Atlantic Co.

National Labor Relations Board - Board Decisions

Oct 29, 1946

71 N.L.R.B. 442 (N.L.R.B. 1946)

In the Matter of ATLANTIC COMPANY, EMPLOYER and INTERNATIONAL
UNION OF UNITED BREWERY, FLOUR, CEREAL AND SOFT DRINK
WORKERS OF AMERICA, CIO, PETITIONER
Case No. 10-R-2007.-Decided October 29,1946
Mr. A. Walton Nall, of Atlanta, Ga., and Mr. W. E. Swinson, of
Columbus, Ga., for the Employer.
Messrs. Charles H. Gillman, Grady Tannery, and Hanns J. Kleber,
all of Atlanta, Ga., for the Petitioner.
Mr. Arthur Christopher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Atlanta,
Georgia, on August 8, 1946, before John C. McRee, hearing officer.
At the hearing, the Employer moved to dismiss the petition on the
grounds that (1) the Employer is not engaged in interstate commerce
within the meaning of the Act; (2) no question concerning repre-
sentation has arisen within the meaning of the Act; (3) there is no
evidence in the record which shows that the Petitioner has been des-
ignated by any of the employees of the Employer for the purposes
of collective bargaining; and (4) the unit sought is inappropriate.
The hearing officer referred the motion to the Board for ruling thereon.
For reasons stated hereinafter, the motion to dismiss is denied. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Subsequent to the hearing and transfer of the case to the Board,
Petitioner filed a motion with the Board, concurred in by the Em-
ployer, in which it seeks to confine the petition to drivers' helpers
inasmuch as the parties have agreed to a consent election in a unit
composed of all the other employees embraced by the petition except
the helpers. In view of the desires of the parties and upon the entire
record in the case, we hereby grant Petitioner's motion. Accordingly,
we shall confine our decision herein to drivers' helpers only and shall
view the record with due regard to the changes effected by the grant-
ing of the motion. And, although it is not clear from the record,
we are assuming for the purposes of this decision that the Employer's
71 N. L. R. B., No. 69.
442
ATLANTIC COMPANY 443
concurrence in Petitioner's motion to confine the issue to helpers only
was not intended to constitute a waiver by the Employer of any of
the grounds asserted in its motion to dismiss.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Atlantic Company, a Georgia corporation with principal offices in
Atlanta, Georgia, is engaged in the production and distribution of
ice, beer, and ale at its Atlanta, Georgia, brewery, with which we are
solely concerned. During the 12-month period before August 1, 1946,
approximately 50 percent of the raw materials used at this operation
was shipped to it from sources outside the State of Georgia. During
the same period, this brewery produced more than 188,000 barrels of"
beer and ale, of which amount about 22 percent represented sales and,
shipments to points outside the State.
We find, contrary .to the contention of the Employer, that it is
engaged in commerce within the meaning of the National Labor
Relations Act.'
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent certain employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as exclusive bar-
gaining representative of the helpers of its drivers until the Petitioner
has been certified by the Board in an appropriate unit. It takes the
position that these individuals are not its employees but rather the
employees of its drivers.
The Employer operates numerous trucks in connection with the
distribution of its beer and ale. Some of these trucks deliver draught
beer and ale while others deliver bottled beer only. The drivers of
all these trucks and the drivers' helpers on the draught beer trucks
are admittedly employees of the Employer. It is only the helpers
on the bottled beer trucks whose status as employees is put in issue.
Drivers' helpers on trucks delivering bottled beer carry beer cases
from the trucks to customers' premises and return empty cases to the
1 See Matter of Atlantic Company, 65 N. L . R. B. 1274 ; and Matter of Raleigh Coca Cola
Bottling Works, et al., 65 N. L. R . B. 1010.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks. Upon completion of route deliveries they also unload the
empty cases from the trucks to the Employer's platform. They are
generally selected for employment by the drivers on the Employer's
premises. Once hired, they are taken by the drivers to the Employer's
business office where personal data for the Employer's records are
obtained from them. Although the Employer contends that it does
not require its drivers to employ helpers, it appears that it would be
practically impossible for any of the drivers to render satisfactory
service without the assistance of a helper or helpers. The record re-
veals that the drivers fix the rates of pay, hours and conditions of
work of the helpers. Before pay day each driver reports to the Em-
ployer's office the working hours and the amount of wages each helper
should receive. These wages appear to be based upon a similar wage
schedule adhered to by all drivers. The amount paid the helpers
is deducted by the Employer from the gross earnings of the drivers.'-
