Allegheny Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 616 (N.L.R.B. 1975)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allegheny Pepsi -Cola Bottling Company and Amalga-
mated Meat Cutters and Butcher Workmen of
North America, Local 117, AFL-CIO, Petitioner,'
and Locals 430, 764, 771, 776 and 992, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Joint Petitioners.' Cases 5-RC-9005 and
4-RC-1 1213
February 14, 1975
DECISION AND DIRECTION OF
ELECTIONS
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
Upon a petition duly filed in Case 5-RC-9005
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held on July 22 and
30, 1974, before Hearing Officer Nicholas E. Karati-
nos of the National Labor Relations Board. Follow-
ing the close of the hearing the Regional Director for
Region 5 transferred this case to the Board for
decision. Thereafter, the Employer and the Petitioner
filed briefs.
Upon a petition duly filed in Case 4-RC-1 1213
under Section 9(c) of the National Labor Relations
Act, as amended , a hearing was held on October 25,
1974, before Hearing Officer Deborah F. Neipris of
the National Labor Relations Board.3 Following the
close of that hearing the Acting Regional Director
for Region 4 transferred this case to the Board for
decision. Thereafter, the Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in these proceedings to a three-member
panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in these proceedings,4 the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and the Joint Petitioners are
labor organizations claiming to represent certain
employees of the Employer.
3. Questions affecting commerce exist concerning
the representation of certain employees of the
r Hereinafter also referred to as Meat Cutters.
s Hereinafter also referred to as Teamsters.
3 At the October 25 hearing , the transcript that was developed in Case
4-RC-10888 was incorporated by reference and made a part of the
transcript in the instant proceeding. In that case, the Petitioner sought to
represent the employees at the Lancaster branch of the Harrisburg division.
Employer within the meaning of Settions 9(c)(1) and
2(6) and (7) of the Act.
4. The Employer is engaged in the manufacture,
bottling, sale, and distribution of soft drinks. Its
main office is in Baltimore, Maryland, and it
operates through four divisions, each of which is
further subdivided into a number of branch facilities
for the purposes of sales and distribution. The
proceedings herein involve only the Harrisburg
division, which has its headquarters in Harrisburg,
Pennsylvania. The eight branches which constitute
the Harrisburg division are located in Pennsylvania
(at Lancaster, York, Harrisburg, Newville, and
Selinsgrove), Maryland (at Thurmont and Hagers-
town), and West Virginia (at Martinsburg).
The Petitioner in Case 5-RC-9005 seeks to
represent a unit consisting of the sales and distribu-
tion employees employed at the Employer's Martins-
burg, West Virginia, branch, exclusive of all office
clerical employees, professional employees, guards,
and supervisors as defined in the Act. The Joint
Petitioners in Case 4-RC-11213 seek to represent a
unit consisting of sales and distribution employees
employed by the Employer in all the aforementioned
facilities of the Harrisburg division, including all
route salesmen, route managers, special men, vend-
ing machine mechanics, warehousemen, and sales
clericals; and excluding all office clerical employees,
professional employees, guards, transport drivers,
supervisors as defined in the Act, and all other
employees.
There is no bargaining history for any employees in
the division.
The Employer, in agreement with the Joint
Petitioners, contends that the only appropriate unit is
a divisionwide unit, encompassing all employees at
the Employer's eight branch facilities within the
Harrisburg division. In support of this contention,
the Employer relies upon , inter alia, the frequent
equipment interchange, uniform wages, hours, and
working conditions, several instances of permanent
transfers, functional and operational uniformity
among the branches, common work skills of employ-
ees at each of the branches, and the substantial
overall supervisory authority that the division man-
ager exercises over each of the branches. Petitioner,
however, contends that the factors relied on by the
Employer are outweighed by the substantial authori-
ty of the branch manager over day-to-day operations
at the Martinsburg, West Virginia, branch, the
geographic separation of the branches, the infrequent
The Regional Director found that the smallest appropriate unit was a
divisiodwide unit, and therefore dismissed the petition . No request for
review was filed with the Board.
4 As the above-captioned cases involve the Employer 's Harrisburg
division and as the petitions herein seek to represent some or all of the
employees in that division, the cases are hereby consolidated for decision.
216 NLRB No. 119
ALLEGHENY PEPSI-COLA BOTTLING COMPANY
temporary employee interchange between the
branches , and the fact that the employees at the
Martinsburg branch form a homogeneous , distinct,
and identifiable group.
In determining whether a particular group of
employees constitutes an appropriate unit for bar-
gaining where an employer operates a number of
facilities , the Board considers such factors as prior
bargaining history, centralization of management,
managerial responsibility of single store or branch
managers , differences or similarities in skills and
functions of employees, extent of employee inter-
change, geographical location of the facilities in
relation to each other, the general working condi-
tions and fringe benefits, and whether the employees
in the petitioned-for unit constitute a homogeneous
and identifiable group.
