John F. Trommer, Inc.

In the Matter of JOHN F. TROMMER, INC. and WHOLESALE BEER SALESMEN 'S UNION, LOCAL 21 , DISTH.LERY, RECTIFYING} AND WINE WORKERS' INTERNATIONAL UNION OF AMERICA, A. F. OF L. Case No. R-25.59.-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 K. Flaherty, 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 representa- tion of employees of John F. Trommer, Inc., Brooklyn, New 'York, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations 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 Regu- lations-Series 2, as amended, ordered nune pro tune as of April 24, 1941, an investigation upon the petition and authorized the Re- gional Director to conduct it and to provide for an appropriate hearing upon due notice. 1 The original petition , dated February 18, 1941 , designated the petitioner as wholesale Beer Salesmen 's Union, Local 21. 33 N. L. R. B., No. 76. 381 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 2, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and Local 21. Pursuant to notice, a hearing was held on May 14, 1941, at New York City, before Daniel R. Dimick, the Trial Examiner duly des- ignated by the Chief Trial Examiner. The Company and Local 21 were represented by counsel and participated in the hearing. Full opportunity 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 John F. Trommer, Inc., a New York corporation, is engaged in the manufacture of beers and ales at Brooklyn, New York. In connection with its business the Company maintains its principal executive offices at Brooklyn, New York, and maintains factories, warehouses, and branch offices in New York, New Jersey, and Connecticut. The Company controls a subsidiary corporation which is called John F. Trommer, Inc., of New Jersey. This subsidiary company manu- factures beer in Orange, New Jersey, and its entire product is sold to the Company as soon as it is made. The Company maintains branch offices in Hicksville, Long Island, New York; Mt. Vernon, New York; and-Orange and Dover, New Jersey. This proceeding is concerned with salesmen employed by the Com- pany to sell beer and ale. These salesmen work out of the Company's main office in Brooklyn and its four branch offices located at Hicks- ville, Long Island, Mt. Vernon, New York, and Orange and Dover, New Jersey. Such products as they sell are manufactured at the Company's plant in Brooklyn, New York, and at the subsidiary plant in Orange, New Jersey. Warehouses are maintained at each of the Company's branch offices for distribution of beers and ales in the territories covered by those branches. Beers and ales a,re shipped direct from the Company's Brooklyn plant to either retailers or to these warehouses. This is also true of shipments made from the subsidiary plant at Orange, New Jersey. For the manufacture of beers and ales at its Brooklyn plant, the Company purchases malt and hops. During the year 1940 the Com- pany purchased raw materials in the value of over $600,000 for use JOHN F. TR'OMMER, INC. 383 at its Brooklyn plant, of which 95 per cent was shipped to said plant from outside the State of New York. In the same year the Company manufactured at its plant in Brooklyn finished products in the value of over $3,800,000. Approximately 99 per cent of the finished prod- ucts for this period was sold within the State of New York. Ap- proximately 1/2 of 1 per cent of it was sold in New Jersey and approximately 1/a of 1 per cent was sold to railroad and steamship companies operating out of New York City. 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 bottle-beer salesmen employed by the Company in the' metropolitan area, excluding New Jersey. 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 main office at Brooklyn and at the Com- pany's branches located at Mt. Vernon and Hicksville, Long Island, New York. The Company contends that the following unit is ap- propriate for collective bargaining purposes: All bottle and draught salesmen 2 employed by the Company in both the New York and New Jersey areas. The-unit contended for by the Company includes not only those bottle salesmen working out of the Brooklyn, Mt. Ver- non, and Hicksville, New York, offices, but also draught-beer sales- men in those offices. In addition, it includes all bottle- and draught-beer salesmen working out of the Orange, New Jersey, branch. The salesmen in the Dover, New Jersey, office, make their headquarters at the Orange, New Jersey, branch, and are therefore also included in the unit contended for by the Company to be appropriate. The Company employs salesmen to sell bottle and draught beer in the New York metropolitan and New Jersey areas. At its main office in Brooklyn the Company employs 33 bottle salesmen and 33 drnm v1f salesmen who cover the New York City area. The Hicks- 2 The Company lists its salesmen under two classifications , package-beer salesmen who sell beer in bottles and cans, and combination salesmen who sell beer in kegs and bottles The package beer salesmen are the salesmen which Local 21 designates in its petition as bottle salesmen . Hereafter we shall refer to package salesmen as bottle salesmen The combination salesmen are not claimed by the Union as part of the appropriate unit- despite the fact that they, too , sell beer in bottles Hereafter we shall therefore refer to combination salesmen as draught salesmen. