Virginia Beverage Co., Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1947

73 N.L.R.B. 656 (N.L.R.B. 1947)

In the Matter of DISTRIBUTORS AAssOCIATION OF THE=NORFOLK AREA, FOR
AND ON BEHALF OF VIRGINIA BEVERAGE' COMPANY, 1INC,' A CORPORA-'
TION : 1 T. C. CLARK, AN INDIVIDUAL, D/B/A NEHI BOTTLING Co.: J. A. l
-HOLLANDER, AN INDIVIDUAL,' D/B/A HOLLANDER DISTRIBUTING CO.
MARY W. HARCUM, AN INDIVIDUAL, D/B/A.DIXIE BEER DISTRIBUTORS;,.
ALAN FLEDER AND MANUEL MILLER, PARTNERS, D/B/A SEABOARD BEER'
& WINE Co.; THEODORE CONSTANT, AN INDIVIDUAL, D/B/A NORFOLK
BEVERAGE CO.; DAVID FRIEDMAN AND LILLIAN FRIEDMAN, PARTNERS,
D/B/A BEER DISTRIBUTORS CO.; VINCENT LANZA, JR.,.JOSEPH RINALDI
AND VINCENT SPARACINO, PARTNERS D/B/A VETERANS PREMIUM BEER
DISTRIBUTORS R. J. CHEATWOOD, C. L. C]IEATWOOD, ARCHIE STRAUS,
IC. C. STRAUS, ALEC MEYERS AND SARA, S. MEYERS, PARTNERS, D/B/A
DOMINION BEVERAGE CO. OF NORFOLK : HOFFMAN CIGAR CO., INC., A
CORPORATION; HERMAN KAHAN, AN INDIVIDUAL, D/B/A NATIONAL
DISTRIBUTORS; M. & 0. DISTRIBUTORS, INC., A, CORPORATION; WALTER
D. HALEY, EDNA C. HALEY, MAHLON C. MOHR AND FLORENCE E.
MOHR, PARTNERS, D/B/A BALLANTINE DISTRIBUTING Co.; AL LEVIN,
AN INDIVIDUAL, D/B/A AL LEVIN j A. L; SIMPSON, AN INDIVIDUAL,
D/B/A TWIN CITY BEER & WINE Co., HUGO ROTH, AN INDIVIDUAL,
D/B/A HUGO ROTH & Co., A. LEVIN, AN INDIVIDUAL, D/B/A MILWAUKEE
SALES Co.; D. M. SMITH, AN INDIVIDUAL, D/B/A EASTERN BEER DIS-
TRIBUTORS; SIDNEY POPKIN, MAX POPKIN AND RUTH HORN, PART-
NERS, D/B/A LIBERTY BELL DISTRIBUTORS : FRED H. HOBBS, AN INDI-
VIDUAL, D/B/A NOR-PORT BEVERAGE COMPANY, EMPLOYERS and BREW-
ERY AND SODA WATER DRIVERS, CHAUFFEURS, HELPERS AND INSIDE
PLANT EMPLOYEES, LOCAL UNION No. 468, AFFILIATED WITH THE IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER1CA, A. F. OF L. and BREWERY AND
SOFT DRINK WORKERS LOCAL UNION No. 188 OF THE INTERNATIONAL
UNION OF UNITED BREWERY, FLOUR, CEREAL AND SOFT DRINK'
WORKERS OF AMERICA, C. I. 0.
Case No. 5-RE-12.-Decided April 29, 19.17
.Vessrs. TV. R. Ashburn and Frank Sellers, both of Norfolk, Va., for
the Employers.
I The record reveals that Virginia Beverage Company is presently a corpoia`tion Inas-
much as the original caption described this Employer as "Alison J Parsons, and Ella Ward
Parsons, partners, d/b/a Virginia Beverage Compan};" we have, upon our own motion, ,
amended the caption to reflect the present structure of-this Employer
73 N. L R.,B., No. 124.
656 -
DISTRIBUTORS ASSOCIATION OF THE NORFOLK AREA 657
Messrs. Ernest S. Merrill and P. N. Anderson, both of Norfolk, Va.,
for the Teamsters.
Messrs. Louis Fine and John P. Spry, both of Norfolk, Va., and Mr.
Frank Donner, of Washington, D. C., for the Brewery Workers.2
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION ,
DIRECTION OF' ELECTIONS
AND
ORDER
Upon an amended petition duly filed, hearing in this case was held at
Norfolk, Virginia, -on December 16 and 18, 1946,, before Earle K.
