Santa Barbara Distributing Co

National Labor Relations Board - Board Decisions

Aug 21, 1968

172 N.L.R.B. 1665 (N.L.R.B. 1968)

SANTA BARBARA DISTRIBUTING CO.
Santa Barbara Distributing Co., Employer-Peti-
tioner and Joseph A. Ricchetti , d/b/a Kings Coun-
ty Distributing Co.,' Employer -Petitioner and
Louis J. Basso , d/b/a Basso Distributing Co.,2 Em-
ployer -Petitioner and Roy P. Denney, Inc., Em-
ployer -Petitioner and Teamster Brewery and Soft
Drink Workers Joint Board of California .3 Cases
31-RM-76, 31-RM-85,4 31-R-86,5 31-RM-88,
31-RM-90,6 and 31-RM-917
August 21, 1968
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
consolidated hearing, pursuant to Section 102.82 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, was held before
Hearing Officer Max Steinfeld. The Employer-Peti-
tioners, hereinafter referred to as the Employers,
filed a brief with the National Labor Relations
Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with these cases to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby af-
firmed.
The Board has considered the entire record in
these cases, including the brief, and makes the fol-
lowing findings:
1. The Employers are engaged in commerce
within the meaning of the Act and it will effectuate
the policies of the Act to assert jurisdiction in this
proceeding.
2. The parties stipulated, and we find, that the
Joint Board is a labor organization within the mean-
ing of the Act. The Joint Board claims to represent
certain employees of the Employers.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployers within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. Prior to 1962, most California beer
wholesalers were represented in labor negotiations
by the California Beer Wholesalers Association's
labor fund. Joint negotiations in 1962 between the
' Name given as amended at the hearing
2 Name given as amended at the hearing
7 Teamster Brewery and Soft Drink Workers Joint Board of California,
hereinafter referred to as the Joint Board , is an Intervenor in this proceed-
ing The Joint Board was afforded full opportunity to participate in the
1665
labor fund and the Joint Board resulted in a collec-
tive-bargaining agreement which terminated in
1964. Some time after the 1962 negotiations had
been completed, Erwin Lerten was retained by vari-
ous California beer wholesalers as their collective-
bargaining representative. These wholesalers
resigned from the labor fund and proceeded to bar-
gain individually through Lerten.
In 1964, Lerten sent individual letters on behalf
of each client terminating the contract with the
Joint Board. The Joint Board also sent similar in-
dividual letters to each wholesaler. The Joint Board
was told that Lerten represented each client on an
individual basis and that none of his clients would
be bound by the actions of any other wholesaler.
After some bargaining, the Joint Board called a
strike against some wholesalers but not all, and ulti-
mately an agreement was reached on August 18,
1964. A majority of Lerten's clients authorized him
to sign on their behalf, although not all of Lerten's
clients authorized such action. While most of Ler-
ten's clients signed the 1964 agreement with the
Joint Board, some refused to sign any contract and
others had individual contracts with Teamsters lo-
cals.
At the time that the 1964 contract terminated in
1967, Lerten represented about 160 of California's
approximately 200 beer wholesalers. The 1964 con-
tract was terminated in the same manner as the
1962 contract had been terminated. Lerten sent in-
dividual letters of termination on behalf of each
wholesaler which, in addition to declaring that he
represented each client on an individual basis,
stated that the beer wholesaler on whose behalf the
letter was written withdrew from any previously ex-
isting or present multiemployer unit. Again the
Joint Board sent separate letters to each beer
wholesaler demanding recognition; and, as he had
done in 1964, Lerten announced at the outset of
negotiations that he was representing each of his
clients on an individual basis.
During the 1964 and 1967 negotiations, Lerten
was the sole negotiator for his clients. He held
prenegotiation meetings in order to ascertain the
individual demands of his clients, and various
clients attended negotiating sessions as they wished
or when called upon for advisory purposes.
On June 6, 1967, after reaching a proposed
agreement, Lerten agreed to submit it to his clients.
Although a formal vote was not taken, a majority of
the clients rejected the agreement. Lerten told the
hearing and to submit a brief in support of its position to the Board
4 Formerly Case 20-RM-987
Formerly Case 20-RM-986
