P. Ballantine & Sons

In the Matter of P. BALLA14TINE & SONS and WHOLESALE BEER SALES- MEN'S UNION, LOCAL 21, DISTILLERY, RECTIFYING AND WINE WORKERS' INTERNATIONAL UNION OF AMERICA, A. F. OF L. Case No. R-2,551-Decided July 12, 1941 Jurisdiction : beer and ale manufacturing industry. Practice and Procedure : petition dismissed where no appropriate unit within the scope of the petition. White and Case, of New York City, by Mr. Chester Bordeau and Mr. John E. Farrell, of Newark, N. J., for the Company. Mr. Sidney M. Feitelberg and Mr. Edward E. Flaherty, both of New York City, for the Union. Mr. Joseph C. Gill, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On February 18 and April 28, 1941, respectively , Wholesale Beer Salesmen's Union, Local 21, Distillery , Rectifying and Wine Workers' International Union of America , A. F. of L., herein called Local 21,1 filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of P. Ballantine & Sons, Newark , New Jersey, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On May 3, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered , nunc pro tune as of April 24, 1941, an investigation upon the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 2, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and Local 21. I The original petition, dated February 18, 1941, designated the petitioner as wholesale Beer Salesmen 's Union, Local 21. 33 N. L. R. B., No. 75. 374 P. BALLANTINE & SONS 375 Pursuant to notice, a hearing was held on May 13, 1941, at New York City, before Daniel R. Dimick, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and Local 21 were represented by counsel and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY P. Ballantine & Sons, a New Jersey corporation, is engaged in the manufacture of beers and ales at Newark, New Jersey. In con- nection with its business, the Company maintains its principal execu- tive offices at Newark, New Jersey, and maintains factories, ware- houses, and branch offices in New Jersey, Rhode Island, Connecticut, New York, Illinois, California, Maryland, Tennessee, Florida, and Washington, D. C. This proceeding is concerned with the salesmen employed by the Company to sell beer and ale. These salesmen work out of the Com- pany's main office in Newark and its three branch offices located at Red Bank, New Jersey, Long Island City, New York, and Hicksville, Long Island, New York. Such products as they sell are manufac- tured at the Newark, New Jersey, plant. Warehouses are main- tained at the Red Bank and Hicksville branches for distribution of beers and ales in the territories covered by those branches. Beers and ales are shipped direct from the Newark plant to the retailers in the Newark area and a portion of the metropolitan area, including New York, Brooklyn, Bronx, and a certain section' of the Borough of Queens. For the manufacture of beers and ales at Newark the Company purchases malt, hops, corn grits, and corn sugar. During the year 1940 approximately 100 per cent of the total gross volume of such products valued in excess of $2,200,000 were purchased by the Com- pany and shipped to Newark from points outside the State of New Jersey. During the same year approximately 84 percent of the total volume of the Company's sales which amounted to over $20,150,000, required shipments to points outside the State of New Jersey. The Company stipulated that it is engaged in commerce within the meaning of the Act. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED Wholesale Beer Salesmen's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, is a labor or- ganization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. THE APPROPRIATE UNIT Local 21 requests a collective bargaining unit composed of bottle salesmen employed by the Company who work in the New York metropolitan area, excluding New Jersey. Such a unit covers only the bottle salesmen in the Long Island City and Hicksville branches of the Company. The Company contends that the following unit is appropriate for collective bargaining purposes : All bottle- and draught-beer salesmen employed by the Company in .both the New York and New Jersey areas. The unit contended for by the Com- pany includes not only those bottle salesmen working out of the Long Island City and Hicksville branches, but also draught-beer salesmen in those offices. In addition, it includes all bottle- and draught-beer salesmen working out of the main office at Newark and the Red Bank, New Jersey, branch. The Company employs salesmen to sell bottle and draught beer in both the' New York metropolitan and New Jersey areas. General policies relating to the sale of beer and ale are determined and con- trolled by a general manager and sales manager at the Company's main office at Newark, New Jersey. The main office at Newark and the two branches at Long Island City and Hicksville have salesmen who sell in the New York metropolitan area. The Newark main of- fice has 13 bottle salesmen and 48 draught salesmen. Some bottle- beer salesmen working out of the Newark office sell bottle beer in New York City and most of the draught beer sold in New York City is sold by salesmen from the Newark office. Newark salesmen also sell beer in New Jersey. The Long Island City office has 38 bottle sales- men who cover the New York City area. It has no draught salesmen. The Hicksville branch, which covers part of the New York City area and Long Island, has five draught and nine bottle salesmen-also two combination salesmen. The Red Bank branch has one bottle sales- man and two combination salesmen, who sell only in New Jersey. All beer sold in the New York City area, both bottle and draught, is de- livered directly to the retailers from the Company's Newark plant, except for a small portion