Niagara Beer Distributors Association, et al.

National Labor Relations Board - Board Decisions

Oct 16, 1952

100 N.L.R.B. 1515 (N.L.R.B. 1952)

NIAGARA BEER DISTRIBUTORS ASSOCIATION 1515
Paretti without apparent objection by the Employer. We are of
the opinion, therefore, that the Petitioner's request sent to Paretti
was both proper and timely.'
Accordingly, we find, as did the Regional Director, that the Em-
ployer interfered with the employees' freedom of choice in the selec-
tion of a bargaining representative, and shall order that the runoff
election of May 2, 1952, be set aside. We shall direct the Regional
Director to conduct a new runoff election at such time as he deems
appropriate.
Order
IT IS HEREBY ORDERED that the runoff election conducted on May
2, 1952, in Case No. 15-RC-672 be, and it hereby is, set aside.
IT IS FURTHER ORDERED that this proceeding be remanded to the
Regional Director for the Fifteenth Region for the purpose of con-
ducting a new runoff election at such time as he deems the circum-
stances permit a free choice of a bargaining representative.
" In view of this determination , we do not here decide whether , apart from such request
by Petitioner , the Employer 's speech to the employees constituted interference solely by
reason of its timing . Cf. The Hills Brothers Company, 100 NLRB 964.
NIAGARA BEER DISTRIBUTORS ASSOCIATION, ET AL.' and BEVERAGE WORK-
ERS LOCAL UNION No. 195, INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR , CEREAL, SOFT DRINK AND DISTILLERY WORKERS
OF AMERICA , CIO, PETITIONER. Case No. 3-RC-975. October 16,
195°
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 William J. Cavers,
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 is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
3 The names of those individual employer -members of the Association concerned, as
amended at the hearing , are as follows : Cataract Bottling Co., Inc ., Bruno G. Kreuger
Distributing Corp ., C. O. Marra, L. G. Pearson , Hardy Distributors , Inc., Power City
Distributing Co., Suspension Bridge Bottling Co ., Star Bottling Co., Certo Bros. Distribut-
ing Co ., Inc., and The Charles Distributing Corporation.
100 NLRB No. 245.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Niagara Beer Distributors Association (hereinafter called
the Association) is an unincorporated body composed of 12 distribu-
tors of malt beverage products in the vicinity of Niagara Falls, New
York. Of the 10 member firms here involved,2 7 deal exclusively in
the distribution of malt beverage products; the remaining 3 deal in
the distribution of malt beverages and also in the processing and
distribution of soft drinks.
Since 1935, the Association and the Petitioner have negotiated suc-
cessive collective bargaining agreement covering only the malt bever-
age employees of the aforesaid 10 member firms of the Association.
The latest such agreement covered the period June 1, 1'951, to May 31,
1952. In or about the month of July 1951, the Petitioner contended
that the unrepresented soft drink employees of the 3 member firms
handling soft drinks were included in the bargaining unit described
in this last agreement. This contention was disallowed in a resulting
arbitration proceeding. Shortly prior to the end of March 1952, the
Association rejected the Petitioner's request for recognition as the
bargaining representative of the said soft drink employees. The
Petitioner, acting in accordance with the applicable provision of the
contract, thereupon notified the Association of its desire to terminate
the agreement, and subsequently filed the instant petition.
The Petitioner contends, contrary to the Employer, that the exist-
ing multiemployer unit for malt beverage employees should also in-
clude the afore-lnentioned soft drink employees, on the ground that
the work performed by both is essentially the same. Furthermore,
the Petitioner alleges that the malt beverage and soft drink opera-
tions of the three companies handling both types of products are not
, separable.
In opposing the inclusion of the soft drink employees in the existing
multiemployer unit, the Employers point to the peculiarities of the
malt beverage industry and the corresponding unique nature and
purpose of the. Association. Only employers who engage in the dis-
tribution of malt beverage products are eligible for membership'
The Association is authorized to act for its members only in matters
relating to malt beverages, and can, therefore, bargain only as to
employees engaged in the malt beverage operations of its member
firms. Other of its specific functions are : To analyze all matters
including, but not limited to, Federal and State legislation affecting
the malt beverage industry and to disseminate analytical bulletins
to its members ; to establish and maintain a uniform price structure
for sales of malt beverages in Niagara County; to advise its members
' Two members of the Association , distributing malt beverages in Erie, as well as Niagara
County, do not bargain through the Association.
8 This policy precludes the admission to membership of approximately 33 companies in
