Kraft Foods Co.

National Labor Relations Board - Board Decisions

Jan 18, 1952

97 N.L.R.B. 1097 (N.L.R.B. 1952)

KRAFT FOODS COMPANY 1097
the Teamsters has bargained, actively on behalf of these employees
for the past 10 years. Although the hours provision of its contract
With the Continental Company apparently was not enforced, other
provisions as modified by some oral agreements have formed the
functioning basis for the separate representation of the Continental
salesmen.'" The Board has held that a single-employer unit is pre-
sumptively appropriate and that where, as here, there is a history of
single-employer bargaining by a member of an employer association
with regard to a special category of employees, the fact that other
employees of these employers have engaged in multiple-employer
bargaining does not overcome the presumption that the former are
properly represented in separate units.,, Accordingly, we find that
a unit restricted to the salesmen of the Employer is appropriate."
We find that all local and out-of-town bread and cake route
salesmen operating out of the Employer's plant at 1223 West 7th
Street in Little Rock, Arkansas, excluding all office and clerical
employees, all other employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
"While the Teamsters ' contract , containing a union -security clause made illegal under
the amended Act, would not bar a representation proceeding , the presence of this clause
in the contract does not mean that the Board will give no weight to the single-employer
bargaining history existing before and after the passage of the amended Act. Southwest
Truck Boxy Company , 93 NLRB 1341.
11 Rainbo Bread Co ., 92 NLRB 181 ; see also , Metro Glass Bottle Co., 96 NLRB 1008;
cf. Columbia Pictures Corporation, et al., 84 NLRB 647.
'a The Employer contends that the Teamsters ' request is based upon the extent of its
organization and submitted in evidence a letter, dated December 26, 1945, from the
Teamsters to the Continental Baking Company in which the former expressed a desire
to continue its contract with Continental until its organization of one of the other major
bakeries in Little Rock would make possible a nmltiemployer contract. Ilowever, in
making the above unit determination we have not relied upon the extent of the Teamsters'
organization among the salesmen of the Council as a controlling factor. Tclechron, Inc.,
90 NLRB 931.
KRAFT FOODS COMPANY and CHARLES T. RoEssr.ER, PETI'1'[ONER and
LOCAL 264, INTERNATIONAL BROTIIERIIOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case No.
3-RD-46. January 18,1952.
Decision and Direction of Election
Upon a petition for decertification duly filed, a hearing was held
before William Naimark, hearing officer. The hearing officer's rulings
97 NLRB No. 178.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made at the hearing 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 Herzog and Members Murdock and
Styles].
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 decertification Petitioner asserts that the Union, which
is currently recognized by the Employer, is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act. -
3. The Union contends that the petition should be dismissed on
the ground that the individual Petitioner is either a supervisor or an
agent of the Employer. The record shows that the Petitioner is a
driver-salesman who performs the same work as the other driver-
salesmen, and has no supervisory authority. In addition, the record
shows that the Petitioner had no conversation with the Employer
regarding the filing of the petition herein, and was not offered any
inducement by the Employer to file the instant petition. In fact,
the petition was initiated following a meeting between a"Board agent
and several employees who were dissatisfied with their present union
representative, and who sought the advice of the Board agent at
the suggestion of a, disinterested party whom they had consulted
prior to their meeting with the Board agent. We accordingl3i reject
the Union's contentions.
A question affecting commerce exists concerning the representation
of employees of the Employer, within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.'
4. The appropriate unit :
The Petitioner requests that a decertification election be held among
the following employees at the Employer's Buffalo, New York, plant :
All salesmen, drivers, and warehousemen, excluding all other employ-
ees, including guards, professional employees, and supervisors.
The Union contends that the unit sought is inappropriate, and
that the Board should establish separate units (1) for the salesmen
and (2) for the warehousemen and deliverymen 2 The Petitioner
and the Employer contend that the unit sought is appropriate.
1 Although there is currently no contract between the Employer and the Union, the last
contract between the parties having expired on May 1 , 1951, the Employer indicated at the
hearing that it still recognizes the Union as the representative of its employees. No
contrary contention was made by the Union.
2 The Union at the hearing made a motion to dismiss the petition on the ground that the
unit sought by the Petitioner is inappropriate. In view of our findings herein , this motion
is denied.
KRAFT FOODS COMPANY 1099,
The Employer, a Delaware corporation, is engaged in the sale
and distribution of food products from its Buffalo, New York, plant
to customers in Buffalo, Olean, and Jamestown, New York, and
Erie, Pennsylvania. In 1940 the Union was recognized by the
Employer as bargaining representative for a unit composed of
salesmen, deliverymen, warehousemen, and garage mechanics. Shortly-
thereafter, the Union was recognized as representative for the Em-
ployer's office and clerical employees. In 1947 the Union disclaimed
any interest in the representation of the office and clerical employees.
in favor of another labor organization, and since that time the
Union has not represented these employees. Commencing in 1947 the
Employer and the Union have executed annual contracts covering
salesmen, deliverymen, warehousemen, and garage mechanics. How-
ever, the parties have during that period executed two separate
contracts-one covering the conditions of employment for the sales-
men, and the other for the warehousemen, deliverymen, and garage
mechanics. In 1948, pursuant to a union-shop authorization election,
the Union was certified for a unit composed of salesmen, drivers,
shippers, and garage employees.3 The most recent contracts between
the parties expired on May 1, 1951. These contracts excluded the
