Atlantic Co.

In the Matter of ATLANTIC COMPANY, EMPLOYER and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL AND SOFT DRINK WORKERS OF AMERICA, CIO, PETITIONER Case No. 10-R-2007.-Decided October 29,1946 Mr. A. Walton Nall, of Atlanta, Ga., and Mr. W. E. Swinson, of Columbus, Ga., for the Employer. Messrs. Charles H. Gillman, Grady Tannery, and Hanns J. Kleber, all of Atlanta, Ga., for the Petitioner. Mr. Arthur Christopher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Atlanta, Georgia, on August 8, 1946, before John C. McRee, hearing officer. At the hearing, the Employer moved to dismiss the petition on the grounds that (1) the Employer is not engaged in interstate commerce within the meaning of the Act; (2) no question concerning repre- sentation has arisen within the meaning of the Act; (3) there is no evidence in the record which shows that the Petitioner has been des- ignated by any of the employees of the Employer for the purposes of collective bargaining; and (4) the unit sought is inappropriate. The hearing officer referred the motion to the Board for ruling thereon. For reasons stated hereinafter, the motion to dismiss is denied. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Subsequent to the hearing and transfer of the case to the Board, Petitioner filed a motion with the Board, concurred in by the Em- ployer, in which it seeks to confine the petition to drivers' helpers inasmuch as the parties have agreed to a consent election in a unit composed of all the other employees embraced by the petition except the helpers. In view of the desires of the parties and upon the entire record in the case, we hereby grant Petitioner's motion. Accordingly, we shall confine our decision herein to drivers' helpers only and shall view the record with due regard to the changes effected by the grant- ing of the motion. And, although it is not clear from the record, we are assuming for the purposes of this decision that the Employer's 71 N. L. R. B., No. 69. 442 ATLANTIC COMPANY 443 concurrence in Petitioner's motion to confine the issue to helpers only was not intended to constitute a waiver by the Employer of any of the grounds asserted in its motion to dismiss. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Atlantic Company, a Georgia corporation with principal offices in Atlanta, Georgia, is engaged in the production and distribution of ice, beer, and ale at its Atlanta, Georgia, brewery, with which we are solely concerned. During the 12-month period before August 1, 1946, approximately 50 percent of the raw materials used at this operation was shipped to it from sources outside the State of Georgia. During the same period, this brewery produced more than 188,000 barrels of" beer and ale, of which amount about 22 percent represented sales and, shipments to points outside the State. We find, contrary .to the contention of the Employer, that it is engaged in commerce within the meaning of the National Labor Relations Act.' II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent certain employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as exclusive bar- gaining representative of the helpers of its drivers until the Petitioner has been certified by the Board in an appropriate unit. It takes the position that these individuals are not its employees but rather the employees of its drivers. The Employer operates numerous trucks in connection with the distribution of its beer and ale. Some of these trucks deliver draught beer and ale while others deliver bottled beer only. The drivers of all these trucks and the drivers' helpers on the draught beer trucks are admittedly employees of the Employer. It is only the helpers on the bottled beer trucks whose status as employees is put in issue. Drivers' helpers on trucks delivering bottled beer carry beer cases from the trucks to customers' premises and return empty cases to the 1 See Matter of Atlantic Company, 65 N. L. R. B. 1274 ; and Matter of Raleigh Coca Cola Bottling Works, et al., 65 N. L. R. B. 1010. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trucks. Upon completion of route deliveries they also unload the empty cases from the trucks to the Employer's platform. They are generally selected for employment by the drivers on the Employer's premises. Once hired, they are taken by the drivers to the Employer's business office where personal data for the Employer's records are obtained from them. Although the Employer contends that it does not require its drivers to employ helpers, it appears that it would be practically impossible for any of the drivers to render satisfactory service without the assistance of a helper or helpers. The record re- veals that the drivers fix the rates of pay, hours and conditions of work of the helpers. Before pay day each driver reports to the Em- ployer's office the working hours and the amount of wages each helper should receive. These wages appear to be based upon a similar wage schedule adhered to by all drivers. The amount paid the helpers is deducted by the Employer from the gross earnings of the drivers.'