Atlantic Co.

National Labor Relations Board - Board DecisionsFeb 20, 1946

65 N.L.R.B. 1274 (N.L.R.B. 1946)

In the Matter of ATLANTIC COMPANY and UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES , C. I. O. Case No: 10-R-1574.-Decided February $0, 1946 Messrs. Swift, Pease, Davidson, Swinson c Chapman, by Mr. W. Edward Swinson, and Battle, Smith & Elliott, by Mr. A. Edward Smith, of Columbus, Ga., for the Company. Mr. H. W. Denton, of Atlanta, Ga., for the Union. Mr. Benj. E. Cook, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Retail, Wholesale and-Depart- ment Store Employees, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Atlantic Company, Columbus, Georgia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Mortimer H. Free- man, Trial Examiner. The hearing was held at Columbus, Georgia, on September 14, 1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing, the Company moved to dismiss this proceeding on the grounds that it was not engaged in commerce within the meaning of the Act. The Trial Examiner re- ferred the motion to the Board and for reasons which appear in Sec- tion I, below, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby -affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Atlantic Company, a Georgia corporation, having its principal offices at Atlanta, Georgia, operates between 65 and 70 plants located along 65 N. L. R. B., No. 214. 1274 ATLANTIC COMPANY 1275 the Atlantic coast line from Virginia to Florida, where it is engaged in the coal,-ice, and beverage business. Purchases for all these plants are supervised by the Company's general purchasing agent and policies governing the various plants are determined by company officials at the main office in Atlanta. The Company operates a brewery in Atlanta from which it ships products to points within and. without the State. The only plant involved ' in this proceeding is located at Columbus, Georgia,' a city within a few miles of the Alabama State line. This plant manufactures ice and sells coal, ice, and beer. Dur- ing the past 12 months, the Company purchased coal valued at ap- proximately $70,000, all of which was shipped to the Columbus plant from outside the State of Georgia. All materials used in the manu- facture of ice are obtained locally, and all beer is obtained from the Company's Atlanta brewery; the Atlanta brewery, however, obtains a substantial portion of its raw materials from outside the State of Georgia. During the past 12 months, the Company's sales of ice amounted to $363,803.37, of which approximately 16 percent was shipped outside the State. During the same period, the Company sold coal in the amount of $51,423.99, of which approximately 3 per- cent was shipped outside the State. The Company's income from storage, amounting to approximately $43,655.55 during the past 12- month period, was derived from storing food, meat, and other prod- ucts received from points outside the State of Georgia. While the Company does not deny that its operations as a whole bring it within the purview of the Act, it does contend that insofar as the operations of the Columbus plant are concerned the Company is not engaged in commerce. Although interstate shipments from the Columbus plant are not extensive, the Board's jurisdiction is not de- pendent solely upon the extent to which the Columbus plant, viewed as a separate enterprise, is engaged in interstate commerce. The Co- lumbus plant is not to be regarded, in isolation, and the evidence shows that its operations constitute an integral part of the Company's over-all business enterprise, which clearly is interstate in nature. Accordingly, we find, contrary to the Company's contention, that the operations of its Columbus plant affect commerce, within the meaning of the Act., H. THE ORGANIZATION INVOLVED United Retail, Wholesale, and Department Store Employees is a labor organization , affiliated with the Congress of Industrial Or- ganizations , admitting to membership employees of the Company. 1 See Matter of Ford Motor Company, 64 N. L R. B . 365, and cases cited therein. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.2 We find that a question affecting commerce has arisen concern- ing the representation of employees of the Company, within the,mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union requests a unit comprising all the Company's employees except helpers hired and paid by the drivers, office and clerical em- ployees, substation operators, platform clerks, route inspectors, and supervisors. While generally agreeing with the Union, the Com- pany would include the inspectors, substation operators; and platform clerks. Route inspectors: There are 2 route inspectors and approximately 30 drivers, all of whom work under the supervision of the delivery superintendent and the assistant superintendent. The inspectors in- terview customers, supervise the service rendered them by the drivers, and report complaints to the superintendents. Although the inspec- tors, in an emergency, substitute for the drivers on occasions, unlike the drivers, they are furnished with a helper who performs the manual work. The inspectors are paid a weekly salary, receive a bonus, sick benefits, and vacation with pay, whereas the drivers are paid on a com- mission basis and receive no bonus, sick benefits, or paid vacation. We are of the opinion that the duties and interests of the inspectors differ substantially from other employees included in the unit; we shall exclude them. Platform clerks: These employees answer the telephone, make out bills, receive money, and take orders for the sale of coal and ice. The Company concedes that one of them should be excluded, but urges that since the other spends a portion of his time in the performance of manual labor incident to carrying ice from the platform to cars of customers, he should be included. However, both clerks are engaged primarily in clerical work and we are of the opinion, therefore, that there are no material differences in their duties and interests; accord- ingly, we shall exclude both platform clerks from the unit. 3 The Field Examiner reported that the Union submitted 76 cards, bearing the names of 76 employees listed on the Company's pay roll , and that 69 are dated June to August 1945, and that 7 are undated. There are approximately 131 employees in the appropriate unit. ATLANTIC COMPANY 1'277 Substation operators: The Company's products are sold, in part, through so-called substation operators at 13 locations in and around Columbus; 2 of the substations are located in Phenix , Alabama. The Company sells its products to these operators at wholesale , and they in turn sell them at prices set by the Company. The operators furnish their own truck and all necessary labor.' Operators are not carried on the Company's pay roll, no social security or withholding deduc- tions are made by the Company, and the Company has no direct con- trol over the operators or their employees . At some of the stations, the operators also conduct a mercantile business . In view of all the circumstances , we are of the opinion that the substation operators lack a sufficient community of interest with other employees in the unit to warrant their,inclusion ; accordingly , we shall exclude them. Collector: The Company employs one collector who, under the silpervision of the cashier , collects accounts from the Company's cus- tomers. Inasmuch as the duties of the collector are primarily clerical, we shall exclude him. We find that all employees of the Company , but excluding route inspectors , office and clerical employees , helpers hired and paid by the driver, the collector, platform clerks, substation operators , superin- tendents , assistant superintendents , foremen, and all or any other supervisory employees with authority to hire, promote , discharge, discipline , or otherwise effect changes in the status of employees, or effectively recommend such action , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. '1'111; 1)E'I'h]R 1fINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot. The Company moved to dismiss the petition upon the ground that no election should be held when charges of unfair labor practices have been filed by the Union against the Company and are still pending in the Regional Oflice.4 However, the Union has filed a waiver herein agreeing not to make the subject matter of the charges the basis of an objection to the conduct of an election in the event it loses. Under such circumstances , it is the Board 's administrative practice to proceed with a determination of representatives . Accordingly, the Company's motion for dismissal of the petition is hereby denied and all employees nl the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, -The operators in the aggie_ate have 1S emplovees Case No 10-C-1772 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject to the limitations and additions set forth in the Direction, shall be eligible. to vote. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Atlantic Company, Columbus, Georgia, an election by secret ballot, shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional' Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and includ- ing employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by United Retail, Wholesale, and Department Store Employees, C. I. 0., for the purposes of collective bargaining.