the Niagara Falls area which handle soft drinks exclusively and do not appear to be mew-
here of any bargaining association.
NIAGARA BEER DISTRIBUTORS ASSOCIATION 1517
of current business conditions to aid them in handling inventory
problems; to advise its members on methods and types of advertising;
and to keep its members informed of price and other Government
regulations to avoid violations thereof.
The Board has heretofore held that the pattern of organization
for an unrepresented category of employees should normally follow
the multiemployer pattern of bargaining established generally for
other employees of the particular employers involved.4 However,
this general rule cannot be rigidly applied, nor is it applicable to the
instant case. Here, two separate industries are involved and the
Association's functions, including its history of multiemployer col-
lective bargaining, have been limited logically to the malt beverage
industry.5 However, because the Petitioner, in the alternative, desires
an election among the employees it currently represents, we shall
direct an election in such unit .6
We find, accordingly, 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 keg beer drivers, keg
beer drivers' helpers, bottle beer drivers, bottle beer drivers' helpers,
beer warehousemen, combination beer drivers, combination beer
drivers' helpers, and trailer beer drivers of Cataract Bottling Co.,
Inc., Bruno G. Krueger Distributing Corp., C. 0. Marra, L. G. Pear-
son, Hardy Distributors, Inc., Power City Distributing Co., Suspen-
sion Bridge Bottling Co., Star Bottling Co., Certo Bros. Distributing
Co., Inc., and the Charles Distribution Corporation, but excluding
all employees engaged primarily in the soft drink operations of Cat-
aract Bottling Co., Suspension Bridge Bottling Co., and Star Bottling
Co., office and clerical employees, and guards and supervisors as de-
fined in the Act.
'Text of Direction of Election omitted from publication in this
volume.]
MEMBER STYLEs; concurring :
I agree with my colleagues that the employees engaged in the soft
drink operations should be excluded from the multiemployer unit in
' Columbia Pictures Corporation , 84 NLRB 647; Kenosha Auto Transportation Corpora-
tion, 98 NLRB 482.
e Cf. Rambo Bread Co., 92 NLRB 181, in which it was determined that notwithstanding
a history of existing association -wide units for certain categories of employees , single em-
ployer units were appropriate for other unrepresented employees where the bargaining his-
tory for the same category of employees of some association members was on a single-
employer basis contrary to the multiemployer pattern.
We note that our concurring colleague uses this case as an opportunity to reiterate views
on an issue which he alone found it necessary to reach In his dissent In the Continental
Baking case , although that case and the instant case are clearly distinguishable on the
facts, and the Issue , as in the former case, is not now before us.
e General Box Company, 82 NLRB 678.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the election is being directed. I base my decision on the fact
that, as pointed out in the majority opinion, the employers are un-
willing, and have not empowered the Association, to bargain for these
employees in a multiemployer unit.
As I have recently stated in my dissenting opinion in the Conti-
nental Baking Company case,' multiemployer units can only be estab-
lished with the consent of both parties. In that case it was the other
party, the union, which was unwilling to bargain on a multiemployer
basis. I pointed out that the Board was required to accord to unions
the same treatment which it has been according to employers in not
forcing them into multiemployer units under such circumstances.
Consistent with my opinion in that case, I am applying the same prin-
ciples and according the same treatment to the employers in this
case.
It seems to me that if my colleagues are to dispense equal-handed
justice and not discriminate against unions, they will have to accord
the same treatment to a union in this kind of situation when they
choose to pass on that issue.
7 99 NLRB 777.
UNITED STATES POTASH COMPANY and INTERNATIONAL ASSOCIATION OF
MACHINISTS , CRAFTS LOCAL 1912 , AFL, PETITIONER
UNITED STATES POTASH COMPANY and INTERNATIONAL UNION OF MINE,
MILL & SMELTER WORKERS (IND.) FOR ITSELF AND ON BEHALF OF ITS
LOCAL 415 , CARLSBAD POTASH WORKERS, PETITIONER. Cases Nos.
33_ RC-376 and 33-RC-385. October 17, 1952
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held before
Evert P. Rhea, 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 these cases to a three-
member panel [Members Houston, Styles, and Peterson].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
'At the hearing, Carlsbad Metal Trades Council , AFL, herein called the Intervenor,
moved to intervene in this proceeding . The bearing ofecer , although permitting the Inter-
venor fully to participate in the hearing , did not rule upon the motion but referred it to
the Board. The motion to intervene is granted . Don Lee Broadottisting System, 98 NLRB
458.
100 NLRB No. 256.