Niagara Beer Distributors Association

National Labor Relations Board - Board Decisions

Jun 28, 1954

108 N.L.R.B. 1571 (N.L.R.B. 1954)

NIAGARA BEER DISTRIBUTORS ASSOCIATION 1571
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
Recommendations omitted from publication.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with the efforts of
United Optical & Instrument Workers of America , Local •678, CIO, to negotiate for
or represent the employees in the bargaining units described below.
WE WILL bargain collectively upon request with the above -named Union as the
exclusive representative of all employees in each of the bargaining units described
below with respect to wages , rates of pay, hours of employment , and other conditions
of employment, and if an understanding is reached, embody such understanding in a
signed agreement . The bargaining units are:
1. All production employees in our finishing and surface departments , excluding
all stock and office employees , messengers , foremen , guards , and supervisors, as
defined in the Act.
2. All our stock and office employees , messengers , excluding all other employees,
confidential secretary , guards , and supervisors , as defined in the Act.
BAUSCH & LOMB OPTICAL 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.
NIAGARA BEER DISTRIBUTORS ASSOCIATIONS and LOCAL
195, INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL , SOFT DRINK AND DISTILLERY WORK-
ERS OF AMERICA, CIO , Petitioner . Case No. 3-RC-1364.
June Z8, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a hearing was held before John M.
Shea, Jr., 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 , Niagara Beer Distributors Association
(hereinafter referred to as the Association ), is an unincorpo-
t The name of the Employer appears as amended at the hearing.
108 NLRB No. 217.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rated body composed of 12 distributors of malt beverage pro-
ducts in the vicinity of Niagara Falls, New York . ' During
1953, the 9 member firms here involved purchased a total of
$1,535,000 worth of malt beverages from out-of -State. In
addition several members purchased an undetermined amount
of advertising and equipment from out - of-State sources. We
find that the Association is engaged in commerce , within the
meaning of the Act, and that it will effectuate the purposes of
the Act to assert jurisdiction in this case.'
2. The labor organizations involved claim to represent
employees of the Employer.4
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the
Acts
4. In a prior proceeding6 brought by the Petitioner, the
Board found a multiemployer unit to be appropriate consisting
of the drivers, helpers, and warehousemen employed in the
malt beverage operations of 10 members of the Association, '
but excluding all employees engaged primarily in soft drink
operations at 3 of these member companies , Cataract Bottling
Co., Suspension Bridge Bottling Co., and Star Bottling Co. The
Petitioner alleges that this is still the appropriate unit. The
Association agrees except that it would add the category of
salesmen to the specific exclusions . The Intervenor contends
that a multiemployer unit is not appropriate , or if it is appro-
priate, that it should not include members of the Association
which have withdrawn from full membership , and that the
soft drink employees and salesmen should be included as a
part of any unit found appropriate.
For 18 years the Association has negotiated successive
bargaining agreements covering the malt beverage employees
of the member firms involved , with the Petitioner and the
Petitioner ' s predecessor . The last contract , expiring May 31,
1954 , was executed on June 1, 1953 , and was signed by all 9
2 The names of all the individual employer-members of the Association are as follows:
Bruno G. Krueger Distributing Corporation, L. G. Pearson, Hardy Distributors, Inc., Cata-
ract Bottling Company , Power City Distributing Company , Suspension Bridge Bottling
Company, Star Bottling Company, Certo Brothers Distributing Company, Inc., Charles
Distributing Corporation , C. O. Marra Distributing Company , Tonawandas Distributing
Corporation, and A & B of Buffalo: Of these individual employers, only nine are concerned
in this proceeding as C. O. Marra is in the process of liquidation and employs no employees,
and Tonawandas Distributing Corporation and A & B of Buffalo are not members of the
Association for purposes of collective bargaining.
3Samuel Bernstein & Co., et al., 98 NLRB 1144, footnote 4.
4Local 1195, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America , AFL, was permitted to intervene on its showing of interest.
5 As the Petitioner and the Association do not assert their contract as a bar to this pro-
ceeding, we find it unnecessary to consider this issue.
6Niagara Beer Distributors Association, et al., 100 NLRB 1515.
7 The prior proceeding included the C. O. Marra Distributing Company. As indicated
above, this firm, although a member of the Association, is not involved in this proceeding.
NIAGARA BEER DISTRIBUTING ASSOCIATION 1573
of the member firms. Two of these firms, Power City Dis-
tributing Company and Charles Distributing Corporation, had
withdrawn from full membership in the Association early in
1953. But since that time they have continued as members of
the Association for the limited purpose of participating in the
labor relations program. They have continued to authorize the
Association to perform their collective bargaining and ad-