of the New' York City area which is serv- iced from the warehouse at the Hicksville branch. For purposes of convenience the Company has divided its sales force into two groups, bottle salesmen and draught salesmen. The for- mer call primarily on off-premise licensees while the latter concentrate P. BALLANTINE & SONS 377 on the on-premise licensees. All beer kalesmen, whether bottle or draught, are hired, discharged, and promoted at the Newark office and all salesmen work similar hours, under similar working conditions, and for practically the same compensation.2 Salesmen are sometimes transferred from one office to another and draught salesmen are some- times transferred to work as bottle salesmen and vice versa. All their activities are controlled from Newark and reports of their activities are prepared and maintained there. All salesmen are authorized and requested to sell both bottle and draught beer. Both bottle- and draught-beer salesmen work together in obtaining new accounts and maintaining old ones. The draught salesmen collect the bottle accounts in outlets where draught beer is sold. Each branch has one manager in charge of all salesmen. The Red Bank and Hicksville branches each have two combination salesmen who sell both bottle and draught beer on their regular routes. There is a community of interest between the bottle and draught salesmen and the activities of both groups are interrelated and interdependent. The community of interest between the two groups of salesmen was not refuted -by any evidence produced at the hearing by the Union. The Union introduced a letter from the secretary-treasurer of the In- ternational Union in which it was stated that their membership was to be limited to bottle- and can-beer salesmen selling in the New York metropolitan area, excluding New Jersey. The charter of the Union contains no such jurisdictional limitation. So far as the record discloses, there is no history of collective bar- gaining for the Company's salesmen on the basis of the unit contended for by Local 21 or the unit claimed by the Company. In a previous case involving the Company,3 the Board found, as the Union con- tended, that all bottle and draught salesmen in the Company's Long Island City branch office constituted a unit appropriate for,the pur- poses of collective bargaining. The Union lost the election 4 and no collective bargaining resulted. The Union contends, however, that the BQard's decision in the Fei- genspan case b is controlling here and supports its contentions as to the alleged appropriate unit. In that case we found that all bottle sales- men employed by Feigenspan who work in the New York metropolitan area consituted a unit appropriate for purposes of collective bargain- ' All salesmen are paid from the Newark office. The method of computing the com- pensation is different, in that one is paid a base salary and commission , while the other is paid a straight salary. Generally the earnings of bottle and draught salesmen are practically the same. 3Matter of P. Ballantine ci Sons and Wholesale Licensed Alcoholic Beverage Salesmen's Union, #20376-B, Beer Division, A. F. of L., 18 N. L. R. B. 1007 * Matter of P. Ballantine it Sons and Wholesale Licensed Alcoholic Beverage Salesmen's Union, #20376-B, Beer Division, A F of L, 21 N. L R. B. 162. 8 Matter of Christian Feigenspan Brewing Company and American Federation of Whole- sale Non-Alcoholic Beverage Salesmen's Union No. 21742 , affiliated with the American Federation of Labor, 29 N. L. R B. 1136. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. We believe, however, that the instant case is not controlled by the Feigenspan case, since it appears that in the instant case, unlike the Feigenspan case, draught salesmen sell bottle beer and bottle men sell draught beer ; and further that both bottle and draught salesmen in each of the respective offices are supervised by one manager. On the whole, the record in the instant case discloses a closer relationship and interdependence between the draught and bottle salesmen than was present in the Feigenspan case. I In view of the circumstances of the case, we believe that the unit alleged by Local 21 is inappropriate for purposes of collective bargain- ing, and we so find. We shall, therefore, dismiss the petition. IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III above, the bargaining unit sought to be established by the petition is not appropriate, we find that no question has arisen concerning the representation of employees of the Company in an appropriate bargaining unit. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning the representation of employees of P. Ballan- tine & Sons, Newark, New Jersey, in a unit which is appropriate for purposes of collective bargaining, has arisen within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of employ- ees of P. Ballantine & Sons, Newark, New Jersey, filed by Wholesale Beer Salesmen's Union, -Local 21, Distillery, Rectifying and Wine Workers' International Union of America, affiliated with the American Federation of Labor, be, and it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting : I dissent from the ruling of the majority dismissing the petition in this case. In the Feigenspan case," the Board, at the request of the only union involved, found a unit of bottle-beer salesmen employed by Feigen- span in the metropolitan New York area to be appropriate for the "Matter of Christian Feigenspan Brewing Company and American Federation of Whole- sale Non-Alcoholic Beverage Sales mem's _Union, No . 