Gunzenhauser Bakery, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1962

137 N.L.R.B. 1613 (N.L.R.B. 1962)

GUNZENHAUSER BAKERY, IN C. 1613
Gunzenhauser Bakery, Inc. and Local 6, American Bakery &
Confectionery Workers International Union, AFL-CIO, Peti-
tioner. Case No. 4-RC-4678. July 23, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Seymour X.
Alsher, hearing officer. Thereafter, the Employer made an offer of
proof of further evidence which it believed to be relevant in the light
of the standards for the unit placement of driver-salesman set forth
in Plaza Provision Company (P.R.), 134 NLRB 910. The Board
ordered the record reopened for the submission of such evidence
and thereafter another hearing was held before the same hearing
officer. The hearing officer's ruling made at the hearings are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
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 Section2(6) and (7) of the Act.
4. The Employer is engaged in the manufacture and sale of bakery
products at its plant at Lancaster, Pennsylvania. The Employer also
operates five retail outlets in city markets in Lancaster, and a retail
outlet within its plant where it sells returned and day-old bakery
products. There is no history of collective bargaining for any of the
employees involved.
The Petitioner seeks a unit of all production and maintenance em-
ployees at the Lancaster plant. It would exclude driver-salesmen,
solicitors, truckdrivers, garage employees, and retail clerks. The
Petitioner took no position on the status of three individuals classified
as night packers who work within the plant under the supervision of
the sales department. The Employer contends that a unit which would
-exclude the classifications named above would be inappropriate.
Driver-salesmen and solicitors: The Employer sells both at whole-
sale and retail. Its wholesale customers are grocery markets, restau-
rants, and other institutional users. Its retail customers are in the
main purchasers to whom its products are delivered at home by driver-
salesmen. There are in excess of 30,000 such accounts. Retail sales
137 NLRB No. 171.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARS
are also made from its stalls in five city markets in Lancaster and at
its plant.
The Employer has 110 driver-salesmen and 5 substitute driver-
salesmen who also serve as solicitors for new accounts. They are
directed by 14 supervisors who report to the firm's sales manager and
his assistant. The driver-salesmen and solictors are hired and dis-
charged by the sales manager. Of the 110 driver-salesmen, 18 are
engaged exclusively in deliveries to wholesale users, 11 in combined
wholesale and retail routes, and the remainder, approximately 80 in
number, are exclusively retail. The wholesale drivers work 6 days
per week about 10 hours per day. Approximately 1 hour is spent
at the bakery in loading at the beginning of the day and unloading,
and checking in at the end of the day. Each wholesale route aver-
ages about 70 miles and serves about 55 stores or other institutions.
The retail driver-salesmen serve either county or city routes. They
spend about a half hour at the plant. The number of customers on
each retail route is approximately 325 to 350, of whom close to 300
are served each day. About 60 percent by dollar volume is accounted-
for by delivery of bread alone, while the remaining 40 percent covers
a wide variety of sweet goods. Bread deliveries are made by what
are known as "drop stops," where the driver-salesman merely leaves
a fixed number of loaves in accordance with a prior order. Other
customers are served by having the driver-salesman contact the cus-
tomer by personally displaying a basket containing a variety of'
sweet goods.
Driver-salesmen are paid a guaranteed salary plus commission on,
their collections. On the average, they earn between $85 and $90' per
week, although some drivers earn as much as $125. The bulk of the,
production and maintenance employees are paid $80 to $90 per week
and with overtime pay may earn up to $120.
Although driver-salesmen are encouraged to seek new accounts
through recommendations of present customers, a large percentage of
new business is acquired through means other than the personal solic-
itation of the 110 driver-salesmen. The major sources of new busi-
ness at the retail level are through personal solicitations by the 14
supervisors and 5 solicitors and through the Welcome Wagon service
which, on behalf of participating merchants, makes calls on all new
residents in the area. Every person thus contacted by Welcome Wagon
is thereafter visited by a driver-salesman who leaves a free gift.
On a few occasions, driver-salesmen have been transferred to pro-
duction jobs in the plant, usually at their own request. Some driver-
salesmen may also work as night and Sunday packers for additional
compensation on an hourly rate. Such assignments are made to those
driver-salesmen who want it. No more than 3 or 4 per week are-
GUNZENHAUSER BAKERY, INC. 1615,
required for this work. All driver-salesmen punch a timec ] ock in the
plant, share other facilities there, and receive the same fringe benefits
as other employees.
In the Plaza Provision case, supra , the Board announced that it
would in the future include or exclude from production or warehouse
units those individuals who combined delivery and sales, depending
on whether the driving or sales functions predominated . As was said
in that case:
Our experience has shown us that the duties of employees who
drive trucks or automobiles and distribute products of their em-
ployer from their vehicles may vary greatly, depending upon the
given employer's sales and distribution policies and practices.
In some instances , the employees have little or no function in
making or promoting sales of the employer's products but are
essentially deliveryinen or truckcrivers . In others their function
is clearly selling and sales promotion , and driving vehicles is
merely an incident of such function . There are also instances
where the employees perform both functions and a determination
as to which predominates will depend upon a close examination
of all the facts as to their duties and employment conditions.
We believe that where the employees in question are shown to
be engaged in selling their employer's products and they drive
vehicles and make deliveries of such products as an incident of
such sales activity , they are essentially salesmen and have interests.
more closely allied to salesmen in general than to truckdrivers or.
to production and maintenance or warehouse employees.
