The Seven-Up Bottling Co. of Detroit, Inc.

National Labor Relations Board - Board Decisions

May 19, 1958

120 N.L.R.B. 1032 (N.L.R.B. 1958)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Seven-Up Bottling Company of Detroit , Inc. and Detroit
Beverage Council, Petitioner . Case No. 7-RC-3653. May 19,1958
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 Meyer G . Reines,
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 Leedom and Members Bean and. Fanning].
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 em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the represen-
tation 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 requests an election in a unit of the Employer's
distributors and "swingmen," excluding sales counselors. The Inter-
venors agree with the Petitioner's request. The Employer contends
that distributors are not employees but are independent contractors;
but in the event an election is directed among distributors, the
Employer would include both swingmen and sales counselors.
The Employer holds a franchise from The Seven-Up Company
in St. Louis, Missouri, to bottle and sell the beverage called "7-Up"_
iri the Detroit, Michigan, area. The Employer has divided its area
into 51 territories and engaged a distributor, or driver-salesman, to
sell and deliver 7-Up in each territory. The Employer engages dis-
tributors by having them fill out 'application forms with their name,
address, and previous employment, interviewing them, and then
giving them a 2-week training period during which they are paid
on a wage basis. With each distributor who proves satisfactory the
Employer enters into an oral contract, terminable at will by either
party, giving the distributor the exclusive right to sell 7-Up in the
territory assigned to him. Each distributor must provide his own
truck, which must be painted in accordance with the Employer's
i Local 337, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, herein called Teamsters,. and International Union of United Brewery,
Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, intervened on the
basis of their showings of interest . , The Teamsters refused to stipulate that the Peti-
tioner is a labor organization As the Petitioner is an organization which admits em-
ployees to membership and exists for the purpose of dealing with employers regarding
-%%ages, hours, and working conditions , we find it is a labor organization.
120 NLRB No. 141.
THE SEVEN-UP BOTTLING COMPANY OF DETROIT, INC. 1033
requirements as to colors and insignia? Each distributor must insure
his truck with an insurer designated by the Employer, and must pay
for the truck's maintenance and repair. He buys his own uniforms,
which must meet the Employer's specifications. He must buy a
route book made up by the Employer which divides his territory
into 5 routes, 1 for each day of the week, and must deliver to each
customer on the day indicated in the book, but may vary the order
of delivery on any day to suit himself.
Distributors buy 7-Up from the Employer for cash at prices fixed
by the Employer and sell it to their customers for cash or credit at
prices also set by the Employer. Most large grocery chains buy on
credit and remit directly to the Employer. The distributors are
credited with such sales in their territories and are responsible for
credit extended.
Distributors are directed to report at the plant at 7: 30 a. m. daily,,
and to attend a weekly sales meeting with the sales counselors. They
must have their trucks out of the plant by 8 a. in. and are not permitted
to return before 3 p. in. except in emergencies. When a distributor
returns to the plant, he fills out a daily report. He also prepares a
monthly sales report for the Employer. He gives the Employer an
order for the number of cases he wishes to buy and a check in pay-
ment. He must leave his truck at the plant during the night so the
Employer can have the empties removed and the order loaded.
Distributors are not permitted to sell any product- other than 7-Up.
Each distributor is required to buy a Sales Manual from the Employer
and to follow the provisions set forth therein. The Manual contains
detailed instructions as to procedures to be followed in servicing
accounts, advertising, giving away samples, and getting new accounts.
The Employer employs nine sales counselors on a commission basis
to train and instruct distributors in sales promotion. They conduct
the weekly meetings, and occasionally ride with distributors to check
on their sales methods and the condition of their territories, includ-
ing cleanliness of their trucks and contents of their toolboxes, and
advise distributors and managements of their observations.
The Employer also employs two swingmen on a salary-plus-com-
mission basis . They, and the sales counselors , are available to take
over the routes of absent distributors. If a distributor is absent 1 day,
'he is required to cover that route the following Saturday; if absent a
second day, his route is covered by a sales counselor or swingman with-
out cost to him; but if he is -absent 3 or more days, he is charged .$11 a
day by the Employer. The sales counselor or swingman who takes a
distributor's route turns all collections over to the distributor. Vaca-
