Tallahassee Coca-Cola Bottling Co., Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1967

168 N.L.R.B. 1037 (N.L.R.B. 1967)

TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC. 1037
Tallahassee Coca-Cola Bottling Company , Inc. and
Teamsters, Chauffeurs , Warehousemen & Helpers
Local Union #991, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
12-CA-3082
December 28, 1967
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND JENKINS
On August 31, 1964, the National Labor Rela-
tions Board issued a Decision on Review and
Direction of Election in Case 12-RC-1892,1
finding appropriate a unit of production and main-
tenance employees at the Respondent's Tallahas-
see, Florida, plant, including route salesmen, truck
ployees, and cooler servicemen, but excluding
helpers, utility men, shipping and receiving em-
ployees, and cooler servicemen, but excluding of-
fice clerical employees, guards, and supervisors as
National Labor Relations Act, as amended.2 After
an election duly conducted on September 25, 1964,
the Regional Director for Region 12, on October 5,
1964, certified Teamsters, Chauffeurs, Warehouse-
men & Helpers Local Union #991, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of employees in the appropriate unit. Contending
that the Board's unit finding was erroneous, and in
order to test the validity of the certification, Re-
spondent Company thereafter refused to bargain.
On February 12, 1965, Trial Examiner Morton
D. Friedman issued his Decision in the above-enti-
tled matter, finding that the Respondent had vio-
lated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by refusing to bargain
with the Union. The Trial Examiner's findings were
adopted by the Board in its Decision and Order
which issued on May 4, 1965.3 Thereafter, the
Board, on February 24, 1966, filed with the United
States Court of Appeals for the Fifth Circuit a peti-
tion for enforcement of its Order. The court denied
enforcement of the Board's Order and remanded
the case with directions to explicate the unit deter-
mination respecting the inclusion of driver-
salesmen in a production and maintenance unit.
Viewing the Board's reliance on Marks Oxygen,4 as
ignoring relevant distinctions between the two
cases, the court directed the Board to make further
findings in accordance with the criteria set forth in
Plaza Provision Company, 134 NLRB 910, and E.
H. Koester Baking Co., Inc., 136 NLRB 1006, or
in the alternative, to set forth its reasons for depar-
ture from such criteria.
In accordance with the aforementioned remand
order, the Board has reconsidered its prior Decision
in this case.
The Respondent is engaged in the bottling and
sale of Coca-Cola and other soft drink products. At
its Tallahassee, Florida, plant it employs approxi-
mately 32 employees, 8 of whom are route
salesmen. The Union petitioned for and the Board
found appropriate, a plantwide unit including the
route salesmen. There is no history of collective
bargaining, and no other union was involved in the
proceedings.
The record shows that the Employer has no
separate sales force and that the route salesmen5
are supervised by the sales manager in the per-
formance of their duties. In addition to their deliver-
ing, invoicing, and collecting duties, route salesmen
take orders from customers on their routes pursuant
to leads provided by the Employer and sometimes
on their own initiative. They participate in training
programs comprised of meetings, training films, and
the like. The route salesmen are paid on either a
commission or straight salary basis depending upon
the size of their routes, and are entitled to certain
retirement and insurance benefits unavailable to
plant employees. The route salesmen neither load
nor unload trucks at the plant and do no plant work
other than that required in turning in account slips
and cash collections. Six of them are accompanied
on their routes by "truck helpers" who perform the
loading work at the customer's establishment. Four
of the helpers also drive. Helpers also may work in
the plant, and if additional helpers are needed on the
trucks, plant utility men are used as truck helpers.
These utility men also make customer deliveries in
emergencies. The helpers, like the route salesmen,
wear distinctive uniforms. All of the employees are
under the supervision of Plant Manager Lambert.
The Board has at various times drawn upon its
accumulated experience to establish guideposts to
facilitate unit determinations. These have always
been subject to continuing evaluation in light of
added experience and evolving conditions. For a
period of time it had been the Board's policy to
require the inclusion of driver-salesmen in produc-
tion and maintenance units unless the parties agreed
to exclude them, or another labor organization
sought to represent them.6
' Not published in NLRB volumes.
z The Board reversed the Regional Director 's determination and found
that the Company's eight route salesmen had sufficient community of in-
terest with the production and maintenance employees in the plant to war-
rant their inclusion in a plantwide unit.
3 152 NLRB 356.
4 147 NLRB 228.
5 In response to a question from the Hearing Officer as to the dif-
ferences, if any, between a route salesman and a driver-salesman,
Respondent's counsel stated that it is common in the industry for some
employers to refer to this group by one term and some by the other, and
"we make no distinction."
6 See The Valley of Virginia Cooperative Milk Producers Association,
127 NLRB 785.
168 NLRB No. 150
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its Plaza Provision decision, supra, the Board
announced a modification of this policy by adoption
of the approach explicated in Koester Bakery,
supra, i.e., that of determining disputed unit place-
ment on the basis of various criteria reflecting the
community of interest shared by the different
groups of employees. Included was the occupa-
tional relationship of their respective jobs. Upon
such evaluation the Board, in Plaza, found the
driver-salesmen, whose duties were essentially
those of salesmen and who drove and made de-
liveries as an incident to such sales activities, had a
community of interest more closely allied with
others in the employer's sales force and with
salesmen in general than with the truckdrivers and
warehousemen. Therefore, the Board declined to
require the automatic inclusion of driver-salesmen
in the unit of warehousemen and truckdrivers in
that case.
