Hoffman Cigar Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1961

133 N.L.R.B. 756 (N.L.R.B. 1961)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership in a labor organization as a condition of employment as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named Union, or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act.
HAROLD GOLDSMITH AND ADA J. GOLDSMITH, D/B/A
SUPERIOR MAINTENANCE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Hoffman Cigar Co., Inc. and Teamsters , Chauffeurs, Warehouse-
men, Helpers, Miscellaneous Brewery and Soft Drink Work-
ers, Local No. 822, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Independent, Petitioner.' Case No. 5-RC-3271.
October 4, 1961
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 Bernard E. Orem, hearing
officer. The hearing officer's rulings made at the hearings 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 appropriate unit :
The Employer is a distributor of beer and tobacco products in the
Norfolk, Virginia, area. Both the beer and tobacco operations are
conducted at a single location, although physically partitioned off one
from the other. The beer distributing operation is conducted by beer
driver-salesmen, helpers, warehousemen, and shipping clerks. The
tobacco operation is performed by truckdrivers, warehousemen, and
shipping clerks. In addition, the Employer operates a distributing
depot at Portsmouth, Virginia, employing beer driver-salesmen,
helpers, and a single warehouseman. The beer driver-salesmen are
1 The names of the Employer and Petitioner appear as amended at the hearing.
133 NLRB No. 51.
HOFFMAN CIGAR CO., INC. 757
currently represented, under contract, by the Petitioner in a multi-
employer unit consisting of the beer driver-salesmen of 11 or 12 beer
distributors in the Norfolk-Portsmouth area. None of the Employer's
other employees are represented.
The Petitioner seeks a unit of all warehousemen, truckdrivers, and
forklift operators at the Norfolk, Virginia, operation. It appears that
the parties are not in agreement with respect to the status of the ship-
ping clerks, the single Portsmouth warehouseman, and the helpers of
the driver-salesmen.
The shipping clerks in both the beer and tobacco operations work
with the warehousemen performing manual labor under the same
supervision. The Petitioner indicated it would not object to the
inclusion of shipping clerks. We find they would properly belong
in the unit .2
The Employer would include and the Petitioner exclude the single
Portsmouth warehouseman. The record shows that the Portsmouth
warehouseman and the Norfolk warehousemen perform the same
manual tasks of loading and unloading, as well as storing beer. He
enjoys the same employee benefits as the Norfolk warehousemen and
has a close similarity of interests with them. Accordingly, we find
that the Portsmouth warehouseman may not be excluded.'
The Employer contends that the helpers are already covered under
the existing contract for the beer driver-salesmen, while the Petitioner
contends they are employees of the driver-salesmen rather than the
Employer. Neither contention is supported by the record. The con-
tract does not extend to the helpers, except to provide the driver-
salesmen with a maximum of $20 per week as reimbursement for the
helpers' salaries and we find that the helpers have not been bargained
for under the current agreement. The Employer maintains the helpers
on his payroll for social security contributions, unemployment com-
pensation taxes, workmen's compensation, and in addition 85 percent
of the helpers are covered by the Employer's group insurance plan.
Accordingly, we find that the helpers are employees of the Employer .4
The helpers are engaged primarily in loading and unloading beer
under the direction of the driver- salesmen . Like the warehousemen
and shipping clerks, they are engaged in the physical movement of
the beer as a part of the Employer's distribution operation. As indi-
cated above, they enjoy many of the same employee benefits as the
truckdrivers, warehousemen, and shipping clerks. The exclusion of
the helpers would leave them as the only group without representation,
and their inclusion would comprise an Employer unit of all employees
with the exclusion only of the presently represented driver- salesmen.5
•
2 Louis,ana Gas Service Co., 126 NLRB 147.
3 Katz Drug Company, 123 NLRB 1615
' Wells Dairies Cooperative, 109 NLRB 1450 . See also Gulf Bottlers , Inc, 127 NLRB 850.
s See Olin Mathseson Chemical Corporation, Forest Products Division , 117 NLRB 665.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances of this case, we find no merit in the Employer's
further contention that since the driver- salesmen are represented on
a multiemployer basis, the unit petitioned for must also be multi-
employer in scope. The all-employee unit, excluding the driver-
salesmen ,6 in which the election will be directed is, in our opinion,
self-sufficient and internally homogeneous.
Accordingly, we find that the following employees at the Employer's
Norfolk, Virginia, and Portsmouth, Virginia, operations constitute
an appropriate unit for the purposes of collective bargaining within
the meaning of the Act:'
All truckdrivers, warehousemen, shipping clerks, and helpers, but
excluding all office clerical employees, guards, watchmen, and super-
visors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Direction of Election.
6'Cf. Valley of Virginia Cooperative Milk Producers Association , 127 NLRB 785. In the
instant case , the driver- salesmen are already represented separately under contract which
is tantamount to an agreement to exclude.
7 The record indicated that the Employer has no classification of forklift operators re-
quested by the Petitioner and that the forklift operations are performed by warehousemen.
The classification of forklift operator is therefore not included in the unit.
8 As the unit found appropriate is larger than that specifically requested by Petitioner,
which has an adequate showing of interest in such unit , the Petitioner may withdraw
from the election upon timely notice to the Regional Director.
Andes Candies, Inc., Petitioner and Grocery and Food Products,
Food Processors, Food Canners, Frozen Food Plant, Ware-
house and Related Office Employees Union, Local 738, I.B.T.1
Case No. 13-RM-565. October 4, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Gordon J. Myatt, 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.
1 The Union's name appears as amended at the hearing.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in this case to a three -member panel [Chairman McCulloch and Members Fanning
and Brown].
133 NLRB No. 65.