Deep Rock, Inc.

National Labor Relations Board - Board Decisions

May 18, 1949

83 N.L.R.B. 694 (N.L.R.B. 1949)

In the Matter of DEEP RocK, INC., EMPLOYER and BAKERY AND FOOD
DRIVERS , WAREHOUSEMEN AND HELPERS , LOCAL UNION 64, AFFIL-
IATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONEE
Case No. 1-RC-784.-Decided May 18, 191119
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Robert E.
Greene, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. _
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 [Chairman Herzog and Members
Reynolds and Gray].
Upon the entire record in this case, the Boards finds :
1. The Employer, a manufacturer and distributor of bottled drinks
at West Barrington, Rhode Island, is engaged in commerce within
the meaning of the National Labor Relations Act.
2. The Petitioner is a labor organization affiliated with the Ameri-
can Federation of Labor claiming to represent certain employees
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 Petitioner seeks a unit composed exclusively of the Em-
ployer's driver salesmen. The Employer contends that its produc-
tion employees should also be included.
The Employer's manager testified that in emergencies production
employees had occasionally gone out on sales routes and vice versa.
However, in the normal operations there is no commingling of func-
tion and no working contact except for casual encounters on the load-
ing platform. The record establishes that driver salesmen constitute
a homogeneous group with work interests divergent from those of
83 N. L. R. B., No. 108.
694
DEEP ROCK, INC. 695
the production employees. Accordingly, we find a unit limited to
driver salesmen to be appropriate for bargaining purposes.'
The Petitioner seeks to exclude as supervisors two individuals,
Dan Wilson and Earl Larissa, whom the Employer designates as
senior salesmen. As Wilson and Larissa have no routes of their own
but are familiar with all of them, they train new driver salesmen 2
and substitute for any who may be absent. They handle the placing
of large advertising signs on dealer's premises, which necessitates
their traveling with experienced driver salesmen and affords them
a full opportunity to observe the salesmen's work. They also go out
with any driver salesman who may be experiencing difficulty in cov-
ering his route. They do not have the power to hire or discharge, and
the Employer contends that they initiate no personnel action and give
no orders except those they transmit from the manager. However,
the record discloses that stops have been removed from driver sales-
men's routes, and that in one case a driver salesman was shifted from
one route to another, immediately after one of the senior salesmen
had travelled with the salesman on his route. Wilson and Larissa's
predecessors were designated by the Employer as supervisors. Al-
though the Employer testified that ,its senior salesmen do not; have
the, degree of authority which was possessed by these supervisors,,we
believe, in view-of-the entire record, that the senior salesmen possess
authority to make effective recommendations affecting the status of
the driver salesmen. We shall therefore exclude them from the unit.
The Petitioner asks that Louis Picerelli be excluded from the pro-
posed unit because he is a brother of Peter Picerelli, vice president and
manager of the Employer.8 Louis Picerelli is a driver salesman who
services all of the Employer's wholesale customers, handles special
orders, helps at the loading platform, and occasionally changes tires.
We shall exclude Louis Picerelli because of the closeness of'his rela-
tionship to the manager.4
The Petitioner also asks for the exclusion of Kenneth Viall and
John Larissa, driver salesmen, on the ground that their employment
was, for the, purpose of "padding the pay roll." Viall and John
Larissa were employed on November 8, 1948, 4 days before the filing
of the petition, at a time when the driver salesmen were engaged in
a strike or work stoppage. The Petitioner apparently contends that
'Hatter or Carnation Company or Texas, 78 N. L. R. B. 519 ; Matter of Roanoke Coca-
Cola Bottling Works, Inc., 72 N. L. R. B. 733.
2 Training of new men is not, however, exclusively in the hands of senior salesmen, new
men frequently being sent out with regular driver salesmen until they become familiar
with the Employer's practices.
I The Petitioner and the Employer agree that Peter Picerelli' s son , Peter Picerelli, Jr.,
should be excluded.
4 Matter of Superior Bakery, 78 N. L. R. B. 165.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hiring of these men, together with the classification of Carl Larissa
and Dan Wilson as senior salesmen , rather than supervisors, consti-
tuted a concerted plan to control the election by upsetting the Union's
possible majority.5 In this representation proceeding, however, we
are not concerned with the Employer's motive in employing these two
employees. They have continued to be employed by the Employer
since the end of the strike, when all the employees returned to work.
The record contains nothing to indicate that Viall and John Larissa
are not permanent employees. We shall include them in the unit.
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All driver salesmen at the
Employer's plant at West Barrington, Rhode Island, excluding the
son and the brother of the manager, the senior salesmen , and all other
supervisors as defined in the Act.
DIRECTION OF ELECTION
. -As part'•of the investigation -to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the First Region, and subject
to Sections 203.61 and 203.62 of National Labor Relations Board
Rules and Regulations-Series 5, as amended, among the employees in
the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction of Election, including employees who did not
work, during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior the date of the election, and also excluding employees on
strike who are not entitled ' to reinstatement, to determine whether
•or'not they 'desire to be represented, for purposes of collective bargain-
ing, by Bakery and Food Drivers, Warehousemen and Helpers, Local
Union •64, affiliated with International Brotherhood of Teamsters,
'Chauffeurs', Warehousemen and Helpers of America, AFL.
B The Petitioner filed a written motion that the Board find that the employment of Viall
and Larissa during the strike was in violation of certain provisions .of the Rhode Island
-statutes Insofar as the Petitioner may thus have been seeking to show that the Employer
was guilty of an unfair labor practice , we shall not consider • the matter because it is our
practice not to receive evidence of an un unfair labor practice in a representation proceed.
ing If the Petitioner was seeking to establish that Viall and Larissa are not employees,
we find the Rhode 'Island statutes to be ' immaterial, as it is not the function of this Board
to determine compliance with State statutes.