Burton Beverage Co.

National Labor Relations Board - Board Decisions

Aug 16, 1956

116 N.L.R.B. 634 (N.L.R.B. 1956)

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the picket line was not intended to apply to them. Crump, Inc., 112 NLRB 311.
We have seen, however, that while there was no interruption in the business of
Youngblood, Carolina, or Perkins, there was a direction by Johnson, the Respond-
ent's representative, to Service Cartage's employees to "hit the street," and the re-
maining question is whether that direction was violative of the Act.13
The Respondent argues that Service Cartage was an ally of Empire, but it is clear
that Service Cartage's employees were not engaged in work which, but for the
dispute between Empire and the Respondent, would have been performed by Em-
pire's employees. Thus, the principal ally cases, cited by the Respondent, are in-
apposite.14 See Douds v. Metropolitan Federation of Architects, Local 231, 75 F.
Supp. 672 (D. C., N. Y.); N. L. R. B. v. Business Machine and Office Appliance
Mechanics Conference Board, etc., 228 F. 2d 553 (C. A. 2).
The Respondent asserts further that Service Cartage, if not an ally of Empire,
was its alter ego. The facts respecting the relationship of those two concerns are
recited above. While I am unaware of any case which is apposite in resolving the
issue concerning the instruction to Service Cartage's employees to strike, it appears
that Service Cartage's operations were so enmeshed with those of Empire, particu-
larly with reference to direction of Empire's over-the-road drivers who went on
strike, that Service Cartage was not the disinterested neutral employer which Sec-
tion 8 (b) (4) of the Act was designed to protect. Accordingly, the Respondent
may not be held to have expanded lawful primary activity into unlawful secondary
activity by calling out on strike its members who worked for Service Cartage.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Empire State Express, Inc., constitute trade, traffic, and
commerce among the several States within the meaning of Section 2 (6) and (7)
of the Act.
2. The Respondent is a labor organization within the meaning of Section 2 (5)
of the Act.
3. The allegations of the complaint that the Respondent has engaged in unfair
labor practices have not been sustained.
[Recommendations omitted from publication.]
'3 The Service Cartage employees who were working in the terminal at the time of the
direction went on strike forthwith Two employees, then at work outside the terminal
on pickups or deliveries, refused to work atter returning to the terminal, but the record
does not disclose whether they were instructed to join the strike.
14 The Respondent also asserts that, during the course of the strike against Empire,
Service Cartage solicited business on behalf of Empire, thereby taking sides in the dispute
and engaging in activity which was calculated to frustrate the strike. It is true, as has
been recited, that Service Cartage was obligated by contract to solicit business for Empire,
but the evidence will not support a finding that Service Cartage engaged in such solicita-
tion from the time that the picketing began until it was enjoined. The business of Service
Cartage was at a near standstill.
Samuel H . Burton and Pauline Burton , d/b/a Burton Beverage
Company I and Local 108, International Union of United Brew-
ery, Flour, Cereal , Soft Drink and Distillery Workers of Amer-
ica, AFL-CIO. Case No. 18-RC-2794. August 16,1956
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 Max Rotenberg, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
I The Employer's name appears as amended at the hearing
116 NLRB No. 86.
BURTON BEVERAGE COMPANY 635
Upon the entire record in this case, the Board finds :
1. The Employer asserts that the petition should be dismissed on
the ground that its volume of business does not meet the Board's
jurisdictional standards. The Employer, a partnership, is located
in Ottumwa, Iowa, and is engaged in the wholesale distribution of
malt beverages and carbonic gas. In 1955, the Employer made no
out-of-State sales and its direct out-of-State purchases were valued
at $538,163, including cooperage charges in the amount of $116,529.
The Employer contends that the cooperage charges should not be
computed in determining its volume of business. Cooperage in-
cludes beer bottles and the cases in which the bottles are packed, for
which the Employer receives credit when empties are returned to the
brewery from which the purchases were made. We find no merit
in this contention. The Board's jurisdictional standards are designed
to reflect the entire impact which an employer's business has on in-
terstate commerce and are therefore based on total sales or purchases,
including in the instant case cooperage charges. The fact that such
charges may ultimately be remitted by the breweries is immaterial.
