Durham Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Apr 20, 1942

40 N.L.R.B. 753 (N.L.R.B. 1942)

In the Matter of DURHAM PEPSI-COLA BOTTLING COMPANY and IN-
TERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, AND
SOFT DRINK WORKERS OF AMERICA
Case No. R-3641.-Decided April 20, 19112
Jurisdiction : soft drink manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Durham and Burlington plants, including garagemen, storage
drivers, pick-up drivers, and utility drivers, but excluding driver-salesmen,
driver-salesmen helpers, sign workers, and supervisory and clerical employees.
Mr. Egbert L. Haywood, of Durham, N. C., for the Company.
Mr. Thomas X. Dunn, of Washington, D. C.,.for the Union.
Mr. Robert E: Tillma?i, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT. OF THE CASE
On December 17, 1941, International Union of United Brewery,
Flour, Cereal, and Soft Drink Workers of America, herein called
the Union, filed with the Regional Director for the Fifth -Region
(Baltimore, Maryland) a petition and, on January 19 and"February
14, 1942, amended petitions, alleging that a question affecting coin-
merce had arisen concerning the representation of employees of
Durham Pepsi-Cola Bottling Company, Durham, North Carolina,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Feb-
ruary 27, 1942, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act, and Article
III, Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered an investigation and authorized
the Regional Director to conduct-it and to provide for an appropriate
hearing upon due notice.
40 N. L. It. B., No. 125.
753
4557 71-42-vol 40--48
754 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
On February 28, 1942, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. Pursuant to notice, a hearing was held on March 13.
1942, at Durham, North Carolina, before Earle K. Shawe, the Trial
Examiner duly designated by the Chief Trial Examiner., The Com-
pany and the Union were represented and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. During. the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. On March 25 and 26, 1942, respectively, the
Company and the Union filed briefs, which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Durham Pepsi-Cola Bottling Company is a North Carolina corpo-
ration engaged in the bottling and distribution of a soft drink, known
as Pepsi-Cola. The Company bottles this beverage under a franchise
from the Pepsi-Cola Company of Long Island City, New York, which
grants the Company exclusive bottling and distribution rights for
121/2 North Carolina counties. The -Company operates 1 plant in
Durham, North Carolina, and another in Burlington, North Carolina,
about 30 miles away. In conjunction with these plants, it maintains
storage warehouses at Sanford, Raleigh, and Henderson, North Caro-
lina; all are within a radius of 55 miles from Durham. During
1941, the Company purchased raw materials and supplies, excluding
water, amounting in value to $504,720.02. These purchases included
syrup, sugar, labels, crowns, glue, bottles, and cases. All of these raw
materials were shipped to the Company from points outside of the
State of North Carolina. During the same year the Company paid
$1,146.41 for water, all of which was local to the State of North
Carolina. Water constitutes 83 percent in volume of the final prod-
uct. During the same period, the Company manufactured and dis-
tributed bottled Pepsi-Cola of the value of $1,062,198.00, all of which
was sold and distributed within the State of North Carolina.
On these facts we find, contrary to the contention of the Company,
that its operations constitute commerce within the meaning 'of the
Act.'
See National Labor Relations Board v. Robert S Green, Inc, 125 F. (2d) 485 (C C A.
4) (building materials ) ( 1942 ) ; Wilson & Co, Inc v National Labor Relations Board, 124
F (2d) 845 ( 1941 ), rehearing denied; National Labor Relations Board v Suburban Lumber
Co, 121 F. (2d) 829 (retail lumber industry) (1941) ; Virginia Electric & Power Co. V.
'DURHAM PEPSI-COLA BOTTLING COMPANY
II. THE ORGANIZATION INVOLVED I
755
International Union of United Brewery, Flour, Cereal, and Soft
Drink Workers of America is an unaffiliated labor organization,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union informed the Company that it represented a majority
of the production and maintenance employees at the Company's Dur-
ham and Burlington plants and requested the Company to bargain
with it. The Company denied this request because it considered the
proposed unit to be inappropriate. A statement of the Regional
Director introduced in evidence at the hearing shows that the Union
represents a substantial number of the employees in the unit herein-
after found to be appropriate.2
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of.the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union proposes a unit of all production and maintenance em-
ployees paid on a flat wage basis, without commission, at -the -Com-
National Labor Relations Board, 115 F ( 2d) 414 ( 1940 ) See also Matter of Mr and Mrs
H. P. Hunnicutt, Individuals d Co-partners, D/B/A Pepsi-Cola Bottling Company of Prince-
ton, and C TV Lawrence , Jr., J J S. Taylor, Sr. and Local Union No . 502, international
Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers of America , Welch, W. Va.
