Buitoni Macaroni Corp.

BUITONI MACARONI CORP. 359 BUITONI MACARONI CORP. and RETAIL, WHOLESALE & CHAIN STORE FOOD EMPLOEES UNION, LOCAL 338, AFFILIATED WITH RETAIL, WHOLE- SALE & DEPARTMENT STORE UNION, CIO, PETITIONER. Cage No. 2-RC-3949. February 01, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hearing offi- cer. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain •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 Petitioner requests a unit of all the Employer's outside sales- men working in the metropolitan area which consists of New York City, Westchester County, Long Island, and the northern part of New Jersey down to Perth Amboy. The Employer would also include its outside salesmen assigned to Connecticut, Rhode Island, and Massa- chusetts; Massachusetts and New Hampshire; Atlantic City, New Jersey; and Philadelphia, Pennsylvania, but would exclude the sales- man assigned to Miami, Florida. The Employer is engaged in the manufacture and sale of macaroni products. It has its principal office in New York City, a factory and warehouse in Jersey City, New Jersey, and a factory in Brooklyn, New York. The Employer's approximately 26 salesmen, 18 of whom are assigned to territories within the metropolitan area sought by the Petitioner, are directly supervised by the sales manager. Of the sales- men working outside the metropolitan area, 1 is assigned to Connecti- cut; 1 to Rhode Island and Massachusetts; 1 to Massachusetts and New Hampshire; 1 to Atlantic City, New Jersey; 2 to Philadelphia, Pennsylvania; and 1 to Miami, Florida. ' The Employer challenged the Petitioners showing of interest . However, the Peti- tioner's showing is a matter for administrative determination and is not litigable by the parties. Kearney & Treoker Corporation, 95 NLRB 1125. Furthermore, we are adminis tratively satisfied that the Petitioner's showing is both current and adequate. 98 NLRB No. 58. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above salesmen are assigned geographic territories.2 They visit the trade, write orders, solicit new accounts, call on old accounts, make collections, and some make deliveries. The working conditions of all salesmen are established by the sales manager and appear to be substantially the same. Thus all salesmen, except Ferruggia, work on a salary plus commission basis,8 and most salesmen , regardless of the territory assigned, receive approximately the same salary. Sal- ary checks for all salesmen are prepared at the Employer's main office and mailed to the salesmen. The sales manager interviews and passes on applicants for all salesmen jobs wherever located .4 Com- pany sales policy is controlled from the main office and some of the sales bulletins are sent to all salesmen by the sales manager. Attend- ance at regular sales meetings, usually held every 2 months, is required of all salesmen whether in the metropolitan area or out of town.' There is no bargaining history with respect to the salesmen involved herein. In December 1946, the Petitioner was, as the result of a Board- conducted consent election, certified in a unit substantially similar to the one now sought .o However, no collective bargaining contract resulted. Absent a history of collective bargaining, the unit agreed upon in the consent election is clearly not determinative of the issue here.? Nor do we perceive any valid basis for confining the scope of the unit to conform to the Petitioner's allotted jurisdiction.8 To do so would result in including the salesman who covers part of Con- necticut and those assigned to New Jersey, while excluding the sales- man assigned exclusively to Connecticut and the salesman assigned to Atlantic City. Furthermore, it would exclude the two salesmen assigned to Philadelphia and include the salesman covering parts of Long Island which are considerably farther removed from the main office. Under the foregoing circumstances, including the direct supervision and control of all the salesmen by the sales manager, the similarity of working conditions and rates of pay of all salesmen, and on the basis of the entire record in the case, we find that the appropriate unit is one consisting of all the Employer's outside salesmen.9 , Carleton and Ferruggia, herein discussed separately , are not assigned specific geographic territories. 8 Ferruggia is salaried but does not receive a commission 4In hiring an out-of-town salesman , the sales manager will travel to that territory and personally interview applicants and select the one he thinks most qualified. 5 The salesman in Miami attends the meeting once every 6 months , and is visited by a man from the main office at other times to assist him in his teritory and "bring him up to date" on current sales policy. ° Case No 2-R-7400. ' American Laundry Machinery Company, 66 NLRB 1292. and cases cited therein. Cf. Standard Lime and Stone Company, 95 NLRB 1141 , and cases cited therein 8 Cf. F. B. Silverwood, d/b/a Silverwood'a, 92 NLRB 1114 9 Liebmann Breweries, Inc, 92 NLRB 1740; John F Ti oin in er, Inc,, 90 NLRB 1200. BUITONI MACARONI CORP. 361 The Petitioner would exclude and the Employer include Anthony Carleton and Joseph Ferruggia.lo Anthony Carleton is the assistant sales manager. He performs reg- ular salesman's duties, handling the Employer's larger accounts, such as large department stores, •jobbers,.steamship lines, and some of the large chain stores. Unlike other salesmen, Carleton is not assigned a territory and his accounts are frequently located in the territories assigned other salesmen, and in addition, he is reimbursed by the Em- ployer for entertainment expenses. Although Carleton receives a salary of approximately $40 more per week than other salesmen, he receives a 1 percent commission instead of the 3 percent salesman's commission. The record shows that Carleton does not hire, discharge, promote, fix territories, interview applicants, or effectively recom- mend other personnel action. We note also that, although Carleton has the title of assistant sales manager, the Employer's vice president assumes the sales manager's duties when the sales manager is absent. Under these circumstances, we find, contrary to the Petitioner, that he is not a managerial employee, nor is he a supervisor within the meaning of the Act. Accordingly, we see no basis for distinguishing between him and the other salesmen in the unit. We shall include him. Joseph Ferruggia is known as a "trouble-shooter." He is not as- signed a territory nor does he receive a commission on his sales, but works with other salesmen, assisting them in their territories and aiding them in sales campaigns. He also works with the salesmen of the Employer's agents, acquainting them with the Employer's product and assisting them in their sales. Ferruggia also occasionally takes over a salesman's territory during illness or vacation. Ferruggia, like Carleton, is reimbursed for entertainment expenses. The record does not show that Ferruggia makes effective recommendations of person- nel changes nor that he has any other supervisory functions. On the basis of these factors, and upon the entire record in the case, we shall include him in the unit as a salesman. We find that all outside salesmen" of the Employer's operations including the assistant sales manager, but excluding all other em- ployees, office and clerical employees, guards, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 1U The parties were also in dispute as to Leonare Mautte However, the Employer indi- cated during the course of the hearing that Mautte was resigning as of January 18, 1952. Under these circumstances it is unnecessary to rule upon her unit placement. "Inasmuch as the salesman in Miami has duties similar to those of other outside sales- men, and in view of our other findings herein, we see no reason for excluding him from the unit merely because of his geographic location . Accordingly , and contrary to the Employer's contention, we shall include the Miami salesman in the unit.