They nevertheless represent, in essence, purchases by the Employer.
The Employer also contends that the Board should refuse to assert
jurisdiction because its volume of business will be reduced by 25
percent this year, as in April 1956 certain territory formerly serviced
by the Employer for the Joseph Schlitz Brewing Company was as-
signed by the latter to another distributor.' We find no merit in
this contention. The Board bases its jurisdictional standards on an
employer's business during the most recent calendar or fiscal year,
as speculation on future operations would be neither administratively
feasible nor desirable where, as here, commerce data for a recent
annual period is available. Aroostook Federation of Farmers, Inc.,
114 NLRB 538. We find that the Employer is engaged in commerce
and that it will effectuate the policies of the Act to assert jurisdiction
herein.3
2. The labor organization involved claims to represent certain
employees 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 Petitioner seeks to represent a unit of the Employer's truck-
drivers. The Employer contends that the unit sought is inappropri-
ate because its two truckdrivers-Miller and Giles-are independent
contractors.
2 The territory formerly serviced by the Employer includes the city of Pella, Malaska
County, and part of Keokuk County, Iowa. About the same time, the Employer became.
a distributor of Edelweiss beer.
8 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
(636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to July 2, 1955; the two truckdrivers were admittedly em-
ployees of the Employer; on that date the Employer entered into
separate but identical contracts with them. Each contract was to run
for 1 year, subject to automatic termination without notice upon the
Employer ceasing "to be a wholesaler for the Joseph Schlitz Brew-
ing Company" and also subject to termination by either party upon
10 days' notice for any unremedied breach by the other party.
By the terms of the contract the truckdriver agrees to "use and
make available" a specified truck' or "similar truck equipment" 5
for the purpose of making deliveries of the Employer's products to its
customers in a specified geographic area and "to devote his entire
working time to the sale, promotion of sales and the delivery" of the
Employer's products. The driver also agrees to maintain the said
truck in good working order at his own expense and pay for the gas,
oil, and tires used in the operation of the truck. The truck is to be
painted in colors acceptable to the Joseph Schlitz Brewing Company
and is to bear such signs as are requested by the Employer, both at
the latter's expense. The driver further agrees to carry automobile
liability insurance in specified amounts as well as cargo insurance,
at his own expense, and to furnish the Employer a $5,000 perform-
ance bonds He also agrees for the period of the contract, or its
renewal, and for a period of 3 years after the contract's termination,
not to sell or solicit the sale of malt beverages in the area covered by
the contract.
The contract also requires the driver, on the days the Employer
is open for business, to load his truck "each morning, not later than
7: 30 a. m." with such products as the Employer deems necessary to
service its customers in the area assigned to the driver,' and to keep
a record, on forms provided by the Employer, of the loadings, sales,
cash received or credit extended, and empties returned.
The driver, and his assistant driver, if any," are required to wear
Schlitz uniforms, one-third of the cost to be borne by the driver, the
Employer, and Schlitz, respectively, and the driver is required at all
* The truck described in each contract is the one the driver used in his employment
duties prior to July 2, 1955, and which the Employer sold to the driver that day, the
purchase price to be paid in weekly installments to be deducted from the driver's earnings.
50n occasions , when their own trucks were being repaired , the truckdrivers have used
a truck owned by the Employer. The truckdrivers understand that they are to reimburse
the Employer for the use of its truck , but they have not yet done so.
6 Neither of the two drivers has thus far furnished any performance bond, and Giles was
relieved by the Employer from the requirement of carrying cargo insurance because most
of his deliveries were in the city of Ottumwa.
s In practice , since the driver contracts have been in effect, the starting time is 7 a. M.,
and the quitting time varies , depending on the number of deliveries and problems en-
countered in making deliveries , which is the same procedure followed before July 2.
8 The contract provides that the driver may, at his option , employ an assistant driver
at his own expense, subject to the approval of the Employer Neither truckdriver has
hired a helper since the contract was entered into, but Giles had hired assistants prior
to July 2, 1955.