Shawe, hearing officer. The hearing officer's rulings made at the hear-
ing are free'from prejudicial error and are hereby affirmed. 'At. the
close of the hearing, the Brewery Workers moved to dismiss the peti-
tion on the ground that presently ekisting collective bargaining con-
tracts are bars to these proceedings. For reasons stated in Section
III, below, the motion is hereby denied. j
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
=All the Employers are engaged in'the distribution of bottled and
kegged beer in the Tidewater, Virginia, area. Certain of the Em-
ployers handle, in addition, other items, such as wine, soft drinks,
tobaccos and candies. Of the 20 Employers, 18 have their principal
places of business in Norfolk, Virginia, and the other 2, Al Levin
and Hollander Distributing Co., have- their places of business in
Portsmouth, Virginia. All the Employers are members of the Dis-
tributors Association of the Norfolk area, herein referred to as the
Association. Each of the Employers, with the exception of the Nehi
Bottling Co., annually purchases beer and related products of a value
in, excess of _$50,000,, all of which is purchased outside the Common-
wealth of Virginia. All sales by the Employers are made wholesale
within the Commonwealth . Some sales are made to, merchant ,ships.
Nehi Bottling Co. annually purchases beer of a • value in excess, ,of
$50,000, of which 10 percent originates, outside the Commonwealth of
Virginia. The remaining 90_ percent of Nehi Bottling Co.'s annual
purchases is made from Jacob ;Ruppert-Virginia, Inc., which bottles
x Mr. Donner" appeared for the International and ' for Local No. 188, ' Messrs. Fine anil
Spay appeaiel only- for Local No 188. •+1 ,
I
658 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD.
beer in Norfolk, Virginia.-' "Nehi' Bottling'Co. is the sole distribiitos
in.the Tidewater, area of Jacob Ruppert-Virginia, Inc., products.
Jacob Ruppert-Virginia; 'Inc., 'annually 'purchases approximately
$275,000 worth `,of products outside-the Commonwealth of-- Virginia
and produces beer valued at `approximately $2,500,000; of which 55
percent is shipped outside the ,Commonwealth.
Each of the Employers admit and'we find, that it is engaged in
commerce within the ;meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Brewery and Soda Water Drivers, Chauffeurs, Helpers and Inside,
Plant Employees, Local Union No. 468, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Teamsters, is a labor organiza-
tion. affiliated with the American Federation of Labor, claiming to,
represent, employees of the Employers.
Brewery and Soft Drink; Workers Local Union No. -188 of the
International Union of United Brewery, Flour, Cereal and Soft Drink'
Workers, herein called the Brewery Workers, is a labor organization
affiliated with the Congress of Industrial Organizations, claiming to
represent employees of the Employers.
M. THE QUESTIONS CONCERNING REPRESENTATION
The Employers allege that questions- concerning representation
have arisen, in that both the Teamsters and the Brewery Workers
have presented claims that each represents a majority of the employees
of the Employers in appropriate units. - The-Brewery.Workers alleges
that contracts between Local 188 and- the Employers, executed in
August' 1945, constitute bars to the present proceedings.
Local No. 188 of the Brewery Workers, herein referred to as Local
188; originally represented he employees of the only two breweries in
'Norfolk,' namely, Atlantic Brewing Co., Inc., and Jacob Rupper,',-
Virginia, Inc. Beginning in 1937, Local 188 obtained separate con-
tracts from various independent beer distributors,' most of which are
involved in these proceedings, covering the drivers, chauffeurs -sales-
men and warehousemen. Since 1941, the Employers have been repre-
sented by a negotiating committee appointed by the Association. All
contracts negotiated, between the Association..and Local 188-have been
uniform, but each' individual Employer signed a separate document.
In August 1945, each of the Employers signed identical-closed-shop
contracts with- Local 188 for'a period from June 1, 1945 -to June, 1,
1947, and-from year to year thereafter unless either party serves
notice on the other party of a desire to alter the terms of the contract
at least 30 days before any annual expiration, date.
DISTRIBUTORS ASSOCIATION OF THE NORFOLK AREA 659
- Originally, the Brewery Workers was affiliated with the American
Federation of Labor, but it was suspended from that organization in
1941. - Thereafter, it continued as an independent international union.
In March 1946, the international officers decided on a referendum
among the general membership to determine whether or not the Brew-•
ery Workers should affiliate with the Congress of Industrial Organi-
zations. On April 7, 1946, at a special meeting, the membership of
Local 188 voted that its Executive Board`should decide-whether Local
188 would affiliate with the Congress of Industrial Organizations or
with the American Federation of Labor, and agreed to -accept the
recommendations of its Executive Board in this respect. The Execu-
tive Board thereafter determined to secure a charter from the Team-
sters. On April 23, 1946, a regular membership meeting of Local 188
was held at which the members present voted that Local 188 should be
dissolved, that a charter from the Teamsters should be accepted, and
that all assets of Local 188, including the contracts with the Employers,
should be transferred to the Teamsters. All officers of Local 188 joined
in the secession and became officers of the newly chartered Teamsters
Local. On April 26, 1946, another meeting of Local 188 was called.
