Plaza Provision Co.

National Labor Relations Board - Board Decisions

Dec 1, 1961

134 N.L.R.B. 910 (N.L.R.B. 1961)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Editorial "El Imparcial," Inc.; Universal Advertising, Agency, _Inc.; Highley
Advertising Co.; Franklin Stores of P.R., Inc.; Borinquen Music Corp. (Casa
Wurlitzer); Gomez Hermanos, Inc.; Goodyear Western, Inc.; Puerto Rico Home
Home Appliances, Inc.; Volkswagen de Puerto Rico, Inc.; Gonzalez Padin Dis-
tributing Corp.; Singer Sewing Machine Co.; F. W. Woolworth Co.; Eastern
Airlines.
(c) Notify the Regional Director for the Twenty-fourth Region, in writing, within
20 days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.
It is further recommended that unless the Respondent shall within 20 days from
receipt of this Intermediate Report notify said Regional Director in writing it will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order in accordance with the above.
And it is also recommended that the portions of the complaint, as amended,
alleging the violation of Section 8(b) (4) (i) (B) in respect to Cerveceria Corona, Inc.,
and Goodyear Western, Inc., and of Section 8(b)(ii)(B) in respect to Publicidad
Badillo, Inc., and Star Publishing Corp., be dismissed.
APPENDIX
NOTICE TO ALL MEMBERS AND OTHER PERSONS CONCERNED
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that:
WE WILL NOT break windows or cause any to be broken, or cause any other
damage to the property of, or threaten, or otherwise coerce or restrain any of the
companies listed below, or any other person engaged in commerce or in any
industry affecting commerce, where an object thereof is forcing or requiring any
of them or any other such person to forego advertising in El Imparcial or to
cease doing any other business with Editorial "El Imparcial," Inc.
The companies above referred to are: Franklin Stores of Puerto Rico, Inc.,
Borinquen Music Corp. (Casa Wurlitzer); Gomez Hermanos, Inc.; Goodyear
Western, Inc.; Puerto Rico Home Appliances, Inc.; Volkswagen de Puerto
Rico, Inc.; Gonzalez Padin Distributing Corp.; Singer Sewing Machine Co.;
F. W. Woolworth Co.; Eastern Airlines; Universal Advertising Agency, Inc.;
and Highley Advertising Co.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS,
LOCAL 901, IBTCW & H OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Plaza Provision Company (P.R.) and Teamsters , Chauffeurs,
Warehousemen and Helpers , Local 901, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case No. f4-RC-1593. December 1, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Marie B. Poston,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
134 NLRB No. 101.
PLAZA PROVISION COMPANY (P.R. ) 911
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 Section 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all drivers, helpers, and ware-
housemen employed by the Employer at all of its warehouses in
Puerto 'Rico. The Employer contends that the unit should conform
to the unit previously found appropriate by the Board in its Decision
and Direction of Elections issued December 7, 1960, in Cases Nos.
24-RC-1410 and 24-RC-1415,1 involving the same operations. In
that decision the Board directed elections in two units: one of sales-
men and the other of production and maintenance employees, includ-
ing warehousemen, checkers, inventory clerks, the janitor, truckdriv-
ers, and special and route salesmen 2 The Board included the special
and route salesmen in the latter unit under its holding in The Valley
of Virginia Cooperative Milk Producers Association, 127 NLRB 785,
that driver-salesmen, like truckdrivers, should be included in produc-
tion and maintenance units unless the parties agree to exclude them
or some labor organization seeks to represent them separately. In
the present case, issues are raised solely with respect to the unit place-
ment of special and route salesmen and the janitor.
The Board has reconsidered its holding in the Valley of Virginia
case and decided to modify its policy with respect to the unit place-
ment of alleged driver-salesmen.
Our experience has shown us that the duties of employees who
drive truck or automobiles and distribute products of their employer
from their vehicles may vary greatly, depending upon the given em-
ployer 's sales and distribution policies and practices. In some in-
stances, the employees have little or no function in making or promot-
ing sales of the employer's products but are essentially deliverymen
or truckdrivers. In others, their function is clearly selling and sales
promotion, and driving vehicles is merely an incident of such func-
tion. There are also instances where the employees perform both func-
tions and a determination as to which predominates will depend
upon a close examination of all the facts as to their duties and em-
ployment 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
I Not published in NLRB volumes.
2 The petitioner in those cases, a labor organization other than the Petitioner herein,