e Formerly Case 2I-RM-1315
Formerly Case 21-RM-1316
172 NLRB No. 190
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joint Board which clients accepted and which re-
jected the agreement, but the Joint Board refused
to submit the agreement to its membership unless
an overwhelming majority of the wholesalers
agreed. Shortly thereafter, a second agreement was
reached. On June 22, 26, and 30, Lerten gave the
Joint Board lists of the beer wholesalers who agreed
to the second proposed agreement. On July 27, the
Joint Board signed it, Lerten signed on behalf of
those clients authorizing him to do so The Em-
ployers involved herein were not the only clients
who refused to sign the agreement; approximately
50 of Lerten's other clients also refused to sign the
agreement on July 27
Subsequent to signing the agreement on July 27,
Lerten met on various occasions with the Joint
Board or a Teamsters local in order to reach an
agreement satisfactory to Lerten's clients who had
refused to sign the July 27 agreement. Meetings
were held on August 23, 28, and 31, September 1
and 21, October 26, and November 3. A number of
these meetings concerned a group of nonsigners in
a particular area of California, although a few of
the meetings were limited to individual nonsigners
While some of the meetings resulted in adoption of
the July 27 agreement with specific modifications,
not all of the meetings were successful nor did all of
Lerten's clients who refused to sign on July 27 en-
gage in these later sessions. None of the Employers
involved herein reached agreement with the Joint
Board.
On the basis of the above facts, it is our opinion
that in 1967 each of the Employers involved herein
retained Lerten solely for its own individual con-
venience and for the added efficiency and probable
reduced cost that Lerten was able to offer, and did
not thereby intend to participate in any multiem-
ployer unit. We further find that this intent was ef-
fectively and timely communicated to the Joint
Board.
Accordingly, we find that the following em-
ployees of each of the Employers constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
(a) All truck drivers and warehousemen," ex-
cluding salesmen and merchandisers, clerical
employees, guards, professional employees,
and supervisors as defined in the Act.9
(b) All salesmen and merchandisers, exclud-
ing truck drivers and warehousemen, clerical
employees, guards, professional employees,
and supervisors as defined in the Act.10
[Direction of Elections 11 12 13 omitted from publi-
cation. J
8It is unnecessary for us to determine whether the term bottlers or
warehousemen should be used in the unit description since it appears that
the parties do not disagree on which employees are actually included in the
unit
This unit applies to each of the four Employer-Petitioners herein
1' This unit applies to Employer - Petitioners Roy P Denney , Inc , and
Joseph A Ricchetti , d/b/a Kings County Distributing Co
" The Joint Board has indicated that it may wish to disclaim representa-
tion in any or all units here found appropriate If the Joint Board does so
disclaim representation within 10 days from the date of the issuance of this
Decision and Director of Elections, the related RM petition will be
dismissed and the following shall be applicable in lieu of a Direction of
Election for the unit so disclaimed
Any petition filed by the Joint Board within 6 months from the date of
disclaimer will not be entertained unless good cause is shown to the
contrary Moreover , in the event the Joint Board makes a new claim
for recognition within 6 months from this date, a motion requesting
reinstatement of the related RM petition will be entertained
'x Robert and Daniel Litchfield are employees of Santa Barbara Dis-
tributing Co But since each is one-ninth owner of the Company and their
father is an owner and president of the Company, we find that they should
be excluded from the list of eligible voters
" In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the elections should have access to lists of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
derwear Inc , 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly , it is hereby directed that election eligibility lists , contain-
ing the names and addresses of all the eligible voters, must be filed by the
Employers with the Regional Director for Region 31 within 7 days of the
date of this Decision and Direction of Elections The Regional Director
shall make the lists available to all parties to the elections No extension of
time to file these lists shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the elections whenever proper objections are
filed