Kraft Foods Co.

In the Matter Of KRAFT FOODS COMPANY, EMPLOYER and COMMISSION HOUSE DRIVERS; HELPERS AND EMPLOYEES UNION, LOCAL No. 400, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA (AFL) , PETITIONER Case No. 8-RC-928.-Decided September 27, 1950 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 Bernard Ness, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pusuant 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 Herzog and Members Houston and Styles]. 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 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 contends that those salesmen in the Employer's Cleveland branch who operate within Cuyahoga County constitute a separate appropriate bargaining unit. The Employer contends that the proposed unit, limited to a portion of its Cleveland branch, is not appropriate for bargaining purposes and that the appropriate unit for these salesmen should include all salesmen operating within its Cleveland branch.. The Petitioner desires to participate in an elec- tion among salesmen in the larger unit proposed by the Employer if the Board finds that its proposed unit is not appropriate. The Employer is engaged in the manufacture, sale, and distribution of food products in the United States and Canada. The Employer I The petition and other formal papers were amended at the hearing to show the correct name of the Employer. 91 NLRB No. 80. 525 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD divides its operations into 7 divisions. Each division manufactures, sells, and distributes the Employer's products,2 and operates with con- siderable autonomy, but within the framework of general policies set down by the Employer's management. For administrative purposes, each division is subdivided into branches, each under the charge of a branch manager. One of the Employer's divisions is the central division, with headquarters at Chicago. The central division is, divided into 22 branches, one of which is the Cleveland branch, with headquarters at Cleveland, Ohio. The Cleveland branch covers an area in Ohio, generally bounded on the north from Conneaut to Huron and on the south from Mans- field to Bowerston. It includes the towns of Mansfield, Ashland, Canton, Akron, Cleveland, and Elyria. The branch office and ware- house are at Cleveland and all branch activities stem from the Cleve- land office.3 At the present time, the Employer operates on the advance-selling basis. In the Cleveland branch, the sales and distribution of its products are handled by 20 salesmen, who ride in passenger cars and take orders for the Employer's food products, and truck drivers and warehouse employees, who, working in and out of the Cleveland branch warehouse, assemble the products to fill the orders taken by salesmen and make delivery of the goods to customers. All these salesmen, warehousemen, and truck drivers are under the charge of the Cleveland branch manager and his assistant. Salesmen in the Cleveland branch are subdivided into 3 groups, each under the immediate direction of a supervisor, who trains, assists, and advises them in their work. Although no exact territorial lines are drawn about the operations of Employer's salesmen or the cover- age of any one of the 3 supervisors, all salesmen under each super- visor operate for convenience generally in one geographical area. Thus, the salesmen working under the supervisors operate (1) in the eastern section of Cleveland and east; (2.) in the western section of Cleveland and west; and (3) further south, in the vicinity of Akron, Canton, and Mansfield. Of the Employer's 20 salesmen, 8 operate primarily in Cuyahoga County, but no one of the 3 groups of sales- men operating under a supervisor include all and only salesmen who work in Cuyahoga County. Salesmen are transferred from 1 area within the branch to another. Salesmen working near the Cleveland 8 Not all divisions manufacture all products made by the Employer. Divisions buy from one another products which they do not manufacture. 8 The Cleveland branch maintains a mailing address at Akron, Ohio, where stationery and sales books are kept on hand for the convenience of salesmen of the Cleveland branch operating In the vicinity. KRAFT FOODS C'OMP'ANY 527 branch office bring their daily orders to the office each evening; those working at a distance mail their orders into the branch office. each day. All salesmen come to the Cleveland branch for general meet-. ings, 8 to 11 of which are held each year. Letters of general direction and advice are sent out to all individual salesmen in the branch from time to time by the branch manager and his assistant. Supervisors verbally inform salesmen working under them of any special changes or individual instructions affecting them which may be directed by the branch office, All salesmen in the branch operate under the same base pay, hours of work, and vacation schedule.' . The Petitioner is the recognized bargaining representative of the warehousemen and truck drivers who work in and out of the Cleve- land branch office, fill the orders of the branch salesmen, and dis- tribute the merchandise to customers in the entire branch area. The contract between the Petitioner and the Employer makes special pro- vision for the compensation and maintenance of truck drivers who work too far