Petition for Writ of Certiorari — Pearl Beer Distributing Co. v. National Labor Relations Board

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| | Ulice Supreme Co rm, US

, ; | ,

: FILED

’

JUN 22 1964

IN THE

Supreme Court of the United States

OCTOBER TERM, 196f} —

PEARL BEER DISTRIBUTING COMPANY

OF JEFFERSON COUNTY, INCORPORATED,

a Petitioner _ : , 2

™ 2%

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS,

THE FIFTH CIRCUIT

r . ‘ JouN H. BENCKENSTEIN

P. O. Box 551

Beaumont, Texas

Attorney for Pearl Beer

Distributing Company of

Jefferson County, Incorporated

ee SS ERE ED

Alpha Law Brief Co, M & M_ Bildg., Houston, Texas 77002

SUBJECT INDEX

Page

Opinions Below ; 1-2

Jurisdiction | sae 2.

Question Presented For Review | 2

Statutes and Regulations Involved . 2-3

Statement of the’ Case , cae 3-5

Reason for Granting the Writ | eo, ee

Conclusion | . ar

‘Appendix A . 11-36

Appendix B | 37-38

Appendix C 39-40

Appendix D 41-43

Appendix F 44-47

Appendix -F 48-56

Appendix G : 57-62

Appendix H | ei = 63

Affidavit of Service . 64

LIST OF AUTHORITIES |

; ; : Page

‘STATUTES

National Labor Relations Act,

Sections 2(6), (7), (9) 2,5,6

28 U.S.C.A. 1254(1) sat 2

' 29 U.S.C.A. 152 (6), (7), (9) »

—— Procedure Act, Section 7(c) - «6

5 US.C.A. 1006(c) &

. ADMINISTRATIVE

Decisions of General Counsel: _ ;

Case No. S. R. 1594 ay | 7

Case No. 1103 .° 7

nl ee

DECIDED CASES

~ Rubin Bros. Footwear, 99 N.L-R.B. 610 B/

Local No. 3.Packinghouse Workers, ,

CIO v. N.L.R.B. (U.S.C.A. 8th), 210 F.2d 325

- N.L.R.B. v. Mac Smith Garment Co. .

(U.S.C.A. Sth), 203 F.2d 868, 871:

Siemons Mailing Service, 122 N LRB. 81, 84

Westside Market Owners Association,

126 N.L.R.B. 167, 170.

Belleville Employing Printers, 122 NLRB. 350,

Sightsecing Guide arid. Lecturers Unga,

‘Local 20076, 310.F.2d 40, 42

- Kenosha Liquor Co. (193%), 104 N.L.R.B. 189

Johnson Optical Co. Pads, ), 87 N.L.R.B. 539

Page of

_NO.

IN THE

* earaetis Court of the Anited States

OCTOBER TERM, 1963

PE ARL BEER DISTRIBUTING COMPANY

OF JEFFERSON COUNTY, INCORPORATED, -:

Petitioner —

‘v.

NATIONAL LABO RELATIONS BOARD,

v Respondent

PETITION FOR A.WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS,

_ THE FIFTH CIRCUIT

Pearl Beer Distributing Company of Jefferson County,.

Incorporated prays that a writ of certiorari issue to the

United States Court of Appeals for the Fifth Circuit.

- OPINIONS BELOW

The intermediate report of the trial examiner dated May

:, 1963 (Appendix A, infra, ‘pp. ‘11-36; R. 52-75) 1s not

officially reported; the opinion of the National Relations

Board, adopting. it with : a minor modification, entered July

11, 1963 (Appendin B, infra, pp. 37-38; BR. f30-Fe td

reported in 143 N.L.R.B. 65. The opinion of the United

States Court of Appeals entered May 1, 1964 (Appendix C,

infra, pp. 39- -40) is not ofhcially reported.

JURISDICTION

The judgment of the United States Court of Appeals

dated May 1, 1964 was entered May 1, 1964. No motion

for rehearing was filed, and no extension of time was re-

quired to petition for certiorari. The jurisdiction of the

Court is invoked ynder the provisions of 28 U.S.C. A.

1254(1). .

QUESTION: PRESENTED FOR. REVIEW

Whether the National Labor Relations Board is juris-

diction of the watehouse employees of Petitioner and’

Petitioner, a local beer- distributor, not engaged in com-

merce, nor in the production of goods for. commerce,

and whose operations did not affect commerce and did

not. meet the Board’s jurisdictional requirements, because,

three years prior thereto, the Petitioner and other beer

distributors, some of whose businesses did satisfy the Board’s

standards, bargained with the Beer Salesmen of the ,Sabine

District Union, over wages, hours and working condi-

tions of their respective driver-salesmen (and no ware-

housemen) and signed an individual contract with said

_ union covering a single unit of its driver-salesmen.

STATUTES AND REGULATIO® NS INVOLVED

The following statutory provisions are et forth in

Appendix D, infra, pp. 40-43; Section 2(6), (7). (9) of the:

National Labor Relations Act, 29 U.S.C.A. 152(6), (7),

(9). The National Labor Relations Board’s jurisdictional

standards prevailing in 1962 is copied in or FE,

infra, pp. 44-47.

STATEMENT OF THE CASE

Petitioner is a Texas corporation with its’ sole. place

of business at 4713 Port Arthur Road, Beaumont, Texas.

(J.A. 71) It is engaged in the business-of a local beer ©

distributor. It buys beer from the Pearl Brewery in San

Antonio, Texas and sells it to retailers in Hardin, Jeffer-

son and Orange Counties, Texas. It does not import

any beer into Texas, and it does not export any beer.

from Texas; all of its purchases and sales are made within _

‘the State of Texas. (J.A. 72) It does not satisfy the

Board’s jurisdictional standards.. (R. 54)

- Approximately three years prior to che dlicged acts and

omissions made the basis of the complaint, Petitioner and

other beer distributors, some of whom met the Board's.

jurisdictional requirements, bargained with the Beer- Sales-

men. of the Sabine District Union, over wages, hours

and working conditions of their respective driver-salesmen

(and no warehousemen) and it signed an individual con-

tract with said union covering a single unit of its driver-

salesmen, a term of three years. (R. 38, sec. 3b; 44 sec. 3b)

The trial examiner concluded from such facts that the

‘Board had jurisdiction over Petitioner and its warehouse-

men (R.54) .and which conclusion the Board adopted.

(R. 130-131)

Petitioner was a member of the Sabine Dists’ Whole -

sale Beer Distributors Association. There were never any

_ negotiations between said association and any union, and

there was never any labor contract made by the associa-

tion. Petitioner, as sole employer, made the individual

contract with said union, covering only its driver-sales-

men which contract expired December 31, 1962. (J.-A

. 74-75) | ; |

During the term. of said contract, the International

Union of United Brewery, Flour, Cereal, Sott Drink and

Distillery Workers of America, AFL- CIO, and its local-

No. 258, petitioned the National Labor Relations Board

for recognition and certification as the sole. and exclusive

bargaining agency of all drivers, helpers and warchouse-

men employed by the. members of the Sabine District

Wholesale Beer Distributors Association, Inc.; the same

was assizned No. 23-RC-1930. Petitioner and. the other

members of said .association denied the: allegations and

further contended that such a proposed unit was inap-

* propriate. The Board; through its Regional Director, Clifford

W. Potter on September 21, 1962 held that the proposed:

unit was not. ap ‘ropriate, because it included warehousemen, .

their interest being diverse from those of the driver-salesmen,

and that a unit of driver-salesmen and helpers was appropriate,

a éopy of. said report is attached hereto as Appendix ‘f,

infra, pp. 48-56. The charging unicn acquiesced in the

decision of the Regional Director, but. Petitioner and thc

other beer distributors did noi; -they appea es the ges

matter to the Board, and’ the Board decided‘ on April 2

1963 that there were two appropriate units: (1)) ie.

salesmen and (2) helpers, and again completely eliminated

the warchousemen. -A copy of said decision is’ attached

hereto marked Appendix G, infra, pp. 57-62,

The cogpesg seniiabes was originated on July 23, 1962,”

y James C.°Chandler as representative of said brewery

des dha that petitioner had coerced, threatened and

’ es 5

interfered with its warehouse employees in the exercise

of their rights guaranteed under Section 7 of the Na-

tional Labor Relations Act, and that: Petitioner had ter-

minated ‘the employment of the warehouseman Albert

Sells because of his activities in the local union. Petitioner

denied that the Board had jurisdiction over it, its ware-

ousemen, the complaint.and the charges made. (R..43-48 ) |

Thy ‘trial examiner, held. tnat the Board had jurisdiction .

over Petitioner, its warehousemen, and the complaint.

(R. 52-7; Appendix A, infra, pp. 13-14)°to which Pet:

tioner duly- .xcepted (R. 78-129). The Board overruled

Petitioner's exceptions and adopted ‘the findings, conclu-

sions arid recoramendations {except fur a minor and not

relevant item) of the trial. examiner (R. 130-131, Ap-

pendix B, infra, p. 3¢) Petitioner under the Aci

appealed to the United Staces:Court of Appeals, Fifth

Circuit, and it affirmed the decision of the Board in 3

per curiam opinion, saying. “we cannot say that the

Board .erred in asserting, jurisdiction”... (Appendix C, in-

tra, p. 40.

REASONS FOR GRANTING THE WRIT

The alleged “labor” dispute was not le hat would tend

to burden, obstruct, or, in ‘general “affect” interstate or

foreign commerce as such terms are defined in Section 26)

(7) ana (9) of the National Labor Relations Act, as

amended. Petitioner denied that it “is, and has been <at all

times material herein, engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.” (R.+ 39,

45) The burden was then.cast upon the General Counsel

to prove affirmatively, by a preponderance of the evidence.

the substantial facts alleged in the complaint, and included

jurisdiction and coverage of Petitioner ‘and its warehouse.

employees. Section 7(c) of the Administrative Procedure

“Act. § US.C.A. 1006(c);. Rubin Bros. Footwear, 99

‘NLLR.B. 610: Local No. 3 Packinghouse Workers, CIO. t.

N.E.R.B. (8th 210 F.2d 325; N.LAR.B. eb. Mace Smith Coe

(Sth) 203 F.2d 868, 871, where Judge Hutcheson said:

“* * * “An examination of the record upon the

correct principle that the burden was upon the Boggd

to make out its case and not vas the Board seems to

think, upon the respondent to defend itself, shows

that there is no basis in the record for the findings oi

the examiner and the order based thereon.”

lt a labor dispute did exist, which obstructed, or in gen-

eral affected commerce, the Board would not accept juris-

diction of Petitioner and its warehouse employees, unless

Petitioner's interstate or foreign commerce met 4 certain

dollar volume. The trial exarhiner did not apply Section

2(6%, (7) and (9) of the Act to determine jurisdiction;

jie assumed that such a““‘labor” dispute did in fact exist,

and that it affected commerce. Petitioner's purchases and *

sales in interstate or foreign commerce did not meet the

dollar volume jurisdictional requirements of -the Board.

The trial examiner applied, the Board's jurisdictional vard-

stick to the other employers who had participated with

Petitioner in) bargaining with, the Beer Salesmen Jo! the

Sabine District. for individual contracts covering their

respective units of driver-salesmen “exclusively - and de-

termined that the out of sgate purchases of such other em-

plovers were in excess of 7$50,000 annually (R. 54). Tle

concluded that since ‘Petitioner had prior thereto nego

tiated with said other employers an inde idual contract

with the Beer Salesmen of the ‘Sabine District, covering

exclusively an individual’ unit of driver-salesmen that the

Board had jurisdiction of Petitioner and its warehcase em-

_ployees. (R. 54-55) :

— + The trial examiner did not conSider the Board’s holding

in 23-RC-1930 that a unit of driver-salesmen helpers and

warehousemen was‘ not appropriate because such unit in- ”

cluded warchousemen whose interest was diverse from those

of the driver-salesmen. (Appendix F, infra, pp. 48-56) The

Board has consistently held that it will not take jurisdic-

tion over an intrastate employer and his employees in such

-a case. Kenosha Liquor Co. (1954), 104 N.L.R.B. 189;

Ad ministrative Decision of Géneral Counsel, Case No.