BURTON BEVERAGE COMPANY 637
times to "maintain a neat and clean appearance." The contract re-
quires the driver to make deliveries to customers pursuant, to orders
already received; sales are to be at prices determined by the Employer
and on a cash basis, unless otherwise authorized by the Employer, the
amount of any other credit, unless paid within 10 days, being deducted
.from the driver's earnings."
. The truckdriver is paid once a week on a commission basis : 25 cents
for a keg and 25 cents for a tank of carbonic gas. For a case of bever-
age, Miller receives 15 cents and Giles 12 cents.10 Other provisions
in the two contracts provide that any loans made by the Employer to
the driver shall be without interest charges; the driver is not to be
held responsible for breakage unless caused by his negligence or that of
his assistant; and that in the event of a breakdown in the driver's truck,
the "driver shall procure other -and suitable equipment," with the
Employer assisting in locating such equipment.
• Burton, one of the partners, testified that shortly after July 2, 1955,
he contacted the Internal Revenue Service concerning Miller and
Giles and was told to continue making deductions for social security
and income taxes from their pay for the time being, which he did, al-
though under "protest," until about 2 weeks before the hearing held
on May 1, 1956. At that time the Employer ceased making these
deductions after again consulting a representative of the Internal
Revenue Service who, according to Burton, "determined" that the
truckdrivers were "independent contractors." 11 The Employer has
not paid any workmen's compensation since July 2, 1955.
In view of the foregoing, and upon the record as it whole, we find
that Miller and Giles are not independent contractors 12 but employees
of the Employer within the meaning of the Act.13 The contracts of
July 2, 1955, did not abolish the preexisting employer-employee rela-
tionship. Indeed, practically all the duties of the drivers continued
unchanged after that date and so far as appears from the record the
Employer exercises the same degree of control over their work as it did
before July 2, 1955. At best, there was merely a transfer of ownership
9 This same practice was also followed before the parties entered into the two contracts.
30 Prior to July 2, the drivers were on a salary basis . They also received time -and-a-half
pay for more than 40 hours.
n Burton further testified that the Internal Revenue Service Informed him at the same
time that the Employer was required to pay a transportation tax on merchandise delivered
by independent contractors , but that the Employer did not need to pay such tax on
merchandise delivered by its employees . According to Burton , the Service stated that
the Employer therefore owed back taxes for mechandise delivered by Miller and Giles
since July 2, 1955, as they were independent contractors.
is The record does not indicate upon what factual basis the Internal Revenue Service
"determined" that Miller and Giles were "independent contractors " In any event,
-although such ruling of another Federal agency is entitled to some weight , it is not dis-
positive of the question as to who is an "employee " within the meaning of Section 2 (3)
of the Act.
13 Hoater Supply Company, 109 NLRB 466.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the trucks used in delivering the Employer's products as well as a
change in the manner of paying Miller and Giles.
We find, therefore, that the following unit is appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All truckdrivers at the Employer's Ottumwa, Iowa, establishment,
excluding all other employees, office clerical employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERs MuRDociK and RODGERS took no part in the consideration
of the above Decision and Direction of Election.
United States Gypsum Company and International Union of Op-
erating Engineers , AFL-CIO, Petitioner . Case No. 16-RC-1816.
August 16, 1956
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 Lewis A. Ward,
hearing 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 engaged in commerce within the meaning of
the Act.
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 Petitioner seeks to represent a unit of production and main-
tenance employees at the Employer's Sweetwater, Texas, plant and
quarry. At the hearing, it offered to stipulate that the unit in which
the Board directed an election in an earlier case is appropriate for
the purposes of this proceeding.' The Employer, however, contends
that certain employee categories previously included in the unit should
now be excluded as supervisors or as technical employees. The fol-
1 United States Gypsum Company , 78 NLRB 849 . The unit was described in that case
as "all production and maintenance employees at the Employer 's Sweetwater , Texas, plant
and quarry , including inspectors , but excluding clerical and professional employees, the
chief chemist , testers, head mechanics , head loaders , guards, and all supervisors as defined
in the Act." The petitioner in that case, United Cement, Lime and Gypsum Workers,
Local Union No. 82, AFL, was certified on September 2, 1948, as the result of an election
conducted in that proceeding . However, since 1949 the Employer has not engaged in
collective bargaining with any representative of the employees.
116 NLRB No. 85.