South Florida Liquor Distributors, Inc. of Tampa

National Labor Relations Board - Board Decisions

Jul 11, 1955

113 N.L.R.B. 109 (N.L.R.B. 1955)

SOUTH FLORIDA LIQUOR DISTRIBUTORS, INC. OF TAMPA 109
The preventative purpose of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make effective the interdependent guarantee
of Section 7, to prevent a recurrence of unfair labor practices , and thereby to mini-
mize industrial strife which burdens and obstructs commerce , and thus effectuate
the policies of the Act, I will recommend that Respondent cease and desists from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Etiwan Fertilizer Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Union of Mine, Mill and Smelter Workers ( Independent),
Charleston Fertilizer and Chemical Workers Local No. 863, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. During the first several months of 1954, by inquiring of employees whether they
had voted in a National Labor Relations Board election , with the purpose of using
the information in an impending layoff; by telling employees they were laid off
for voting in a Board election; by telling an employee he would not be given a
raise because he had "dragged" the other employees off to vote ; Respondent in-
terfered with, restrained , and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Jacob
Stewart, Robert Gadsden, Francis Wise, Sam Mack, Ferdie Glenn, Paul Buncombe,
and James Geathers, thereby discouraging membership in the Union named in para-
graph numbered 2, above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
South Florida Liquor Distributors, Inc. of Tampa i and Inter-
national Union of United Brewery, Flour, Cereal , Soft Drink
and Distillery Workers of America, CIO, Petitioner. Case No.
10-RC-3042. July 11, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear-
ing officer . The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is a Florida corporation engaged in business in
Tampa, Florida, as a wholesale liquor distributor. The Employer
makes no sales outside the State of Florida. In 1954 the Employer
paid a total of approximately $1,500,000 for bottled liquors shipped
directly to it from out of the State by various distilleries. Of this sum,
approximately $1,002,000 represents Federal excise taxes paid by the
distillers. The $498,000 balance represents the basic price, or tax
' The name of the Employer appears as amended at the hearing
113 NLRB No.1.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
base, of the bottled goods, as determined by the distillers. The Em-
ployer contends that the excise taxes should not be considered in deter-
mining the value of its out-of-State purchases, and that so calculated,
the $498,000 balance is insufficient to meet the Board's $500,000 direct
inflow standard.2
The invoices received by the Employer do not list taxes separately.
However, regardless of the particular billing practice followed, the
taxes here involved are paid by the distillers prior to shipment of the
bottled goods, and are passed along to the Employer in the final price
which the Employer must pay to obtain the products. Clearly then,
the taxes, having already been paid, are part of the value of the bot-
tled goods when they cross State lines. Accordingly, we find that the
Employer herein has received goods directly from out of State during
1954, valued at approximately $1,500,000.
The Employer also contends, in substance, that, because of the many
Federal and State regulatory measures applicable to liquor distribu-
tors, the Board should treat this industry specially for jurisdictional
purposes. It thus would have the Board apply to it the jurisdictional
standards of the Greenwich Gas case 3-a case in which the Board
announced its jurisdictional standards for public utilities. We find no
merit in this contention.
In view of the foregoing, we find that the Employer is engaged in
interstate commerce, and that it will effectuate the purposes of the Act
to assert jurisdiction in this case.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree that the appropriate unit should consist of all
warehousemen and delivery drivers. However, the Petitioner would
exclude, as a supervisor, shipping clerk Jimenez. The Employer would
include him.
Jimenez is the senior employee and is primarily responsible for
checking the correctness of shipments leaving the Employer's ware-
house. He is higher paid than the other employees. Occasionally he
authorizes the other employees to leave early. Jimenez performs nor-
mal warehousemen's duties along with the other employees. It is ap-
parent from this record that any direction by Jimenez of the other
employees is of a routine nature, commensurate only with his position
of checker and senior employee. Jimenez has no power to hire, dis-
charge, reward, or to discipline other employees, or to effectively rec-
9 Jonesboro Grain Drying Coopeiatiue, 110 NLRB 481.
3 The G? een u,ich Gas Company, 110 NLRB 564
COAL, GASOLINE AND FUEL OIL TEAMSTERS 111
ommend such action. In these circumstances, we find Jimenez does
not'possess supervisory authority and shall include him in the unit.4
We find that all warehousemen and delivery drivers at the Em-
ployer's Tampa, Florida, warehouse, including the shipping clerk, but
excluding all other employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
4 Maame Paper Board Mills, Inc., 109 NLRB 167.
Coal , Gasoline and Fuel Oil Teamsters, Chauffeurs and Helpers,
Local Union No , 553, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL and
Stanley Gemalo. Case No. 2-CB 1150. July 12, 1955
DECISION AND ORDER
On April 19, 1955, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
`yThe'Board has,reviewed-the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations with the following additions and modifications :
The General Counsel excepts to the Trial Examiner's failure to find
that the Respondent's action causing the discharges of Gemalo and
Zaza from their jobs was violative of Section 8 (b) (1) (A) as well as
8 (b) (2). We find, in agreement with the General Counsel, that the
discharges did also violate Section 8 (b) (1) (A), because they had the
effect of coercing and restraining other employees to join or retain
membership in the Respondent Union by evidencing the Respondent's
power to have the Company discharge employees upon mere-request.'
1Local 57, United Automobile, Aircraft and Agricultural Implement Workers of America,
CIO (International Harvester Company), 102 NLRB 111; Clara-Val Packing Company,
et at., 87 NLRB 703, enforcement denied on grounds not relevant here 191 F. 2d 556
(C. A.9).
113 NLRB No. 15.