S.R. 1594—where a multi-employer unit is inappropriate,

the jurisdiction of the Board depends upon the individaal

employer’s interstate transactions and not upon the com-

bined. totals of afk the employers. Administrative Decision

of General Counsel, Case No. S.R. 1594.

Petitioner, whose operations, in whole or in part, do not

affect commerce, could have and new can, withdraw from

-multi-employer bargaining for a labor contract covering

only driver-salesmen and driver-salesmen exclusively. Upon

such withdrawal and abandonment, it and its. driver-sales-

men would not be subject to the jurisdiction of the Board.

Administrative Decision of General Counse! (1954), Case

No. 1103; Johnson Optical Co. (1949), 87. N.L.R.B. 539.

The authorities cited by the trial examiner to support

his jurisdictional position—Siemons Mailing Service, 122

N.L.R.B. 81, 84; Westside Market Owner’ Association, 126

N.L.R.B. 167, 170: Belleville Employing Printers, 122

N.L.R.B. 350, 352; Sightseeing Guide and Lecturers Union,

‘Local 20076, 310 F.2d 40, 42—involve completely dif-

ferent factual ‘situations. In addition to the distinctrons

hereinbefore impliedly pointed out, there is. another im-

8 ‘

portant one: All of such cases relate to an employer and

his emplovees who were in, or a member of, an employee

unit, which had been the subject of multi-employer bar-

gaining and members of an appropriate unit. In the instant

case, Petitioner and its warehousemen never engaged in

collective bargaining with other employers covering a unit

fy which the warehouse employees were appropriate, and

were included. Such authorities do not hold that an in-

dividual local intrastate business which bargains with an-

other interstate employer oF employers, over wages, hours

and working conditions of certain specific employees in

an -appropriate unit, submits itself and its remaining ¢m-

ployees te the jurisdiction of the-Board, particularly when

the remaining employees make it an inappropriate unit.

The two major objectives of the Act are the promotion

of industrial peace and the facilitating of wage adjustments

by bolstering, through encouragement of the growth of

collective-bargaining powcr, the ‘position of the isolated

wage earner caught in the complex of modern industrialsm.

It is still the national policy to promote industrial peace

“by encouraging the practice and procedure. of collective

bargaining and by protecting the exercise by workers of

{ull freedom of association, self-organization, and “‘designa-

tion of representatives of their own choosing, for the

purpose of negotiating the terms and conditions of their

employment or other mutual aid or protection.” The

decision of ‘the Board, affirmed by the Court of Appeals

will discourage local employers, who are not engaged in

commerce and whose operations do not affect commere:,

and also ghose employers who do not meet the jurisdictional

vardstick of the Board, in bargaining with other employers

covered by the Act, with a union representing their respec-

™

9 .

tive class of employee: in an appropriate unit. Such local

employers will prefer either to bargain individually with

2 union representing their emplbyees in an app-opriate

unit. or team up with other local employers, under loca!

ctate law. If the decision of the Board is permitted to

stand and is the law, Petitioner will:no. doubt withdraw

from multi-employer bargaining with employers ‘whose

operations affect commerce, at the expiration of its present

contract covering its driver-salesmen, and upon such with-—

drawal it will no longer be covered by the Act and it will

no longer be under the jurisdiction of the Board, and the

rights and remedies of the driver-salesmen, helpers, ware-

hhousemen and all other employees will-be determined by’

local law. Neither of such results are in conformity: with

the national labor policy; both are in opposition ther-t.

CONCLUSION

To: secure the objectives of the Act, to Narry out the

national labor policy, and to encourage the practice and

procedure of ‘local employers whose individual operations

do not affect commerce, to join other employers having

operations that do affect commerce, and to bargain col-

lectively with, representatives of their respective employ ces

in an appropriate unit or units, under the National Labor

Relations Act, the petition for writ of certiorari should be

granted. LY

Respectfully submitted,

Attorney for Petitioner

P. O. Box 551

Beaumont, Texas

3. ra

APPENDIX A

IR-224-63

Beaumont, Tex.

UNITED STATES OF AMERICA

| BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF TRIAL EXAMINERS

WASHINGTON, D. C.

Case No. 23-CA-1460

PEARL BEER DISTRIBUTING COMPANY OF

JEFFERSON COUNTY, INCORPORATED

and

INTERNATIONAL UNION: OF UNITED BREWERY,

ELOUR, CEREAL, SOFT DRINK AND DISTILLERY

WORKERS OF AMERICA, AFL-CIO

Case No. 23-CA 15107

PEARL BEER DISTRIBUTING COMPANY OF

JEFFERSON COUNTY, INCORFORATED

and | |

BEER DRIVERS LOCAL 253, AFL-CIO, INTER-

NATIONAL UNION OF UNITED BREWERY, FLOUR,

CEREAL, SOFT DRINK AND DISTILLE ail WORKERS

OF AMERICA, AFL-CIO

Barry A. Karp, Esq., of Houston, Tex.,

for the General Counsel.

John H. Benékenstein, Esq., of

* Beaumont, Tex., for the Respondent.

Mr. James C. Chandler, of Beaumont, Tex.,

International Representative of the —

Brewery Workers.

Before: Robert E. Mullin, Trial Examiner.

INTERMEDIATE REPORT

Statement of the Case

This proceeding, brought under Section ,1L0(b) of the

Labor “Management Relations: Act of 1947, as amended,

61 Stat. 136, 73 Stat. 519, herein called the Act, was heard

ir. Beaumont, Texas, on February 6 and 7, 1963, pursuant

to duc notice to all parties. The complaint issued by the

Gencral Counsel of the National Labor Relations Board,

and based on charges duly filed and served, afleged thar the

Respondent had engaged in unfair labor practices pro-

scribed by Section 8(a) (1) and (3) of th: Act. In its

answer, duly filed, the Respondent conceded certain tacts

with respect to its business operations, but denied that it

-was engaged in commerce within the meaning of the Act

or that it had committed any unfair labor practices.

At the hearing all parties were afforded full opportunity

to be heard, to: examine and cross-examine witnesses, to

introduce relevant evidence and to. argue orally. The parties

waived oral argument. Subsequent ©o the hearing, able

briefs were. submitted by. beth the General Counsel and

the Respondent. These have’ been fully considered.

Upon the entire record in the case, and from my obser-

vation of the witnesses, t make the following:

Findings of Fact

1. The business of the Respondent

The Respondent is a Texas corporation with its principal

office and warehouse in Beaumont, Texas, where it ts cn-

gaged in the operation of a beer wholesaling distributorship.

During the 12 months prior to the issuance of the com-

plaint, a representative period, it sold and. distributed prod-

ucts the gross value of which exceeded $500,000. At all

times material herein the Respondent has been 2 member

of a multiemployer. bargaining group whose members par-

ticipate in multiemployer bargaining negotiations. This

latter group, at all times material herein, has conducted

bargaining négotiations on behalf of its employer members.

During the 12-month period referred to abové, one or more

of the members of the said multicmpioyer bargaining group’

purchased in excess of $50,000 worth of ‘Cees which prod-

uct originated and was shipped from -points outside the

State of Texas directly to said ‘member or membcrs. [he

foregoing findings are based on the concessions which the

Respondent made in its answer. On the otuer hand, the

Respondent denied that it is en, aged in commerce Within

the meaning of the Act. ,

Although the Respondent, by itself, does not appear to

meet the Board’s standards for the assertion of jurisdiction,

the contrary is true of those members of the multi-employer

bargaining group which had out-of-State purchases in ex-

cess of $50,000 annually. Ss mons Mailing Sertice, 122

NLRB 81, 84. Moreover, in Westside Market Ouners As-

- ciation, 126 NLRB 167, 170, the Board held that it

would assert juridiction over a multiemployer associftion,

or the individual members, if the total annual vouume of

gross business of all “members met the necessary. amount

set for the. Board’s minimum jurisdictional standard. and

legal jurisdiction existed over one or more members of the

association. Belleville Employing Printers, 122 NERD O58,

352. Both of these standards are met in the present motine.

As found above, in its answer the Respoaucnt congeds |

that it participated in the multiemployer negotiations of

the aforesaid bargaining group. In Sven . tic Boara held

“~

é 14

_ that it would adhere to its past practice of “considering,

all members of multiemployer associations who participate

in. . . multiemployer bargaining negotiations as single

employers for . jurisdictional purposes.” Idem; see also

N.L.R.B. v~ Sightsecing Guides and Lecturers Union Local

20076, 310 F.2d 40, 42. (C.A. 2). On the basis cf the

foregoing, it is*my conejusivn and I find that the Respond-

ent is engaged in commerce within the meaning of the Act.

Il. The labor organizations involved

Beer Drivers Local 253, International Union of United

Brewery, Flour, Cereal, Soft Drink and Distillery Workers

narenal Union of United Brewery, Flour, Cereal, Soft

Drink and Distillery Workers of America, AFL-CIO, here-

in called Brewery, Workers, are labor organizations within

the meaning of the Act. . i

Ill. The alleged unfair labor practices

During the summer and @all of 1962 the Respondent

had approximately 26 employees. According to Hunter -

Miller, president and general manager, this number included

y driver-salesmen and 4 warchouse employees, as well as

administrative and clerical employees and sales personnel.

For many years the driver-salesmen have been represented

by an independent umion known as “Beer Salesmen of ‘the

Sabine District” (herein called Independent). Mr. Miller

testified that the Respondent has had contractual relations

with Independent for about 15 years, although at the time.

of the hearing, no contract was in effect. According ts

the Respondent's president. the last contract. which covered |

a term of 3 vears, expired on. December 31, 1962, and fas

not been renewed pending the outcome of a representation

matter:) oe

Prior to July 1962, the Respondent’s warehouse em-

ployees were unorganized. Early that month james Chand-

ler "contacted several of them, and secured authorization

cards on behalf of the Brewery Workers. When informa-

_ tion’ as to this organizational movement reached M. J.

Hyatt, foreman of the warehouse, ‘he made it. clear to the

employees under him that he strongly disapproved. Albert

Sells, one of the warehouse employees, testified that in mid-

July he asked Hyatt. “his opinion of what 1 should do

concerning the union conflict they had at the Company.

... And he told me if 1 wanted him to tell me, it would

be better to keep my nose out of it completely and don’t

become involved.’”? Other witnesses testified that a short

while later Foreman Hyatt went much further than

merely to offer his opinion as to what the employees should

do. Thus, Oris Granger testified that’ on about July’ 18,

-while all of the warehouse employees were present, Hyatt

stated “You know: you all made a mistake by joining the

AFL-CIO Union. You are not cooperating with the Com-

pany, neither with the truckdrivers. . .. I am going over

to suggest to Mr. Miller about ten dollars be cut off your

pay.” According’ to Granger, later that same day and as

they were about to conclude the shift, Hyatt reminded

them of his earlier statement and told them “be careful

how you spend your money. You know you are going to

have ten dollars cut out of your check.” Granger and.

1 Namely, Sabine District Wholesale Beer Distributors Associt-

tion, Ine., Case No. 23-CA-1930. » “ie ins

2 This testimony was-credible, and rt was not denied by Tivets

. ®.2

another warehouse employee, Wilbert Vaughn, testified that

during the course of that same day Hyatt warned them

that if they stayed in the “AFL-CIO Union” the Com-

pany “could easily find a reason for firing us. If we

dropped a case of beer or, busted it . . . they would make

us cut grass, clean up around the place, and make it so

hard on us ‘we would have to quit.”

~The Respondent’s warehouse employées wore uniforms,

for some of. which the Employer paid.’ -Granger testified

that on July 18, Hyatt told him and the other employees

in the warehouse that “if we remained in the Union we

were going to get our uniforms taken ‘away from us;

we would have to pay for them,” that the employees

would lose sick leave and vacations and that the Com-

pany “would cut every man in the AFL-CIO.”

