Southern Bakeries Co.

National Labor Relations Board - Board Decisions

Oct 10, 1962

139 N.L.R.B. 62 (N.L.R.B. 1962)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business is located on U.S. Highway 66, in the city of Sullivan, Frank-
lin County, Missouri. Duiing the fiscal year ended July 31, 1962, the
Petitioner did a gross volume of business in the amount of $218,556.06.
4. No response to the petition herein as provided by the Board's
Rules and Regulations, Series 8, has been filed by the Union.
On the basis of the above, the Board is of the opinion that :
1. The Petitioner is a retail enterprise engaged in selling gasoline,
oils, fuels, and accessories to cars and trucks.
2. The Board's current standard for asserting jurisdiction over re-
tail enterprises within its statutory jurisdiction is a gross volume of
business of at least $500,000 per annum (Carolina Supplies and Ce-
ment Co., 122 NLRB 88). The Petitioner's gross volume of retail
business, $218,556.06, for the fiscal year ended July 31, 1962, does not
meet the retail standard for assertion of jurisdiction by the Board.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that the Board
would not assert jurisdiction over the Petitioner because the facts
submitted do not establish that his operations meet the Board's stand-
ard for asserting jurisdiction over retail enterprises.
MEMBER LEEDOM took no part in the consideration of the above Ad-
visory Opinion.
Southern Bakeries Company and American Bakery & Confec-
tionery Workers International Union , AFL-CIO, Local 482,
Petitioner . Case No. 12-RC-1%,51. October 10, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before M. E. Stadler,
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 [Chairm,an McCulloch and Members Fanning 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 named below claims to represent certain
employees 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. At its plant at Jacksonville, Florida, involved herein, the Em-
ployer is engaged in the production and distribution of bakery prod-
139 NLRB No. 4.
SOUTHERN BAKERIES COMPANY 63
ucts to grocery stores, restaurants, and institutional users. Cake and
bread is baked at the Jacksonville plant and is shipped daily by
company-owned tractor-trailer trucks which are driven by six trans-
port drivers to the seven warehouses operated by the Employer in
Florida and Georgia. The six transport drivers also deliver to large
institutional accounts and to other bakers. At the warehouses, the
products are dropped off and are then reloaded onto panel trucks
which are driven by driver-salesmen who service routes in a prescribed
area. The driver-salesmen work along with nine route supervisors
who relieve them when they are ill or on vacation and who accom-
pany new salesmen in learning their routes. The route supervisors
may also fill in for absent transport drivers.'
The Petitioner, which presently represents the production and
maintenance employees at the Jacksonville plant, now seeks to rep-
resent a unit limited to the six transport drivers who drive between
the plant and the warehouses. The Employer contends that a unit
so limited is inappropriate because it excludes the driver-salesmen and
route supervisors. There is no history of collective bargaining for
any of the employees involved herein.2 Of the 47 driver-salesmen em-
ployed, 15 report to and work directly from the Jacksonville plant,
while the remaining 32 work out of 1 of the 7 distribution points lo-
cated at various distances from the plant. The driver-salesmen service
grocery stores and restaurants by driving from stop to stop, checking
in fresh merchandise and putting it on the. shelves, placing display
advertising in the store, and removing stale merchandise. The driver-
salesmen submit invoices for the goods sold and receive cash payments
from the customer. They are also encouraged to solicit new business,
but their primary responsibility is in servicing their existing routes
and customers.
The driver-salesmen And route supervisors are paid a base salary
and commission on sales, tiro commission usually amounting to ap-
proximately two-thirds of their weekly salary. They are guaranteed
' In Southern Bakeries Company, Case No 12-RC-681 ( not published In NLRB volumes),
the Board found that the route supervisors were not supervisory employees within the
meaning of the Act No contention is made in this case that their duties and responsi-
bilities have been changed since then
2In addition to the case mentioned in footnote 1 above, in which no bargaining repre-
sentative was selected , the Board had also issued a decision involving this plant (Case
No 12-RC-1124 , not published in NLRB volumes ), in which a petition for a unit limited
to the transport drivers was dismissed on the ground that there existed a substantial
community of interest between the driver - salesmen and the transport drivers . The Board
relied on the principle established in Valley of Virginia Cooperative Milk Producers
Association, 127 NLRB 785, to the effect that where the parties disagreed as to the unit
placement of various categories of drivers , they would all be included in the larger unit
sought . This rule , however , has since been modified in Plaza Provision Company, 134
NLRB 910, where the Board decided to base the unit placement of drier-salesmen on the
nature of their Interests and duties , rather than on whether the parties disagi eed as to