Recently in E. Ti. Koester Bakery Co.. Inc., 136 hTLRI3 980,,
the Board excluded driver-salesmen from a, production and mainte-
nance unit in it baking plant comparable to that involved here because.
they promoted the sale of the employer's products as an essential part
of their work and had little contact with production and maintenance
employees.
In the instant case, the Employer has no separate force of salesmen
who solicit orders to be delivered later by drivers, but as in Koester
the success of the Company's sales program depends on the driver-
salesmen. They function as order takers aaid make their deliveries on
the basis of such orders. Although neither solicitation of customers
for the purpose of increasing sales nor solicitation of new accounts
is a major part of their duties, the driver-salesmen are responsible for
the success or failure of the Employer's sales and collections from its.
30,000 home delivery accounts. Since the driver-salesmen deal directly
with customers and must satisfy them in order to retain their patron-
age, their value to the Employer is based on qualities not required of-
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant employees and, concomitantly, their interests and working con-
ditions are materially different from those employees who work ex-
clusively in the plant. Accordingly, we find that the driver-salesmen
and the solicitors are predominantly engaged in the Employer's sales
and distribution system, and we shall exclude them from the unit
sought by the Petitioner.'
Night packers: There are three employees in the order department
who pack cakes, pies, other sweet goods, and specialty products. They
count these items out and accumulate them in baskets which the driver-
salesmen then load onto their trucks. Their work is identical to that
performed by the day packers. The Petitioner conceded that the type
of work they perform would indicate that they should be included in
the unit, but preferred to leave such determination to the Board since
they were attached to the order department which is within the Em-
ployer's sales, rather than in its production, organization. We find
because of their duties that the night packers are properly to be in-
cluded within the production and maintenance unit. Ebersole, an
individual who spends 90 percent of his time as a night packer, is
also referred to as a driver because the remainder of his working time
is spent in making two wholesale deliveries each morning, one in Lan-
caster and one in a small town in the county. Because the bulk of his
time is spent within the plant on production work, we shall include
Ebersole with the other night packers.
Truckdrivers: There are two individuals, McDevitt and Balmer,
who apparently spend most of their time delivering baked goods from
the plant to the five city markets where the Employer leases stalls
for retail sales. They are paid on an hourly basis and, except for
the time spent in loading, are away from the plant the remainder of
the day. They are directed by the supervisor of the order department
who also directs the work of the market salesladies. The status of
drivers who work primarily in making deliveries away from the plant
was considered in the Koester case, supra. As in that case, there is
no history of collective bargaining with respect to the truckdrivers,
the parties are in disagreement as to their inclusion in a production
and maintenance unit, and no labor organization seeks to represent
them separately. Since the truckdrivers are engaged in transporta-
-tion rather than in production and spend most of their time away
from the plant, we find, as in Koester, that their interests are dissimilar
from those of the production and maintenance employees. We shall
exclude them from the unit.
In Member Leedom's opinion, these so-called driver- salesmen are essentially delivery
.drivers, whose duties and interests do not differ materially from the duties and interests
.of the Employer's other truckdrivers. He would therefore consider the unit placement of
All such drivers as a single group. As he agrees, for the reasons stated hereinafter, that
truckdrivers as a group may be excluded from the appropriate unit in this case, he also
.agrees to the exclusion of these "driver-salesmen."
GUNZENHAUSER BAKERY, INC. 1617
Garage mechanics: There are four individuals who work in the
garage in the repair and maintenance of the Employer's vehicles.
They are separately supervised and do not interchange with the inside
plant maintenance personnel. The garage is located in the main bak-
ery building but occupies a separate area away from the plant main-
tenance department. As the function of the garage employees is part
of the Employer's distribution system, we find that their interests are
more closely allied with those employees than with the plant produc-
tion and maintenance workers. We shall, in accord with the Peti-
tioner's request, exclude them from the unit found appropriate herein.
Retail salesladies: The Employer leases a stall in each of five city
markets in Lancaster where it displays and sells its bakery products.
Each market is open 2 or 3 days per week and two salesladies attend
each of the stalls. They therefore work either 20 or 30 hours per week
exclusively at one retail outlet. In addition, at the plant adjacent to
the packing area, the Employer sells returned and day-old goods.
Two women who act as checkout clerks also work in the packing room
on such jobs as crumbing and cubing bread. Since the salesladies at
the market stalls rarely come to the plant and are engaged exclusively
in meeting customers and in selling, we shall exclude them from the
unit because of the difference between their working conditions and
those of the production employees. However, since the two employ-
ees in the returned-goods area at the plant spend a considerable part
of their time in production work, we shall include them in the unit.
We find that the following employees constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section
9(b) of theAct:2
All production and maintenance employees of the Employer at
its Lancaster, Pennsylvania, plant, including night packers and
returned-goods employees, but excluding office clerical employees,
truckdrivers, garage employees, market salesladies, driver-salesmen,
substitute driver-salesmen, solicitors, professional employees, guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
2 We find without merit the Employer's contention that the unit requested by the Peti-
tioner is based on extent of organization and is therefore inappropriate under Section
9(c) (5) of the Act Our finding that a unit of production and maintenance employees,
excluding sales and distribution employees, is appropriate is supported by factors wholly
unrelated to the Petitioner's extent of organization; moreover, Section 9(c) (5) only pre-
cludes the Board from giving controlling weight to extent of organization Western
Light & Telephone Company, lice, 129 NLRB 719, 722 The Electronic and Instrumenta-
tion Division of Baldwin-Lima-Ilamilton Corporation, 118 NLRB 917, 919
649856-63-vol. 137-103