Liebmann Breweries Inc.

In the Matter of LIEBMANN BREWERIES INC. and WHOLESALE BEER SALESMEN'S UNION, LOCAL 21, DISTILLERY, RECTIFYING AND WINE WORKERS' INTERNATIONAL UNION OF AMERICA, A. F. of L. Case No. R-2560.-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, 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,' filed with' the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affect- ing commerce had arisen concerning the representation of employees of Liebmann Breweries Inc., Brooklyn, New York, herein called the Company, and requesting an investigation and certification of repre- sentatives 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 Regulations-Series 2, as amended, ordered, nuns 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. i The original petition, dated February 18, 1941, designated the petitioner as American Federation of Wholesale Non-alcoholic Beverage Salesmen 's Union , Local 21742. 33 N. L. R. B., No. 77: - 387 450122-42-vol. 33-26 388 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 15, 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 oppor- tunity 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 I. THE BUSINESS OF THE COMPANY Liebmann Breweries Inc., a New York corporation , is engaged in the manufacture of beers and ales at Brooklyn , New York. In con- nection with its business the Company maintains its principal execu- tive offices at Brooklyn , New York, and maintains factories, ware- houses, and branch offices in New York, Connecticut, New Jersey, and Massachusetts. This proceeding is concerned with salesmen employed by the Com- pany who sell beer and ale. These salesmen work out of the Com- pany's main office in Brooklyn and its various branch offices located at Newark, New Jersey ; Lynbrook, Long Island, New York; Larch- mont, New York, in Westchester County; Fairfield, Connecticut; Hartford, Connecticut ; Riverhead , Long Island, New York; and Boston, Massachusetts . Such products as they sell are manufactured at the Brooklyn , New York, plant. The office at Boston, Massachu- setts, is operated by the Company through a wholly owned subsidiary, which was organized in order -to comply with the Massachusetts liquor law. Warehouses are maintained at each of the branch offices for distribution of beers and ales in the territories covered by those branches . Beers and ales are shipped direct from the Brooklyn plant to either the retailers or the warehouses of the respective branch offices. Beer and ale is transported from the Company 's Brooklyn plant to its branch offices in company-owned trucks, except the wholly owned subsidiary office in Boston, to which beer and ale is trans- ported by private contract motor carrier. For the manufacture of beers and ales at Brooklyn, the Company purchases cereals and hops, which are the principal raw materials LIEBMANN BRE'WE'RIES INC. 389 used by the Company in the operation of its business. During the year 1940 the Company purchased raw materials valued at over $1,000,000 for use at the Brooklyn plant, 99 per cent of which was purchased and shipped from points outside the State of New York. During this same period the Company manufactured finished prod- ucts in its Brooklyn plant valued at over $11,600,000, of which approximately 33 per cent was sold and shipped to points outside the State of New York. The Company stipulated that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Wholesale Beer Salesmen's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, is a labor organization affiliated with the American Federation of Labor. It admits to membership bottle-beer salesmen employed by the Company in the New York metropolitan area, excluding New Jersey and Connecticut. III. THE APPROPRIATE UNIT Local 21 requests a collective bargaining unit composed of bottle- beer salesmen employed by the Company who work in the New York metropolitan area, excluding New Jersey and Connecticut. Such a unit covers only the bottle salesmen working out of the Company's main office at Brooklyn and in its Larchmont, Lynbrook, and River- head, New York, branch offices. The Company contends that the fol- lowing unit is appropriate for collective bargaining purposes : all bottle- and draught-beer salesmen employed by the Company at its offices in Brooklyn, New York; Newark, New Jersey; Lynbrook, Long Island, New York; Larchmont, New York, in Westchester County; Fairfield, Connecticut; Hartford, Connecticut; Riverhead, Long Is- land, New York; and Boston, Massachusetts. The unit contended for by the Company includes not only those bottle salesmen working out of the Brooklyn main office and the branches located in New York but also draught-beer salesmen in those offices. In addition, it in- cludes all bottle- and draught-beer salesmen working out of Newark, New Jersey; Fairfield, Connecticut; Hartford, Connecticut; and Boston, Massachusetts, branch offices. The` Company employs salesmen to sell bottle and draught beer in New York, New Jersey, Connecticut, and Massachusetts. There are 27 bottle salesmen and 22 draught salesmen working out of the Com- pany's main office at Brooklyn. The salesmen in this office cover the territory of New York City. The Larchmont branch, which is 27 miles from Brooklyn, has 4 bottle and 3 draught salesmen who cover 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all of Westchester County and part of Putnam County.' The Lyn- brook branch , which is 20 miles from the main office , has 4 bottle and 7 draught salesmen who cover all of Nassau County, the western half of Suffolk County, and the eastern portion of Queens County.3 The Riverhead branch, which is 62 miles from the main office, has 1 sales- man who covers the eastern half of Suffolk