(AFL), 35 N L R B 605 ( 96-97 percent of sales are local ) ; Matter of Wm Tehel
Bottling Company, a co-partnership composed of TVm. Tehel , Irma Holloway, Melvin
Pitlik, and Anna Tehel and International Brotherhood of Teamsters , Chauffeurs , Stable-
men, and Helpers , Local 238, affiliated with the American Federation of Labor and United
Beverage Workers Association , party to the contract , 30 N. L R B 440 ( sales all
local ) ; Matter of Carpenter Baking Company, a corporation, Michael Carpenter Company,
a corporation, M. Carpenter Baking Company , a corporation, Joseph J Carpenter, indi-
vidually, Joseph M. Carpenter , individually, and M. H. Carpenter, individually and Auto
Truck Drivers Joint Council No 50 (A F L ), 29 N. L R . B 60 (bakery , sales all
local
2 The Regional Director stated that the, Union submitted 44 authorization cards to him ;
that 36 bore apparently genuine original signatures , 7 were marked with a cross and
carried the name , of the signer and the name of a witness , and 1 bore a handprinted
signature ; that all 44 cards weie dated between December 3, 1941, and January 6, 1942 ;
and that the February 3, 1'942 , pay roll of the Company , listing 45 employees in the
proposed unit, contained names appearing on 34 of the cards.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's two plants, including garagemen,3 storage drivers, pick-up
drivers, and utility drivers.4 but excluding driver-salesmen, driver-
salesmen helpers, sign workers,5 and supervisory 6 and clerical em-
ployees. The Company opposes the exclusion from the unit of
driver-salesmen, driver-salesmen helpers, and W. W. Emory, a sign
worker. _
There has been no history of collective bargaining among the
employees of the Company.' The duties of those employees as to
whose inclusion in the unit there is no dispute may be briefly sum-
marized. Plant labor, consisting of 15 employees at each plant, is
engaged in the task of preparing and bottling Pepsi-Cola for
distribution. The pick-up drivers, 2 in' number, prior to the recent
sugar shortage delivered Pepsi-Cola by truck to home consumers.
The Company's sales manager testified that this service has been dis-
continued, and that these men probably work in the plant now as
plant labor. The storage drivers, of whom there are 9, haul Pepsi-
Cola from the plants to the Company's 3 warehouses where it is more
conveniently available for distribution to retailers by driver-salesmen.
The -utility driver drives various trucks or cars but, unlike driver-
salesmen, does not distribute Pepsi-Cola to retailers. Three me-
chanics, or garagemen, are stationed in a garage attached to the
Durham plant, where they repair and overhaul the Company's trucks.
Employees in each of the above-mentioned categories work on a
55-hour per week basis and receive time and a half for overtime.
We find that the above-mentioned categories of employees should be
included in the unit hereinafter found to be appropriate.
Driver-salesmen: The Union contends that driver-salesmen, of
whom there are 30, should be excluded from the unit because they are
salesmen and supervisors, and have few interests in common with the
s Garagemen are also known as mechanics . The parties stipulated not to exclude the
head mechanic , B F. Fox, as supervisory.
4 The Union ' s petition also listed inspectors , watchmen , and firemen among the inclu-
sions. The Company states that there are no watchmen , and that plant labor employees
take turns inspecting the bottles and their contents , as well as checking automatic fire
stokers attached to the plants ' heating units.
5 The Union 's petition also listed painters among the exclusions , but the painters are
identical with the sign workers and are also referred to as the advertising crew There
are only two persons in this category , and the parties agreed to the exclusion of one of
them, W. P Hester, as supervisory.
9 The parties agreed to exclude A U Mann and R T Taylor, Jr as supervisors over
driver-salesmen The parties also stipulated to exclude C H Burnett , Charles Haley,
and Frank Jefferys as supervisors.
7 On January 30, 1941 , however , the Union filed - an amended petition calling for a unit
of "All -employees of the Company at its Duiham and Burlington plants. except long
distance diivers, supervisors , and office force ." This petition stated that there were
approximately 61 employees in this unit The parties entered into a Stipulation for
Consent Election, which , in setting up the unit, used verbatim the language of the
petition . An election was held on February 8, 1941, in which 88 employees were found
eligible to vote, and 83 voted The Union lost this election , 44 to 39 The Union then
protested the results , asserting that employees whom it did not intend to be in the unit
bad voted The protest was disallowed
i
DURHAM PEPSI-COLA BOTTLING COMPANY 757
inside plant employees, The Company denies that driver-salesmen
are supervisors. It asserts that they do have mutual interests with
the inside employees.
The driver-salesmen sell Pepsi-Cola, driving the trucks used in
distributing that beverage to retailers. One of their functions is to
solicit customers and to collect payment upon delivery of the product.
The contention that driver-salesmen are supervisors is based upon
the fact that half of them have helpers. A driver-salesman has
considerable discretion as to whether or not he works with a helper.
If he desires one, he obtains permissionfrom the Company, where-
upon either the Company or he, subject to Company approval, hires
a helper. The Company insists upon the use of a helper only if the
driver-salesman is not covering his route adequately or with sufficient
dispatch. It is within the driver-salesman's power to cause his helper
to be transferred or even discharged if he proves incompetent. The
helper works under him and takes orders from him.