When the meeting was opened, the chairman denied admittance to an
international representative of the Brewery Workers, on the ground
that this was a meeting of the Teamsters and not of the Brewery
Workers.' The meeting was adjourned without significant action.
On May 19, 1946, Local 188 expelled its former officers. and elected
new officers to take their places. Since then, it has held meetings, but
has not collected dues. , ,
,On May 21, 1946, Local 188 filed a complaint against the Teamsters
in the Court of Law and Chancery of the City of Norfolk seeking,
inter alia, to enjoin the Teamsters from interfering with the present
contracts between Local 188 and the Employers and future contracts
between these parties. The Teamsters filed a cross-bill -requesting
a ruling that title to the property and contracts of Local 188 was now
.Vested in the Teamsters and that Local 188 be enjoined from holding
itself out as the bargaining representative of the employees involved
herein.. After-a hearing, the court issued a decree in favor of Local
188, enjoining the Teamsters from interfering with the contracts be-
tween Local •188 and the-Employers, and restraining the Teamsters
from representing itself as the collective bargaining agent of the em-
ployees involved herein until June 1, 1947.3
3 Counsel for the Teamsters has called our attention to the fact that , since the close of
the hearing, the Virginia Supreme Court-of Appeals has granted a writ of supersedeas in
the case, which operates to suspend and stay all proceedings in the Court of Law and
Chancery of the City of Norfolk until the 'Supreme Court of Appeals has decided the case.
So far as the record reveals , no decision has, as yet , been issued in the case by the Supreme
Court of Appeals. - -
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, on July 23, 1946, the'Teamsters had written to each of
the Employers, notifying them that Local 188 had transferred to the
'Teamsters all contracts between the Employers and Local 188 and
that all employees covered by the contracts were now members of the
Teamsters, and-requesting the Employers to recognize the Teamsters as
the collective bargaining agent of their employees. On July 31, 1946,
Local '188 wrote to one of the Employers, notifying it that certain of
its employees had been-expelled from Local 188, and demanding that
these employees be discharged in accordance with the closed-shop pro-
visions of the contract. A, few days • later, representatives of the
Employers met with representatives of the Teamsters and Local 188.
At this meeting, both the Teamsters and Local 188 claimed to represent
the employees concerned herein, and the'Employers thereafter refused
to recognize either union in the absence of -a Board certification.
Localr 188 urges that we dismiss' the petition on the ground that
existing contracts constitute bars to any elections before June 1, 1947.
The Teamsters, conversely, contends that there, is an unresolved doubt
as `to the identity of the proper bargaining representative under the
current agreements and that; therefore, elections should be held. imme-
diately. To this argument, Local 188 replies that the decision of the
Virginia Court has resolved any doubt which may have existed.
We find it unnecessary-to consider the contract bar question in the
form'in which it has been raised. All the contracts which are urged
as, bars may be terminated 'on June 1, 1947, approximately a month
from the present time, upon appropriate notices by the parties thereto.
Under these circumstances, we find that the existing contracts, are not
bars to current determinations of representatives.4
We find that-questions affecting commerce have arisen, concerning
the representation ofemployees,cif,the-Employers,'within the -meaning
of Section" 9`(c) and `Section (6) and (7) of the Act: - - '
IV. THE 'APPROPRIATEUNITS
The parties are' in agreement 'that' separate units,'consisting of the
'drive'r-salesmen and warehousemen employed by each of the Em-
ployers; except for office clerical employees and supervisory employees,
should- b&'estalilished. The Employers and-the Teamsters' would ex-
clude driver-helpers from the units whereas t the - Brewery Workers
would include-them.'
The driver-salesmen determine the need `for" any'helpers; hire them,
discharge then and fix the terms and conditions of their employment.
The' helpers, are- pr-imarily^•casual, employees., and have been - excluded
from :the. existing and all previoixs,collective„bargaining , agreements.
In, view of this bargaining history,-we shall, exclude the helpers. • s
Matter of California Metai - Trades As8ociation, 72' N. L . R. B. 624 ; Matter-of California
State Brewers Institute, 72 N. L . R. B. 883.
