Norfolk Coca-Cola Bottling Works, Inc.

In the Matter of NORFOLK COCA-COLA BOTTLING WORKS, INC., Ei%I- PLOYER and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA, CIO, PETITIONER Case No. 5-RC-3.45.=Decided October 11, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Le Roy W. C. 1V lather, hearing officer. At the opening of the hearing, the Petitioner filed a motion to withdraw its petition without prejudice. It is not clear from the record whether the. hearing officer granted the Peti- tioner's motion to withdraw the petition, or simply permitted the Petitioner to withdraw, as a party, from the proceeding. The Peti- tioner, of course, is entitled at any time to withdraw from a repre- sentation proceeding and the hearing officer has authority to grant such a request. The hearing officer, however, does not have authority to authorize the withdrawal of a petition. Such authority, under Section 203.52 of the Board's Rules and Regulations, resides in the Regional Director or the Board. Accordingly, this ruling of the hear- ing officer, if purporting to permit withdrawal of the petition, is .reversed. However, as the hearing continued with the remaining parties availing themselves of the opportunity to adduce evidence on all material issues, we find that the erroneous ruling, if it was in fact ,made,' was not prejudicial. The motion to withdraw the petition is denied. The hearing officer's other rulings made at the hearing are also free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor -Relations Act, the Board has delegated its powers in connection with this case to a three-member- panel [Chairman Herzog and Members Houston and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act.2 1 The very fact that the hearing continued after the Petitioner withdrew suggests that -the hearing officer did not intend his ruling to have the broader effect. 2 See Matter of Rockford Coca-Cola Bottling Co., 81 N. L. R. B. 579 ; Matter of Raleigh Coca-Cola Bottling Works, 80 N. L. R. B. 768 ; Matter of Coca-Cola Bottling Co. of Arkansas, .74 N. L. R. B. 1098. 86 N. L. R. B., No. 66. 462 NORFOLK COCA-COLA BOTTLING WORKS, INC. 463 2. Teamsters Local No. 822, International Brotherhood of Teamsters, -Chauffeurs, Warehousemen and Helpers of America, AFL, the Inter- venor herein, is a labor organization claiming 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 Intervenor seeks a unit of all driver-salesmen in the Employ- •er's Norfolk plant, excluding production workers, over-the-road truck drivers, office-clerical employees, guards, professional employees, and :Supervisors.3 Although in agreement as to the specific composition of the unit, the Employer contends that the unit should be a multi-plant one, embracing the employees of the Employer's three branch plants at Suffolk, Exmore, and Gloucester, Virginia, and its warehouse at Portsmouth. The Norfolk plant, which is the largest of the Employer's four plants, contains the Employer's principal offices, and is referred to as the main plant. The other three plants are referred to as branch plants. The Portsmouth warehouse, located about 11/2 miles from the Norfolk plant, is used as a storage and distribution center for products of the Norfolk plant. The other plants maintain their individual storage and distribution facilities. There is a branch manager in charge of each branch plant whose duties and responsibilities are com- parable to those of the plant manager in the Norfolk plant. All branch managers, however, are responsible to the Employer's general manager whose office is located in the Norfolk plant. The Norfolk office estab- lishes the policy for all its branches, such as labor, wages, hours and working conditions. Base salaries for driver-salesmen vary, but com- missions paid are the same throughout the Employer's operations. Moreover, all coolers, bottles, cases, and crowns, as well as other materi- als, except for carbonated gas and coca-cola syrup, are shipped to the various branch plants from the Norfolk plant. It would thus appear that the unit, in scope, could be one which includes employees at all four plants and the warehouse of the Employer. There are other factors, however, which would justify a unit con- fined to the employees of the Norfolk plant and Portsmouth warehouse, apart from employees in the branch plants. There is virtually no in- terchange, except in emergencies, of employees between the Norfolk plant and the branch plants. They are located between 20 and 48 miles from Norfolk,4 and the employees at each plant have little contact 3 The Petitioner requested a similar unit in its petition , but physically withdrew from the hearing before the unit issue was discussed. I The approximate distances from the branch plants to the Norfolk plant are as follows Suffolk, 20 miles; Gloucester, 45 miles; and Exmore, 48-50 miles ( includes • 26 miles of water distance). 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with those of the other plants. Seldom, if at all, are employees trans- ferred from one plant to another. While production and labor rela- tions policies for all plants are formulated in the offices of the Norfolk plant, there is a separate supervisor immediately responsible for hir- ing, discharging, and adjusting the grievances of the employees at each plant. With respect to the Portsmouth warehouse, however, we believe that its geographical proximity to the Norfolk plant, and the integration of both operations establishes a community of interest among these workers which is not shared by the employees working in the branch plants some 20 to 48 miles away. In view of the foregoing circum- stances, we are persuaded that a unit confined to the driver-salesmen employed at the Norfolk plant and Portsmouth warehouse of the Employer is appropriate and that a unit solely confined to the Norfolk plant is inappropriate.5 While such appropriate unit is larger than that sought by the Intervenor, we shall nevertheless direct an election as the Intervenor has an adequate representative interest therein.6 We find that all driver-salesmen in the Employer's Norfolk, Vir- ginia, plant and Portsmouth warehouse, excluding production workers, over-the-road truck drivers, office-clerical employees, guards, profes- sional employees and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 7 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or Matter of Sandier Moccasin Co., Inc., 80 N. L. R. B. 1079 ; Matter of Foremost Dairies, Inc., 80 N. L. R. B. 764; Matter of Oklahoma Coca-Cola Bottling Company, 78 N. L. R. B. 854 ; Matter of Burgess Battery Company, 76 N. L. R. B. 820. 6 Matter of J. S. Abercrombie Company, 77 N. L. R. B. 712. * If the Intervenor does not desire to participate in an election at this time in the unit found appropriate, we shall permit it to withdraw its name upon notice to the Regional Director within 5 days from issuance of this Direction. See Matter of J. S. Abercrombie Company, supra. If, however, the Petitioner desires to Participate in the election, we shall permit it to have its name placed on the ballot upon notice to the Regional Director within 5 days from issuance of this Direction. NORFOLK COCA-COLA BOTTLING WORKS, INC. 465 temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Teamsters Local No. 882, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL.