P. Ballantine & Sons

National Labor Relations Board - Board Decisions

Jul 12, 1941

33 N.L.R.B. 374 (N.L.R.B. 1941)

In the Matter of P. BALLA14TINE & SONS and WHOLESALE BEER SALES-
MEN'S UNION, LOCAL 21, DISTILLERY, RECTIFYING AND WINE WORKERS'
INTERNATIONAL UNION OF AMERICA, A. F. OF L.
Case No. R-2,551-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 E. 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 21,1
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 representation of em-
ployees of P. Ballantine & Sons, Newark , New Jersey , herein called
the Company , and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions 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 , nunc 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.
On May 2, 1941 , the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and Local 21.
I The original petition, dated February 18, 1941, designated the petitioner as wholesale
Beer Salesmen 's Union, Local 21.
33 N. L. R. B., No. 75.
374
P. BALLANTINE & SONS 375
Pursuant to notice, a hearing was held on May 13, 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 op-
portunity 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
P. Ballantine & Sons, a New Jersey corporation, is engaged in
the manufacture of beers and ales at Newark, New Jersey. In con-
nection with its business, the Company maintains its principal execu-
tive offices at Newark, New Jersey, and maintains factories, ware-
houses, and branch offices in New Jersey, Rhode Island, Connecticut,
New York, Illinois, California, Maryland, Tennessee, Florida, and
Washington, D. C.
This proceeding is concerned with the salesmen employed by the
Company to sell beer and ale. These salesmen work out of the Com-
pany's main office in Newark and its three branch offices located at
Red Bank, New Jersey, Long Island City, New York, and Hicksville,
Long Island, New York. Such products as they sell are manufac-
tured at the Newark, New Jersey, plant. Warehouses are main-
tained at the Red Bank and Hicksville branches for distribution of
beers and ales in the territories covered by those branches. Beers
and ales are shipped direct from the Newark plant to the retailers
in the Newark area and a portion of the metropolitan area, including
New York, Brooklyn, Bronx, and a certain section' of the Borough
of Queens.
For the manufacture of beers and ales at Newark the Company
purchases malt, hops, corn grits, and corn sugar. During the year
1940 approximately 100 per cent of the total gross volume of such
products valued in excess of $2,200,000 were purchased by the Com-
pany and shipped to Newark from points outside the State of New
Jersey. During the same year approximately 84 percent of the total
volume of the Company's sales which amounted to over $20,150,000,
required shipments to points outside the State of New Jersey.
The Company stipulated that it is engaged in commerce within the
meaning of the Act.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 employees of the Company.
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 Long Island City and Hicksville branches
of the Company. The Company contends that the following unit is
appropriate for collective bargaining purposes : All bottle- and
draught-beer salesmen employed by the Company in .both the New
York and New Jersey areas. The unit contended for by the Com-
pany includes not only those bottle salesmen working out of the Long
Island City and Hicksville branches, but also draught-beer salesmen
in those offices. In addition, it includes all bottle- and draught-beer
salesmen working out of the main office at Newark and the Red Bank,
New Jersey, branch.
The Company employs salesmen to sell bottle and draught beer in
both the' New York metropolitan and New Jersey areas. General
policies relating to the sale of beer and ale are determined and con-
trolled by a general manager and sales manager at the Company's
main office at Newark, New Jersey. The main office at Newark and
the two branches at Long Island City and Hicksville have salesmen
who sell in the New York metropolitan area. The Newark main of-
fice has 13 bottle salesmen and 48 draught salesmen. Some bottle-
beer salesmen working out of the Newark office sell bottle beer in New
York City and most of the draught beer sold in New York City is
sold by salesmen from the Newark office. Newark salesmen also sell
beer in New Jersey. The Long Island City office has 38 bottle sales-
men who cover the New York City area. It has no draught salesmen.
The Hicksville branch, which covers part of the New York City area
and Long Island, has five draught and nine bottle salesmen-also two
combination salesmen. The Red Bank branch has one bottle sales-
man and two combination salesmen, who sell only in New Jersey. All
beer sold in the New York City area, both bottle and draught, is de-
livered directly to the retailers from the Company's Newark plant,
except for a small portion of the New' York City area which is serv-
iced from the warehouse at the Hicksville branch.
