General Beverages Co.

National Labor Relations Board - Board Decisions

Aug 15, 1949

85 N.L.R.B. 696 (N.L.R.B. 1949)

In the Matter of GENERAL BEVERAGES COMPANY, EMPLOYER and
INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL,
SOFT DRINK AND DISTILLERY WORKERS, LOCAL UNION 196, CIO,
PETITIONER
Case No. 32-RC-93
SUPPLEMENTAL DECISION
AMENDED DESCRIPTION OF UNIT
AND
SECOND DIRECTION OF ELECTION
August 15, 1949
On February 15, 1949, the National Labor Relations Board issued'
its Decision and Direction of Election in this case.' On February 28,
1949, the Petitioner filed a motion to reopen the record to adduce
further evidence as to the status of the Employer's driver-salesmen.
Thereafter, the Employer filed an answer to the Petitioner's motion.
On March 11, 1949, the Board issued an order granting the motion,
reopening the record, and remanding the case to the Regional Director
for further hearing.
On March 25 and 26, and April 26, 1949, a further hearing in this
proceeding was held at Memphis, Tennessee, before Richard C. Keenan,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
The Petitioner seeks to include the Employer's driver-salesmen
and their helpers in a unit of production and maintenance employees
at the Employer's Memphis, Tennessee, bottling plant. The Em-
ployer contends that the driver-salesmen should be excluded as super-
visors. On the record made at the first hearing, the Board found,
on certain uncontradicted testimony offered by the Employer, that
the driver-salesmen were supervisors, and excluded them from the
1 81 N. L. R. B. 647.
2 The hearing officer referred to the Board the Employer' s motion to strike from the
record all the proceedings pursuant to the Board 's order reopening the record on the
grounds, (1) that the reasons asserted by the Petitioner in support of its motion to reopen
the record were not true , and (2 ) that nothing new had been added by this "portion of the
record. This motion is hereby denied.
85 N. L. R. B., No. 126.
696
GENERAL BEVERAGES COMPANY 697
unity found appropriate. Both the Petitioner and the Employer
introduced additional evidence at the reopened hearing in support of
their respective contentions.
Upon the entire record in the case the Board makes the following
supplemental findings of fact :
The Employer operates a comparatively small' beverage bottling
business,3 conducted under management of the Employer's president,
who is assisted by an office manager, a sales supervisor, and a bottling
foreman. The sales supervisor is in charge of the driver-salesmen,
and coordinates their work so that none of them encroaches upon the
route or territory assigned to any other salesman. He also goes out
on the route with new men to train and instruct them. During the
slow seasons he drives a truck on one of the Employer's routes. Each
of the Employer's driver-salesmen usually is assisted by one helper,4
who helps him load the truck at the plant and carry the bottles to the
premises of the various retailers to whom the Employer's beverages are
sold. Both the driver-salesman and his helper report to the plant after
their work on the route is completed, where they unload the empties
and sometimes reload their truck, to be ready for the next day's trip.
Usually, the driver-salesmen and their helpers go to the plant in the
morning a little before the other employees arrive, and reload their
trucks. Frequently, if a driver-salesman is without a helper on a par-
ticular morning, he inquires of his supervisor, the bottling foreman,
or the president himself, and if any of these men know of a helper who
is available they refer him to the driver. If there is none to spare,
they usually select one from among the groups of men who often come
to the plant in the morning • inquiring for 'work. If there are none
available from this source, helpers are often obtained by the Employer
from the local employment office.
It appears, however, that on some occasions, when a driver-salesman
has been in need of a helper and could not be supplied with one from
the plant, either the president or the supervisor has told the driver-
salesmen to go out and pick one up for himself. On a number of
occasions the president or the supervisor has discharged undesirable
helpers. However, on infrequent occasions when a driver-salesman
worked with a helper who was utterly undesirable, the driver-salesman
has dispensed with such helper in the middle of the trip. Sometimes
when a helper has quit in the middle of his day's work, a driver-sales-
man has himself procured another helper while out on his route.
' At the time of the second hearing there were employed at the Employer's plant 8 driver-
salesmen in addition to the sales supervisor, 9 helpers, and about 9 or 10 other employees.
* The record discloses only one instance in which a driver-salesman has had more than
a single helper.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The driver-salesmen report the time worked by their helpers, and re-
ceive from the Employer the helpers' pay, which they transmit to the
helpers.
Careful examination of the entire record does not support the con-
tention of the Employer that its driver-salesmen have been generally
instructed or authorized to hire and discharge their helpers, or that
they have in fact hired and discharged helpers as a general practice.b
The Board has recently held in a case similar to this, wherein the
driver-salesmen's direction of the simple activities of their individual
helpers was routine in character, that the authority of these driver-
salesmen was like that of a skilled craftsman with respect to a single
helper working under his direction.6 On the record now before us,
we conclude, as we held in that case, that the Employer's driver-
salesmen are not supervisors within the meaning or intent of the Act.7
We shall include the driver-salesmen and their helpers in the unit.
AMENDED DESCRIPTION OF UNIT
It is hereby directed that the unit description shall be amended
in accordance with this Supplemental Decision, and that the unit found
appropriate herein shall be described as follows :
All production and maintenance employees at the Employer's Mem-
phis, Tennessee, plant, including driver-salesmen and their helpers,
but excluding office and clerical employees and all supervisors as
defined in the Act.
SECOND 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 super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, 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
5 The Employer offered the testimony of several members of a local bottlers exchange to
the effect that it has been customary in the Memphis, Tennessee , bottling industry for
driver -salesmen to hire and discharge their helpers . This evidence , however, is not con-
clusive as to the status of this Employer ' s driver-salesmen . Moreover , it is significant in
the evaluation of this testimony that in June 1948, one of these very members of the bottlers'
exchange entered into a consent election agreement with the Petitioner providing for
inclusion of driver -salesmen in a unit of bottling plant employees.
6 Matter of Atlanta Coca -Cola Bottling Company, 83 N. L. B. B., 187.
7 Matter of Dr . Pepper Bottling Company, 78 N. L. B. B. 1261.
GENERAL BEVERAGES COMPANY 699
of this Second 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 to 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 represened, for purposes of collective bargain-
ing, by International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers, Local Union 196, CIO.
MEMBERS HOUSTON and MURDOCK took no part in the consideration
of the above Supplemental Decision, Amended Description of Unit,
and Second Direction of Election.