In. the instant case, the record shows that Division
Manager Lebo is responsible for the overall opera-
tion of the Harrisburg division. Under Lebo are four
area managers , each of whom covers two branches in
the division, and whose principal duties are training
and marketing. Apart from their training responsibil-
ities, the area managers have no personnel or labor
relations role. Each of the eight branches has a
branch manager, who functions in both sales and
managerial capacity.
For the reasons discussed below, we find that the
Harrisburg division, an administrative subdivision of
the Employer, may constitute an appropriate unit for
purposes of collective bargaining. The record shows
that general policy is implemented and overall
administrative supervision is exercised at the division
level. For example, working conditions, wages, and
benefits are determined at the division level and are
uniform among the branches . The employees at each
of the branches perform similar work in functionally
identical job classifications, and the training and
orientation which each employee receives for his job
classification is the same in all branches.
Equipment, trucks, and property are all centrally
obtained by the division through lease or purchase
agreements negotiated by the division manager.
Route trucks and equipment are transferred among
the branches as needed. Advertising and promotional
activities are established uniformly for the division.
All reports, such as for accidents, sales, complaints,
insurance, and OSHA are funneled through division
headquarters in Harrisburg.
Division Manager Lebo is responsible for the
overall supervision of the Harrisburg division. In this
capacity, he prepares and administers the division's
operating budget , negotiates leases and purchases,
and has final authority for all hiring and termina-
617
tions. He also determines the weekly production
needs of the branches and arranges for product
delivery to the branches. As administrative head of
the division, Lebo communicates almost daily by
telephone with his branch and area managers, and
spends a substantial portion of his time traveling
between the branches, which are located between
30-85 miles from division headquarters. Considering
the above, we find in agreement with the stipulation
of the Employer and the Joint Petitioners that the
divisionwide unit composed of sales and distribution
personnel at the eight branches of the Harrisburg
division constitutes a unit appropriate for purposes
of collective bargaining.
Notwithstanding the foregoing, however, we find
on the facts of this case that a single branch unit may
also be appropriate. The record demonstrates, for
example, that despite Lebo's overall supervisory
authority the branch managers exercise a substantial
degree of autonomy over the daily operation of the
branch. According to Lebo's uncontradicted testimo-
ny, branch managers "are responsible for the overall
operation of the branch. They are responsible for the
inventories, the money and to make sure the trucks
are out on the road and that there are people out on
the road." The branch manager also effectively
recommends employees for employment and dis-
charge to Lebo, who makes the final decision. With
respect to initial employment, prospective employees
apply at the branch office where they are interviewed
by the branch manager. The branch manager then
checks the applicant's references and, if there is an
opening for which the applicant is qualified, for-
wards the application to Lebo with the recommenda-
tion that the individual be hired. Once an employee
is hired, the branch manager participates in adminis-
tering the training program. Training is uniform
throughout the division, but is conducted locally at
the branches by the branch manager in conjunction
with the respective area managers. In any event,
direct supervision of the employees on a day-to-day
basis is exercised exclusively by the branch manager.
Similarly, all run-of-the-mill grievances are han-
dled by the branch manager, as are employee
reprimands for unsatisfactory performance of duties.
The branch manager also keeps daily sales records,
time records, and files of accounts receivable-at the
branch, pursues collections of delinquent accounts,
and distributes allotted overtime at his discretion to
the employees of the branch. Monthly meetings of
the employees in the branch are conducted by the
branch manager. Thus, while Division Manager
Lebo has overall operational authority for the
division, we find that the branch manager is
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible for the day-to-day operations of the
branch on a local basis and exercises considerable
responsibility with respect to employment matters.5
The Employer adduced evidence showing that
there have been a substantial number of transfers of
employees-usually by promotion or on request of
the employee-among the branches in the Harris-
burg division. The record shows, however, that
temporary transfers or interchange of employees
between the branches occur infrequently, apparently
only in the event of emergency or disaster situations.
In such circumstances the evidence of permanent
transfers here adduced is insufficient to render the
single branch unit inappropriate.
Regularly scheduled divisionwide meetings of all
employees occur only once, or possibly twice, each
year, but even then, according to Lebo, employees
from all the branches are not necessarily brought
together. Lebo also stated that occasionally the
employees of two branches under an area manager
might be brought together for a training or promo-
tional meeting , but there is no indication that this
occurs with any regularity or frequency.
The geographic distance between the branches also
is significant . From the Harrisburg headquarters, it is
35 miles to Lancaster, 30 miles to York, 30-32 miles
to Newville, 54-55 miles to Selinsgrove , 60 miles to
Thurmont , 70-75 miles to Hagerstown , and 85 miles
to Martinsburg.
