it will effectuate the purposes of the Act to assert jurisdiction in this case. 2. The labor organization involved claims 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 Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties agree that the appropriate unit should consist of all warehousemen and delivery drivers. However, the Petitioner would exclude, as a supervisor, shipping clerk Jimenez. The Employer would include him. Jimenez is the senior employee and is primarily responsible for checking the correctness of shipments leaving the Employer's ware- house. He is higher paid than the other employees. Occasionally he authorizes the other employees to leave early. Jimenez performs nor- mal warehousemen's duties along with the other employees. It is ap- parent from this record that any direction by Jimenez of the other employees is of a routine nature, commensurate only with his position of checker and senior employee. Jimenez has no power to hire, dis- charge, reward, or to discipline other employees, or to effectively rec- 9 Jonesboro Grain Drying Coopeiatiue, 110 NLRB 481. 3 The G? een u,ich Gas Company, 110 NLRB 564 COAL, GASOLINE AND FUEL OIL TEAMSTERS 111 ommend such action. In these circumstances, we find Jimenez does not'possess supervisory authority and shall include him in the unit.4 We find that all warehousemen and delivery drivers at the Em- ployer's Tampa, Florida, warehouse, including the shipping clerk, but excluding all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 4 Maame Paper Board Mills, Inc., 109 NLRB 167. Coal, Gasoline and Fuel Oil Teamsters, Chauffeurs and Helpers, Local Union No, 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL and Stanley Gemalo. Case No. 2-CB 1150. July 12, 1955 DECISION AND ORDER On April 19, 1955, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. `yThe'Board has,reviewed-the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the following additions and modifications : The General Counsel excepts to the Trial Examiner's failure to find that the Respondent's action causing the discharges of Gemalo and Zaza from their jobs was violative of Section 8 (b) (1) (A) as well as 8 (b) (2). We find, in agreement with the General Counsel, that the discharges did also violate Section 8 (b) (1) (A), because they had the effect of coercing and restraining other employees to join or retain membership in the Respondent Union by evidencing the Respondent's power to have the Company discharge employees upon mere-request.' 1Local 57, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (International Harvester Company), 102 NLRB 111; Clara-Val Packing Company, et at., 87 NLRB 703, enforcement denied on grounds not relevant here 191 F. 2d 556 (C. A.9). 113 NLRB No. 15.