The initial charge in Case No. 23-CA-1460 was filed by

Chandler on July 23, 1962. Preparatory to filing the charge

the representative of the Brewery Workers’ secured state-

ments from several of the employees, including Granger.

The latter testified that prior to this time, Hyatt had oc-

casionally, loaned him money. According to Granger, how -

eve’, after he signed the statement, Hyatt refused_to lend

him any money, and, in declining, told him “You know why.

because you signed a statement against me.” During this

period the foreman also told this same employee that “every

day he has to spend in court he would see [the employees |

mcmama | .

The quotation fs from the testimony of Granget

‘Mr. Miller testifie! that the Respondent nuid for the uniform.

of only those emplovees whe had been working for 6 month

more.

got two days. off without pay. * Clifton Rideaux, another

warehouse employee, testified that he. likewise heard Hyatt

make the latter remark.

Early in October the Independent began a campaign to

enlist the support of the warchouse employees. On about

October 3, Hyatt and one of the truckdrivers, Sam Fertita,

told the warehouse employees that they had heard that Mr.

Chandler, the representative of the Brewery Workers, had

withdrawn his request for an election on thew behalf and

that Chandler would have nothing further to do with

them.” Immediately: thereafter the’ seat Warehouse em-

ployees, Albert Sells, Wilbert Vaughn, Oris Granger and

Elifton Rideaux, asked Mr. Miller if they could meet with

him. When the general manager agreed to do so, they

told him of the report which Hyatt had given them about

the Brewery Workers and asked him for his advice. Myr.

‘Miller testified that the employees told him on this occasion

that they wanted to know if he could help them get out of

the AFL-CIO and into the Independent. According to

Miller, he told them that ‘there was nothing he could do —

to help or hinder them in a matter of this: kind, but that

he would assist them in any way that was legal, honorable

and ethical. Sells testified that during the course of the

meeting, Mr. Miller told them that the conflict between

the Brewery Workers and the Independent could be ‘tied

‘The quotation is from the creditle, undemed testimony ©

Gronger, Pivatt conceded that he hac made such a theres

MMmplovees as to what they might anticipate in the event the tnt

problem compelled hin to make any court anpearanc

* This finding is based on the credible testimon. oo “abi

Selis. it was undenied by Hyatt

. jee j

up in the courts for several years and that he woud like

to see all the employees in one union.’.

_ Shortly after the meeting in Miller’s office, Vaughn and

Granger signed cards in the Independent. Sells, however,

refused to.do so when he was solicited. “Prior to the end

of the shift that same day, Hyatt approached Sells and,

according to Sells’ testimony which Hyatt did not deny,

the following canversation ensued: ;

[Hyatt said] Al, what in the . . . is wrong with you?

[-asked him what did he mean. He told me I was all

fired up that. morning, talking with Mr. Miller about

joining the Independent Union, and now that all the

men were there I didn’t want to sign the papers. I

told ‘him 1 hadn’t had ‘time to think about it. He

told me it was getting close to the slack season and

pretty soon he would have to let me go, and since I

was the latest addition to the warehouse crew, more

than likely it would be me. .. .-L told him I didn’t care

if it did-mean giving up my job, I would ‘not sign the

- card’. . .‘he told me it wasn’t meant to be a threat

but he would like for me to think about what he had

said. ,

» There was. testimony about another incident which oc-

curred during this same period when Mr. Miller donated

a sum of money for coffee and sandwiches‘ for thte men.”

‘Mr. Miller. testified that he could not remember having made

any statement about the union conflict being the matter ot

extended litigation. The latter portion of Sells’ testimony as to the

general manager's preierence for one union instead of two war

not denied. ; ; : ‘

‘Mr. Miiler testified that during the World) series of 1962) he

had. on one occasion, won the bastbatt pool which the empdsvec-

had started, and that ne tired the entire amount of his winnings.

4 total of SIS. pver to the werchouse foreman to provide cotfec,

and sundwiches for the dircii as long as the noney Tasted

"49

The warehouse employees testifed that in an ‘neing the

gift Hyatt suggested that it was a reward for deserting the

Brewery Workers. Thus, Wilbert Vaughn testified that on

this occasion Hyatt explained that they were getting the

coffee money “Maybe because you ‘all went back to the

Independent Union.” Oris Granger testified that one morn-

ing a’short time later and after he and others had attended

"a meeting sponsored by the Brewery Workers, the -coffee

truck arrived and he declined to order any. At that point,

according to the employee, Hyatt asked, “Why, your con-

science bothering you?” According to Granger, when he

denied any problems of conscience ‘in -this regard, Hyatt

-stated, “Yeah, I know’ you went to the meeting last might

. because I’ve got a guy ever there—he calls me and told

me about it...” ‘Granger’s testimony was corroboroted

by. Vaughn. Although Hyairt testified that he sper the

coffeee. money without discrimination, he did nor deny

_.the,comments attributed to him by the employees which

have been set forth above. ,

On October 12, 1962, Local 253 filed the initial charge

in Case No. 23-CA-1510. On about November *, Hyati

was away from the warehouse’ for somve while. Clifton

Rideaux testified,*and his testimony in this reenect was

not denied,. that before Foreman Hyatt left, “He told: me

he had to go down and talk to the Labor Board man; when

he got back things wasn’t going to be the same.” That

evening’ “when Hyatt return

were put to’ work washing wi

around the building before t

trucks which arrived. Since

. the warekouse emplovec”

dows and cuttinys fhe gra:

sy could unload any of. the

they were patil a weekly rather

than an hourly wage, and were required to stay oat the

warehouse until all the grucks were unloaded. thot particu

lar evening they were on duty until about & p.m. Albert

Sells testified that in a conversation that evening with

Rideaux, his coworker, they -discussed the amount of extra_

work they were doing and he proposed that they contact

Chandler, the Brewery Workers representative, “about their

treatment. Rideaux, however, disagreed and commented

that he felt they had already signed too many statements.

At this point, according to Sells, the twe employees dis-

continued their conversation when they observed that

Hyart was standing nearby.

Clifron Rideaux testified that on the following morning,

he came to work with an injured hand and that about

8:30 or 9 am, Hyatt came to him and asked whether

his hand had recovered enough so that he could move

cases of beer. According to Rideaux, when |. answered

the foreman in the affirmative, Hyatt’ told him that he was

“soing to cut Albert [Sells] loose . . . he thought Al was

the brains of the AFL-CIO.” Later that morning, Sells

was terminated. :

The hearing in, this case began on February 6. 190°

Giri, Granger testified that Wilberr Vaughn apprised

Myatt of the fact that he and the other warehouse

emolovees. had been subpoenaed to ‘testicy at the hear-

ing. Accordine te Granger, while he was at work on

February 5 a man approached him and inquired as to the

prospects of employment in the warehouse. Grenger tented

that he referred the individual-eo Hyatt w ho was Seger

1 * .

necrpy. Thereafter, according te Gr ing_er. While ang his

coworkers Rideaus and Anderson were present, aie told

one

Reade aux a Postrpents te this eomversation was credible and

not dented by PPyatt.

the job secker, “We don’t need anybody right now but you .

better give me your name and address because we might

run these boys off tomorrow.” Granger’s testimony as to

this incident was credible and it was not denied or con-

tradicted by the f reman when he was on the stand. -

At the hearing, Hyatt frankly conceded thar he had

told the employees that each of them would lose a day's

work for every day they caused him to spend in court

because of their organizational activities. Foreman Hyatt,

however, generally ‘denied that he had ever threatened the

employees with a cut in’ wages, or the deprivation of bene-

fits or that he had warned them not to join the AFL-ClO.

On the other hand, when asked the following questions

he gave the answers. which appear below:

Q. ‘Mr. Hyatt, did you ever state to any of the ware-

housemen what you thought abou". any union... .?

A. Oh, I probably did.

Q. You discussed the merits of the Union?

A. Well, I told them, frankly, I didn’t think too

much of any of them.

In a prehearing affidavit which Hyatt attested on Novem-

Ler 9, 1962, he averred that he had “never discussed the

merits of any union with the warehousemen wie work

for me.” In an earlier statement, however; which Hyatt

attested on August 21, 1962, he conceded that he hae iad

a number of discussions on this subject: with othe men.

Thus, in the latter affidavit, Hyatt averred:

[On] various occasions employes of the warehouse at

the Company would come to me asking my opinion

of unions and on the Brewery Workers, APL-CIO

: , 22

Union. At thése times I would tell them just how I

felt in my opinion. I had told them for instance if it

were my business and [ owned it—I would eliminate

paid vacations, no uniforms and other benefits, rather

than have some outsider. tell me how to run my

business. .

During the course of his testimony at the hearing, Hyatt

also stated that after an ocggsion in 1962 when Mr. Miller

had‘ gone to ‘the: Labor Bact office in Houston “I haven't

opened my mouth to the boys about anything.” As noted

earlier, 2 number of the statements set out above which

the employees attributed to Hyatt were never denied or

contradicted by him when en the stand. As a result, it is

my conclusion, on the basis of the foregoing, as well as

his demeanor as a witness, that ‘during the months after

the Brewery Workers initiated their campaign, Foreman

Hyatt was very optspoken in his opposition to this move-

ment among the employees. It is my further conclusion

that the testimony of Sells, Granger, Rideaux and Vaughn

as to specific conversations with Hyatt is the more credible

than the general denials of the latter that he had ever

made such statements as they attributed to him. At the

hearing and in its brief. the Respondent contended that

insofar as Hyatt had made any statements in derogation

of the employees’ righty under tne Act, the. statements

were unauthorized and the Company should not be held

responsible for them. There was no evidence, however,

that thé management had ever made any effort to ‘com-

-municate this disavowal to, the employees. -Consequent!s

it is my conclusion that the Respondent ‘must be held tiable

for the actions and conduct of Foreman Hyatt as founde

above. i , a

A. The Termination of Albert Sells

The General Counsel contends that Sells was discriminator-

ily dismissed on November 9, 1962. The Respondent denies

the allegation and asserts that Sells was terminated solely

because lack of business -required that one warehouse

evorker be laid off and, that Sells was selected because he

was a temporary employee with less seniority than any

other worker. : .

“Sells was originally hired in June 1962, as a temporary

employee to take the place of an employce = Ander-

son who was off duty. because of an injury. “when the

latter’ returned to work after about a week, Sells was

laid off for 2 days. When Sells returned to the Company

to secure his paycheck, Hyatt told him that if he wanted

further employment with the Company he could return

on the following Monday and go to work. Sells testified,

and his testimony in this regard was not contradicted,

that about-a month later Hyatt promiscd him that he

would speak to- Mr. Miller about putting bim on: ay

a regular employee,.on a perianent basis. The other

warchouse employees had a license from the State Beverage

Control Board to deliver beer. According to Sells. on

numerous occasions throughout the summer, Hyatt told

him that the Company would have to get his license tor

him. Notwithstanding the fact that Sells did not have

such a licénse, in a few instances, he was ordered to deliver

beer to customers.’"

This finding ix based on Sells. undoenied., tac nti teed te

noms. Mr. Miller conceded that it Was possible thic seb ai

livercd “sume beer.”

As found above, when the’ Brewery Workers first began

their campaign, Sells asked: Hyata his opinion of the. matter

and the foreman advised him to krep his “nose out of it

completely and don’t become involved.” Notwithstanding

this advice from his supervisor, on July 19, Sells signed

an authorization card and thereafter he actively solicited

his coworkers to support that Union. Late in Septémber —

or carly in October he was appointed a irustee of Local

253. Early in October, when Hyatt and one of the ‘truck-

drivers told the warchouse employees that at a meeting

of the Independent Union the drivers heard. the Brewery

Workers and Chandler would no. ‘longer represent the

warchousemen, Sells and. his coworkers sought a meeting

with Mr. Miller. — .-

Farlier I have found thar at this meeting, held on Octo-

ber 3, the employees in the warehouse discussed with Mr.

