Mil-Kay Bottling Co.

National Labor Relations Board - Board Decisions

Mar 4, 1952

98 N.L.R.B. 447 (N.L.R.B. 1952)

AMERICAN FACTORS COMPANY 447
AMERICAN FACTORS COMPANY, D/B/A 1 MIL-KAY BOTTLING COMPANY
AND BIRELEY 'S BOTTLING COMPANY and SALES DRIVERS, HELPERS AND
BUILDING CONSTRUCTION DRIVERS, LOCAL UNION No. 859 , INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, PETITIONER . Case No. 10-
RC-1659. March 4, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John S. Patton, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudical 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 Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer, a Georgia corporation, maintains its office and
principal place of business in Atlanta, Georgia. It is engaged in the
bottling, sale, and distribution of soft drinks, under franchise agree-
ments with General Foods Corporation of Hollywood, California,
and Mil-Kay Orange Corporation of America of St.. Louis, Missouri.
Under its General Foods franchise; the Employer has the exclusive
right to bottle and distribute Bireley's Beverages within a radius of
about 35 miles from Atlanta. These beverages are manufactured
from extracts supplied by General Foods. In the bottling process,
the employer adds sugar, water, and carbonic gas, all of which are
purchased within the State of Georgia. These products are distrib-
uted in bottles bearing the Bireley name and trade-mark, from trucks
which also bear the Bireley insignia. During the 12-month period
preceding the date of the hearing, the Employer purchased Bireley
extracts, labels, and bottle caps amounting to more than $30,000.
The Employer's Mil-Kay franchise gives it exclusive bottling and
distribution rights to Mil-Kay products in Atlanta and neighboring
counties. It is not required to use Mil-Kay insignia on its trucks,
and in fact uses the same trucks mentioned above, from which Bireley's
Beverages are distributed; but all Mil-Kay drinks are marketed in
distinctive bottles and cases. Mil-Ktiy extracts and related supplies
are purchased in St. Louis, Missouri,,and are shipped directly to the
Employer.
During the 12-month period preceding the date of the hearing,
the Employer's purchases originating outside Georgia amounted to
1 The name of the Employer appears as amended at the hearing,
98 NLRB No. 67.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about $68,000. Its gross sales during this time were about $313,000,
composed almost entirely of sales to grocery stores, cafes, and other
such customers within the franchise areas. On the basis of these
facts and the entire record in the case, we find that the Employer is
an integral part of two multistate enterprises. Accordingly, we find
that it will effectuate the policies of the Act to assert jurisdiction
over the Employer.2 Its motions to dismiss the petition on juris-
dictional grounds are, therefore, denied.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) of the Act for the following reasons:
The Petitioner seeks to represent eight route salesmen or drivers
allegedly employed by the Employer and engaged in the distribution
of beverages within the city of Atlanta. It would exclude, as inde-
pendent contractors, an equal number of route salesmen or, drivers
who work for the Employer in rural distribution areas. The
Employer asserts that the proposed unit is inappropriate because five
of the eight persons sought by the Petitioner were, at the time of the
hearing, independent contractors like the rural drivers, and because
the remaining three would • be ' placed in a similar status by about
January 10, 1952, The Employer also contends that if the Atlanta
drivers are nevertheless held to be employees, the only appropriate
unit must embrace both city and rural drivers.
The record shows that the five route salesmen recently shifted to
an independent contractor status have bought, or are preparing to buy,
their own trucks and equipment. These five, like the rural drivers,
purchase supplies of beverages for cash at the plant loading dock.
Each is assigned a specific route and territory. The record shows that
the Employer exercises no control over these drivers, beyond requiring
them to .sell a "satisfactory" amount of goods within their assigned
territories. Before the beginning of the. new relationship, they were
paid a guaranteed minimum ' salary, plus commissions. Since the
change, they have not been paid any salaries, and the Employer has
withheld no income taxes and has paid no unemployment insurance
or social security for them. Their only compensation is the difference
between the price paid the Employer and the amount received from
the customers for the distributed products .3
The legislative history of the Act shows that Congress intended
that the Board recognize as employees those who "work for wages or
2 Baxter Bro.v., 91 NLRB 1480: see, also. Rockford Coca-Cola Bottl,nq Co , 81 NLRB 579
Rural drivers pay slightly less per case for beverages than the five city drivers. ,
ANItRICAN FACTORS COMPANY 449
salaries under direct supervision," and as independent contractors
those who "undertake to do a job for a price, decide how the work will
be done, usually hire others to do the work, and depend for their income
not upon wages, but upon the difference between what they pay for
goods, materials and labor and what they receive for the end result,
that is, upon profit." 4 Applying these standards to this case, we find
that all the rural drivers and a majority of the urban drivers own-
their own trucks and equipment and receive no compensation from
the Employer, and that their income depends on the difference between
what they pay for beverages and what they receive from the cus-
tomers. Their hours and their days of work are not fixed by the
Employer, they determine for themselves the order and the manner
in which routes are to be covered, they pay all taxes, license fees,
and insurance required for their operations, and the Employer does not
carry them on any payroll. Upon these facts, we .find that these
urban drivers, like the rural drivers, are not employees but independ-
ent contractors, and that, as the remaining urban drivers are, or
shortly will be, independent contractors, no appropriate unit exists for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
The Petitioner contends that the change in relationship between
the urban drivers and the Employer is based solely upon the Em-
ployer's desire to defeat the Petitioner's organizational activities.
The Petitioner's claim is based essentially upon a charge that the
Employer is committing an unfair labor practice. We shall not
attempt to determine whether the Employer is, in fact, so engaged.
The appropriate remedies for such a chargq must be pursued under
other provisions of the Act, not in a representation proceeding s
Upon the foregoing facts and the entire record, we conclude that
the route drivers petitioned for herein are not employees within the
meaning of the Act. We shall, therefore, dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed. ,
4 80th Cong, 1st Sess , House of Representatives Report No 245, April 11, 1947, p. 18
S The Times Herald Printing Company, 94 NLRB 1785 , Sinclair Refining Company, 93
NLRB 1115, Nelson-Ricks Creamery Company, 89 NLRB 204.
6 Balaban & Katz (Princess Theati e), 87 NLRB 1071.