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ville branch, approximately 20 miles from the Brooklyn plant, has 5 bottle salesmen and 8 draught salesmen who cover all of Long Island east of Queens County. The Mt. Vernon office, approximately 8 miles from the Brooklyn plant and 25 miles from the Hicksville office, has 7 bottle salesmen and 7 draught salesmen who cover the Mt. Vernon area. The Orange, New Jersey, branch, has 19 bottle salesmen and 28 draught salesmen who cover the State of New Jersey and States on the Atlantic Seaboard. No salesmen make their head- quarters at the Dover, New Jersey, branch. The Dover salesmen work out of the Orange, New Jersey office, 20 miles away. Beer and ale from the Orange, New Jersey, subsidiary plant is delivered to both the Hicksville and Mt. Vernon warehouses. The Brooklyn plant also supplies beer to the Hicksville and Mt. Vernon offices. Most of the-beer stored at the Dover, New Jersey, warehouse, is delivered from the Orange plant, and occasional deliveries are made from the Brooklyn plant. All deliveries from the Company's plant in Brooklyn and from the subsidiary's Orange plant are made to the branch office warehouses in Company-owned trucks. For purposes of sales convenience, the Company has divided its sales force into two groups, bottle salesmen and draught-beer sales- men. The bottle salesmen call primarily on off-premise licensees while the draught salesmen concentrate on the on-premise licensees. General policies relating to the sale of all beers and ales of the Com- pany are determined and controlled by a general manager at the Company's main office in Brooklyn. None of the Company's sales- men sell draught beer exclusively. Draught-beer salesmen are re- quested to sell as much bottle beer as possible. The draught sales- men collect their own accounts, including the bottle-beer sales, and the bottle salesmen collect their own accounts. Salesmen are some- times transferred from one office to another and draught salesmen are sometimes transferred to work as bottle salesmen and vice versa. All beer salesmen whether bottle or draught are hired, discharged, and promoted at the Brooklyn office, and all salesmen work similar working conditions and for practically the same compensation.3 A branch manager is in charge of each of the Company's branches at Mt. Vernon and Hicksville, New York, and Orange. New Jersey. Sales meetings at which bottle and draught salesmen regularly attend are held at the Company's main office in Brooklyn. There is a cam- munity of- interests between the bottle and draught salesmen and the activities of both groups are interrelated and interdependent. The community of interests between the two groups of salesmen was not refuted by any evidence produced at the hearing by the 3 The method of computing compensation is different in that one is paid a base salary and commission while the other is paid a straight salary. Generalli the earnings of thA bottle and draught salesmen are approximately the same JOIN F. TR.OMMEiR, INC. 385 Union. The Union introduced a letter from the Secretary-Treasurer of the International Union in which it was stated that Local 21's membership was to be limited to bottle and canned 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 view of the circumstances of the case, we believe, that the unit alleged by Local 21 is inappropriate for purposes of collective bargaining, and we so find. We shall therefore dismiss the petition. IV. THE QUESTION CONCERNING REPRESENTATION Since it is 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 John F. Trommer, Inc., Brooklyn, New York, in a unit which is appropriate for the 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 employees of John F. Trommer, Inc., Brooklyn, New York, filed by Wholesale Beer Salesmen's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, affiliated with the Amer- ican Federation of Labor, be, and it hereby is, dismissed. * Local 21 contends that Matter of Christian Feigenspan Brewing Co and American Federation of Wholesale Non-Alcoholic Beverage Salesmen's Union, No . 21742, affiliated with the American Federation of Labor, 29 N. L R B 1136 , is controlling here and supports its contentions as to the alleged appropriate unit. We believe, however, that that case is not controlling here. See Matter of P. Ballantine and Wholesale Beer Sales- men's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, A . F. of L., decided this day. Compare Matter of P. Ballantine & Sons and Wholesale Licensed Alcoholic Beverage Salesmen's Union, ,# 20375-B, Beer Division, A. F of L, 18 N. L. R. B. 1007. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. EDWIN S. SMITH, dissenting: I dissent from the ruling of the majority dismissing the petition in this case. The facts in this case are substantially identical with those in the Ballantine case,5 decided this day, and the Feigen$pan case., For the reasons stated by the Board in its decision in the Feigenspan case, and by me in my dissenting opinion in the Ballantine case, I would find that the unit requested by Local 21 is appropriate for the purposes of collective bargaining and that an election should be held. a Matter of P. Ballantine & Sons and Wholesale Beer Salesmen's Union, Local $1, Distillery, Rectifying and Wine Workers' International Union of America, A. F. of L., 33 N. L R R 374. e 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.