2 The Employer also makes trucks available under a lease-purchase arrangement whereby
two distributors are currently buying their trucks by paying rent which applies to the
purchase price.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions are based on length of service and distributors are paid therefor
in that they receive the proceeds of the sales made by the substitute
supplied by the Employer without charge to the distributor.
The Employer does not pay workmen's compensation, unemploy-
ment compensation, or withhold income taxes, for distributors.
The Employer has recognized Intervenor Teamsters as the.collec-
tive-bargaining representative of the distributors since 1950. A state-
ment of policy currently in effect between the Employer and Team-
sters,3 provides, inter alia, for notice to, and a conference with, the
shop steward prior to the "disassociation" of any distributor or the
'reduction in size of a territory. Upon disassociation, however, a dis-
tributor has no control over disposition of his territory.
The Employer discourages the hiring of helpers, but some distrib-
utors occasionally hire them on a temporary basis during busy seasons.
Under all the circumstances, particularly the control exercised by
the Employer over the distributors' method of operation, through
detailed instructions contained in the Sales Manual 4 and observance
of distributors' activities by the sales counselors, the fact that the
Employer and Teamsters have bargained collectively for the distrib-
' utors, that the distributors, in effect, receive paid vacations based on
length of service, and have no right to sell their territories, we find
that the distributors do not possess the freedom of action as to the
manner and means of accomplishing their work which is an essential
characteristic of independent contractors. This is true notwithstand-
ing the fact that they depend for their income on profits rather than
wages. We therefore find that the distributors are employees within
the meaning of Section 2 (3) of the Act.'
There remains the question of the unit placement of swingien and
sales counselors. As swingmen are full-time permanent employees
whose duties are similar to those performed by the distributors, we
shall include them in the unit, in accordance with the agreement of
the parties. At the hearing the Petitioner and the Intervenors agreed
to exclude sales counselors, apparently on the ground they are super-
visors. The Employer did not adopt a position at the hearing, but
requests in its brief that they be included in the unit. The evidence
at the hearing relating to the sales counselors was not directed to the
issue of their supervisory status or to the extent to which they perform
the same work as distributors. As the issue of the unit placement of
8 The statement of policy is unsigned and is not asserted as a bar
4 we find no me] it in the Employer's contention that the Sales Manual is not a factor
indicating control over the distributors' activities by the Employer, because its use is
required by the Employer's supplier, The Seven-Up Company in St Louis It is .the
-Employer who in fact delivers the Sales Manuals to the distributors and enforces their
compliance with its provisions.
6 Orange Crush of P. R., Inc., 118 NLRB 217, and cases cited therein. See also Provi-
dent Life and Accident Insurance Company, 118 NLRB 412
GENERAL ELECTRIC COMPANY 1035
the sales counselors was not .adequately litigated at the hearing we
shall permit them to vote subject to challenge.6
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
,meaning of Seetion 9 (b) of the Act:
All distributors and swingmen at the Employer's Detroit, Michigan,
plant, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8In accordance with the agreement of the parties , we shall exclude distributors ' helpers
as casual employees.
General Electric Company and International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Petitioner. Case No.
5-RC-.354. May 19,1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a Stipulation for Certification Upon Consent Election,
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Fifth Region on
November 25, 1957, among the employees in the stipulated unit. At
the conclusion of the election, the parties were furnished a tally of
ballots which showed that of the approximately 1,115 eligible voters,
1,062 cast valid votes, of which 676 were for the Petitioner, 17 were
for International Brotherhood of Electrical Workers, AFL-CIO,
and 369 were against both labor organizations. There were four void
ballots and no challenged ballots. Thereafter, the Employer filed
timely objections to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation of the Employer's objec-
tions and on February 7, 1958, issued and duly served upon the par-
ties his report on objections, in which he recommended that the
objections be overruled and that the Petitioner be certified as
collective-bargaining representative of the employees in the appro-
priate unit. Thereafter, the Employer filed timely exceptions to the
report on objections.
Upon the entire record, 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.
3. A question affecting commerce exists coiicerriing 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.
120 NLRB No. 144.