L.. M. Berry and Co.

L. M. BERRY AND COMPANY 217 L. M. Berry and Company and Office & Professional Employees International Union Local No. 9, AFL-CIO, Petitioner. Case 30-RC-1607 July 14, 1972 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Alan S. Brostoff. Following the hearing the Regional Direc- tor for Region 30, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this porceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 4. The appropriate unit. There is no history of collective bargaining for the employees sought to be represented herein. The Petitioner seeks to represent a unit of all premise sales and telephone sales employees em- ployed by the Employer at its Milwaukee, Wisconsin, office, but excluding all other employees, such as clerical employees, professional employees, artists, confidential employees, miscellaneous employees, janitor, maid, office boy, guards, and supervisors as defined in the Act. The Employer contends that the unit sought by the employer is inappropriate in that the appropriate unit is all the employees at the Milwaukee location of the Company, excluding managerial employees, confidential employees, guards, and supervisors as defined in the Act. Alternatively, the Employer contends that, if the 198 NLRB No. 39 Board finds that a separate unit of sales personnel is appropriate, the five clerical workers assigned direct- ly to sales and working in the immediate sales area of the building should be included in the unit. Finally, the Petitioner contends that five individu- als, Anderson, Deno, Dohmann, Van Wormer, and Williamson, are not supervisors within the meaning of the Act, while the Employer contends that they are supervisors. The Employer is an Ohio corporation with its home office in Dayton, Ohio. It is engaged in the sale of telephone directory advertising in several States. The Employer maintains two permanent locations in Wisconsin. One location is in Milwaukee and the second is in La Crosse. The Employer's Milwaukee location, which is the only location involved herein, is responsible for selling and servicing "Yellow Pages" advertising for the Wisconsin Telephone Company throughout the State of Wisconsin. Tem- porary offices are set up in other locations during sales campaigns or canvasses of the area. The La Crosse office primarily services accounts that pertain to independent telephone companies. The table of organization at its Milwaukee office includes a Wisconsin manager, a west district manager, and an east district manager who direct canvassing in those areas of the State of Wisconsin. There is also a Milwaukee manager who directs the canvassing in that city and its environs. Directly under the Milwaukee manager are four district sales managers and five supervisors. Also at its Milwaukee office, the Employer employs four basic classifica- tions which are staffed by approximately 41 premise salesmen, 22 telephone salesgirls, 52 clericals, and 9 artists. The Employer's sales campaign for soliciting customers for advertisements into the "Yellow Pages" is referred to as a "canvass." The canvassing of the districts is performed by teams who operate in the various communities. The size of the teams may vary from 4 to 6 premise salesmen with a supervisor in the smaller directories, to as many as 28 salesmen in the Milwaukee directory, which is the largest directory in Wisconsin and requires nearly 6 months to complete. The district sales managers direct all of the soliciting within their individual districts. Howev- er, in certain smaller directories or temporary offices, canvassing has been directed, on occasion, by a supervisor. Premise salesmen are assigned to the various directories until the completion of the sales campaign in that area, at which time they are assigned to another directory or sales campaign. They are compensated on a commission basis which depends upon the revenues obtained from the various accounts. The telephone sales employees conduct 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their sales campaigns by telephone. They are paid on the basis of commissions earned and they are supervised by the telephone sales manager. Unlike the premise sales employees, the telephone sales employees do not leave the office to solicit custom- ers. The Milwaukee sales campaign is headed by the Milwaukee area manager or canvass manager, Arthur Cerqua. Directly under Cerqua are four district sales managers who direct the canvassing in four Milwaukee districts designated south No. 1, south No. 2, north No. 1, and north No. 2. There are 5 supervisors and 24 salesmen, 6 in each of the 4 districts. Preparation for the Milwaukee canvass begins in June and involves the preparing of visual aids, promotional material, and market cards by the sales promotion department. Two clerks assist the sales promotion manager in this task. In September, the premise salesmen start coming in from other can- vasses that are nearing completion. The telephone salespeople are notified of the start of the canvass by Miss Balistreri, the telephone sales manager. Train- ing and orientation meetings are held and they are attended by both premise salesmen and telephone salespeople. Telephone salesgirls are occasionally assigned to premise sales. As. set forth above, the Petitioner seeks a unit of all premise sales and telephone sales employees, but excluding all other employees. The Employer con- tends that only an overall unit, including sales employees, clericals, and artists, is appropriate. In addition, the Employer contends that, if the Board finds that a separate unit of sales personnel is appropriate, those five clerical workers assigned directly to sales and working in the immediate sales area of the Employer's Milwaukee office building should be included. The Employer would support its contention that only an overall unit is appropriate on grounds that its operation exists for one purpose only and that is to sell advertising for Wisconsin Telephone Company; all of its employees participate in that effort as