Employer's salesmen in Olean and Jamestown, New York, and Erie,.
Pennsylvania.
At its Buffalo plant the Employer employs driver-salesmen, one
advance salesman, deliverymen, and warehousemen. The driver-sales-
men drive trucks containing products of the Employer, solicit orders
from its customers, and as they are obtained, fill them from the trucks.
The advance salesman solicits orders from the customers, and the
products are later delivered by deliverymen. In addition, the deliv-
erymen drive trucks loaded with products to Olean, Jamestown, and
Erie, where their loads are transferred to other deliverymen of the
Employer stationed permanently in those towns. The latter complete
the deliveries to individual customers 4
The Employer's warehousemen at the Buffalo plant accept incoming
shipments, pack outgoing shipments, and load the trucks of the
deliverymen. The warehousemen and deliverymen work under the-
supervision of the warehouse superintendent. The driver-salesmen
and the advance salesman work under the supervision of the assistant
branch manager. Separate seniority systems are maintained for the
warehousemen, deliverymen, and salesmen. The driver-salesmen have
little contact with the warehousemen or the deliverymen, as the driver-
salesmen load their own trucks and deliver the products themselves.
B 3-IIA-585. The unit was stipulated by the parties.
' Orders from these customers are obtained by advance salesmen stationed in those towns.-
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When deliverymen are not occupied in delivery work, they work in the
warehouse, and warehousemen on occasion drive trucks.
The fact that, departing from their prior practice, the parties since
1947 have executed two separate contracts, as set forth above, rather
than single contracts for all the employees represented by the Union,
is not conclusive evidence of a history of bargaining for each of the
groups covered by the later contracts on the basis of recognizing each
as a separate unit. The contracts do not set forth separate units, but
merely separately cover the wages, hours, and working conditions of
each group respectively. Under the foregoing circumstances, and
upon the entire record, we find that, while separate units might be
appropriate, the over-all unit for which the Union is currently recog-
nized, is also appropriate.
The Union seeks to exclude, as a supervisor, Fred Wrona, a ware-
houseman. The Petitioner and the Employer would include him.
Wrona has been employed by the Employer about 20 years as a
warehouseman. Although Wrona is instructed by the warehouse
superintendent, under whose supervision he and the other warehouse-
men work, to "see that things were going right" in his absence, he
does not on such infrequent occasions, or any other occasions, have
the authority to hire, discharge, discipline, or reward other employees
or effectively to recommend such action. Accordingly, we find that
Wrona is not a supervisor, and we shall include him in the unit .5 '
The following employees of the Employer constitute a unit appro-
priate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All driver-salesmen, including the advance salesman, deliverymen,
and warehousemen at the Employer's Buffalo, New York, plant, but
excluding guards, watchmen, professional employees, and supervisors
as defined in the Act.6
5. The parties are in dispute concerning the voting eligibility of
five deliverymen and a garage mechanic," who were laid off by the
Employer. While the Petitioner and the Employer contend that these
employees have been indefinitely laid off, and are therefore ineligible
5 S. Slater (C Son, 96 NLRB 1026
6 The Employer would include in the unit the deliverymen stationed in Olean , Jamestown,
and Erie. These employees were hired subsequent to the expiration of the most recent
contracts The Union would exclude them The petition does not request their inclusion.
As these deliverymen are not currently represented by the Union , nor covered by any of the
contracts, their inclusion in the decertification unit would not be appropriate . Mountain
States Telephone and Telegraph Company, 83 NLRB 773. They will accordingly, be
excluded.
7We do not include the garage mechanic in the unit found appropriate because there are
none presently employed or likely to be employed. See paragraph numbered 5 of text.
Moreover, no request was made for inclusion of garage mechanics , except insofar as such
request may be inferred from the Union' s contention that the garage mechanic recently
laid off should be eligible to vote.
WALGREEN CO. OF NEW YORK, INC. 1101
to vote in the election, the Union contends that they are only tempo-
rarily laid off and should be permitted to vote.
As a result of a change in the Employer's method of operation five
deliverymen and a garage mechanic were laid off in May 1951. Their
reemployment is not contemplated within the foreseeable future.
Accordingly, we find that they are not eligible to vote.8
[Text of Direction of Election omitted from publication in this
volume.] -
8F. B. Rogers Silver Company, 95 NLRB 1430. The garage mechanic would not, in
any event , be eligible to vote, as he has not been included in the unit found appropriate.
See footnote 6, supra.
WALGREEN Co. OF NEW YORK, INC. and CHAIN SERVICE RESTAURANT,
LUNCH & SODA FOUNTAIN EMPLOYEES UNION, LOCAL No. 11,-AF-
FILIATED, WITH HOTEL & RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION, A. F. L., PETITIONER . Case No. 2-RC--3748.
January 18,1952
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lloyd S. Greenidge,
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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and Mur-
dock].
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 organizations involved claim to represent certain
employees of the Employer. 1
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 principal issue presented in this proceeding concerns the
appropriateness of joining, for collective bargaining purposes, both
the soda fountain employees and the great majority of all other em-
ployees (called the drug departments) in the Employer's 15 drug
1 The Employer asserts that the petition is not supported by an adequate showing of
interest and apparently contends that the petition should therefore be dismissed . We find
no merit in this contention because the showing of interest in a representation proceeding
is not subject to collateral attack. O. D. Jenntings & Co, 68 NLRB 516; The Visking Corpo-
ration, 90 NLRB 1006.
97 NLRB No. 160.