from the Cleveland office to return to Cleveland at the end of a day's delivery. Not all salesmen in the branch live in Cleve- land. Other locals of the Petitioner's International represent sales- men in the Employer's Pittsburgh, Pennsylvania; Rochester, New York; and Chicago, Illinois, branches. In all these branch bargain- ing units, all salesmen operating within each branch are included in the salve unit, wherever they may work or live within the territorial limits of the respective branches. Although both. in the Cleveland and other branches, there is clearly established a pattern of bargaining among the Employer's employees on a branch basis, the Petitioner nevertheless presently urges that its proposed unit limited to salesmen in Cuyahoga County in the Cleve- land branch constitutes an appropriate bargaining unit on the basis of a past bargaining history limited to these employees. Before 1940, the Employer distributed its food products in the Cleveland branch through independent concerns. In or about 1940, the Employer changed its. distribution policy and absorbed these dis- tributing companies into its operating system, taking into its employ employees of such distributors who desire to work for the Employer. Distribution of the Employer's products was at that time on an order- delivery basis, each salesmen being both a salesman and delivery man, operating from a truck stocked with merchandise. . Each driver- salesman made calls upon his customers and took and filled their orders in one transaction. The Petitioner represented the driver- salesmen 4 The hours of work for salesmen are governed by the hours of the stores at which they solicit their orders. These hours generally run from 8 or 8 : 30 to 5 o'clock. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Employer's distributors at the time when the Employer took over the distribution work from the former distributing companies. As its predecessors had done, the Employer continued to recognize the Petitioner as the bargaining representative for the driver-salesmen who were members of the Petitioner. On May 22, 1942, the Employer signed a memorandum of agreement covering wages of these employees for a period of 1 year. Although this memorandum of agreement does not designate the area covered by the so-called "route salesmen" concerned, the parties agreed that these employees operated in Cuya- hoga County. In 1945 the Employer changed over from the order-delivery system to its present advance-sales system, wherein its salesmen, working in passenger cars, take orders for merchandise to be later delivered by delivery truck drivers with goods, selected, loaded, and transported from the branch warehouse. The Employer, however, continued to recognize the Petitioner as representative of its salesmen who were members of the Petitioner, and bargaining arrangements were con- tinned on a verbal basis. In 1948 the Employer and the Petitioner, in Case No. 8-UA-1009, entered into a consent-election agreement for union-authority elec- tions. Separate elections were held on June 23, 1948, (1) among the warehousemen and truck drivers operating in the Cleveland branch and (2) among the salesmen of the Cleveland branch who operated within Cuyahoga County. The Petitioner won the election among the warehousemen and truck drivers, but lost, by a vote of 0 to 11, the election among salesmen operating in Cuyahoga County. There- after, the Employer, whose recognition of salesmen had been pre- viously on a members only basis, refused to deal with the Petitioner as bargaining representative for any of these salesmen. We do not believe that the history of negotiations between the Employer and the Petitioner for member-salesmen working within Cuyahoga County is determinative of the scope of the appropriate unit for salesmen at this time. In determining units appropriate for employees in larger integrated enterprises, we have favored units that are coextensive with an employer's entire operation or some administrative sector thereof. We have tended to adopt unit patterns already established in the same industry or for other employees of the same employer. The Petitioner presently represents in one unit all warehousemen and truck drivers who fill and deliver the orders gathered by the Employer's salesmen in the entire Cleveland branch. Other locals of the Petitioner's International represent on a branch basis salesmen in other branches of the Employer's operations. Be- cause salesmen of the Cleveland branch who operate within Cuyahoga KRAFT FOODS 'COMPANY 529 County have no identifying characteristic distinguishing them from other salesmen operating under the same supervisors in the Cleveland branch, we find that the proposed unit limited to salesmen of the Cleveland branch, operating in Cuyahoga County is not appropriate for bargaining at this time.5 We find that all salesmen operating in the Cleveland branch of the Employer's operations, excluding the branch manager, the assistant manager, and supervisors, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] B Singer Sewing Machine Company, 87 NLRB 460, and cases cited therein ; Darling d Company, 87 NLRB 45 ; cf. Coldblatt Brothers, Inc., 86 NLRB 914; Paul Cusano, et at., d/b/a American Shuffleboard Company, et at., 85 NLRB 51 ; Westbrook Enterprises, Inc., 79 NLRB 1032.