Subsequently, in Marks Oxygen,7 the Board
further clarified those decisions by announcing that
it would continue to utilize relevant criteria in addi-
tion to job content in evaluating community of in-
terest. Such relevant criteria includes the flow of
material and products into and out of the plant, the
functional relationship to the operation covered by
the requested unit, the common employment and
working conditions shared, etc. Further, the Board
specifically explained that it did not thereby "re-
verse such basic policies as (a) a plantwide unit is
presumptively appropriate; (b) a petitioner's
desires as to the unit is always a relevant considera-
tion; and (c) it is not essential that a unit be the most
appropriate unit." Clearly it was not, and is not
now, the position of the Boardthat driver-salesmen,
under all circumstances, should be excluded from
more comprehensive units of their fellow em-
ployees. Although it is true, as observed by the
court, that Marks Oxygen involved truckdrivers
whereas in this case the disputed group of em-
ployees perform sales duties as well as driving
trucks, this fact does not detract from the statement
of principles in the above-cited cases. Indeed, in
view of the fact that driver-salesmen, like
truckdrivers and others engaged in a particular em-
ployer's delivery operation, possess an inherent
community of interest with production and main-
tenance workers', and may at the same time have
separate interests sufficient to warrant their exclu-
sion from a production and maintenance unit, the
Board h?s refused to take a mechanistic approach
in unit - placement cases involving such employees.
The initial unit question in each case is whether
or not the unit requested by the Petitioner is ap-
propriate for purposes of collective bargaining.8
Where a petitioning labor organization is the sole
union involved in-the proceeding , it is irrelevant
that some other larger or smaller unit might also be
appropriate , or, indeed , might be the most ap-
propriate . The determination of the appropriateness
of the basic unit as well as the inclusion or exclusion
of various disputed categories of employees de-
pends upon an evaluation of their community of in-
terest in the light of applicable criteria. The fact that
on a given record the interests of delivery salesmen
may be sufficiently separate to warrant their exclu-
sion, does not defeat their inherent relationship to
production and maintenance workers , and in such
cases, either the separate production and main-
tenance unit , or a single overall unit including the
driver-salesmen , may be appropriate .9 Therefore,
the fact that driver-salesmen may be shown to pos-
sess certain separate interests which could support
their exclusion would not necessarily preclude in-
clusion of such employees where - the petitioning
labor organization seeks to represent them along
with production and maintenance workers. For just
as the Board will not require a petitioning labor or-
ganization to represent a group of driver-salesmen
it does not wish to represent when the employees
involved are essentially engaged in sales activity,
so, inclusion may be appropriate when requested by
a labor organization where , as here , the employees
in question, in addition to their sales functions, per-
form driving and delivery functions , thereby
evidencing a community of interest with the
production and maintenance employees.
It is for ' these reasons that the decision heretofore
reached in this case is not inconsistent with Plaza,
Koester , Gunzenhauser Bakery, Inc.,10 or Coca-
Cola Bottling Company of Baltimore." In all of
those cases , as well as the present'case , the Board's
approach has been to consider the inclusion -exclu-
sion problem in light of the petition filed.'Thus, as
the Board 's direction of election in these cases is on
the basis of the unit requested id, the petition,12 we
' Fn 4, supra
' Dixie Belle Mills, Inc., 139 NLRB 629.
9 See, e.g., N L.R.B. v. Puritan Sportswear Corp., 385 F.2d 142, 143
(C.A. 3). There the court held that "It is not decisive that in the first
representation proceeding an overall single unit had been found ap-
propriate , while three years later a division of the work force into two
units was found appropriate . It is conceded that a total situation which
justifies an overall unit may also justify multiple units.. . In the one case,
reliance was properly placed upon factors justifying a single unit while, in
the other, factors making separate units appropriate were stressed. This
was permissible and involved no necessarily contradictory findings."
10 137 NLRB 1613.
11 156 NLRB 450.
11 The fact that the Union , in petitioning for a particular unit, may have
been motivated by the extent to which it had organized, is immaterial so
long as the Board in making its determination of the appropriate unit does
not give controlling weight to that fact. See Metropolitan Life Insurance
Company, 156 NLRB 1415,fn 20.
TALLAHASSEE COCA-COLA BOTTLING COMPANY, INC. 1039
do not overlook the possibility that in those earlier
cases inclusion of the driver-salesmen would have
been found appropriate if the Board had been faced
with that question. t3
Accordingly, as the unit sought in the instant case
includes driver-salesmen whose delivery and driv-
ing functions adequately establish their community
of interest with the production and maintenance
workers, we find that the driver-salesmen may ap-
propriately be included in the basic unit sought.
Accordingly, upon reconsideration, we affirm our
decision as published in 152 NLRB 356.
13 In Coca-Cola Bottling Company of Baltimore, the Board again ex-
plicated this position , stating that : "If the route salesmen are engaged in
selling their employer's products , and drive vehicles and make deliveries
only as an incident of such sales activity , their interests would not
generally be construed as sufficiently allied with production employees to
require their inclusion in a production and maintenance unit " (Emphasis
supplied)
It should also be noted that in Baltimore the sales department included
solicitors and junior salesmen as well as the route salesmen.