New England Grocer Supply Co.

National Labor Relations Board - Board Decisions

Mar 9, 1944

55 N.L.R.B. 334 (N.L.R.B. 1944)

In the Matter of NEW ENGLAND GROCER SUPPLY Co. and DISTILLERY,
RECTIFYING AND WINE WORKERS' INTERNATIONAL UNION OF
AMERICA, LOCAL No. 8 (AFL)
Case No . 1-R-1737.-Decided March 9, 1944
Mr. Frank Kozol, of Boston, Mass., and Mr. Harold Seder, of
Worcester, Mass., for the Company.
Mr. Louis J. Blender, of Boston, Mass., for the Union.
Mr. Thomas B. Sweeney, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the Distillery, Rectifying and Wine
Workers' International Union of America, Local No. 8 (AFL), here-
inafter referred as the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of the
New England Grocer Supply Co., hereinafter called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Samuel G. Zack, Trial Examiner.
Said hearing was held at Worcester, Massachusetts, on February 9,
1944. The Company and the Union appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
New England Grocer Supply Co., a Massachusetts corporation, has
its principal place of business in Worcester, Massachu'setts. It is en-
gaged in the wholesale distribution of foods and beverages, including
55 N. L. R. B., No. 61.
NEW ENGLAND GROCER SUPPLY CO. 335
alcoholic beverages. During the calendar year 1943 its gross volume
of sales amounted to $3,750,000. Ninety percent of the groceries, as
well as alcoholic beverages, purchased by the Company was pur-
chased and delivered from points outside the State of Massachusetts.
Between 5 and 7 percent of the food sales is made to places outside
the State of Massachusetts. The sale of alcoholic beverages, however,
is confined to the State.
H. THE ORGANIZATION INVOLVED
Distillery, Rectifying and Wine Workers' International Union of
America, Local No. 8, is a labor organization affiliated with the Amer-
ican Federation of Labor, admitting to membership the liquor sales-
men employed by the Company.
III. THE QUESTION CONCERNING REPRESENTATION
It was stipulated at the hearing that a question concerning repre-
sentation had arisen in that the petitioner both orally and in writing
had requested the Company to bargain with it as representative of
a majority of the Company's liquor salesmen; the Company refused
to deal with the Union until and unless the Union was certified by the
National Labor Relations Board.
A statement of the Field Examiner introduced into evidence at
the hearing indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should consist of
all liquor salesmen employed by the Company. The Company con-
tends that the appropriate unit should consist of all salesmen irre-
spective of their classification.
The Company employs approximately 20 salesmen, 7 of whom are
classified as liquor salesmen and the balance as grocery salesmen. The
liquor salesmen are required to obtain a license in accordance with
the laws of the Commonwealth of Massachusetts as a condition preced-
ent to the selling of liquor within the State, and receive as compen-
sation commissions at a rate in excess of that accorded grocery sales-
men. They do not solicit grocery accounts; their sales meetings are
i The Field Examiner reported that the Union had submitted six application cards ; that
the cards , with the exception of one, were dated in December 1943 ; and that there are six
employees in the appropriate unit.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held separately; and the Company maintains separate departments
or divisions as well as separate accounts with respect to its liquor and
grocery business. In order to carry on the liquor business, it is neces-
sary for the Company to obtain special licenses, both Federal and
State, and to operate separate trucks licensed solely for the transpor-
tation of liquor. In addition, the Union under its constitution and
bylaws is authorized to accept only the liquor salesmen for member-
ship. In view of the foregoing, we are of the opinion that the liquor
salesmen constitute a separate appropriate unit.
We find that the liquor salesmen, exclusive of all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees , or effectively recom-
mend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of the National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with New England
Grocer Supply Co., Worcester, Massachusetts, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the First Region, acting in
this matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
NEW ENGLAND GROCER SUPPLY CO.
337
but excluding any who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the c?at, of the election,
to determine whether or not they desire to be represented by Distillery,
Rectifying and Wine Workers' International Union o-L America, Local
No. 8 (AFL), for the purposes of collective bargainir.lg•
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.
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