John F. Trommer, Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1941

33 N.L.R.B. 381 (N.L.R.B. 1941)

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.