Coca-Cola Bottling Co. of Baltimore

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends on page 13 of his brief that even if Watkins is credited regarding Brown's sleeping, the discharge of Brown requires a finding that Section 8(a) (3) of the Act was violated. The General Counsel claims this becomes apparent from Watkins further testimony that his wife had reported Brown asleep the week before his discharge. The General Counsel argues: Watkins took no action regarding this alleged report by his wife. Had Watkins desired to terminate Brown for cause, as distinguished from a discharge in violation of the Act, it is incredible that he would not have relied upon his wife's alleged report a week before June 20, 1964. I find no merit in that argument. The fact that Watkins did not discharge Brown could indicate that he was not looking for a reason to discharge Brown but did discharge him a week later when he personally observed him. Upon the entire record I find that the General Counsel has failed to prove by the required preponderance of evidence that Brown was discriminatorily discharged in violation of the Act. I further find that Brown was discharged solely for cause. I shall recommend that the complaint with respect to Brown be dismissed. Upon the basis of the foregoing findings of fact and on the entire record I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not engaged in any unfair labor practices within the mean- ing of Section 8 (a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the consolidated complaint against the Respondent be dismissed in its entirety. Coca-Cola Bottling Company of Baltimore and United Packing- house, Food, and Allied Workers, AFL-CIO, Petitioner. Case No. 5-RC-5310. December 09,1965 DECISION AND DIRECTION OF ELECTION Upon a, petition duly filed under Section 9(c) of the National Labor Relations Act, as amended. a, hearing was held before Hearing Officer August A. Denhard, Jr. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer's and Petitioner's brief were received, and, upon the entire record in this case, theNational Labor Relations Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organization involved claims to represent certain employees 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 all production and maintenance employees, loading and shipping employees, and garage employees 156 NLRB No. 46 COCA-COLA BOTTLING COMPANY OF BALTIMORE 451 employed at the Employer's two plants in Baltimore, Maryland, but excluding office clericals, all employees in sales, advertising, and cooler service, as well as guards, supervisors, and all other employees in the plants. The Employer contends that the only appropriate unit is all produc- tion and maintenance employees, route salesmen, loading and shipping employees, automotive (garage) employees, advertising employees, and cooler service employees at the Employer's Baltimore plants, but excluding all office clerical employees, guards, professional employees, and supervisors. The Employer operates two plants in Baltimore, Maryland, and is engaged in the business of bottling and distributing soft drinks and allied vending machine products in the Baltimore area. The produc- tion and loading and shipping employees at both plants generally perform the following duties : unloading raw materials and empty bottles delivered to the plants, storing materials, washing, inspecting, and filling bottles with soft drinks, packing and storing filled cases, and loading, unloading, and inventorying route salesmen's delivery trucks. The mechanics in the production department primarily service and maintain the production equipment. The automotive (garage) department employees service all motor vehicles used in production, storage, and delivery. The parties are in agreement that all of these employees are to be included in the unit. The cooler service department employees are primarily responsible for the maintenance and installation of all coolers and vending equipment. These employees perform their duties both inside and outside of the plant; approximately half of the employees are work- ing in the plant at any one time. Some equipment is serviced on the premises where it is located; however, much of the maintenance and repair work is done in the plant. The advertising department employees are primarily responsible for preparing and constructing signs and displays, and, when neces- sary, installing these items. Except on rare occasions, most of the work done in this department is performed in the plant. Employees in the sales department, including route salesmen, are primarily responsible for the distribution and sale of the products of the Employer, the sale and leasing of vending machines, coolers, and other equipment, and the promotion and distribution of advertis- ing item. Route salesmen are assigned to one of five different types of routes : home-package routes which consist of deliveries to retail outlets, cold-bottle routes which serve on-the-premises dispensers, industrial routes, premix routes which consist of delivering premixed Coca-Cola containers for bulk dispensing, and allied vending products 217-919-66--vol. 15 6-3 0 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD routes which consist of delivering products not manufactured by the Employer such as coffee, candy, sandwiches, cigarettes, etc. The home-package and cold-bottle route salesmen are paid a salary plus commission based on the amount of their sales, including the sale of coolers, and the other salesmen are paid a salary. The route salesmen do not determine which products they will carry, but they are respon- sible for ordering their daily loads on the basis of their own estimate of their customers needs and desires. In addition to the route salesmen, the sales department also includes solicitors who are primarily responsible for developing new business (the parties are agreed that these employees should be excluded from the unit), junior salesmen who assist the h, ime-package route sales- men on their routes, and special events employees who deliver products to special events such as picnics. The Employer contends that in view of an extensive collective- bargaining history in an overall unit, and in view of the findings of the Board in a previous decision involving the same issue,' the over- all unit is the only