For purposes of convenience the Company has divided its sales force
into two groups, bottle salesmen and draught salesmen. The for-
mer call primarily on off-premise licensees while the latter concentrate
P. BALLANTINE & SONS 377
on the on-premise licensees. All beer kalesmen, whether bottle or
draught, are hired, discharged, and promoted at the Newark office and
all salesmen work similar hours, under similar working conditions,
and for practically the same compensation.2 Salesmen are sometimes
transferred from one office to another and draught salesmen are some-
times transferred to work as bottle salesmen and vice versa. All
their activities are controlled from Newark and reports of their
activities are prepared and maintained there. All salesmen are
authorized and requested to sell both bottle and draught beer. Both
bottle- and draught-beer salesmen work together in obtaining new
accounts and maintaining old ones. The draught salesmen collect
the bottle accounts in outlets where draught beer is sold. Each
branch has one manager in charge of all salesmen. The Red Bank
and Hicksville branches each have two combination salesmen who
sell both bottle and draught beer on their regular routes. There
is a community of interest 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 In-
ternational Union in which it was stated that their 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. In a previous
case involving the Company,3 the Board found, as the Union con-
tended, that all bottle and draught salesmen in the Company's Long
Island City branch office constituted a unit appropriate for,the pur-
poses of collective bargaining. The Union lost the election 4 and no
collective bargaining resulted.
The Union contends, however, that the BQard's decision in the Fei-
genspan case b is controlling here and supports its contentions as to the
alleged appropriate unit. In that case we found that all bottle sales-
men employed by Feigenspan who work in the New York metropolitan
area consituted a unit appropriate for purposes of collective bargain-
' All salesmen are paid from the Newark office. The method of computing the com-
pensation is different, in that one is paid a base salary and commission , while the other
is paid a straight salary. Generally the earnings of bottle and draught salesmen are
practically the same.
3Matter of P. Ballantine ci Sons and Wholesale Licensed Alcoholic Beverage Salesmen's
Union, #20376-B, Beer Division, A. F. of L., 18 N. L. R. B. 1007
* Matter of P. Ballantine it Sons and Wholesale Licensed Alcoholic Beverage Salesmen's
Union, #20376-B, Beer Division, A F of L, 21 N. L R. B. 162.
8 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.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. We believe, however, that the instant case is not controlled by
the Feigenspan case, since it appears that in the instant case, unlike
the Feigenspan case, draught salesmen sell bottle beer and bottle men
sell draught beer ; and further that both bottle and draught salesmen
in each of the respective offices are supervised by one manager. On
the whole, the record in the instant case discloses a closer relationship
and interdependence between the draught and bottle salesmen than was
present in the Feigenspan case. I
In view of the circumstances of the case, we believe that the unit
alleged by Local 21 is inappropriate for purposes of collective bargain-
ing, and we so find. We shall, therefore, dismiss the petition.
IV. THE QUESTION CONCERNING REPRESENTATION
Since, as 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 P. Ballan-
tine & Sons, Newark, New Jersey, 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.
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 employ-
ees of P. Ballantine & Sons, Newark, New Jersey, 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. SMITH, dissenting :
I dissent from the ruling of the majority dismissing the petition
in this case.
In the Feigenspan case," the Board, at the request of the only union
involved, found a unit of bottle-beer salesmen employed by Feigen-
span in the metropolitan New York area to be appropriate for the
"Matter of Christian Feigenspan Brewing Company and American Federation of Whole-
sale Non-Alcoholic Beverage Sales mem 's _Union, No . 21742, affiliated with the American
Federation of Labor, 29 N. L R. B 1136.
P. BALLANTINE & SONS 379
purposes of collective bargaining. In reaching that conclusion the
Board rejected arguments by Feigenspan that a broader geographical
unit was. appropriate and that draught-beer salesmen had to be in-
cluded in the same unit with bottle-beer salesmen. The facts in
the present case are substantially identical with those in the Feigen-
span case. In my opinion, the Board should find the unit requested
by Local 21 in the present case to be appropriate for the purposes
of collective bargaining and should direct an election. Labor or-
ganizations rely on the determinations of this Board in conducting
organizing campaigns and if their efforts are to be effective, this
Board must rule consistently on similar questions.