Miller the alternatives which they had if they wanted to

withdraw from the Brewery Workers and join the In-

dependent. Sells. also testified that shortly after this meet-

ing Mr. Miller gave him two copies of an application

form for permanent employment and asked that he fill

out the form ‘immediately. The General Counsel contends

that at this point the Respondent planned to take Sells

on as a permanent employee and would have ‘dorie so had

he not remained faithful to the Brewery Workers. This

is denied by the Respondent. The facts as to this issue will

now be considered. ,

During the course of the mecting between the emplovees

and Miller ‘on October ‘3, it as undisputed that the Re-

spondent’s president asktd the men whether any of them

had a high school diploma, that Sells stated that he’ was

a high school graduate, and that Mr. Miller then proposed

that he might be able to help Sells continue: his education

at Lamar Tech.’ Accorcing, to Mr, Miller, the. only pur-

pose in asking that Sells, a young man, fill our the ap-

plication forms was to secure background information

to determine whether the Respondent could help the em-

ployee continue his education. Further, according to Miller,

when Sells turned in the corapleted application he learned,

for the first. time, that the emplovee had a wife and chil-

dren so that it was obviously impossible ro help with any

further schooling since ail other employees when the Com-

pany had assisted were unmarried.

Mr. Miller was an intelligent and, in many respects, a

very frank witness. On the other hand, [ cannot believe

that his only purpose in ‘asking Sells to fill Gur the per-

‘manent application form was to secure such elementary

information as to whether the man was married and hed

children. Such data could have been obtained by aking

the. man a single question at the original meeting. More-"

over, it does not seem reasonable to presume that Miller

would have been interested in assisting Sells to attend

college if, as the. Kespondent new argues, Sells was then

only a temporary employee whom it proposed to lay off

within a few weeks when business declined. The meeting

had been initiated by the employees from the warchouse

crew who had heard from Hyatt that chey were being

abandoned by the Brewery Workers. The emplove es pres-

ent could assume that only the Independent Union fe-

mained and in his discussion with the warchouse workers

at this time Miller stated his desire that all of the em-

ployees be in one union. Earlier herein, I have found that

after Miller met with the men, Vaughn aad Granger,

two of the employees present at the meeting, deserted the

Brewery Workers and signed cards in the Independent.

Sells, when solicited to follow the same course, refused.

Later, on the evening of October 3, Foreman Hyatt ad-

monished Sells for adopting this attitude after having been”

“all fired up that morning, talking with Mr. Miller about

joining the Independent.-Union. . . .” As found earlier

herein, Hyatt concluded the conversation by telling the

. employee that, although he. did not mean it as a threat,

he wanted Sells to know that with the approach of the

slack season he might have to. lay him off since Sells was

the last addition to the warehouse crew. Sells remained

adamant, however, and stated that he would not sign a

card in the Independent even if -it meant relinquishing

his job.

In the light of the foregoing, 1 find that, contrary to

Mr. Miller’s testimony, the Respondent's objective in ne.

vesting that the employee fill out the application form im

question was not to get backeround imformation on-4

temporary worker who would shortly be off the payroll.

At the time it appeared to the Respondent that Sells and

his coworkers were about to leave the Brewery Workers.

It is my conclusion that, when giving the employees these

forms, Miller planned to convert Sells’ status to that of

a permanent member of the warehouse crew and thereafter

assist him in furthering his college education. After the -

mecting, however, Sells’ apparent enthusiasm for joining

the Independent waned. When Wyatt learned of this de-

velopment he expressed his strong displeasure and saw fit

“to poimt out that Sells was a likely candidate for lavoff. -

‘

The employee-was not dissuaded by this obvious threat and

told Hyatt that he would not sign a card in the Independ-

-ent even if it meant that he might loss his job. Not long

thereafter the Brewery Workers filed additional charges

against the Respondent. On November 8, Hyatt left the

warehouse with the announcement that he had to report

to the Labor Board and that when he got back things

would not be the same. Upon his return, Hyatt put ‘the

‘men to work on additional duties that kept them at the

warchouse considerably past their normal hours. The next

morning Hyatt told employce Rideaux that Sells was ‘the

brains of the AFL-CIO” and that he was “going to cut

Albert [Sells] loose.” Shortly thereafter that day Sells was

‘terminated. _ ; Je

Mr. Miller testified that at Hyatt’s suggestion, on the

morning of November 9, Sells was called into bis office.

According to the Respondent’s president, when Sells re-

ported, he wastold, in the presence of Hyatt and As-

sistant General Manager James L. Floyd, that because the

~~ peak of the beer season was over and Sells was the most

recently hired employee, he would have to be the first one

laid off.'* Sells was then given his final paycheck as well

4s an additional week’s pay. On about November 13, Sells

returned to the Respondent’s office to ask that he be con-

‘“tacted if any openings arose. The secretary in the office

_promised to contact him in the event he was necded. Sub-—

sequent to Sells’ termination, Granger. was injured and a

replacement was hired temporarily until Granger recovered

and-was able to return to work. Sells, however, was never

contacted and never recalled: *

2 Although the Respondent contends that it followed strict

seniority. im living off Seiis. it is sienificant “th 1

with the independent Union had no seniority: provision

: .

The Respondent contends that Sells‘ was laid off only

because a decline in business required that it cut back its

warehouse crew. On the other hand, both Miller and Hyatt

testified that the “season” in their business extended from

March to Labor Day. Hyatt testified that after Labor Day

the Respondent needs only one-half the warehouse crew

that it employs during the summer. From their own testi-

mony it would appear that if Sells were being drppped

because the end of the beer season had arrived he would

have been laid off in September. Moreover, the Respondent

offered no evidence as to any change subsequent to Labor

Day that caused it to keep Sells on the payroll for two

additional months. From the evidence set forth above it

is my conclusion that Sells was considered an intelligen

and. valued employee in October who, when it appeared

that he was interested in joining the Independent, was

considered for a place on the permanent payroll and ‘for

further help in connection with fis college education.,

Thereafter, however, when Sells declined to withdraw from

the Brewery Workers and join the Independent, Foreman

Hyatt reproached him for his vacillation and. pointedly

referred to the prospect of a layoff in the near future.

Even this did not cause Sells to change his ways and a

short while later, on November 8, newly filed charges by

the Brewery Workers compelled Hyatt to submit to furth-

er interrogation by the Labor Board. On November 9,

the next day, the foreman described Sells as the “brains

of the AFL-CIO” whén he would have to “cut loose.”

That morning Sells was terminated, and never recalled

notwithstaiding the fact that the Respondent subsequently

hired a replacement for Granger. On the basis of the fore-

easing evidence, it is my Conclusion that Sells was dis-

charged because of his persistent adherence to the Brewery

Workers and not because of a decline in beer sales, as the

Respondent contends. Accordingly, | find that by this action

the Respondent ‘violated Section 8 (a) (3) and (1) of the

Act. aa

In the context of the discriminatory termination of

“Sells, it is my further conclusion, and | find, that the

Respondent also violated Section 8 (a) (1) by the following

conduct of Foreman Hyatt:

(a) On about July 18, 1962, Hyatt’s threat, uttered

to the warehouse employees, that if they remained ‘with

the Brewery Workers he would suggest to General Man-

ager Miller that their pay be cut by $10, and Hyatt’s

prediction, made at the same time, that thes Respondent

would eliminate free uniforms, that the employees would

lose sick leave and vacations, that the Company “would

cut every man in the AFL-CIO” and that if the men.

stayed with the Brewery Workers the Respondent. “could

easily finda reason for firing [the warehouse employees }.”""”

(b) .Hyatt’s declaration to the employees, ‘late in July,

after they had submitted statements, in support of an

unfair labor practice charge, that “every day he: has to.

spend in court he would see [the employees} got’ 2 days

off without pay.” |

why the latter had not signed a card in the Independent

Union, and the.thrcat of an impending layoff which Hyatt

voiced to the empioyee in that same conversation. ‘

s'Ene Respondent contends that Since none of these threat

were carried out. the comments attributed to divett bs th

plovees should not be held a violation of the Act. There is’ ho

merit to this contention :

(d) Hyatt’s discriminatorily assigning additiona] duty

to the warehouse-employees on about November 8 when

he returned from a meeting with a representative of the

Labor Board."*

(e) Hyatt’s statement to employee Clifton. Rideaux on

November 9, that he was “going to cut [Sells]. loose” be-

cause he thought ‘ ‘Al was the brains of the AFL-CIO.”

N.L.R.B. ov. Armstrong. Tire 73 Raibber Comrbhany, 228

F.2d 159, 161 (CAA. 5).

(f) Hyatt’s comment on February 5, 1963, the eve’ of

the hearing, to an applicant for employment at the ware-

house, and in the presence of the employees then on the

payroll, that the job seeker leave his name and address

“because we might run these boys off tomorrow.’

a $

2. P The effect of the ee labor’

practices upon commerce

The activities of the Respondent. ‘set forth in section TT,

above, appearing in connection with the.operations of the

Respondent, described in section I, above. have a clove.

intimate and substantial relation to trade, traffic, and com-

merce among the several States, and tend to lead to labor

disputes burdening and obstructing commerce and the f ree

flow thereof.

14 The additional duty involved. namely. washing windéws ane

Cutting the grass around the warehouse, was not unusual and it

was. in fact, the type of work which the emplovees mich)

normally be assigned. On .the other hand. prior to Pfvatt «

marture from the warehouse that day he had prophesied tha: when

he can: back “things wasn't going to be the same.” As if tu

iment of that prediction. 6n his return he gave the men these

tasks and delayed their normal work of unloading the beer trucks -

so that all of themewere compelled to remain on duty fe:

additional fiopr- that “evening.

V. The remedy

Having found that the Respondent engaged in certain»

unfair labor practices, I shall recommend: that it cease and

desist therefrom and that it take certain afffrmative action

of the type conventionally ordered in such cases as pro- -

_ vided in the Recommended Order below, which 1 find

necessary to remedy and to remove the effects of the un-

fair labor practices and to effectuate the policies of the

Act. For reasons set forth in Consolidated Is:dustries, Ine.

108 N.L.R.B. 60, 61, and cases there cited, I shall recom-

. mend a broad cease and desist order.

Having found that the Respondent unlaw fully termi-

_ nated Albert Sells, on November 9, 1962, 1 recommend

that it offer him immediate and full reinstatement to his

_ former or substantially equivalent position, without pre-

judice to his seniority or other rights and privfeges, and

make him whole for any los: of earnings he may have

suffered by reason of the discrimination against him, by

payment to him of a sum of money equal to that which

he normally would have carned from the aforesaid date |

. of discharge to the date of the Respondent’s offer of rein-

‘statement, with backpay and interest thereon computed

in the manner prescribed by the Board in F. W. Wool-

worth Co., 90 N.L.R.B. 289, and Isis Plumbing % Heating

Co., Inr., 138 N.L.R.B. No. 97.

«Conclusions of Law

1. The Respondent is engaged in commerce and Brewery

Workers and Local 253 are labor organizations, all within

the meaning of the Act.

By ductimindsing in regard to the hire and tertin

of “heels Sells, thereby discouraging membership in the

Brewery Workers and Local 255, the Respondent has cn-

gaged, and is engaging, in unfair labor practices within

the meaning of Section 8(a) (3) of the Act.

3. By interfering with, restraining and coercing its em-

ployees in the exercise of the rights guaranteed in Section

7 of the Act, the Respondent has engaged, and is engaging,

in unfair labor practices within the meaning of ‘Section

$(a)(1) of the Act.

4. The aforesaid unfair labor practices are ern labor

practices affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the. Act.

Upon the foregoing findings and conclusions end the

entire record, and pursuant to Section 10(c) of the’ Act,

{ hereby issue the following:

RECOMMENDED ORDER

Pearl Beer Distributing Company of Jefferson County,

Incorporated, its officers, agents, successors, and assigns,

shall: ° a

1, Cease and desist from:

_(a) Discouraging membership in any labor organization

of its employees by discriminating in regard to their hire,

tenure, or any other terms or conditions of their employ-

_ ment. a rs

(b) Directly, or by implication, threatening emplovees

with the withdrawal of cxisting ‘privileges, or other eco

nomic reprisals, to discourage union membership’ or ac-

tivity..

tion “or activities in a manner constituting interterenée,

restraint or coercion in violation of Sectipn-8(a) (1) of

the Act.