subsequently was permitted to withdraw its petitions wth prejudice.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
The record in the instant case 3 shows that the Employer is a whole-
sale distributor of food products and other provisions in the Common-
wealth of Puerto Rico. It has five sales districts which are serviced by
three warehouses. One of the warehouses, at Hato Rey, near San
Juan, has a separate supervisor and it services three districts, each of
which has a sales manager who is over sales employees in his district.
The other two districts each has a sales manager who is over all em-
ployees in his district. Route salesmen operate out of the warehouses
within prescribed routes. They drive trucks or station wagons. They
sell all lines of the Employer's products and deliver merchandise from
their vehicles. Special salesmen, except those formerly classified as
merchandisers, have the same duties but carry only one line of prod-
ucts. The special salesmen who used to be merchandisers drive a truck,
assist in the promotion of a special line of products, set up displays, and
sell from their trucks. There are other salesmen, classified as products
managers, advertising men, wholesale salesmen, and specialists, en-
gaged in sales and promotion work, who travel by automobile.
All salesmen, including those who placement is in dispute, are paid
a salary plus incentive bonuses in connection with sales promotions.
Warehousemen and truckdrivers receive a straight salary. There is
no interchange between route or special salesmen and warehouse em-
ployees or truckdrivers. Fringe benefits, such as vacations, sick leave,
accident insurance, and Christmas bonuses, are the same for all em-
ployees.
On the basis of the foregoing and the entire record, we are of the
opinion that the route and special salesmen involved are truly sales-
men. Contrary to the Employer, we are not persuaded that they are
merely deliverymen or truckdrivers. We find, therefore, that the in-
terests of the route and special salesmen are diverse from those of the
warehousemen and truckdrivers and we shall exclude them from the re-
quested unit .4
We find that the following employees constitute a' unit appropriate
for the purposes of collective bargaining within' the meaning of Sec-
tion 9 (b) of the Act :
'The Board has taken official notice of the record in Cases Nos . 24-RC-1410 and
24-RC-1415 , a prior proceeding involving the Employer . Except as to the duties of the
special salesmen formerly classified as merchandisers , the record in the instant case does
not indicate any substantial change in the duties of the employees involved since the hear-
ing in the prior proceeding The facts here set forth , therefore , are derived in part from
the record in the earlier proceeding.
4 The cases of The Valley of Virginia Cooperative Milk Producers Association , supra;
Don Kerr, Inc , 129 NLRB 526 ; and other similar cases, to the extent that they are in-
consistent herewith, are hereby overruled The prior decision to the contrary in Cases
Nos. 24-RC-1410 and 24-RC-1415 is likewise overruled.
SUPERIOR GRAPHITE COMPANY 913
All drivers, helpers, and warehousemen employed by the Employer
at all of its warehouses throughout the Commonwealth of Puerto
Rico, including the janitor 5 but excluding route salesmen, special
salesmen, former merchandisers, all other sales personnel, office cleri-
cal employees, professional employees, guards, and supervisors as de-
fined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
As indicated in the majority opinion the duties of the driver-
salesmen in question have not changed substantially since the hearing
in Cases Nos. 24-RC-1410 and 24-RC-1415, involving the same opera-
tions of the Employer. The Board decided in those cases that the
driver-salesmen should be included in a unit of the Employer's pro-
duction and maintenance employees. As the same employees are in-
volved herein, I would adhere to the Board's prior determination of
the appropriate unit. The majority's departure from the previously
approved unit would seem to lend controlling weight to extent of
organization factors.
5 As the janitor was included in the warehouse unit previously found appropriate, and
no persuasive reason is advanced at this time for a contrary disposition, he is included
herein.
Superior Graphite Company and Oil, Chemical and Atomic
Workers International Union, AFL-CIO. Cases Nos. 13-CA-
4093 and 13-CA-4160. December 1, 1961
DECISION AND ORDER
On September 15, 1961, Trial Examiner Charles W. Schneider is-
sued his Intermediate Report herein, finding that the Respondent
engaged in unfair labor practices and recommending that it cease and
desist therefrom and take affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and the General Counsel filed
a brief in support of the Intermediate Report.
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 Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.
134 NLRB No. 96.
630849-62-vol. 131-59