Although the drivers may discharge their helpers outright, it is ap-
parent from the record that the Employer maintains a measure of
control over these helpers in this respect. Thus, its route supervisors
report misconduct and infractions of Employer rules by the helpers as
well as by the drivers and the drivers may be requested by the Em-
ployer to keep objectionable helpers off the Employer's premises. It
would appear that such a request would in the normal situation be
tantamount to a discharge since, aside from other considerations, the
usefulness of the helper to the driver would be so materially diminished
by his exclusion from the premises as to render his employment un-
tenable.3
The record further reveals that the Employer, performs all book-
keeping work involving the helpers and remits Social Security taxes
for them. It also lists the helpers as its employees for the purposes
of the Social Security and Federal Income Withholding Taxes. In
addition, on several occasions, the Employer has paid the medical
expenses and wages of helpers who were incapacitated as a result of
injuries received in the line of duty. The record also discloses that
the Employer has paid time-and-a-half pay to helpers for occasional
overtime work performed in the plant.
We are persuaded by the underlying facts and realities of the exist-
ing relationship that the power of the drivers to hire, discharge, and
fix the rates of pay, hours, and conditions of work of the helpers are
merely incidents of the drivers' status as employees of the Employer
and that the helpers are indeed employees of the Employer. Arguing
2 The Employer reports only the net earnings of the drivers for the purpose of the drivers'
Federal Income Withholding Tax.
3 we regard as exceptional the one instance in the record in which the driver did not
allow the helper objectionable to the Employer to come upon the brewery property but
nevertheless availed himself of the services of that individual on his route upon subsequent
occasions.
ATLANTIC COMPANY 445
strongly in favor of the employee status of the helpers are the facts
that (1) the helpers work alongside of the drivers, who are admittedly
employees of the Employer, in carrying out the common purpose of
effectively distributing the Employer's beer and ale; (2) although
the drivers have extensive authority over helpers, this power is not
absolute by reason of the control of the Employer over its drivers and
by reason of the power of the Employer to compel the discharge of a
helper objectionable to it by excluding him from the premises; and
(3) no apparent distinction is made by the Employer between the
treatment of its admitted employees and that accorded the helpers
with respect to the performing of bookkeeping work, remitting of
Social Security taxes, listing of workers as its employees for all Federal
tax purposes, paying of medical expenses and wages for individuals
injured while on duty, and the paying of time-and-a-half wages for
overtime work. Accordingly, in view of the foregoing, and upon
the entire record in the case, we are of the opinion that the drivers'
helpers are employees of the Employer within the meaning of Section
2 (3) of the Act.4
For reasons stated by us in Matter of 0. D. Jennings & Com-
pany,' we find no merit in the employer's further contention that the
petition should be dismissed because there is absent any evidence in
the record as to the number of employees who have designated the
Petitioner as their exclusive representative for collective bargaining
purposes.
We find, therefore, that a question affecting commerce has arisen
concerning the representation of employees of the Employer within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
As indicated above, the Petitioner seeks a unit consisting solely of
drivers' helpers employed at the Employer's Atlanta Brewery and the
Employer contests the appropriateness of the unit. In view of our
finding in Section III, supra, that the helpers are employees within
the meaning of the Act and our further opinion that these employees
comprise a well-defined, cohesive and homogeneous group who may
function together for collective bargaining purposes , we shall reject
the Employer' s contention.
We find, therefore, that all drivers' helpers employed by the Em-
ployer at its Atlanta, Georgia, brewery, excluding all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4 Cf. Matter of Great Bear Logging Company, 59 N L R B. 701.
568 N L R B 516.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Atlantic Company, Atlanta,
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 Direc-
tor for the Tenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period imme-
diately 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 including 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 dis-
charged 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 rep-
resented by International Union of United Brewery, Flour, Cereal
and Soft Drink Workers of America, CIO, for the purposes of col-
lective bargaining.
CHAIRMAN IIERZOG took no part in the consideration of the above
Decision and Direction of Election.