(d) In any other manner, interfering with restraining,

or coercing its employees in the exercise of their nea to

self-organization, to form lapor organizations, -t join. or

assist. International Union of United kee, Flour,

Cereal, Soft Drink and Distillery “Workers of , America,

AFL-ClO, and Beer Drivers Local 253, AFL-C lO, Inter-,

rational Union of United Brewery, Flour, Cereal, St

Drink and Distillery Workers of America, AFL CIO,

any other labor organization to bargain collectively ih

. representatives of their own choosing, to engage in con-

certed activities for the purpose of collective’ bargaining

or other mutual aid or protection, or to refrain from, ALY

and all such activities.

. Take the following affirmative » n, hich is neces

sary to effectuate the policies of the Act:

(a) Offer Albert Sells immediate and full reinstatement

to his former, or substantially equivalent position without

prejudice to his seniority or other rights and privileges and

make him whole for any loss of pay he may have suffered

in the manner set forth in “The remedy” section of this

Intermediate Report.

‘

(b) Upon request, make available to the Board, or it

agents, for examination and copying, all payroll records,

social security payment records, timecards, personne!

records, and reports, and all other records necessary to

analyze the amounts of backpay due under the termy ot

this Order. ,

the notice attached aoa and marked “Appendix.”’’

Copies of said notice, to be furnished by the Regional

Director for the Peas: third Region, shall, after being

duly signed by the Repondent’s authorized representative.

be posted by the Repondent immediately upon receipt

thereof and maintained by it for a period of 60 consecu-

tive days thereafter in conspicuous places, including all

places where notices to e.nployees are customarily posted.

Rea sonable steps shall be taken to insure that said notices

are not altered, defaced, or covered by any other material.

(d) Notify the Regional Director for the Twenty-third

Region, in: writing, within 20 days’ from the receipt of

this Intermediate Report and Recommended Order what

steps it as taken to comply herewith.”

Dated at Washington, D. C.

ROBERT E. MULLIN

Robert FE. Mullin

' Trial Fxaminer

ralf thie Reeonmnended Order is adopted his the Loan t!

word: “\ DECISION AND ORDER’ shall be stubstituted for the

words “THE RECOMMENDATIONS OF A TRIAT. EN AMENITY

both notice. In the future event that te Board's Order is en

jonced By a detree ona Uneted States Court of Appeals. the word

‘ DEC RE OF THE UNEPED STATES COURT OF APPE

ENEORCING AN. CDERD EA shall be subetituted for the wv ed.

“A DECISION AND ORDER

Mi the event that this dis ommended Order be adopted by the

Hot.’ this provision snhalh be imedined to read: “Natit, , sai

peters! Director ‘2 writing within JO day: from the date of this

* Onder What olats the iespen dent has taken to comply herewith |

APPENDIX |

NOTICE TO ALL EMPLOYE ES

PURSUANT TO

-"THE-RECOMMENDED ORDER 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 NO™ discourage membership in INTER-

NATIONAL UNION OF UNITED BREWERY,

FLOUR, CEREAL, SOFT DRINK AND DISTL.-

FERY WORKERS OF AMERICA, AFL-CIO, -and

BEER DRIVERS LOCAL 253, AFL-CIO, INTER-

NATIONAL UNION OF UNITED BREWERY,

FLOUR, CEREAL, SOFT-DRINK AND DISTIL-

LERY WORKERS OF AMERICA, AFL-CIO, or any

other labor’ organization, by discharging any of our

employces, or in any manner discriminating in regard

to their hire or tenure of employment, or any term

or condition of employment.

Wi WILL NOT directly, or by implication, threaten

employees with the withdrawal of existing privileges *

or with other forms of reprisals, because of their union

membership or activities.

WE WILL NOT interrogate employees’ concernins

union athhauon or activities in a manner comititin:

interference, restraint or coercion in violation of Sec-

~ tion 8(a) (1) of the Act.

WE WILL offer to Albert Sells immediate and full

reinstatement do his former or a substantialls equivalent

s 36

position without prejudice to his seniority or other

rights and privileges and make him whole for any loss

‘of pay suffered’ as a result of the discrimination agains!

him. ,

WE WILL NOT in any other manner interfere with?

restrain, or coerce our employees in the exercise of

their right to sclf-organizatiog, to form labor organiza-

tions, to join or assist the above-named unions, or any

other labor organization, to ‘bargain. collectively

through representatives of their own choosing, to en-

gage in concerted activities for the purposes of col

lective bargaining or other mutual ‘id or protection,

or to refrain from any or all sugh activities. —

PEARE BEER DISTRIBUTING

. ~~ COMPANY OF JEFFERSON

COUNTY, INCORPORATED

eats (Employer ) Os

Dated PR AIEEE, Ta SS eee

(Representative ) (Title)

NOTE: We will notify Albert Sells if he is presently

"+ serving in the Armed Forces bf the United States

of his right to full reinstatement upon application

‘a accordance with the Selective Service Act after

discharge from the Armed Forces.

This novice must remain po ted for Gor conscentive a

date Of postin apd must not be abtercad, cetacegt, coveted

any other mitterial :

Emiplovecs may co nintinicate directly with the Beard’s Regios!

Oifice, GOI Federal O% iuiiin’, Dio Rusk Avenue, He on

‘vexas (Tel. No. CApitol S665, Bst. 2710, ifAhey have any quests

concerning this notice or compliance with ifs provision

37 .

APPENDIX B

143 NLRB No. 65 D-5513 Beaumont, Texas

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

| BOARD

Case No. 23-CA-1460

PEARL BEER DISTRIBUTING COMPANY OF

JEFFERSON COUNTY, INCORPORATED

: and

INTERNATIONAL UNION OF UNITED BREWERY,

FLOUR, CEREAL, SOFT DRINK AND

DISTILLERY’: WORKERS OF AMERICA, AFL-CIO

Case No, 23-CA-1510

PEARL BEER DISTRIBUTING COMPANY OF

JEFFERSON COUNTY, INCORPORATED |

and

BEER DRIVERS LOCAL 253, AFL-CIO,

INTERNATIONAL UNION OF UNITED BREWERY,

_ PLOUR, CEREAL, SOFT DRINK AND.

DISTILLERY WORKERS OF AMERICA, AFL-ClO

DECISION AND ORDER’

On May 3, 1963, Trial Examiner Robert F. Mullin

issued his Intermediate Report in the above-entitled pro-

ceeding finding that the Respondent had engaged in and

was engéging in certain unfair labor practices and recom-

mending that it cease and desist therefrom and take certain

affirmative action as set forth in the Intermediate Report

attached hereto. Thereafter, the Respondent fled exceptions

to the Intermediate Report and a brief in support thereof.

Pursuant to the -provisions of Section 3(b) of the

National Labor Relations Act, the Board has delegated _ its

powers in connection with this case to a three-member

panel.

The Board has reviewed the rulings made by the Trial

Examiner at the hearing and finds that. no prejudicia!

error was committed. The rulings are hereby affirmed.

The Board has considered the Intermediate Report, the

exceptions and brief, and the entire record in the case,

and hereby adopts the findings, conclusions, and recom-

mendations of the Trial Examiner.

ORDER

The Board adopts as its Order the Recommended Order

of the Trial Examiner with the modification that the words

“Preserve and,” shall be added to paragraph 2(b) .as the

beginning words thereof. .

Dated, Washington, D. C. July 11, 1963.

Philip Ray Rodgers, Member

John H. Fanning, _ Member

Gerald A: Brown,. Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX C

. IN THE

‘UNITED STATES COURT OF APPEALS.

FOR THE FIFTH CIRCUIT

No. 20849

PEARL BEER- DISTRIBUTING COMPANY OF

JEFFERSON COUNTY,- INCORPORATED,

Appellant,

versus

‘NATIONAL LABOR RELATIONS, BOARD,’

Appellee.

Petition for Review of an Order of the National Labor

Relations Board, Sitting at Washington, DA.

: (Texas Case). ;

(April 20, 1964-)

Before RIVES, BELL and WRIGHT.” Circuit Judges.

PER CURIAM: Petitioner concedes that the Board .

has jurisdiction insofar as concerns its | driver-salesmen

for whom it has bargained as a member of a multi-em-

ployer bargaining association. See N.L.R.B, 1. Sightseeing

*QOf the DC) Circuit. sitting by ‘designation

- 40

Guides & Lecturers Union, 2 Cir. 1962, 310 F.2d 40.

The Board’s order, however, is based upon coercion of

_ warehouse employees and the discharge of one warehouse

employee.. The multi-employer association has not bar-

gained for warehouse employees, but in oral argument

petitioner’s counsel states that about half of the members

of such association hire warehouse employees. We cannot

say that the Board erred in asserting jurisdiction. Sub-

stantial evidence on the record as a whole supports the

Board’s findings. ©

The Board’s order is therefore ENFORCED.

41 ;

| APPENDIX D

Ch. 7 | DEFINITIONS 29 § 152

§ 152. Definitions

When used in this subchapter—

(1) The term “person” includes one or morc individ-

uals, labor organizations, partnerships, associations, corp-

orations, legal representatives, trustees, trustees in bank-

ruptcy, or receivers. 7

(2) The term “employer” includes any person acting

as an agent of an employer, directly or indirectly, but

shall not include the United States or any wholly ‘owned

Government corporation, or any Federal Reserve Bank, or

any State or political subdivision thereof, or any corpora-

tion or association operating a hospital, if no part of the

net earnings inures to the benefit of any private share-

holder or individual, or any person subject to the Railway

Labor Act, as amended from time to time, or any labor

organization (uther than when acting as an employer),

or anyone acting in the capacity of officer or agent of such

labor organization.

(3) The term “employee” shall include any employee,

and shall ‘not be limited to the employees of a particular

employer, unless this subchapter explicitly states otherwise,

and shall include any individual whose work has ceased

as a consequence of, or in connection with, any current

labor dispute or because of any unfair labor practice, and

who has not obtained any other regular and substantially

equivalent employment, but shall not include any individual

employed as an agricultural. laborer, or in the domestic

420

service of any family or person at his home, or any indi-

vidual employed by his parent or spouse, or any individual

haying the status of an independent contractor, or any

‘ individual employed. as a supervisor, or any individual em-

ployed by an employer subject to the Railway Labor Act,

as amended from time to. time, or by any other person

who is not an employer as herein defined.

(4) The term “representatives” includes any individual

or labor organization.

(5) The term,“labor organization” means any organiza-

tion of any kind, or ‘any agency or employee representation

committee or plan, in which employees participate and which

exists for the purpose, in whole or in part, of dealing,

‘with employers concerning grievances, labor disputes,’

wages, rates of pay, hours of employment, or conditions

of work. -

(6) The term “‘commerce™ means trade,: traffic, com-

merce,. transportation, or communication among the several

States, or between the District of Columbia or any Territory

of the United States and any State or other Territery, or

between any foreign country and any State, Territory, or the

District of Coiumbia, or within the District of Columbia

or any Territory, or between points in thé same State but

through any other State or any Territory or the District

of Columbia or any foreign country.

(7) The term “aftecting commerce” means in commerce,

or burdening or obstructing commerce or the free flow

of commerce, or having’ led or tending to lead to a labor’

disputeggburdening or obstructing commerce or the free

ris ‘

Commerce.

5 43

(8) The term “unfair labor practice” means any unfair

labor practice listed in section 158 of this title.

(9) The term “labor dispute” includes any controversy

concerning terms, tenure or conditions of employment,

or concerning the association or representation of persons

in negotiating, fixing, maintaining, changing, or secking

to arrange terms or conditions of employment, regardless

of whether the disputants’stand in the proximate relation

of employer and employee.