Unlike inside employees,'who are paid straight salaries which av-
erage around $18 a week, the driver-salesmen receive $15 a week
in salary, plus a commission upon each empty crate which they return
to the plant. If they do not have helpers, they receive 4 cents a crate;
with helpers, they receive only 3 cents a crate, the remaining 1 cent
going to the helper. There was uncontradicted testimony from a
witness who had been employed by the Company for 6 years in
various capacities such as advertising manager and sales supervisor,
that the total earnings of driver-salesmen, with or without helpers,
averaged between $35 and $50 per week." The driver-salesmen are
considered commission men, and as such are exempt from the over-
time provisions of the North Carolina law. Thus, they work no
set number of hours, and their hours vary. The driver-salesmen
come to the plants each morning for their trucks, and they bring them
in each night, at which time they load them for the next day. Load-
ing furnishes virtually the sole occasion in which they come in actual
contact with plant labor. Very rarely does one of the driver-salesmen
work in the plants. No attempt has been made by the Union to
organize the driver-salesmen.
In view of all these facts, we are of the opinion that driver-salesmen
should be excluded from the unit.
Helpers: The Union would exclude helpers, claiming that their
first allegiance, is to the driver-salesmen under whom they work. The
Union goes so'far as to assert that the helper is an employee of the
driver-salesman and not of the Company.
8 The Company ' sales manager stated that he had no dispute with the testimony of this
witness concerning the earnings of driver salesmen
758 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
The Company in, fact reserves the right to discharge helpers and to
give them orders, though such orders usually come through the driver-
salesmen. On the other hand, the only remuneration the helpers
receive -for, their services is the 1 cent commission per empty crate
referred to above. In other words, 1 cent of the 4 cents commission
which the Company pays on the return of empty crates goes to the
helper instead of to the driver-salesman. The Company handles the
actual paying of the helper by handing him his check.9 It is appar-,
ent, however, as the Union claims,, that the Company pays out no
extra money by virtue of having driver-salesmen helpers on its pay
roll. Like the driver-salesmen, the helpers are exempt from the over-
time provisions of the North Carolina law. Unlike plant labor they
do not punch time clocks. Their earnings vary from $7 to $12 per
week. Helpers rarely work in, the plant, and none of those now em-
ployed worked in the plant before becoming helpers. Occasionally
a helper will drive a route if the driver-salesman is ill and the helper
is' competent. We conclude and find that the interests of the helpers
are more closely related to those of the driver-salesmen than to those
of plant labor. In view of all these facts, we shall exclude the
helpers from the unit along with the driver-salesmen.
The sign worker: The Union would exclude W. W. Emory, the sole
nonsupervisory employee engaged as a sign worker, because he is
allegedly eligible to membership in a painters' union. The work of
Emory and his supervisor, Hester, involves creating, painting, and
erecting signs along the highways. They also paint the Company's
trucks. Both men spend most of their working time on the highways,
but occasionally, in the event of inclement weather, work indoors. If
there is no inside `sign work on such bad days, Emory works in the
plant with the plant labor. In spite of the fact that Emory occasion-
ally works with the plant labor, we shall exclude him from the
unit because the nature of his regular work differs materially from
that of plant labor.
We find that all production and maintenance employees of the
Company at its plants in Durham and Burlington, North Carolina,
including garagelnen, storage drivers, pick-up drivers, and utility
drivers, but excluding driver-salesmen, driver-salesmen helpers, sign
workers, and supervisory and clerical employees, constitute a unit
appropriate for the purposes of collective bargaining, and that said
unit will insure to employees of the Company the full benefit of their
right to self-organization, and to collective bargaining and otherwise
will effectuate the policies of the Act.
6 The Company deducts Social Security , Workmen 's Compensation , and Unemployment
Compensation payments from these checks
DURHAM PEPSI-COLA BOTTLING COMPANY 759
VI. THE' DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
The parties suggested that the pay roll of March 12, 1942, be used as
a basis for determining eligibility to vote, but failed to give any
substantial reasons for this preference. In accordance with our usual
practice, we,shall ' direct that those eligible to vote shall be the em-
ployees in the appropriate 'unit who were employed during the
pay-roll period immediately preceding the date of our Direction of
Election, subject to the limitations and additions set forth therein.
Upon the basis of the-above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Durham Pepsi-Cola Bottling Company at
its plants in Durham and Burlington, North Carolina, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All production and maintenance employees of the Company at
its plants in Durham and Burlington, North Carolina, including ga-
ragemen, storage drivers, pick-up drivers, and utility drivers, but
excluding driver-salesmen, driver-salesmen helpers, sign workers, and
supervisory and clerical employees, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
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 Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Durham Pepsi-Cola Bottling Company at its plants in Durham
and Burlington, North Carolina, 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 of Election, under the direction and
supervision of the Regional Director for the Fifth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
..among all production and maintenance employees of the Company
at its Durham and Burlington plants, who were employed during the
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay-roll period immediately preceding the date of this Direction'of
Election, including garagemen, storage drivers, pick-up drivers,
utility drivers, and employees who did not work during such pay-roll
period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding driver-salesmen, driver-salesmen helpers, sign workers, sup-
ervisory and clerical employees, and those employees who have since
quit or been discharged for cause, to determine whether or not they
desire to be represented by International Union of United Brewery,
Flour, Cereal, and Soft Drink Workers of America for the purposes
Of collective bargaining.