their unit status Because of the Board ' s present view of the factors to be considered in
these cases , we do not regard our earlier decision involving this Employer as controlling
here.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a minimum wage if their commission and base salary do not reach a
predetermined level. The guaranteed minimum wage is approxi-
mately equal to the pay of the transport drivers, who receive a
straight weekly salary. The compensation of the route supervisors
and driver-salesmen varies in accordance with their sales, above the
guaranteed minimum. Vacation, pensions, and other benefits are the
same for the driver-salesmen and the transport drivers.
There are no specific skills required for becoming a driver-sales-
man or transport driver other than the ability to drive a truck and to
read, write, and figure. However, the salesmen and route supervisors
are selected on the basis of being a "sales type," which means that they
must dress neatly and have pleasant personalities. The route super-
visors are selected from among the driver-salesmen on the basis of
their ability to make sales and to get along with people. There is
almost no permanent interchanging of jobs between the transport
drivers and the driver-salesmen.
In two recent cases involving the distribution of bakery products
through driver-salesmen, the Board has excluded both driver-salesmen
and truckdrivers from a unit of plant employees.' In the Gunzen-
hausor case, the Board excluded the driver-salesmen from a unit of
plant employees on the ground that they dealt directly with cus-
tomers whom they had to satisfy in order to retain their patronage,
and that, consequently, their value to the Employer was based on
qualities not required of plant employees, while their interests and
working conditions were materially different from such employees.
In the present case, the issue is whether the duties and interests of the
driver-salesmen are sufficiently different from those of the transport
drivers to warrant their exclusion from a unit of such drivers. Here,
as in Gunzenhauser, the driver-salesmen are in contact with the Em-
ployer's customers, they function as order takers, and make deliveries
on the basis of such orders. Although they are required to take care of
their regular accounts as the first order of responsibility, the driver-
salesmen are encouraged to obtain new business. Other than the
driver-salesmen and route supervisors, the Employer has no personnel
engaged exclusively in selling.
The transport drivers, on the other hand, do no selling, drive much
longer distances, and make fewer stops. Their work is limited es-
sentially to over-the-road driving. They drive tractor-trailers having
many times the capacity of the panel trucks driven by the driver-sales-
men. The transport drivers are supervised directly by the sales
managers, whereas the driver-salesmen look to the route supervisors
for their instruction and direction. Based on the foregoing, we be-
lieve that the transport drivers have interests and working condi-
8 E. H. Koester Bakery Co., Inc., 136 NLRB 1006, and Gunzenhauser Bakery, Inc.,
137 NLRB 1613.
DECKER TRUCK LINES 65
tions which are sufficiently different from those of the driver -salesmen
and route supervisors to warrant the exclusion of the latter two groups.
We also note that no union seeks to represent a combined unit of trans-
port drivers and driver -salesmen . We find, therefore, that the follow-
ing employees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act:
All transport ( relay ) drivers employed by the Employer at its
Jacksonville , Florida , plant , excluding all other employees , guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Loren A. Decker d/b/a Decker Truck Lines and Local Union
650, Teamsters, Chauffeurs, Warehousemen and Helpers of
America, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case No. 18-CA-1036. October 12, 1962
SUPPLEMENTAL DECISION AND ORDER
On August 24, 1960, the Board issued a Decision and Order in the
above-entitled case 1 finding inter alia that the Respondent had dis-
charged Carl Reisner in violation of Section 8(a) (1) and 8(a) (3)
of the Act and directing that the Respondent offer Reisner immediate
and full reinstatement to his former or substantially equivalent posi-
tion without prejudice to his seniority or other rights and privileges
and make him whole for any loss of pay suffered by reason of its dis-
crimination against him. Thereafter the Board's order was enforced
in full by the United States Court of Appeals for the Eighth Circuit
and a decree was entered on December 4, 1961 .2
On March 22,1962, the Board's Regional Director for the Eighteenth
Region issued a backpay specification and, on April 2, 1962, the
Respondent filed an answer thereto. Upon appropriate notice issued
by the Regional Director, a hearing was held before Trial Examiner
Stanley Gilbert for the purpose of determining the amount of back-
pay due the claimant. On July 6, 1962, the Trial Examiner issued
his Supplemental Intermediate Report, attached hereto, in which he
found that Reisner was entitled to payment by the Respondent of
$2,106.58. Thereafter, the Respondent and the General Counsel filed
exceptions to the Supplemental Intermediate Report and briefs in
support thereof.3
1128 NLRB 858.
a296 E. 2d 338.
The Respondent's request for oral argument is denied inasmuch as the positions of the
parties are adequately set forth in the record , exceptions , and briefs.
139 NLRB No. 15.