- :

“APPENDIX E

aa ne OF NLRB

; 540°

Jurisdictional abilities Prevailing on August 1, 1959

The NLRB jurisdictional yardsticks prevailing on August

1, 1959, are as follows (the NLRB cannot decline cases

meeting these yardsticks; state tribunals may take cases not

meeting these tests; key decisions in which the tests were

first applied may be located under the decimal reterence

following each: yardstick.) : nity

NON-RETAIL BUSINESSES (.68)—

Jurisdiction will be asserted if the yearly outflow or in-

flow, direct or indirect, is $50,000, '

Direct outflow means goods shipped or services fur- .

nished by the employer outside the state.

Indirect outflow means sales within the state to users

meeting any jurisdictional standard, except solely

the indirect inflow or indirect outflow standard. ~

Direct inflow means goods or services furnished directly

to the employer from outside the state in which he

is located.

indirect inflow means the purchase of goods or services

Which originated outside the cmployer’s state,

but which he purchased from a seller within the

State.

Direct and indirect outflow can ‘be combined to meet

the $50,000 requirement.

Direct and indirect inflow can be combined to meet

the “$50,000 requirement.

Outflow and inflew cannot be. combined to meet the

$50,000 requirement.

(The 1954 standards were $50,000 direet Gutflow, $500,-

000 direct inflow, $100,000 indirect outflow. -and

¢ $1,060,000 indirect inflow.)

alae

OFFICE BUILLDINGS (.96)—

Jurisdiction will be asserted if—

(1) Gross yearly revenue is $100,000, and

(2) $25,006 of the revenue is derived trom organiza-

tions which meet any of the jurisdictiona] yard-

sticks, except the $50,000 indirect outflow and in-

direct inflow tests for non- -retail businesses.

(The 1954 standards required an employer who leased

or owned and who operated a building to be otherwise

engaged in commerce and to utilize the building pfi-

marily to house his own offices.) -

RETAIL CONCERNS (.77)—

Jurisdiction will be asserted if the gross yearly volume of

business is $500,000.

* (The 1954 standu.cds were direct ilo of $1.060,0090,

or indirect inflow of $2,000,000, or direct outflow of

$100,000. )

INSTRUMENTALITIES LINKS AND CHANNELS Ol

INTERSTATE COMMERCE (.85}j— ~

Jurisdiction will be asserted if—

(1) $50,000 yearly revenue is derived from the inter- *

state (or linkage) part of the enterprise, or

(2) $50,000 yearly revenue is derived trom services

performed for employers meeting any of the

jurisdictional yardsticks, except the 350,000 in-

direct. outflow and indirect inflow tests tor non-

retail businesses. :

(The 1954 standards had a dollar test of $100,000).

PUBLIC UTILITIES (.91)—

Jurisdiction will be asserted 1f—

(1) Gross yearly volume of business is $250,000, or *

(2) Standard tor non-retail businesses is met, namely.

yearly outflow or inflow, direct or indirect, of

$50,000,

~ 46

(The 1954 standards required of local retail public

utilities a gross yearly business of $3,000,000. )

TRANSIT SYSTEMS, EXCEPT TAXICABS (a

Jurisdiction will be asserted if’ the gross yearly volume

ot business is $250,000.

(The 1954 standards had a dollar test of $3, 000, G00 tor

local ‘transit o—)

TAXICAB FIRMS (.58)—

Jurisdiction will be asserted if the standard for retail

concerns is met, namely, gross yearly volume of busi-

ness of $500,000.

(Under the 1954 standards, jurisdiction was not ‘asserted

over taxicab firms operaung wholly within a state.) -

s .

| NEWSPAPERS (.90)—

Jurisdiction will-be asserted if—

(1) Gross yearly volume of business is $200,000, and

(2) Newspaper holds membership uc or subscribes to

interstate news service, publishes nationally syn-

dicated features, or advertises nationally sold pro-

ducts.

(The 1954 standards had a dollar test of 5500, 000. and re-

quired some interstate connection. )

COMMUNICATION SYSTEMS (RADIO, TELEVI- -

SION, TELEGRAPH AND TELEPHONE (.88, 89) —

Jurisdiction will be asserted if the gross yearly volume of

business is $100,000.

(Vhe 1954-standards had a dollar test of $200,000.)

NATION DEFENSE (.75)—

ok will be asserted if there is a substantial im-

pact on national defense.

47 \

(The 1954 standards required $100,000 yearly in goods

or services to be furnished tor national. defense pursuant

to Zovernment contract. )

HOTELS AND MOTELS, OTHER THAN

RESIDENTIAL (.53)— Aver

Jurisdiction will be asserted if the gross yearly volume

_of business is $500,000; hotel cr motel must receive

‘more than~25-percent of its rental income from, or *

rent more than 25 pércent of its rental unity to, trans

ient guests who stay for periods of less than one month,

(The 1954 standards contained -no test for hotels or

motels, since the Board had a policy at that time. ot

declining jurisdiction over hotels as a class.)

BUSINESS iN TERRITORIES (.18) AND

DISTRICT OF COLUMBIA (.16)—

Plenary jurisdiction will be asserted over all emplovers:

engaged in any business within District of Columbia,

even if business is purely lecal in character.

(The 1954 standards were the same.) ”

Although the NLRB has plenary power to exercise juris-

diction over all local as well as interstate cpmmerce

in Térritories, jurisdiction will only be asserted over

enterprises which meet NLRB standards.

(Plenary jurisdiction. was asserted until 1955;. standards’

were applied. thereafter.)

EMPLOYER ASSOCIATION (.3472)—

Regarded as single employer for jurisdictional purposes.

(The 1954 standards were the same. ) ;

_ How jurisdictiv. 11 amount: is computed—The tollowiig

.general guides govern the computations im determining

srhether the, jurisdictional amounts stated in the yardstick»

are satisfied. |

‘

48 |

- APPENDIX F

_ United States of America

Betore The National Labor Relations Board

SABINE DISTRICT WHOLESALE BEER

DISTRIBUTORS ASSOCIATION, INC.

Employer

and — Case No. 23-RC-1930

BEER DRIVERS LOCAL -253, INTERNATIONAL

UNION OF UNITED BREWERY, FLOUR, CEREAL,

SOFT DRINK AND DISTILLERY WORKERS 0}

AMERICA, AFL-CIO, and INTERNATIONAL UNION

OF UNITED BREWERY, FLOUR, CEREAL, SOFT

DRINK AND DISTILLERY WORKFRS OF AMERICA,

AFL-CIO”

; ' Petitioner

Thy: hame of the Association appears 4 “mended atthe hes

inv The Associatioy 13 compris: dof the following eranloverane:

ber feuumont Palstath Distributors Incorporated Clark Dy

‘obuting Company’ Dr. Pepper Bottling Co. of Orange. In

elder Balstat® Distributor Incorporated: Gigito Distributing Co:

pany, Jas Peer Distributors of Beaumont. incorporated; Jax Vall

beer Compans, d/b/a Jax Vailes Peer Company of Pori Arths:

fens Star Beer Distributors of Beaumont. Incorporated: Lon:

Star Beer Distributors of Mort Arthur, Icorporated: O..Del Pap:

and Sons Pearl Distribuuins Companys of Jetierson County. fn

corporated? ond Sabine Palstath Distributors. Incorporated Thor.

Pustributiie Company wot formerly a member of the Associather

Pit withdres. trom membership therein in December, 1s.

?The Petitioner moved at the hearing that it appear on the balles

- deer Peivers Local 20) International Union of Cnited Brewer’

bioti, Cereal. Soft adrian age: Pestitiery Workers of America, AFL.

CHO) cormettasy the mame cof the Intetnationa! In accordance with

‘stundard Board practice. GIN wus there will be mo sditheulty as

howine the tub Mani eG thik Petitioner on the ballot. the i:

Tithedies Hare WH appear. the baliot us shown above

" 49

DECISION AND DIRECTION OF ELECTION

Upon a petition duly ‘filed, a hearing was held before a

hearing officer of the National Labor Relations Board. Hts

rulings made at the hearing are free from prejudicial error

and are afirmed. 7

Pursuant to Section 3 (b) of: the National Labor Rela

tions Act, the Board has delegated its powers herein to the

undersigned Regional Director. -

Upon the entire record, the Regional Director finds:

1. The Employer is engaged m commerce within the’

. > . ‘

meaning of the Act and it will effectuate the purposes of

the Act to assert jurisdiction herein.

2. The labor organization(s) named below claim(s) to

represent certain employees of the Employer.

“The Hearing Office Yr permitted the Beer Salesmen of the sabine

Distriet to intervene on the tier ff its current contreet we

the empiover-smembers of the A. soclaygon The Vetiioner rettios

‘to stipulate that this organization i a dabor orgamizotien woth

the meaning of the Act, contending: thas the members co thy boar

salesmen voted at a speciek Mectins on June 2 1h. called

such purpose, to afliiete wah the Petitioner, The recent rethect

that a anajority of the member: “did vote ut sites teeta 1

afiiiate with the Petitioner, However, the record fu. the byoots

thet the Bee: sSalesimen har been continued in etfect bys rermaanons

‘members, has elected « new officer to replace the disat}

and is. continuing to servier: the said contruct-. Sceordinstis hotard

the Beer Salesmen of the Sabane th. fret jo met defunct Hebron

rick Company, 1 NLR No. 16 As the record snow 4

organization Which exist. for Une parpose of represenuny emypiove

in “negetiution= with cinploves ho Perspect to Wates. tied ili

working comditions, f find &t dea Sabor orwunmization ao adetne

in the Act.. i ee .

The Petitione: further centond thut imtervention be permitte

opis Upet oan independent how Of intere t

Sulesmen. For the purpose. ef apteryetiie sti 18h cit Ses

Sigestnen of the saubine District haut das! copeiiabeles stitere

$0 ~ ‘

ey question pe commerce exists concerning the

representation of certain employees of the’ Employer, with-

in Section 9(¢) (1) and Section 2(6) and (7y of the Act.’

certain of the employees: invaelwed scecordingly Jo tnd Pet tioner

contention te lee without omer see W. Horace Williams ¢ ompiny.

Ver NERE 22s fn ov see alse John St, George, d/b/a Michele

Frocks, 12! NLRB 1275. 1271

‘The BEinplover an! the tntervenor contend Uneot ther eantract

com-titute oo bar toe the instant petition. amd urge the ¢tietemi

ah practi@e tn the radustrs of dene term contrat. as come citutint

recounized @Xception to the tsual Lvegr rule. The recaid stein

that seourate but idention]

the above-named member..oi the Association, of there predecess

in buetiess Wath the intervenor on Rebruars 2 Tide. excg uth

tr Pepper Botthag Co of Orange. Ine whose Contras Wee es

ecuted on Februar, Y Dwar All of these contract. ore effective

from January 1 1460 for. pened of three vear. ‘Thormiae in

fume 25 P62 identica: te those executed fs the mentars of the

Association Including the provision tha sueh agreement stad

pemiats in full foree amt eect toy prersicnd on Ohh

and after January 3. 10” '

The «Board es tublihes: ‘he oral ou Paeite Coast Association of

Vulp aad Paper Mamusacturess, 125 NUE) ee that Cans co

tract Wuvine a fixed term ws exces: of (we veure Shadi de trente

fers the purpose ef contract bar as « contract tof a tined term of

we Yeats notwithstindine that fuet, that a substantsol part of the

industry oof Wheels ine contracting emidever Ls a part mat he

cover: DS contracts fo jonger tera: ang oxpressis abandone |

theaimausirs test urged nere by the kimplover and the bntervene

Accordingly. 1 fined thas the. contract. of the employer imejnbes

of the Assocation do tet cotetitute a bur to the instant petition

Nor is tae contract entered inte Deween Thomas Distritating Cee

pany, ane the Intersena: a tar a te that enipiower itive this

contre! Wathen emteved yote unt dune 25) M62. it fb its term ®

contract. Were entered Mite bw all ef

i Yeats fen

eflectrve on Jamuars to doe and the Board tas beled Chat the twe

sect pec during Wwhltel . contract bo operative a ON a)

fretth its OTertive tate Benjamin Franklin ‘aint and Varnist

Company, 12. Ni Ob wm .