21742, affiliated with the American Federation of Labor, 29 N. L R. B 1136. P. BALLANTINE & SONS 379 purposes of collective bargaining. In reaching that conclusion the Board rejected arguments by Feigenspan that a broader geographical unit was. appropriate and that draught-beer salesmen had to be in- cluded in the same unit with bottle-beer salesmen. The facts in the present case are substantially identical with those in the Feigen- span case. In my opinion, the Board should find the unit requested by Local 21 in the present case to be appropriate for the purposes of collective bargaining and should direct an election. Labor or- ganizations rely on the determinations of this Board in conducting organizing campaigns and if their efforts are to be effective, this Board must rule consistently on similar questions. The geographical considerations raised by the Company in this case, namely, that employees in all offices of the Company, whether in the New York metropolitan area or not, should be included in the same unit, have previously been rejected by the Board in a case concerning the Company.' With respect to the inclusion of draught- beer salesmen in the same unit with bottle-beer salesmen, the Board stated in the Feigenspan case : Under certain circumstances, draught and bottle-beer sales- men might properly be included in a single collective bargaining unit. In the present case, however, the Beverage Salesmen limits its membership to bottle-beer salesmen alone and has made no at- tempt to organize the draught-beer salesmen. As above set forth, certain differences do exist between the two groups with respect to management, rates of pay, and methods of performing their work. There is no showing that the draught-beer salesmen have expressed a desire that the Beverage Salesmen should represent them for collective bargaining. Wherever possible it is desir- able to render collective bargaining an immediate possibility and we are of the opinion that under the circumstances here presented a bargaining unit limited to bottle-beer salesmen alone is appropriate for collective bargaining purposes and we shall so direct:'', All the factors which motivated the Board to find the unit requested by the union appropriate in the Feigenspan case are present in the present case. Local 21 has limited its membership to bottle-beer sales- men alone and has made no attempt to organize draught-beer salesmen. The draught-beer salesmen have not expressed a desire that Local 21 should represent them for collective bargaining. Finally, certain differences exist between the bottle salesmen and draught salesmen with respect to management, rates of pay, and methods of perform- ing their work. Thus, bottle and draught salesmen are directed by bottle and draught supervisors, respectively, and usually attend sep- T Matter of P. Ballantine & Sons, a corporation and Wholesale Licensed Alcoholio Beverage Salesmen's Union #20376-B, Beer Division, A. F. L., 18 N. L. R. B. 1007. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arate meetings, have different routes, and are compensated differently.8 To perform their duties, the bottle salesmen drive company-owned automobiles at company expense, while most of the draught salesmen use their own cars and get an expense allowance from the Company. Bottle salesmen sell chiefly to groceries , delicatessens, and other off- premise licensees , while draught salesmen sell chiefly to taverns, sa- loons, and other on-premise licensees. The Company gives the bottle salesmen $3 a week expense money with which they solicit good will by buying drinks at the places they visit. The draught salesmen receive 3 per cent of the amount they collect for use in building good will. Bottle salesmen report for work at 8 o'clock each morning and around 6 o'clock each evening. They attend meetings once a week. Usually, draught salesmen do not attend these meetings, although they have their own regular sales meetings . Draught salesmen do not have to report to the office at the beginning and end of each day. Generally speaking, bottle salesmen collect bottle accounts, and the draught salesmen collect the draught accounts." The decision of the majority of the Board distinguishes the present case from the Feigenspan case on the ground that "in the instant case, .unlike the Feigenspan case, draught salesmen sell bottle beer and bottle men sell draught beer ; and further, that both bottle and draught sales- men in each of the respective offices are supervised by one manager." In my opinion these are not important distinguishing factors. While there is a single manager in charge of each of the branch offices in the instant case, unlike the Feigenspan case, it nevertheless appears that the branch manager is engaged primarily in supervising the draught salesmen and that under his supervision is another supervisor who is primarily responsible for directing the activities of the bottle sales- men. Further, although bottle salesmen sell some draught beer and draught salesmen sell some bottle beer, such sales are, as the record discloses, incidental to the principal sales activities of the two groups of salesmen. Under all the circumstances, therefore, I am of the opinion that the Board should adhere to its decision in the Feigenspan case and find that a unit composed of bottle salesmen working in the New York metropolitan area is appropriate for the purposes of collective bargain- ing, as the only labor organization involved contends. e Bottle salesmen get a base rate plus a commission of 2 cents a case or carton. The maximum base rate is $25 and the minimum around $18 a week. Draught salesmen receive a straight salary of $40 a week as a maximum. The maximum salary paid a draught salesman in New.York is $55. 9 The Company's truck drivers are divided into two classes, bottle-beer drivers and draught-beer drivers. They are organized into separate locals of the same union which has one contract with the Company.