Dr. Pepper Bottling Co.

National Labor Relations Board - Board Decisions

Aug 20, 1948

78 N.L.R.B. 1261 (N.L.R.B. 1948)

In the Matter of DR. PEPPER COMPANY D/B/A DR. PEPPER BOTTLING
COMPANY, EMPLOYER and INTERNATIONAL UNION OF UNITED BREW-
ERY, FLOUR , CEREAL , SOFT DRINK AND DISTILLERY WORKERS OF
AMERICA, C. I. 0., PETITIONER
Case No. 70-RC-88.-Decided August 20, 1948
DECISON
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, a hearing was held before a
hearing officer of the National Labor Relations Board. At the hear-
ing, the Employer moved to dismiss the proceeding on the grounds that
Dr. Pepper Bottling Company is not engaged in commerce within the
meaning of the National Labor Relations Act and that the record does
not affirmatively show that the Petitioner and its local have complied
with Section 9 (f), (g), and (h) of the Act. As we find that the Em-
ployer is engaged in commerce," and as we have ascertained that both
the Petitioner and its affiliated local have complied with the filing re-
quirements of the Act, the Employer's motion to dismiss is denied.
The hearing officer properly refused to permit inquiry at the hearing
regarding the compliance status of the Petitioner and its local, as com-
pliance is a matter to be determined administratively by the Board 2
The hearing officer's other rulings made at the hearing are also free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act .3
I See footnote 3, infra.
2 Matter of Alabama Electric Cooperative, Inc., 78 N. L. R. B. 634; Matter of Lion
Oil Company, 76 N. L. It. B. 565.
'Chairman Herzog and Members Murdock and Gray.
2 Although the Employer, in operating the bottling plant involved in this proceeding,
obtains all its syrup locally, and all its sales are made within the State of Alabama, bottles,
78 N. ,L. R. B., No. 178.
1261
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization named below claims to represent
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 following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All employees of the Employer at its bottling division at Birming-
ham, Alabama, including' refrigeration department and bottling de-
partment employees, sign department employees, garage mechanics,
driver-salesmen 4 and their helpers, the checker, and the cashier 5
but excluding all office and clerical employees, guards, professional
employees, and supervisors.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30 days
from the date of this Direction, under the direction and supervision
'of the Regional Director for the Tenth Region, and subject to Sec-
tions 203.61 and 203.62 of National Labor Relations Board Rules and
Regulations-Series 5, among the employees in the unit found appro-
bottle crowns , cases, and soft drink coolers are shipped to it from points outside the
State. See Matter of Coca-Cola Bottling Company of Arkansas, 74 N. L. R. B. 1098;
Matter of Roanoke Coca-Cola Bottling Works, Inc., 72 N. L. R B. 733 ; Matter of Pepsi-
Cola Bottling Company of Montgomery , 72 N. L. It. B. 601. Moreover , the Employer, in
the operation of its business under the name of Dr. Pepper Company, which manufactures
the syrup used by the bottling plant, clearly is engaged in interstate commerce.
4 The Employer contends that the driver -salesmen , or route-salesmen , should be excluder,
from the unit as supervisors . It appears that the driver-salesmen do not have authority
to hire or discharge the helpers assigned to them, nor are their recommendations as to
hiring or discharging necessarily given weight. Although the Employer deducts 3 dollars
a week from the salary of each driver-salesman , which is used toward the pay of his helper,
this is not done with the express permission of the drivers . The driver-salesmen are in
complete charge of their trucks while on their routes and do have authority to direct the
work of their helpers. Such supervision , however, appears to be of a routine nature. On
the basis of all the facts, we find that the driver-salesmen are not supervisors within the
meaning of the Act, and that their interests are so intimately connected with those of the
other employees whom the Petitioner seeks to represent as to warrant their inclusion in
the unit. Matter of Coca- Cola Bottling Company of Arkansas , 74 N. L. It. B. 1098, at
1099; Matter of Raleigh Coca-Cola Bottling Works, 65 N. L It. B. 1010, at 1012. But cf.
Matter of Roanoke Coca-Cola Bottling Works , Inc., 72 N. L. R. B. 733, at 735-736.
'The duties of the checker and the cashier , S. K. Spradley and Charlie Sutton, appear
to be analogous to those of plant clericals rather than to those of office clerical employees.
Spradley checks the number of cases of soda on each truck as it goes out and the number
of empty cases on each truck as it returns in the evening . Sutton then determines from
these figures how much the driver-salesman owes the Employer and collects this amount
from him. As these two employees work in close contact with the driver-salesman and
.other employees included in the unit, we shall , in accordance with the agreement of the
,parties, include them in the unit.
DR. PEPPER BOTTLING COMPANY 1263
priate in paragraph numbered 4, above, who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid
off, 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, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by Inter-
national Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, C. 1. 0.