The Employer contends that our decisions in Frito-
Lay, Inc., 202 NLRB 1011 (1973), and U-Wanna-
Wash Frocks, Inc., 203 NLRB 174 (1973), require a
determination that only a multiplant unit is appropri-
ate, and that a single branch unit is clearly inappro-
priate here. We disagree. In Frito-Lay the Petitioner
sought a unit composed of three districts and the
employer contended that the smallest appropriate
unit was the six-district region . In agreeing with the
employer, we emphasized the almost total lack of
autonomy of the district manager over the employees
in his district. Contrary to the instant case, the
regional manager in Frito-Lay recruited , screened,
and hired the employees, was well acquainted with
each route salesman, and closely observed the work
performance of each individual. The regional manag-
er also conducted frequent route inspections, dis-
cussed problems directly with the route salesmen,
observed their work, appraised them, and evaluated
them for promotion. We note that there is no such
close supervision over the employees by the division
manager in the present case . Here, the division
manager visits each branch only once every 2 weeks,
S In this regard , the record reveals that although Lebo visits the
Martinsburg facility about once every 2 weeks , he apparently has no direct
contact or dealings with the employees and does not engage in direct
supervision of them in their duties.
and even then his exposure is limited primarily to the
branch and area managers.
U-Wanna-Wash Frocks, supra, is similarly inappo-
site . In that case , the production manager was in
daily telephone contact with the various facilities,
and visited them three to four times per week; there
was substantial interchange of personnel; and the
product itself was shipped between the various
facilities in the course of its completion. Additional-
ly, centrally based drivers were used to transport
work and machinery among the plants on a daily
basis, and a central maintenance crew was used to
repair machinery at all facilities. These factors are in
contrast with those in the present case, where there is
infrequent personnel contact with the division
manager, there is virtually no temporary interchange
of employees, and there are branch-based drivers
and repairmen.
Accordingly, on the basis of the foregoing factors,
we find that both the single branch unit sought by
Petitioner and the multiplant unit sought by Joint
Petitioners may be appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act. However, we shall not make a final
unit determination at this time but shall direct that
elections be conducted in the following voting groups
at the Employer's facilities: 6
(A) All employees employed at the Employer's
Martinsburg, West Virginia, location, excluding
all office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
(B) All sales employees employed by the
Employer in its Harrisburg Division, located at
Selinsgrove, Lancaster, Harrisburg, York, and
Newville, Pennsylvania; and Thurmont, and
Hagerstown, Maryland; distribution facilities,
including all route salesmen , route managers,
special men, vending machines, warehousemen,
and sales clericals; excluding the employees in
voting group A, all office clerical employees,
professional employees, guards, transport work-
ers, supervisors, as defined in the Act, and all
other employees.
If the majority of employees in voting group A
selects the Meat Cutters, the employees in that group
will be taken to have indicated their desire to
constitute a separate bargaining unit, and the
Regional Director conducting the election is hereby
instructed to issue a certification of representative to
the Meat Cutters for such unit, which the Board
under the circumstances finds to be appropriate for
6 The voting groups are described as were the unit description in the two
petitions . Although the descriptions are not identical , the second shows that
they cover employees performing identical functions.
ALLEGHENY PEPSI-COLA BOTTLING COMPANY 619
the purposes of collective bargaining . However, if a
majority of employees in voting group A does not
vote for separate representation , that group will
appropriately be included in the divisionwide unit
and their ballots shall be pooled with those of voting
group B.7 If a majority of voting group B, including
any pooled group, votes for the Joint Petitioners,
they shall be certified as the representative of the
employees in that group, which under the circum-
stances the Board finds to be an appropriate unit for
purposes of collective bargaining.8
[Direction of Elections and Excelsior footnote
omitted from publication.]
r If the votes are pooled , they are to be tallied in the following manner:
The votes for Amalgamated Meat Cutters and Butcher Workmen of North
America , Local 117, AFL-CIO, shall be counted as valid votes, but neither
for nor against the Joint Petitioners which is seeking to represent the
divisionwide unit. All other votes are to be accorded their face value,
whether for representation or for no union . In the event that the results
show that a majority of the valid ballots have not been cast either for the
Joint Petitioners or against representation , it will be deemed to be an
inconclusive election, and a second election will be conducted among the
employees in the broader unit in which they will vote as to whether or not
they desire to be represented by Joint Petitioners . Penn-Keystone Realty
Corp., 191 NLRB 800, fn. 24 at 804 (1971).
8 Of course, in that event the Martinsburg, West Virginia, facility will be
added to the description of unit B.