- Although the drivers may discharge their helpers outright, it is ap- parent from the record that the Employer maintains a measure of control over these helpers in this respect. Thus, its route supervisors report misconduct and infractions of Employer rules by the helpers as well as by the drivers and the drivers may be requested by the Em- ployer to keep objectionable helpers off the Employer's premises. It would appear that such a request would in the normal situation be tantamount to a discharge since, aside from other considerations, the usefulness of the helper to the driver would be so materially diminished by his exclusion from the premises as to render his employment un- tenable.3 The record further reveals that the Employer, performs all book- keeping work involving the helpers and remits Social Security taxes for them. It also lists the helpers as its employees for the purposes of the Social Security and Federal Income Withholding Taxes. In addition, on several occasions, the Employer has paid the medical expenses and wages of helpers who were incapacitated as a result of injuries received in the line of duty. The record also discloses that the Employer has paid time-and-a-half pay to helpers for occasional overtime work performed in the plant. We are persuaded by the underlying facts and realities of the exist- ing relationship that the power of the drivers to hire, discharge, and fix the rates of pay, hours, and conditions of work of the helpers are merely incidents of the drivers' status as employees of the Employer and that the helpers are indeed employees of the Employer. Arguing 2 The Employer reports only the net earnings of the drivers for the purpose of the drivers' Federal Income Withholding Tax. 3 we regard as exceptional the one instance in the record in which the driver did not allow the helper objectionable to the Employer to come upon the brewery property but nevertheless availed himself of the services of that individual on his route upon subsequent occasions. ATLANTIC COMPANY 445 strongly in favor of the employee status of the helpers are the facts that (1) the helpers work alongside of the drivers, who are admittedly employees of the Employer, in carrying out the common purpose of effectively distributing the Employer's beer and ale; (2) although the drivers have extensive authority over helpers, this power is not absolute by reason of the control of the Employer over its drivers and by reason of the power of the Employer to compel the discharge of a helper objectionable to it by excluding him from the premises; and (3) no apparent distinction is made by the Employer between the treatment of its admitted employees and that accorded the helpers with respect to the performing of bookkeeping work, remitting of Social Security taxes, listing of workers as its employees for all Federal tax purposes, paying of medical expenses and wages for individuals injured while on duty, and the paying of time-and-a-half wages for overtime work. Accordingly, in view of the foregoing, and upon the entire record in the case, we are of the opinion that the drivers' helpers are employees of the Employer within the meaning of Section 2 (3) of the Act.4 For reasons stated by us in Matter of 0. D. Jennings & Com- pany,' we find no merit in the employer's further contention that the petition should be dismissed because there is absent any evidence in the record as to the number of employees who have designated the Petitioner as their exclusive representative for collective bargaining purposes. We find, therefore, that a question affecting commerce has arisen concerning the representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT As indicated above, the Petitioner seeks a unit consisting solely of drivers' helpers employed at the Employer's Atlanta Brewery and the Employer contests the appropriateness of the unit. In view of our finding in Section III, supra, that the helpers are employees within the meaning of the Act and our further opinion that these employees comprise a well-defined, cohesive and homogeneous group who may function together for collective bargaining purposes , we shall reject the Employer's contention. We find, therefore, that all drivers' helpers employed by the Em- ployer at its Atlanta, Georgia, brewery, excluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4 Cf. Matter of Great Bear Logging Company, 59 N L R B. 701. 568 N L R B 516. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Atlantic Company, Atlanta, Georgia, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Direc- tor for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period imme- diately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be rep- resented by International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, CIO, for the purposes of col- lective bargaining. CHAIRMAN IIERZOG took no part in the consideration of the above Decision and Direction of Election.