Coca-Cola Bottling Co. of Baltimore

National Labor Relations Board - Board Decisions

Dec 29, 1965

156 N.L.R.B. 450 (N.L.R.B. 1965)

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.