Nehi Bottling Co., Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit with the nonprofessional employees? (2) Do you desire to be represented for the purposes of collective bargaining by the Peti- tioner or by the Intervenor? If a majority of the professional employees vote "Yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be included in such unit, which, in that event, we find to be appro- priate. Their votes on the second question will then be counted to- gether with the votes of the nonprofessional employees to decide whether the Petitioner or the Intervenor has been selected to represent the combined bargaining unit. If, on the other hand, a majority of the professional employees vote against inclusion, we find separate units of professional and technical employees to be appropriate. The votes of each voting group will then be counted separately to decide whether or not that group desires to be represented by the Petitioner or by the Intervenor. [Text of Direction of Elections omitted from publication in this volume.] NEHI BOTTLING CO., INC. and INDEPENDENT BEVERAGE WORKERS UNION, PETITIONER. Case No. 3-RC-10?O. October 22,1952 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 John Weld and Leon- ard Leventhal, hearing officers.' The hearing officers' 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 [Members Houston, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act 2 2. The labor organizations involved claim to represent certain employees of the Employer a 1 The hearing on June 16 , 1952, was held before John weld ; the hearing on June 20 was conducted before Leonard Leventhal. 2 The Employer produces and distributes nonalcoholic beverages in the Buffalo, New York, area , under exclusive franchises granted by Nehi Corporation , the principal offices of which are in Columbus , Georgia. Although in form the franchises were issued to the three officers and stockholders of the Employer , Nehi Corporation has dealt with the Employer with knowledge of the corporate use of the franchise since about 1938. We find that the Employer 's operations form an integral part of a multistate enterprise and we shall, therefore , exercise jurisdiction . American Factors Co., 98 NLRB 447. 8 At the hearing , Intervenor ( International Union of Brewery , Flour, Cereal , Soft Drink and Distillery Workers, CIO ) refused to stipulate that Petitioner is a labor organization. 101 NLRB No. 16. NEIII BOTTLING CO., INC. 69 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. Petitioner seeks to represent all inside workers engaged in pro- ducing and handling beverages at the Employer's Buffalo, New York, plant. It would exclude utility men, expediters, utility drivers, and distributors, in addition to the usual exclusions. Intervenor and the Employer would include the utility men, expediters, and utility drivers, and Intervenor would also include the distributors. There is one utility man, Shelgren, who places and maintains cool- ers and vending boxes. About half of the time he works inside the plant under Hiller, the plant supervisor; during the remainder of the time he is employed outside under Herman Cohen, the Employer's secretary and over-all supervisor of the Employer's operations. Shel- gren is hourly paid, as are the inside workers, and receives the same benefits. We find that the utility man has a sufficient community of interests with the inside workers and shall, therefore, include him 4 Two expediters, Ziff and Clementi, work under the immediate su- pervision of Herman Cohen and make sales, solicit new customers, keep records of their sales, and report to Cohen their observations of the performance of distributors. They ride with distributors or with the utility driver, or themselves drive 5 Occasionally, they help load the beverages. Ziff and Clementi spend about 10 percent of their time in Cohen's office keeping records in connection with sales, 40 to 50 percent of their time selling directly to customers, and the rest of their time outside performing their other duties. The utility driver, Bowers, helps load and delivers beverages, and does some selling. His outside activities are performed under Cohen's immediate super- vision. About 20 percent of the time he works inside the plant serv- icing vending boxes, during which time he is under the immediate supervision of Hiller. Bowers is paid by the day, while Ziff and Clementi are paid a weekly salary. All three are paid bonuses based upon their quotas of sales; and all receive generally the same benefits as hourly paid employees 6 We are of the opinion that the expediters and the utility driver are analogous to route salesmen and have inter- ests in common with those of the inside workers. We shall, therefore, include them in the unit' As Petitioner exists for the purpose of engaging in collective bargaining with employers concerning grievances , wages, and other conditions of employment , we find that it is a labor organization within the meaning of the Act. ' Pepsi-Cola, Louisville Bottlers , Inc., 86 NLRB 1299. They drive when the utility driver is not available , when special deliveries are required, and when substituting for distributors in emergencies. 