unit appropriate for purposes of collective bargaining. A review of the bargaining history and the certification on which it is based indicates that the parties in the relevant Board proceedings have always agreed upon the composition of the appropriate unit and thus have never actually litigated the unit issue before the Board. The Employer contends that the above-noted finding that the inside unit is inappropriate should be nevertheless considered as a Board holding that less than an employerwide unit is inappropriate in this case. However, as the appropriateness of the inside unit was not litigated in the proceeding to which the Employer refers, we do not consider the findings a Board pronouncement on the merits of the unit sought by Petitioner herein, and therefore do not give it any weight in the present case.2 The Employer also points out that the Board accords considerable weight to bargaining history as a significant factor in its unit deter- minations, and urges that bargaining history should be so considered in this instance. However, in view of recent policy modifications with respect to unit placement of driver salesmen,3 and since the unit issue "The Board rendered a decision on May 11 , 1961 in Cases Nos. 5-RM-429, 5-RC-3357, and 5-RC-3366 holding that joint certification of locals of the Packinghouse Workers and Teamsters would be proper , and ordered an election in an over-all unit. The Board, in a footnote, declared that, "The parties agreed that this (the overall ) unit is appropriate, if the Board permits the joint intervention. As we have done so, we shall dismiss the petition . . . requesting only the 'inside employees,' an inappropriate unit." 2 A history of collective bargaining based upon Board certification of units which were stipulated by the parties to be appropriate and not upon a Board determination on the merits of the unit is not binding on the Board . General Electric Company (River Works), 107 NLRB 70. 3 Plaza Provision Company (P.R.), 134 NLRB 910; see also E. H Koester Bakery Co , Inc, 136 NLRB 1006. COCA-COLA BOTTLING COMPANY OF BALTIMORE 4053 has never been fully litigated and the employees involved are not now represented by any union, we do not consider bargaining history in the present case controlling, but instead, we have examined the func- tions and duties of the route salesmen in view of the criteria established under current Board policy. If the route salesmen are engaged in selling their employer's products, and drive vehicles and make deliveries only as an incident of such sales activity, their interests would not generally be construed as sufficiently allied with production employees to require their inclusion in a production and maintenance employees unit. The hearing disclosed that all employees of the Employer are hourly paid or receive a flat salary with the exception of the route salesmen assigned to the routes which pay a commission in addition to a base rate, based on the amount of their sales. The route sales- men's primary responsibility is the sale of the Employer's products on established routes. As part of this function, route salesmen initiate the use of advertising and promotional materials, and also sell vending equipment and coolers. The route salesmen are in the plant only for brief periods, and, generally, their hours of work are governed by the time required to complete their sales. Although there is some evidence that employees do transfer between departments, the record does not relate such evidence to transfers between the sales department and the production and maintenance departments involving the route salesmen. It is also clear that the sales department has separate lines of supervision. In view of these factors, we are persuaded that the functions and working conditions of the route salesmen are sufficiently distinct from the production and maintenance employees to find that they have a separate community of interest and that they are perform- ing essentially a sales function . We therefore believe that they need not be incorporated into an inside unit of employees performing primarily production, maintenance, and storage activities. In accord with this finding, we also find that the junior salesmen, who are assist- ants to the route salesmen, are aiding in the performance of a sales function and appropriately may be excluded from the unit. A review of the record indicates that the employees in the advertis- ing and cooler service departments are not primarily engaged in the promotion and sales of the Employer's products, but instead, we find that their working conditions, duties, and interests are more closely allied with the production and maintenance employees in the inside unit. The fact that these employees spend some of their working time away from the plant is not a sufficient reason for their exclusion from the unit. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We therefore find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, loading and shipping employees, automotive (garage) employees, advertising employ- ees, and cooler service employees at Employer's plant located at 2525 Kirk Avenue and 1200 West Hamburg Street, Baltimore, Maryland, but excluding all employees in sales department, office clerical employees, guards, professional employees, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS BROWN AND ZAGORIA took no part in the consideration of the above Decision and Direction of Election. The Firestone Tire & Rubber Company and International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local 384, Petitioner. Case No. 4-RC-6512. De- cember 29,1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Joseph C. Kelly. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer, the Petitioner, and the Intervenor each have filed briefs which have been considered by the National Labor Relations Board in making its decision in this case. 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 [Chairman McCulloch and Members Brown and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organizations 1 involved claim to represent certain employees of the Employer. 'United Rubber , Cork, Linoleum and Plastic Workers of America, AFL-CIO, and Its Local No. 336, were permitted to intervene at the hearing on the basis of their con- tractual and representative interest. 156 NLRB No. 49.