minister their bargaining contracts with the Petitioner. They,
like the other association members, signed the current con-
tract, and have paid dues to the Association for this limited
purpose. Neither firm has shown an intent to pursue a course
of individual action with regard to its labor relations. Instead
their continued bargaining with the Association manifests
a desire to be bound by group action rather than by individual
action.s In view of the long history of collective bargaining on
a multiemployer basis, and the fact that none of the member
firms involved have indicated a desire to pursue a separate
course with regard to their labor relations, we find that a
unit of the malt beverage employees of the association members
here involved continues to be appropriate.
The record shows that 3 of the Association 's members9 en-
gage in bottling and distributing soft drinks in addition to
distributing malt beverages, and that at least 3 employees19
are engaged primarily in the soft-drink operations. Practically
all of the employees in these 3 firms help out in the soft-drink
business on a voluntary basis from time to time. However, the
record discloses that State law requires the separation of malt
beverage and soft-drink operations; the Association is organ-
ized for sole purpose of dealing inmatters concerning the malt
beverage industry; and it is authorized by its members to
handle labor relations concerning only their malt beverage
personnel, a function which it has performed for the last 18
years. There is no evidence of any material change in the
operations of the members since our prior decision.u We
shall therefore exclude all employees engaged primarily in
the soft-drink operations of these 3 firms.
The unit description in our prior decision did not specifically
exclude the category of salesmen. The record shows that em-
ployees in this category are primarily engaged in selling
their firm's product. They also check on the drivers and see
that the customers are being properly serviced. In case of
illness or vacations, when their employer is short of personnel,
8Sullivan Mining Company, et al., 101 NLRB 1366 at 1368.
9 These are Cataract Bottling Company, Suspension Bridge Bottling Company, and Star
Bottling Company. At one point in the record, Charles Distributing Corporation was named
in place of Cataract Bottling Company as one of the three firms engaged in soft-drink
operations. From the record as a whole, however, we conclude that this was an error and
that the three companies concerned are those that we have named.
10 These are Robert Edwards and Joseph Marra of Suspension Bridge Bottling Company and
an unnamed employee at Cataract Bottling Company.
liFootnote 6, supra.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they may be called upon to fill in for other employees, and in
so doing they may wait on customers, drive trucks, and per-
form maintenance work. In view of the fact that their interests
and general working conditions appear to be different from
those of the other employees, we shall exclude them from the
unit.
There remains for consideration the status of certain in-
dividuals, some of whom are listed as employees within the
existing unit and as to whom there appears to be dispute. The
parties have stipulated that Bruno Krueger is the sole stock-
holder of Bruno G. Krueger Distributing Corporation, that
Rocco Cardone is a partner in the Suspension Bridge Bottling
Company, and that Candlor Certo, Albert J. Certo, and Andrea
Certo are respectively president, vice president, and secretary
of Certo Brothers Distributing Company, Inc. We shallexclude
these individuals as representatives of management. The
record discloses that Gordon Krueger, a warehouseman at
Bruno G. Krueger Distributing Corporation, is the son of
Bruno Krueger who, in addition to being the sole stockholder,
is the firm's president. The Intervenor wishes to exclude him
and also exclude Joseph Previte , as a cousin of Rocco Cardone;
Frank Serianni , as a brother-in-law of the Certo Brothers;
and John Maggaddino, as a relative of the owner of Power
City Distributing Company. The record does not show that
any of these individuals enjoys a special status which allies
his interests with those of management. As we have found that
family relationship, in and of itself, is an insufficient ground
to exclude such employees, we hold that these four individuals
are properly a part of the appropriate unit.'
We find that all keg beer drivers, keg beer drivers' helpers,
bottle beer drivers, bottle beer drivers' helpers, beer ware-
housemen, combination beer drivers, combination beer drivers,
helpers, and trailer beer drivers of the Cataract Bottling
Company, Inc., Bruno G. Krueger Distributing Corporation,
L.)G. Pearson, Hardy Distributors, Inc., Power City Dis-
tributing Company, Suspension Bridge Bottling Company,
Star Bottling Company, Certo Brothers Distributing Com-
pany, Inc., and Charles Distributing Corporation, but ex-
cluding all employees primarily engaged in the soft-drink
operations of Cataract Building Company Bridge Bottling
Company, and Star Bottling Company, salesmen, office and
clerical employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b)
of the Act.
[Test of Direction of Election omitted from publication.]
12 International Metal Products Company, 107 NLRB 65. American Steel Buck Corporation,
107 NLRB 554. Member Murdock would exclude Gordon Krueger for the reasons stated in his
dissents in those cases.