Gerber Products Co.

National Labor Relations Board - Board Decisions

Aug 22, 1968

172 N.L.R.B. 1698 (N.L.R.B. 1968)

1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerber Products Company and Retail Store Em-
ployees Union, Local 345, AFL-CIO, Retail
Clerks International Association , Petitioner.
Case 3-RC-4334
August 22, 1968
DECISION ON REVIEW AND DIRECTION
On February 13, 1968, the Regional Director for
Region 3 issued his Decision and Direction of Elec-
tion in the above-entitled proceeding, in which he
found appropriate a unit of all salesmen in the Em-
ployer's Pittsburgh district, and directed an election
in that unit subject to Petitioner's obtaining an
adequate showing of interest therein. Thereafter, in
accordance with National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Petitioner filed a timely request for review of the
Regional Director's unit determination By tele-
graphic order dated April 2, 1968, the National
Labor Relations Board granted the request for
review and stayed the election
The Board has reviewed the entire record in this
case with respect to the issue under review and
makes the following findings.
The Petitioner seeks a unit of salesmen reporting
to the Rochester, New York, territory manager.
The Employer proposed instead a larger unit of all
salesmen of its Pittsburgh district, which includes
the Rochester as well as other territories The Re-
gional Director found that the Rochester territory
was not a separate appropriate unit, but he further
found, in agreement with the Employer, that the
Pittsburgh district unit was appropriate. In its
request for review, the Petitioner argues that the
Rochester territory is appropriate based on the au-
tonomy of its operations, its separate geographical
location, and the absence of interchange of
salesmen between it and other territories, and avers
that the Regional Director departed from Board
precedent in failing to find this unit to be ap-
propriate. We find merit in the Petitioner's conten-
tions.
The Employer, which has headquarters in
Freemont, Michigan, is engaged in the manufac-
ture and wholesale distribution of baby foods and
other products throughout the United States. Its
sales operation is administratively and geograph-
ically divided into two regions, and further success-
ively divided into divisions, districts, and terri-
tories. The Middle Atlantic Division of the Eastern
Region encompasses all, or portions of, seven
States, and it is subdivided into five districts,
with headquarters offices in Richmond, Balti-
more, Philadelphia, Syracuse, and Pittsburgh.
The Pittsburgh district embraces the western
14 counties of New York, 26 of the 28 western
counties of Pennsylvania , and 22 northern and
western counties of West Virginia. The Pitts-
burgh district is divided into six apparently con-
tiguous territories , two in Pittsburgh , two in Buf-
falo, one in Altoona , and one in Rochester . A total
of 30 salesmen are assigned to these territories. The
requested Rochester territory encompasses eight
New York counties extending south from Lake On-
tario to the Pennsylvania border . all of Wayne, On-
tario, Yates, and Steuben counties ; most , or all, of
Monroe and Livingston counties ; and portions of
Wyoming and Allegany counties . A roadmap
placed in evidence indicates that the mean dimen-
sions of the Rochester territory are approximately
86 miles north -south by 54 miles east -west for a
total approximate area of 4 ,700 square miles.
Rochester is 50 miles east of Buffalo, 60 miles west
of Syracuse . The Rochester territory employs six
salesmen under the direction of a territorial
manager.
The Rochester territory has been relatively stable
for at least 16 years prior to the hearing, with the
same manager and with boundaries that have un-
dergone no substantial changes during that period.
The Rochester territory salesmen are rarely if ever
interchanged with salesmen of other territories, and
have only infrequent contact with such other
salesmen . There is no bargaining history for any of
the salesmen in the Pittsburgh district. Most em-
ployee benefits are uniform on a nationwide scale,
with the exception of the district sales incentive
plan which provides between 3 and 7 percent of the
salesmen 's salaries
The salesmen spend the bulk of their time servic-
ing both chain and nonchain grocery stores. Ac-
counts are initially established at chain stores by
district and territory managers and by so-called
sales representatives , rather than by the salesmen.
Goods are delivered by the Employer to chain
warehouses . The salesmen here sought thereafter