9 Under an arrangement with the Employer, Ziff and Clements are allowed time off without loss in pay for a maximum of 1 week per year , in addition to the 1-week vacation benefit which all employees receive. 7 Cf S Mart,nelli & Co , 99 NLRB 43 ; General Beverage Company, 85 NLRB 696. See Mexico Coca-Cola, Bottling Company, 88 NLRB 421. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There are 12 distributors who have contracts with the Employer, under which they agree to sell exclusively the Employer's beverages within prescribed territories." The distributors supply their own trucks,9 hire their own helpers, select their own substitutes, and receive as sole compensation the difference between what they pay for bever- ages and what they receive from sales. The Employer does not carry them on its payroll, or report them for social security, unemployment compensation, or workman's compensation purposes. Each distribu- tor must perform under his contract to the satisfaction of the Em- ployer. The record shows, however, that the Employer's control extends only to results to be achieved under the contract, not the means used. Upon the entire record, we find, contrary to Intervenor's contention, that the distributors are independent contractors and, as such, are excluded from the unit 10 Accordingly, we find that all employees of the Employer at its Buffalo, New York, plant, engaged in the production, sale, and distri- bution of beverages, including utility men, expediters, and utility drivers, but excluding distributors, office and clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Employer employs three part-time workers, Mays, Gladden, and De Francisco. Mays worked about 20 hours per week in approxi- mately the past 2 months; Gladden worked about 10 hours per week in the past 2 or 3 months; and De Francisco worked in about two-thirds of the weeks over the past 6 or 7 months, for an over-all average of about 10 hours per week. They are carried on the regular payroll, but they do not receive vacation and holiday benefits. Some of the part- time employees may not work at all during slack periods, but all have an expectation of employment during the Employer's busy periods. Except for Gladden, they are paid the same hourly rate as full-time employees. We find that these part-time employees have a substantial interest in the selection of a bargaining representative and that their employment is sufficiently regular to entitle them to vote in the election 11 The Employer hired three full-time employees (Fisher, Pace, and Harold Cohen) in June 1952, who may be laid off after the summer rush near the end of September. All worked for the Employer dur- ing the previous summer, Harold Cohen as a full-time employee, and Pace and Fisher as part-time workers. The Employer expects to re- hire them next summer. They share in the benefits of other employees. S Eleven of the contracts are written and one is oral. The Employer' s system of distributing beverages has been operative since about 1938. ° The Employer has chattel mortgages on three of the trucks. 10 American Factors Co., supra. 21 L. W. Hayes, Inc, and Hayes Transit Mix, 91 NLRB 1408. WILLIAMS, DIMOND & Co. 71 We are of the opinion that these three employees have sufficient interests in common with other employees in the unit to vote in the election.- [Text of Direction of Election is omitted from publication in this volume.] " Cf. Cherry and Webb Company, Providence, 93 NLRB 9. While Harold Cohen is a cousin of Herman Cohen, the Employer's secretary , this relationship does not preclude his inclusion in the unit or render him ineligible to vote. Cieliand Bus Lines, Inc., 85 NLRB 306. 32 Following charges filed by Intervenor in Case No . 3-CA-579, a settlement agreement was executed. The settlement agreement provides for the posting of notices until approxi- mately October 8, 1952, by the Employer. It is our intention by this direction that the Regional Director conduct the election as early as possible after the expiration of the posting period under the settlement agreement. WILLIAMS, DIMOND & Co. and LOCAL 253, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS OF AMERICA, PETITIONER. Case No. 21-RC- 2584. October 22,1952 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 Norman H. Greer, 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 [Members Houston, Styles, and Peterson]. 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 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 seeks a unit of office clerical employees located at the Employer's dock facilities in Wilmington, California. The Employer contends that the unit should also include the office clerical employees in its Los Angeles, California, office. The Employer operates a steamship agency and terminal facilities on the west coast. The present petition concerns only the Los Angeles district which includes the Employer's main office, located in the Los Angeles business district, and its dock facilities 21 miles away at Wil. 3 The hearing officer properly refused to permit the Employer to inquire into the question of whether the Petitioner had complied with the filing requirements of the Act, as this is an administrative matter to be determined by the Board and is not litigable by the parties. Magnolia Lumber Corporation, 88 NLRB 161. 101 NLRB No. 15.