The Fmplovwe: appuwerntis contends that the imstunt petition

should be cdistisissed becouse the gioumbent theor Suliesmen

never teen decertified Ne deceriitcution petitien. as pros idedt ter

yh tthe Net aaneed thse i cong blinkers canned Dearsgeabaatieots~ dye beerens tied

4. The following employees of the Employer constitute

a unit appropriate for the purposes of collective bargaining

yncumbent labor organizition Accérdingly, 1 tind this contention

to be without merit. : . ;

The intervenor contend. that the Petitioner. is attempting “to

tuke over a legal, valid and subsisting Union through illega!

methods” and seeks to have the petition denied on thi- ground

The record shows nothing more than that a representatite oO:

the Petitioner encouraged members of the Intervenor:to affilrat:

with Petitioner and assisted these membrs in their: efforts to effect

an athliation of that labor organization with the Petitioner. | haye

already found that for Doard purposes the Beer Salesmen of the

Sabine District is not « defunct labor organization, and the legality

ot the action taken at the June 20 meeting need not be resoived

here Aluminuny Company of America, 00 NLRB 1312. 1315. i do

net herebs indicate eny opinion with respect to the finality 0!

‘the action or the legal effect thereof taken by the members «:

the Beer Sulesmen of the Sabine District. on June 20, 1M

AMuminum Company ot America, supra, Aleo Manufacturing Com-

pany, 100 NLRB lon. 1j04. fh. 20. As the record does not reile!

that the Petitioner im, it. orgamizimg campaign engaged in oact-

of ‘the character which would bar the instant petition, ner ha- the

intervenor offered any preot of such ucts, [| find the Intervene:

contention in this respect to lack merit. ‘

Counsel for the Emyployer. over the Petitioner's protest. Wa

permitted by the Hearing Othcer to intervene at the hearin:

on behal: of Thenias ‘Prstributing Company. The Employer coi

tend, contrary to the Petitioner, that Thomas is properly a part ot

tie multiemploye: prouj te W hich the parties otherwise apres

The record shows that only Thomas withdrew from membership

th the Assaciation in De ember-o} i], that it signed an agreement

with the intervenor on June 2. GZ. identical te those enteres: 1h

te between the employermember> of the Association and the 1h

tervene! apt roximatels two und one-half years before. ana Una?

Thottie= i apparentiy abidingf by such agreement The Doaura

bo. fetid Utar the mere acoption of contracts altords inisutieicn’

bust- for sicilision of a firms i a multiemployer unit. Dittler Bros

foo. et ab, 152 NIB Gat. Ob tn 2 Accordingly, a= Une unit touhe

propriate ter multe mMpuayer burgauung purpeses and thai sticti

unit concerning representation eXists us to the employ ee- ol

{Peotias sistributung Compasiy " re,

§2

within Section 9 (b) of the Act:

_ * The employer-member= ef the Association ere engaged in th

wholesale distribution of beer in Texas to retail outlets Afb oo. the

parties are in agreement that a multlemplover unit ts apprapris

There is. however, ‘iisugreement between them) us to the elassitu

tions of employees te be included in such unit. The Petiiiomer = cb

«a unit composed of driver salesinen, helpers and warehousene.

whereas the Employ’: and the tntervenor would limit the unit te

driver salesmen. They contend that the umit sought by che

. Petitioner is not appropriate for multtemploxer bergamumc tir:

poses and that sucth a unit ix pew stable. The grounds for the.

contention that the unit: sought os, Poutioner i. inappropriate are,

in effect, thet there ic a lack of community of Interest “amon:

the emptoyees souvht, and the bargaming history concerning

such: employees. The contention that the unit is not stable

is bared upon an alleced igh rate of turnover aimone ‘helvers

and warchousemen and the casual nature of their employient.

The Lmployer-itho insists that the helpers are the empioyees ct

the driver salesmen rather than of the distributors. :

The. record: shows and the Employer admits that one of the

Gistributors, Sabine Falstaff Distributors, Incorporated. employs

driver saicsmen helper. Testimony ot the hearins reflect: that ul-

though in all stances the belpers ape Inred by and subject: to die-

scharge by the Griver’ salesmen and that the helpers’ wages are 1

general deducted from the ariver salesmen’s pay that um the in-

stances of Clark Distributing Company, Felder Faistat! Dis-

inibuter, Incorporated,” Jax Beer Distributors of beaumont, In

corporated, O. Del Papa and sens. and Pearl Beer Distributin:,

Company of Jeilerson County. Incorporated, the helpers are pai!

on company payroll checks: thet these employers deduct sock!

security apd. withholding tax from the helpers’ pay and carry them.

on the coinpany records: that the helpers are covered by workmen:

“compensation insurance: aii in the case of three of these eimploy-

ers the helpers wear uliloriis furnished at least in part by the re-

spective employers. Altnough there was litile testimiony in the record

concerning the acti eleawent. of control and supervision ol tls

belpers. representatives of two of these employers testihed

respectively Uiat before a nelper would be tived by, the empioye:

it would be discussed with Ube “driver sadlesman, and that thie

helpers, together with the dcivei salesmen aid Warehousemen

wee under the supervision Or the sa’es Manager, used Upoit

lie forezoing and the enure record, | tind the nelpers used bys th

driver sale:men ot the ubove-aamed empiosere are employees

sunt empicyeis Weiis Dairies Coope ative, We Nis bao, biel

. . 53 . ,

All driver-salesmen and helpers employed by the em-

ployer-members of Sabine District Wholesale Beer Dis-

tributors Association, Inc., at their respective places of

‘As the only testimony offered ai the hearing bearing directly o:.

the duration of these helpers’ empioyment shows that the driver.

keep the same helpers and have had them a long time, and as thers

that their rate of turnover is high, I shall include them in the

unit herein found appropriate. However, as fhe record reflects the:

the heipers utilize i by the driver salesmen of the other employer:

members of the Association do not meet the above criterns

establishing them as émployees of such employers, 1 shall exclude

those helpers from the unit.

Insofar as the Employer and the Intervenor contend that th’

unit petitioned for is inappropriate because of a lack of com-

munity of interest among the three classifications G6! employees.

the Board's decision in Plaza Provision Company, 15) Nivtth

-No’.i01, is controlling -as to the werehouseme. Although te--

timony at the hearing Was meager as to the duties of the diver

salesmen. helpers and warehousemen, or as to the sales and

distribution policies and proctices of the einplovers msvised

it is apparent and 1 conclude from the record us a ™ tide tin"

the driver salesmen heré, are essentially engaged in selling thei

employers products ‘and calling upon the trade. Ihus. eccordins

to the testimeny and to the contracts received in evidence. The

provisions of which ali witnesses’ testified are being observed

by the employers und the driver salesmen, it appecl> that the

driver salesmen sell and deliver beer to retail stores and coiler

payment therefor: they have no specitied hours ot work, thes

call upon tne trade, and are paid a minimum weekly salar.

plus varying rates Of. commission on cases and keg- bee,

sold. Although there does not appear to’ be any imerchuince

between the three classiticatlons of employees. the record sho.

that driver salesmen together with helpers and warehousenet.

where these Clussificubons are employed, toad and unioad tric:

in addition te the showing that helpers help the driver sulesiicii

load and uuload trucks and ther employment depends i pte

ut wast upon the vviume of sales. it. is also appuvent from the

record as a Whole, and 1 find, that the helpers accompany tl

driver salestuen on ther routes and otherwise ‘pertorin tiv

usual duties of their ciassitication. Accordingly, | nnd Ube oe

a lose community cf interest between the driver salesmen ane

_—

‘

$4°

business in Beaumont, Port Arthur, and Orange, Texas, but

excluding warehousemen, all other employees, guards,

watchmen, and supervisors as defined in the Act.

thei: helpers. The warchousemen- duties are to fot omit Uns

trucks, Keep the warchotise clean, anc in the® case oo one eon.

plover its warehousemen are used to make ‘hot shot” deliveric.

The warehousemen ere paid on an hourly Dasis. | tind. thai the

interests of the Warehousemen are diverse. frou: there of, the

driver salesmen and | shall exclude them rrom the requested

unit. Plaza Provision Company, supra bk. H. Koester Bakery Co.,

toc. We NLR No. 100. However, J do not Constitic these cause

to require the exclusion of the helpers here. In neither. of these

Causes Were helpers of driver salesmen invoived, mer docs Phaais

Provision Company it over:ulin: The Valley of Virginia Co-

operative Milk Producers Association, 125 NiLRD 755, “and Don

herr, Inc., 120 NLRB 526. to the extent inconsistent therewith,

‘hoki by inference that a unit of driver salesmen aod tres.

helper, is inapproprizte. and the’ board has repeatedly held

appropriate units inclucin: ‘driver salesmen and their helpers

Wells Dairies Cooperative, supra, Norfolk Coca-Cola Bottling

Works, incorporation, 12) NLHI) 4.

The record shoWs that there has been a- history of group cor

lective bargaining, based upon recognition, by the «distributes,

members of the Assuciation with the. Beer Salesmen reaching

back to 1948. The Association itself, as the record shows, 1s

not the authorized bargaming agent for Ms distrivutor Nien

pers. Hather the Associatioy has limited its function in ‘the

collective bargaining process to surnishung legal counsel to

the negotiating committee cCemposed of representatives front

eah of the distributer members. “Phe committee has bargaiuedt

with the Leer Sulesmen. amd the record shows Uthat) such “bar-

vuining hes resulted ii the distributor members signing sepa

rate Dut identicul coniracts wiih the beer Salesmein coverine

unis of each of the distributors’ driver salesmen. There has

been no bargainme bs the distributers. either on a multicu.

plover basis or in: single-employet basis. for, any othe -ein

plovees but the driver salesinen. .in Ue course” 0: such = bar-

cauung seine fuur oor five contracts have been viegetiaied, aa:

Current cne being presé@ntiy effective as described above. i’riv:

te the’ receunition “of the teer Saiesinen, the aistribtitor- up

group dealt with th- ‘heanisiers tus approximately threes yea:

These dealings Were alio base. on recognivon vi that orgasi-

ZMUOW as thie Pepreschiat.se of its anivel salesmen by thre ah:

DIRECTION OF ELECTION

An election by secret ballot will be conducted by the

undersigned Regional. Director among the employees in

the unit found appropriate at the time and place set torth

in the notice of election to be issued subsequently, sub-

jeew to the Board’s Rules and Regulations. Eligible to vote

are those in the unit who were employed during the pay-

roll petiod immediately preceding the date below, includ-

ing’employees who did not work during that period be-

cause they ‘were ill, on vacation, or temporarily laid off.

Also eligible are employees engaged in an economic strike

which commienced less than twelve (12) months before

tributors Armd multiple contracts were apparently entered “inte |

between the distributors and the Teamsters. A-~ noted above, the

employer’ and the Intervenor contend that the helper= sheuld/

be excluded from the unit sought by the Petitioner becatise 0!

such bargaining history. The Board has held that a prior .tisters

of cyflective bargaining as te the classifications of employee- te

be included in an approprio’e unit is not controlling where «a

close community ,,of interesst exists between a group of presi

ousJy unrepresented employees and a unit of represenied em

piovees and a labor organization “presently seeks to Inc lude the

represented employees in a unit with the represented emplovee-

Bronx County News Corporation, 5! NLRB 1567. All of Un-

sparucs here agree that the multiemployer unit is appropriate.

amd as the-multiemployes unit sought here by the Petition

ix coextensive with the multiemployer unit for which there ha-

veCH an extensive pattern of bargaining. | find the Emplose:

and Int@rvener- coatention m this respect to be without merit

See Twenty-second Annual! Keport of the National Labor Kelatien

-foard, (p. 3d. . -

Aithough the unit ft und appropriate is broader than that re

quested by tie intervenor, | am satistied that. the Inter. en

“ as the requisite showing of interest therem. In the even’ thus

the intervenor does not Wish to participate im the elects,

directed hercin i shall permit if te withdraw Upeti Neti to th

Regional Director wfthin tel day< from the date i the t-suune:

ot thi, Decision end Direction of. Election. J. K. Simplot Ce.

