M & F Distributing Co.

National Labor Relations Board - Board Decisions

Jan 8, 1952

97 N.L.R.B. 999 (N.L.R.B. 1952)

M & F DISTRIBUTING COMPANY 999
The relief driver works regularly, filling in for other drivers if any
are absent, or otherwise assists on the trucks. At the time of the hear-
ing, it was testified that he was on a 2-week trial, that if he worked
out, he would be kept on regularly. We shall include the relief driver
in the unit.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All beer driver-salesmen, including the relief driver, and the ware-
housemen, but excluding office and clerical employees, and supervisors 3
as defined in the Act.
As the warehouseman's tenure of employment is irregular and un-
certain, we find that he does not have sufficient interest in the terms and
conditions of employment in the unit to entitle him to vote in the
election hereinafter directed. The relief driver, however, is entitled to
vote, as he performs work similar in nature to that of the regular
employees and has a reasonable expectation of continued employment.'
[Text of Direction of Election omitted from publication in this
volume.]
3 The parties agree on the exclusion of an employee who is a nephew of one of the
partners who compose the Employer . There is some discussion in the record as to the
supervisory status of this employee . We will exclude him from the unit on the basis of
his close relationship to management , without deciding whether or not he is a supervisor.
Rosedale Passenger Lines, Inc ., 85 NLRB 527.
' Gerber Products Company, 93 NLRB 1668.
R. B. MYERS and WALLACE FIDDLER, D/B/A M & F DISTRIBUTING COM-
PANY 1 and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 878, AFL,
PETITIONER. Case No. W.-RC-389. January 8, 1952
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 Anthony J. Sabella, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel. [Members Houston, Murdock, and Styles.]
Upon the entire record in this case, the Board finds :
1. The Employer, a partnership, is a wholesale beer distributor
located and doing business in Pulaski County, Arkansas. Under
oral agreements terminable at will by the breweries, the Employer
' The Employer 's name appears as amended at the hearing.
97 NLRB No. 149.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has exclusive rights to the distribution of Champagne Velvet and
Miller beers in that county. In the year ending September 1951, the
Employer purchased beer valued at $167,236.55 from the Miller
Brewery in Milwaukee, Wisconsin, and beer valued at $211,585.88 from
the Champagne Velvet Brewery in Terre Haute, Indiana. All the
Employer's sales are made within Pulaski County, Arkansas. The
containers known as cooperage, in which beer is shipped to the Em-
ployer are, in turn, shipped back to the brewery. The Employer
makes deposits in the amount of approximately $28,800 yearly with
the breweries as assurance for the safe return of the containers. These
deposits are returned when delivery of the containers is accomplished.
While the agreements with the breweries do not specify any methods
of operation and distribution to be followed by the Employer and no
instances of such control were shown, the Employer stated at the
hearing that operations would be subject to any direction exerted by
the breweries. The Employer also pays a percentage of its sales for
advertising and promotion of the beers it handles.
Upon the entire record, including the essential position the Em-
ployer occupies in the distribution of nationally known and advertised
products under the oral agreements with the breweries here concerned,
and the shipment of empty containers valued at more than $25,000
annually by the Employer to points outside the State in which the
Employer is located, the Board finds that the Employer is engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction over the Employer.2
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation 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 and the Employer-agree that a unit of all beer
salesmen-drivers excluding office and clerical employees and super-
visory employees is appropriate for purposes of collective bargaining.
The parties also agreed that employee Banks is not a supervisory
employee. The record shows that this individual has authority to
make effective recommendations as to the hiring and discharge of
employees and that his recommendations have been followed in the
hiring of present personnel of the Employer. Accordingly, despite
the agreement of the parties, the Board finds that Banks is a super-
visor within the meaning of the Act, and we shall exclude him from
the unit hereinafter found appropriate.
2 See Squirt Distributing Company, 92 NLRB 1667; William A. Mosow, 92 NLRB 1727,
and 86 NLRB 680; The Borden Company, Southern Division, 91 NLRB 628 ; Stanislaus
Implement and Hardware Company, Ltd., 91 NLRB 618, and cases cited therein.
H. A. SATIN & COMPANY, INC. 1001
The Board finds that all salesmen-drivers of the Employer's whole-
sale beer distribution company excluding office and clerical employees
and all supervisors as defined in the amended Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
H. A. SATIN & COMPANY, INC. and CONGRESS OF INDUSTRIAL ORGANI-
ZATIONS, PETITIONER . Case No. 35-RC-546. January 9,195°2
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before Alan A.
Bruckner, hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from prej-
udicial 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 National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation 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 a unit composed of all production and
maintenance (including shipping department) employees at the Em-
ployer's Evansville, Indiana, dress factory. The Employer and the
Intervenor contend that the production workers alone constitute an
appropriate bargaining unit. In support of this position, the Em-
ployer. and the Intervenor demonstrated at the hearing that they
were parties to collective bargaining agreements from 1947 or 1948
to the middle of 1951, covering the production employees only, and
that the Intervenor secured a majority in a consent union-author-
ization election conducted among such employees by the Board's
Regional Director in August 1948. Further, Morris J. Levin, coun-
sel for the Intervenor, testified that in the midwestern and south
1 At the hearing, International Ladies' Garment Workers' Union, AFL, and Its Local 399
intervened jointly. These labor organizations , herein called the Intervenor, moved that
the petition be dismissed on the grounds that (1) an appeal from the Regional Direc-
tor's dismissal of the Intervenor' s charges against the Petitioner in Case No. 35-CB-63
was then pending ; and (2 ) the unit sought by the Petitioner is inappropriate. That mo-
tion , which was referred to the Board , is hereby denied. The Intervenor' s appeal was
denied by the General Counsel on October 17, 1951. Its unit contention is rejected for
reasons set out below.
97 NLRB No. 150.