The geographical considerations raised by the Company in this
case, namely, that employees in all offices of the Company, whether
in the New York metropolitan area or not, should be included in the
same unit, have previously been rejected by the Board in a case
concerning the Company.' With respect to the inclusion of draught-
beer salesmen in the same unit with bottle-beer salesmen, the Board
stated in the Feigenspan case :
Under certain circumstances, draught and bottle-beer sales-
men might properly be included in a single collective bargaining
unit. In the present case, however, the Beverage Salesmen limits
its membership to bottle-beer salesmen alone and has made no at-
tempt to organize the draught-beer salesmen. As above set forth,
certain differences do exist between the two groups with respect
to management, rates of pay, and methods of performing their
work. There is no showing that the draught-beer salesmen have
expressed a desire that the Beverage Salesmen should represent
them for collective bargaining. Wherever possible it is desir-
able to render collective bargaining an immediate possibility
and we are of the opinion that under the circumstances here
presented a bargaining unit limited to bottle-beer salesmen alone
is appropriate for collective bargaining purposes and we shall
so direct:'',
All the factors which motivated the Board to find the unit requested
by the union appropriate in the Feigenspan case are present in the
present case. Local 21 has limited its membership to bottle-beer sales-
men alone and has made no attempt to organize draught-beer salesmen.
The draught-beer salesmen have not expressed a desire that Local 21
should represent them for collective bargaining. Finally, certain
differences exist between the bottle salesmen and draught salesmen
with respect to management, rates of pay, and methods of perform-
ing their work. Thus, bottle and draught salesmen are directed by
bottle and draught supervisors, respectively, and usually attend sep-
T Matter of P. Ballantine & Sons, a corporation and Wholesale Licensed Alcoholio
Beverage Salesmen 's Union #20376-B, Beer Division , A. F. L., 18 N. L. R. B. 1007.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arate meetings , have different routes, and are compensated differently.8
To perform their duties, the bottle salesmen drive company-owned
automobiles at company expense, while most of the draught salesmen
use their own cars and get an expense allowance from the Company.
Bottle salesmen sell chiefly to groceries , delicatessens , and other off-
premise licensees , while draught salesmen sell chiefly to taverns, sa-
loons, and other on-premise licensees . The Company gives the bottle
salesmen $3 a week expense money with which they solicit good will
by buying drinks at the places they visit . The draught salesmen
receive 3 per cent of the amount they collect for use in building good
will. Bottle salesmen report for work at 8 o'clock each morning and
around 6 o'clock each evening. They attend meetings once a week.
Usually, draught salesmen do not attend these meetings, although
they have their own regular sales meetings . Draught salesmen do
not have to report to the office at the beginning and end of each day.
Generally speaking, bottle salesmen collect bottle accounts , and the
draught salesmen collect the draught accounts."
The decision of the majority of the Board distinguishes the present
case from the Feigenspan case on the ground that "in the instant case,
.unlike the Feigenspan case, draught salesmen sell bottle beer and bottle
men sell draught beer ; and further, that both bottle and draught sales-
men in each of the respective offices are supervised by one manager."
In my opinion these are not important distinguishing factors. While
there is a single manager in charge of each of the branch offices in the
instant case , unlike the Feigenspan case , it nevertheless appears that
the branch manager is engaged primarily in supervising the draught
salesmen and that under his supervision is another supervisor who is
primarily responsible for directing the activities of the bottle sales-
men. Further , although bottle salesmen sell some draught beer and
draught salesmen sell some bottle beer , such sales are, as the record
discloses, incidental to the principal sales activities of the two groups
of salesmen.
Under all the circumstances, therefore , I am of the opinion that the
Board should adhere to its decision in the Feigenspan case and find
that a unit composed of bottle salesmen working in the New York
metropolitan area is appropriate for the purposes of collective bargain-
ing, as the only labor organization involved contends.
e Bottle salesmen get a base rate plus a commission of 2 cents a case or carton. The
maximum base rate is $25 and the minimum around $18 a week. Draught salesmen
receive a straight salary of $40 a week as a maximum. The maximum salary paid a
draught salesman in New.York is $55.
9 The Company's truck drivers are divided into two classes , bottle-beer drivers and
draught-beer drivers. They are organized into separate locals of the same union which
has one contract with the Company.