make periodic visits to each store of the chain, in-
spect goods on the shelves, remove unsaleable
goods, write rebate credits for such goods, bring
fresh merchandise from the storeroom and stack it,
and check the storeroom to see how much
merchandise is in stock . They then write a recom-
mended order upon the chain 's own warehouse for
the store manager 's approval . When store managers
have delegated their authority to the salesmen, the
latter write actual orders upon the chain
warehouse . The salesmen also engage in promo-
tions among all the stores on their routes.
With respect to established accounts in nonchain
stores, the salesmen follow much the same
172 NLRB No. 195
GERBER PRODUCTS COMPANY
procedure. Although the record does not reveal
who solicits new accounts at nonchain stores, it ap-
pears the salesmen rarely attempt to do so.
The Rochester territory manager exercises con-
siderable autonomy in the management of the sales
force assigned to his territory. Thus, he recruits
new salesmen as need dictates, interviews them,
and makes recommendations for hiring them to the
Pittsburgh district manager. The Rochester territo-
ry manager trains his salesmen on a continuing
basis in selling and promotion techniques, and he
regularly accompanies them when they service their
routes. He assigns and reassigns them within the
Rochester territory, schedules their vacations, and
grants time off. He receives copies of reports
prepared by the salesmen , and on the basis of these
reports and his regular contacts with them he sub-
mits weekly reports to the Pittsburgh district
manager which contain recommendations affecting
the salesmen's employment status including wage
increases and discharge. The record indicates that
the district manager relies heavily on each territory
manager 's recommendation with respect to all per-
sonnel actions including the initial recommendation
to hire a salesmen.'
The Rochester territory manager also holds
monthly meetings at the Employer's Rochester
warehouse of all salesmen assigned to his territory.'
At these meetings, as well as in the course of his
regular contacts with individual salesmen, the
Rochester territory manager transmits and explains
the Employer's policies to the salesmen. Inasmuch
as Rochester salesmen rarely meet with the Pitts-
' The Pittsburgh district manager administers the operations of the dis-
trict from his Pittsburgh office He takes final action in all major personnel
matters, including the hiring, discharging , and promotion of territorial
salesmen He also receives the originals of the salesmen 's daily activity,
time, and expense reports However, he only meets with these salesmen as
a group about once a year or every 18 months
2 The Rochester salesmen also utilize the warehouse as a source of sup-
plies
3 Metropolitan Life Insurance Company, 156 NLRB 1408, Haag Drug
Company , Incorporated , 169 NLRB 877, Burton Foods Corp , I 1 I NLRB
638 See also Frito-Lay , Inc , 170 NLRB 1678 , California State Automobile
1699
burgh district manager, the Rochester manager is
thus the principal representative of company
authority and policy insofar as these salesmen are
concerned.
In view of the large, distinctive, and historically
stable area encompassed by the Rochester territory,
the lack of interchange and infrequent contact
between Rochester territory salesmen and
salesmen of other territories, and the substantial au-
tonomy of the Rochester territory in its day-to-day
operations, we find that the Rochester territory
salesmen share in a community of interest separate
and apart from that of other salesmen and, ac-
cordingly, that they constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.,' The ap-
propriate unit is:
All salesmen employed by the Employer who are
assigned to its Rochester, New York, territory, ex-
cluding all other employees, territory managers,
clerical employees, managerial employees,
watchmen, guards, and supervisors, as defined in
the Act.
DIRECTION
The case is hereby remanded to the Regional
Director for Region 3 for the purposes of conduct-
ing an election according to his Decision and
Direction of Election, as modified herein, except
that the eligibility date shall be the payroll period
immediately preceding the date below.4
Association, 170 NLRB 844 , and cases cited therein
' A corrected election eligibility list, containing the names and addresses
of all the eligible voters, must be filed by the Employer with the Regional
Director for Region 3 within 7 days after the date of this Decision on
Review and Direction The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
Inc, 156 NLRB 1236