Liebmann Breweries Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1941

33 N.L.R.B. 387 (N.L.R.B. 1941)

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.