Ir NLRB 272. 2

the election date and who retained their status as such:

during the eligibility period and their replacements. Those

in the military services of the United States may vote if

they appear in person at the polls. _Incligible tu vote are

employees who have quit or ‘been discharged for cause

since the designated payroll period -and employees en-

gaged in a strike who have been discharged for cause since

the commencement thercof,.and whe have not been re-

hired or reinstated before the election date, and employees

‘engaged in an economic’ strike which commenced more

than 12 months before the election date and who have

been’ permanently replaced. Those eligible shall vote

whether (or not) they desize to be represented for collec-

tive bargaining purposes by Beer Drivers Local 253, Inter-

national, Union of United Brewery, Flour, Cereal, Soft

Drink and Distillery Workers of America, AFL-CIO, and

International Union of United Brewery, Flour, Cereal, Soft

Drink and Distillery Workers of America, AFL-CIO. or by

Beer Salemen of the Sabine District, 0: by neither.

Dated: September 21, 1962

at Houston, Texas

(Signed) By: CLIFFORD W. POTTFR

' Clifford W. Dotter

Regional Director for. the 23rd

Region. .

L-

APPENDIX G

Beaumont, Port Arthur,

and Orange, Texas

UNITED STATFS OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD ’SABINE DISTRICT WHOLESALE BEER

DISTRIBUTORS ASSOCIATION, INC.

‘Employer

BEER DRIVERS LOCAL 2353, INTERNATIONAL

UNION OF UNITED BREWERY, FLOUR, CERLAL,

SOFT DRINK AND DISTILLERY WORKERS OF

AMERICA, AFL-CIO, AND INTERNATIONAL

UNION .OF UNITED BREWERY, FLOUR, CERLAL,

SOFT DRINK AND DISTILLERY WORKERS. OF

AMERICA, AFL-CIO

Petitioner

DECISION ON REVIEW

On September: 21, 1962, the Regional Director for the

Twenty-third Region issued a decision in the above-en-

titled proceeding directing an election in an association-

wide unit of. driver-salesmen and helpers. Thereafter,. the

Employer, also referred to herein as Association, and the

Intervenor, Beer Salesmen of the Sabine District, in ac-

cordance with Section 102.67 of the Board's Rules and

Regulat.ons, Series 8, as amended, fil ‘with the. Board

timely‘ requests for review contending, inter alfa, that

helpers should ke excluded fro.n the unit. The Bhacd, by

telegraphic order dated january 5, 1963, granted the re-

quests for review with respect to the tssue raised -cori-

58 :

cerning the unit placement of the helpers and denied the

requests in all other respects.”

Pursuant to the provisions of Secsion 3(b) of the Act,

the Board h.s delegated its powers in connection with this

case to a three-member panel.

The Employer is a trade association comprised of eleven

employer-members' which are engaged in ihe wholesale

distribution Gt beer to retal outiets. Phe emplos er gum

bers who employ driver-salesmen. to’ deliver beer and

solicit sales have recognized the Intervenor for 40 years .

as the bargaining representative of the driver-salesmen in

an association-wide unit. However, driver-salesmen helpers *

have been excluded from this unit and are unrepresented.

On July 10, 1962, the Petitioner fled the inscant perition

seeking to represent the driver-salesmen and thet helpers

in the same unit. In his decision, the Regional Director in-

cluded the helpers of certain of the employer-members as

he found that they shared) suficient community of in-

terests with the .driver-salesmen to include the two classi-

fications together in the same unit. In their requests for

review of this determiration, the Association and.the In-

tervenoi seek to preserve their contractual unit, ¢ ntend-

ing that ‘the helpers should be excluded. A'l parties agree

that the appropriate unit should be- association-wide in

scope. . :

Meaumon: Falstdif Decvinty? Iesccorseorsed: Chiurk i

ing Companr: Dr Popper Bottimge Co. of Orange. Ime: Felde:

Fuistafi Distributer. Incorporated: Giglio Distrssutume Compo. *

Jax eer Distributers ‘of cheauimomt, ines ‘porated. J. Vis;

Peer Con puny. i/h/a Jux Valles beer Company at ort Voth.

Lone Star Deer spc fk ho ececrameotat “Incorporated, Lone

Star Beer Distributers of Pert -rthur. Ine rmoratesd; OG bel |

anel Sot - Pearl ies Posniriteret tae Ceftigecuy 2 ee Conic.

‘ ” oa ~* . ; *,

BL OID fe cn 08 os a :

The record shows that the helpers at the establishment

of six of the employer-mem'ers* are employed on a regular »

basis to assist the driver-salesmen on their routes. Al-

though the driver-salesmen hire their helpers and direct

them in their work, the helpers at al! six employer-mem-

bers are paid by company check from which social se-

‘curity arid withholding. taxes are deducted by the em-

_ployer-members. The helpers at all six employers are

likewise covered by workmen’s compensation. Fhe wages

‘of the helpers at four, of the six employer-meinbers are

deductéd from the pay of the driver-salesmen, but the

fifth concern, Pearl Beer Distributing Company, contri-

butes $15.00 a week toward the pay of each of its helpers.

At the sixth employer-member, Sabine Falstaff, the help-

ers’ entire wages are paid by the company. Two employer-

members also provide uniforms for the helpers at com-

pany expense.

In view of these circumstances, we find, in agreement

with the Regional Difector, that the helpers involved here-

in are employees of the six above-named employers’ and

share sufficient community of interests with the driver-

salesmen heretofore included within the historical unit

to warrant the inclusion of the helpers in the ame unit

“Clark Distributing Company: Feider Falstaff Distributor, Tin:

Del Papa and Sons. sear) Beer Distributing Company of betfer son

Cour vc. and Sabine Fal-taff “Dastributors, Incorpo: ated

~~ 3

“We find. also in sccord with the Regional Director. they the

helpers employed % other members of the Asseciationr are

cmplosees which we. shall therefore exelude from the athe.

ine., 152 NLEB 1411. . "6

. 60

with the driver-salesmen.' However, tn view of the bar-.

- gaining, history. we aiso find that the driver-salesme:f and

the helpers may cach also constitute separate appropriate

units, Consequently, as thegintervenor does not seek to

add the helpers to the historia@Punit. represented by it, but

desifes to participate in.an election only in that unit, we

shall not make a final unit determination at this time. Ac-

cordingly, we shall follow Board. policy prescribed in

similar circumstances” and direct separate elections in the

following 2 voting groups of employees at the Employer’s

Beaumont; Port Arthur, and Orange, Texas, establish-

ments, as described’ below, excluding from each group

warehousemen, all other employees, guards, watchmen,

and supervisors as defined: in the Act.

- Group Lies ge unit: All: oa salesmen e~vclud-

ing the em,‘loy fh.voting group (2).

Group (2) - Unrepresented unit: All helpers excluding

_ the employees in voting group (1).

. In the event a majority of the employees in voting group

(1) selects the Intervenor, we find that they § constitute an

appropriate unit, In these circumstances, if a majority of -

voting group (2) selects the Petitioner, we find that group

also constitutes a separate appropriate unit.

Wells Dairies Cooperative, Pet NER Tia See Salsa, Pepsi

(okt Bottling Company. oo. ¢ har cameogiay supra; Hoffman Cigar

Co. Ine, 1385 NLRB 756.

*Pelin’ Hath & Brother, tne. D2 NER 120 (Members Rodeers

and Leccent dissenting’. Member Rodgers, fer the reasons set

forty in Waikiki Biltmore, Ime. Pee Nur SZ. amd the disceniun

Opie an Relin Hail & ®Qrother, Pao. would ner poot the vob

herein

. ‘ (

7: oo

“If a majority of the employees in the existing unit do -

not vote for the Intervenor, we shall include the employees

in the 2 voting groups in a single oyerall unit which,

under the circumstances, we find. to be appropriate, and

we shall pool their votes. The Regional Director is in-

“structed to issue a certification of representatives’ as de- |

cided by the results of the election.

DIRECTION OF ELECTIONS

Elections by secret ballot shall be conducted among the

employees in the above appropriate units as early as

possible, but not later than 30 -days from the date below.

The Regional Directgr for the region where this case was

heard shall direct and supervise the elections subject to the’

-Board’s Rules and Regulations. Eligible to vote are those

who were employed during the payroll period immediately

preceding the date below, includ:ag employees who did

not work during that period because they were ill, on Vaca-,

tion, or temporarily laid off. Also eligible are cmplayees

engaged in an economic strike which commenced less then

12 months before the election date and who retained: their

status as such during the cligibility period, and their re~

placements, Those in the military services of the United

- States may vote if they appear in person at the polls. In-"

eligible to vote are employees who have quit or been dis-

charged for cause since the designated payroll period and

employees engaged in a strike who have been discharged

a ° ss ’ ; . : }

_ aif the votes are pooled, they ave to be tallied in the tetlowin:

manner The votes re: the dntervenor shail be counted a

votes. but neither tor ner azainsk the Pedhener os hich is sec

ing “the more comprehensive unit, NI other Vote are to ob

accorded theie face -valye, Whetuet: for crepresentauGon Dy) th

Petitioner or-for) nme umon

for cause since the commencement thereof, and who have

not been rehired or reinstated. before the election date, and

employees engaged in an economic strike which commenced

more than 12- months before the election date and who - °

-have been. permanently replaced. ‘Those eligible shall vote

whether they desire to be represented for collective-bar-.

gaining purposes by Beer Drivers Local 253, International

Uhion of United Brewery, Flour, Cereal, Soft Drink and

Distillery Workers of America, AFL-CIO, and International

Union of United Brewery, Flour, Cereal, Soft Drink and

Distillery Workers of America, AFL-CIO; or by Beer Sales-

men of the Sabine District; or by neither.

Dated, Washington, D.C. Apr. 22, 1963.

Frank W. McCulloch, Chairman

Philip Ray Rodgers, Member

John H, Fanning, Member ~

2 °

NATIONAL’ LABOR

RELATIONS BOARD -

(SEAL) ,

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PEARL BEER DISTRIBUTING COMPANY OF :

JEFFERSON COUNTY, INCORPORATED, ”

a Petitioner, |

NATIONAL LABOR RELATIONS BOARD,

Respondent.”

No. 20,849

. DECREE»

Before: ‘Rives. Bell and Wright,* Circuit Judges

BY THE COURT:—

This CAUSE came on to. be heard upon the petition

of Pearl Beer Distributing Company of Jefferson County,

incorporated, to review and set aside a certain order of the

National Labor Relations Board issued against the Peti-

tioner, on July 11, 1963, and upon cross-petition of the

National Labor Relations Board to enforce said order.

The Court heard argument ‘of respective counsel on April

13, 1964, and has considered, the bri¢fs and the transcript

filed. in this causm) On April 20, 1964, the Court being

fully advised in ¢t premises, handed down its decision

enforcing the order of the National Labor Relations Board.

ON CONSIDERATION WHEREOF, it is ordered.

adjudged and decreed by the United States Court of

Appeals for the Fitth Circuit that the said order of the

National Labor Relations | Board in said proceeding be’

enforced, and that Pearl Beer Distributing Company of

Jefferson County, Incorporated, its. officers, agents, suc-

cessors, and assigns abide by and perform’ the directions of

the Board in said order contained.

*Of the D.C. Circyit, sitting by designation.

Entered: May 1, 1964

(ORIGINAL FILED—MAY 1, 1964) |

AFFIDAVIT OF SERVICE

I, John H. Benckenstein, of counsel for petitioner %

hereby certify that service of a copy of the foregoing peti-

tion for a writ of certiorari has been made on respondent

by mail in accordance with Rule 33 of the Rules of this

Court. Dated this J@ day of June 1964.

Attorney for Petitioner —

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.