County. The Newark branch, which is.13 miles from the main office, has 6 bottle and 6 draught salesmen who cover the 8 northern counties of New Jersey. The Fairfield branch, which is 75 miles from the main office, has 3 bot- tle and 5 draught salesmen who cover that part of Connecticut lying between the New York State line and the Hartford area. The Hart- ford branch, which is approximately 100 miles from the main office, has 1 bottle salesman and 2 draught salesmen who cover an area within a 20-mile radius of Hartford , Connecticut. The Boston branch, which is approximately 250 miles from the main office, has 3 bottle and 9 draught salesmen who cover an area within a 40-mile, radius of Boston. Massachusetts. For sales convenience the Company has two classes of salesmen, bottle salesmen and draught-beer salesmen. The former call pri- marily on off-premise licensees , while the latter concentrate upon selling to on-premise licensees. General policies relating to the sale of all beers and ales of the Company are determined and controlled by the general sales manager at the Company 's main office in Brooklyn. Draught-beer salesmen are authorized and requested to sell bottle beer when possible, and bottle salesmen are authorized and requested to sell draught beer when possible . Both salesmen sell both kinds of beer. The draught men generally collect all draught accounts. The bottle men generally collect all bottle accounts. Salesmen are frequently transferred from one office to another, and bottle salesmen are sometimes transferred to work as draught sales- men and vice versa . The salesmen in the Boston branch , as well as in all other branches of the Company , are hired, promoted , and dis- charged from the Brooklyn office, and they are supervised from the Brooklyn office. The branch manager at each of the Company's branches is in charge of both bottle and draught salesmen. All sales records are prepared in the main office at Brooklyn and are maintained there. Accounts of all the Company 's customers are kept in the main office . The offices of the credit managers, who handle the extension of all credit, are also located at the main office. Both bottle and draught "salesmen work similar hours and under similar working conditions and receive substantially the same com- 2 Westchester and Putnam Counties are located in New York State Local 21 contends they are included in the New York metropolitan area 3 Nassau, Suffolk, and Queens Counties are located in New York State Local 21 contends they are included in the New York metropolitan area LIEBMAN BREWERIES INC. 391 pensation.4 All salesmen's routes and salaries are fixed in the Brooklyn main office. Draught and bottle salesmen cooperate with each other in obtaining new accounts for both bottle and draught beer and both cooperate to maintain old accounts. There is a com- munity of interests 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 International Union in which it was stated that Local 21's 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.s In view of the circumstances of the case, we believe that the unit alleged by Local 21 is inappropriate for purposes of collective bar- gaining, and we so find. We shall therefore dismiss the petition. IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III, above, a 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 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 Lieb- mann Breweries Inc., Brooklyn, New York, 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. ' The method of computing compensation is different in that bottle salesmen are paid $35 a week base rate and a certain commission on each case, while the draught salesmen are paid on the average of $40 base rate a week plus a commission on all draught beer sold. Generally, the earnings of the bottle and draught salesmen are approximately the same. .5 Local 21 contends that Matter of Christian Feigenspan Brewing Co and American Federation of Wholesale Non-Alcoholic Beverage Salesmen's Union, No. 21742, affiliated with the American Federation of Labor, 29 N. L R B 1136, is controlling here ands supports its contentions as to the alleged appropriate unit. We believe, however, that that case is not controlling here. See Matter of P. Ballantine & Sons and Wholesale Beer Salesmen's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, A. F of L., decided this day. Compare Matter of P Ballantine & Sons and Wholesale Licensed Alcoholic Beverage Salesmen's Union, #20376-B, Beer Division-, A. F. ofL.,18N. L . B 1007. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor-Relations Board hereby orders that the peti- tion for investigation and certification of representatives of em- ployees of Liebmann Breweries Inc., Brooklyn, New York, filed by Wholesale Beer Salesmen's Union, Local 21, Distillery, Rectifying and Wine Workers' International Union of America, affiliated with the American Federation of Labor, be, and it hereby is, dismissed. Mr. EDWIN S. Sz&rru, dissenting : I dissent from the ruling of the majority dismissing the petition in this case. The facts in this case are substantially identical with those in the Ballantine case e decided this day, and the Feigenspan case.7 For the reasons stated by the Board in its decision in the Feigen$pan case, and by me in my dissenting opinion in the Ballan- tine case, I would find that the unit requested by Local 21 is appro- priate for the purposes of collective bargaining and that an election should be held. .Matter of P. Ballantine t Sons and Wholesale Beer Salesmen's Union, Local 21, Dis- tillery, Rectifying and Wine Workers' International Union of America , A. F. of L, 33 N. L. R. B. 374:1 4 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.