DISTRIBUTORS ASSOCIATION OF THE NORFOLK, AREA 661
It appears that the following Employers employ only one employee
within the classifications agreed upon : Hollander Distributing Co.,
Veterans Premium Beer Distributors, National Distributors, Al Levin,
and Liberty Bell Distributors. Inasmuch as the Act does not empower
the Board to certify collective bargaining representatives where only
one employee is involved, we shall dismiss the petition with respect
to"employees of these five Employers, without prejudices >
We find that all driver-salesmen and warehousemen employed by
each of the Employers listed below," excluding` office clerical em-
ployees, helpers, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such- action, constitute separate
units appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
t • " DIRECTION OF ELECTIONS'
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Virginia Beverage 'Company,
Inc., a> corporation, Norfolk, Virginia ; T. C. Clark, an individuate
d/b/a Nehi, Bottling Co., Norfolk, Virginia; Mary W. Harcum, an
individual, d/b/a Dixie Beer Distributors, .Norfolk, Virginia; Alan
Fleder and Manuel Miller, partners, d/b/a Seaboard Beer & Wine Co.,
Norfolk, Virginia ; Theodore Constant, an individual, d/b/a Norfolk
Beverage Co., Norfolk, Virginia; David Friedman and Lillian Fried'--*
man, d/b/a Beer Distrilkitors Co., Norfolk, Virginia; R. J.
Cheatwood, C.L. Cheatwood, Archie Straus, K. C. Straus, Alec Meyers
-and Sara S. Meyers, partners d/b/a Dominion Beverage ,Co., of Nor-
folk, Norfolk, Virginia; Hoffman Cigar, Co., Inc., a, corporation, Nor-
folk, Virginia ; M. & O. • Distributors, Inc., a corporation,; Norfolk,
Virginia; Walter. D. Haley, Edna C. Haley,, Mahlon C: Mohr and
Florence E. Mohr, partners, d/b/a Ballantine Distributing Co., Nor-
folk, Virginia; A. L. Simpson, an, individual, d/b/a Twin City Beer
& Wine Co., Norfolk, Virginia; Hugo Roth, an individual, d/b/a
Hugo Roth & Co., Norfolk, Virginia; A. Levin, an individual, d/b/a
Milwaukee Sales Co., Norfolk, Virginia; D. M. Smith, an individual,
d/b/a Eastern Beer Distributors, Norfolk, Virginia; and Fred H.
'Matter o f The Barre Granite Association, Inc., et al., 61 N. L. It. B 734. Chairman
Herzog does not participate in so much of the decision as dismisses this much of the
petition on the authority of the Barre case.
Virginia Beverage Company, Inc., Nehi Bottling Co ., Dixie Beer Distributors , Seaboard
Beer & Wine Co., Norfolk Beverage Co., Beer Distributors Co, Dominion Beverage Co. of
Norfolk, Hoffman Cigar Co., Inc, M. & O. Distributors , Inc., Ballantine Distributing Co.,
Twin City Beer & Wine Co., Hugo Roth & Co., Milwaukee Sales Co., Eastern Beer Distrib-
utors and Nor-Port Beverage Company. "
7 Any, participant in the elections herein may, upon its prompt request to, and approval
thereof by, the Regional Director , have its name removed from the ballots.
N
662 : DECISIONS 'OF NATIONAL LABOR RELATIONS. BOARD
Hobbs,'an•individual, d/b/a Nor-Port'.Beyerage."Company, Norfolk,
Virginia; separate -elections: by secret ballot shall be, conducted as
early as possible, but not later than thirty (30) days from the date
,of this-Direction, under the direction and supervision of_ the Regional
'Director for the Fifth Region,_ acting in this matter as agent. for the
National Labor Relations Board,. and subject 'to Sections, 203.55 and
203.56, of National Labor Relations Botird Rules and Regulations-
Series 4, among the employees: in the units found appropriate-in Sec-
tion' IV, above, who were employed during .the pay-roll period .im-
mediately preceding the date of this Direction, including employees
'who did not .work during said pay-roll period because they were ill
or on vacation or,temporarilylaid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but. excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the elections; to' determine, in each unit, whether
they desire. to be represented by Brewery and Soda Water Drivers,
Chauffeurs, Helpers .and Inside Plant Employees, Local Union No.
'468, affiliated with the International Brotherhood of Teamsters;
Chauffeurs, Warehousemen, and Helpers of America, A. F. of L., or by
Brewery and Soft Drink Workers Local Union No. 188 of 'the Inter-,
national Union of United Brewery; Flour, Cereal and Soft, Drink
Workers of America, C. 1. 0., for the purposes of collective bargaining,
or by'neither. '
'ORDER
IT IS HEREBY ORDERED that the petition for investigation'and certifica-
tion of representatives filed by Distributors Association of the Norfolk
-Area, for and on behalf of Virginia Beverage Company, Inc., a corpo-
ration; Norfolk, Virginia, et al., be,`and it hereby is, dismissed, with-
out prejudice, insofar only as it relates to employees of Hollander
Distributing Co. Veterans Premium Beer Distributors, ' National
Distributors, Al Levin, and the Liberty Bell Distributors.
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