Don Kerr, Inc.

526 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Don Kerr, Inc.' and International Union of United Brewery, Flour, Cereal, Soft Drink, and Distillery Workers of America, AFL-CIO, and its Local Union No. 102, Petitioner. Case No. 13-RC-7260. November 2, 1960 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 William D. Boetticher, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are affirmed. 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 named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Petitioner requests a unit of driver-salesmen. The Em- ployer contends only a unit of all drivers and warehousemen is appro- priate. There is no history of collective bargaining. The Employer is a wholesale beer distributor employing nine em- ployees. The four employees sought by Petitioner are driver-salesmen who sell and deliver beer to customers in and around Milwaukee, Wisconsin. These employees work specified hours and are paid a weekly salary plus commissions. Three employees are over-the-road truckdrivers who haul beer from St. Paul, Minnesota, to the Em- ployer's plant. They make three trips a week to St. Paul, each trip re- quiring 2 days, and they receive a weekly salary. The truckdrivers were formerly driver-salesmen and may be called upon to substitute for driver-salesmen. When they perform driver-salesmen duties, their compensation. is adjusted to, conform to the salary and commission rate usually paid to driver-salesmen. Another employee does ware- house work, loading and unloading stock, general maintenance, run- ning special deliveries, and filling in on routes. One other employee is all-purpose-working in the warehouse, doing maintenance work, and driving an over-the-road truck when needed. All drivers are required to take the ICC physical and must have the ability to drive local and over-the-road trucks. On Saturdays, all employees are required to remain at the plant until general main- tenance work is completed. All employees have the same supervision and receive the same employee benefits. ' The name of the Employer appears as amended at the hearing. 129 NLRB No. 61. "M" SYSTEM, INC., ETC. 527 Contrary to the Petitioner's request, it is our opinion that the in- terests of the driver-salesmen and the over-the-road drivers are not sufficiently diverse to warrant a finding that a unit limited to driver- salesmen is appropriate.' As to the Employer's warehousemen, the facts herein indicate that they have a substantial community of inter- ests with both the driver-salesmen and the over-the-road drivers.' For this reason, and as they would otherwise be the only unrepre- sented employees of the Employer, we include the warehousemen in the unit. Accordingly, we find that the following employees of the Employer at its Harland, Wisconsin, plant constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All driver-salesmen, over-the-road drivers, and warehousemen, ex- cluding office clerical employees, guards, and supervisors within the meaning of the Act. As indicated above, the unit found appropriate is broader than that sought by the Petitioner. As the Petitioner has a sufficient showing of interest in the appropriate unit, and it did not unequivocally dis- claim interest therein, we shall direct an election. However, should the Petitioner desire not to participate in such election, the Regional Director is authorized to permit the withdrawal of the petition with- out prejudice upon timely request of the Petitioner.' [Text of Direction of Election omitted from publication.] MEMBERS JENKINS and KIMBALL took no part in the consideration of the above Decision and Direction of Election. 2 See The Valley of Virginia Coopetatsve Milk Producers Association , 127 NLRB 785. To the extent inconsistent herewith , Hol8um Bakers, Inc., 102 NLRB 1495, and cases cited therein , are hereby overruled. 8 See Brown Cigar Company , 124 NLRB 1435. 4 Brown Cigar Company, supra "M" System , Inc., Mobile Home Division Mid-States Corporation and Lodge 1243, International Association of Machinists, AFL- CIO. Case No. 16-CA-12241. November 2, 1960 DECISION AND ORDER On June 15, 1960, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. 129 NLRB No. 64.