L. Fatato, Inc.

In the Matter of L. FATATO, INC., EMPLOYER and BEER DRIVERS LOCAL UNION 24, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS' OF AMERICA, CIO, PETITIONER Case No. 2-RC-1175.-Decided December 9, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before I. L. Broadwin, hearing officer. The hearing officer's rulings made at the hearing are 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-member panel [Chairman Herzog and Members Houston and Gray]. 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. 2. The labor organizations involved claim to represent certain em- ployees 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 Employer, the Petitioner,. and Local 812, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, the Intervenor herein, agree that drivers and helpers at the Employer's Brooklyn, New York, wholesale beer distribution establishment, excluding salesmen and supervisors, constitute an ap- propriate unit. The parties disagree as to the unit placement of em- ployees classified by the Employer as drivers-loaders-salesmen, whom the Employer and the Intervenor would include and the Peti- tioner would exclude.' 'The Petitioner seeks also to include loaders and mechanics in the unit. Because no persons are presently employed in these work categories, we shall make no findings respect- ing their unit placement at this time. ST NLRB No. 73. 546 L. FATATO, INC. 547 The Employer's establishment consists of a one-story building, hous- ing an office and a warehouse and garage. The Employer's regular employees include the following employee classifications: six drivers and two helpers, four drivers-loaders-salesmen, and six salesmen. Drivers-loaders-salesmen spend a portion of their working time loading . and distributing beer in the Employer's trucks, for which they receive a basic wage comparable to that of drivers and sales- men. Drivers spend all of their time loading and driving and receive a commission based on deliveries made. Salesmen devote practically all their time to selling activities on commission. Drivers-loaders- salesmen, like drivers, may perform some maintenance work for the Employer; salesmen perform little or no maintenance work. Drivers- loaders-salesmen possess solicitor's permits, issued by the New York State Liquor Authority, and attend bi-monthly meetings for sales- men at the Employer's establishment. The record indicates that at least 2 of the 4 drivers-loaders-salesmen handle an average of 200 customers each per week, as compared with 350 to 450 customers per week serviced by each salesman; that during 1948 they spent 60 to 85 percent of their working time in selling activities; and that, during the 2 sample months of February and August 1949, 1 of these employees made no delivery trips, while the other made 6 delivery trips, at least 2 of which were in response to emergency calls by customers. We are of the opinion that drivers-loaders-salesmen, unlike drivers and help- ers, are primarily interested in soliciting customers and that their employment interests are more akin to those of salesmen, who the parties agree should be excluded from the unit. We shall therefore exclude drivers-loaders-salesmen from the unit for drivers and helpers herein found appropriate.2 We find that all drivers and helpers at the Employer's Brooklyn, New York, wholesale beer distribution establishment, excluding drivers-loaders-salesmen, salesmen, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. From early April to the end of June 1949, a brewery strike occurred in New York City, as a result of which the Employer's volume of business increased approximately 800 percent. During the strike, the Employer hired 25 to 30 part-time and temporary employees. Although it reduced this number following the strike, it listed, at the 2 bfcArdle & Casaeza Trucking Co., Inc., 86 NLRB 903 ; cf. Rockford Coca-Cola Bottling Co., 81 NLRIl 579. Vincent Fatato, vice president, Thomas Fatato, treasurer, and F. Arnone, secretary, are stockholders of the Employer. Vincent Fatato works as a salesman and Thomas Fatato and E .. Arnone work as driver -loader-salesmen . As salesmen and driver-loader-salesmen, they axe deemed excluded from the unit. 877359-50-vol. 87-36 ,548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time of the hearing, 2i/2 months after the strike, 4 to 14 part-time and temporary employees. The Petitioner contends that, because the part-time and temporary employees were hired by the Employer to cope with, the emergency increase in its volume of business, they will in all probability soon be discharged, and their employment interests are, therefore, too tem- porary and insubstantial to entitle them to vote in the election. Part- time and temporary employees, like drivers, spend their time driving, loading, and performing maintenance work; they do no selling. Part-time employees report for work each clay, and work 2 to 5 hours for 3 to 5 days a week. Temporary employees report for work when called by the Employer; they work at least 1 to 2 full days each week and average 10 to 15 days of work per month. Part-time and tempo- rary employees are paid by the hour at a rate approximately two- thirds of that paid to the drivers. The Employer recalls the same employees for work, whenever possible. Under the circumstances, we believe that part-time and temporary employees have substantial inter- ests in the working conditions at the Employer's establishment and that their employment is not definitely terminable within the foresee- able future. We therefore find that part-time and temporary em- ployees are eligible to vote in the election directed herein.3 DIRECTION OF ELECTION 4 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 Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including part-time and temporary employees, and 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 discharged 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 reinstate- 3 Providence Public Market Company, 79 NLRB 1482. 4 Any participant in the election directed herein may , upon its prompt request to, and approval thereof by , the Regional Director , have its name removed from the ballot. L. FAT'ATO, INC. 549 meat, to determine whether they desire to be represented, for the pur- poses of collective bargaining, by Beer Drivers Local Union 24, Inter- national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, or by Local 812, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, or by neither.