component parts of a completely integrated system; the number of employees is small; and, since its employees are devoted to one single aim and accomplishment, they should not be fragmented for collective-bargaining purposes. We disagree. The Board has often held in other industries that salesmen have a community of interest sufficient to constitute a separate appropriate unit for collective- bargaining purposes.' The record shows that those factors relied on by the Board in other industries in finding a separate unit of salesmen appropraite are also present herein including seperate interests and different working conditions. We note that, unlike the other employees herein, the premise sales and telephone sales employees must pass a hiring test, they must take a 2-week training course in Dayton, they must meet established quotas, they are primarily engaged in selling advertising to customers, they are paid on the basis of commissions, and they do not receive overtime pay. Moreover, we note that both parties agree to the propriety of joining premise sales and telephone sales employees in a single unit. On the basis of the foregoing and the entire record, we therefore find that a separate unit of premise sales and telephone sales employees is appropriate for the purposes of collective bargaining. In determining which employees are to be included in the unit, the Petitioner would exclude and the Employer argues for the inclusion of the one part- time and nine full-time artists. The Employer contends that the artists are deeply involved in the sales production process and that their activities are integrated and interrelated with those of the sales personnel. The record shows that the artists work in a separate art department located on the second floor of the Employer's Milwaukee office building. They are supervised by the art director. The artists are paid a salary and perform duties which include the prepara- tion of speculative copy for the sales employees, the processing of completed artwork and copy for the sales force to send to the engraver, and the preparation of promotional material and contest charts. When a salesman receives an account he contacts the customer to discuss his needs and requests and to get ideas for artwork or layouts that may be of interest to the customer for insertion in the next directory. After the salesman returns to the sales office, he prepares a speculative copy which he sends to the art department. Thereafter, the art department returns the improved speculative copy to exhibit to the customer. After the customer approves, the artists prepare the final artwork in the form in which it will appear in the directory, to be forwarded to the engraver. The artists also prepare promotional material which includes visual aids used by premise salesmen and telephone sales girls for displaying to customers. Artists also make charts and posters for use within the Employer's offices in connection with sales contests. On occasion, artists have been assigned to work at temporary offices other than the Milwaukee office. Also artists have accompanied premise sales- men while calling on customers. Unlike the premise I Leisure World Sales Corporation, 163 NLRB 668, Neptune Broadcasting Company, 94 NLRB 1052 Cf Interstate Supply Company, 117 NLRB 1062 L. M. BERRY AND COMPANY salesmen or the telephone salesgirls who work on a commission basis, the artists receive a salary. There is no evidence that artists transfer to sales work. It is clear from the record that the artists have separate supervision and different skills from that of the sales employees and are paid on a different basis. We find that the duties and working conditions of the artists are sufficiently different from those of the premise sales and the telephone sales employees to preclude a finding that they must be included in the same unit. Accordingly, and as Petitioner has not sought to represent the artists, we shall exclude them from the unit. The Employer would include the 52 clerical employees because the clerical functions are interre- lated parts of a single integrated sales operation, and it is important to the Employer to maintain this structure. The Petitioner would exclude them. The record shows that there are several secretaries who are assigned to individuals in management; i.e., one secretary is assigned to Welch, the Wisconsin manager, one clerical is under the supervision of the art director, and another is assigned to the art department and is engaged in maintaining prod- uction records for artists and keeping a record of engravings sent to the engraver. There are three clericals assigned to telephone sales and supervised by the telephone sales manager. They maintain records, "pull accounts" for telephone sales, and handle the mailing of ads to customers. Two clericals are assigned to premise salesmen and their duties involve maintaining charts in the sales office, checking accounts, and making a daily "Berry" report which reflects the activity of the salespeople and the sales campaign. There are two clericals assigned to sales promotion and they prepare sales aids, contest records, and promotional material and publish a monthly newsletter for employees. The balance of the clerical employees work in a separate area on the second floor of the Employer's offices, and they are supervised by the office manager and the assistant office manager. These clericals prepare sales contracts and material for use by premise salesmen and telephone salesgirls on each sales campaign; they process sales material including contracts as a canvass progresses; and they gather sales material and forward it to the telephone company for checking before the material is sent to the printer. All clericals are paid a salary. Some clericals handle incoming calls from custom- ers if they are able to do so, otherwise they refer them to the salespeople or fill out a memorandum. At the request of premise salesmen or telephone salesgirls, clericals mail testimonial letters and sales aids to 2 Firemen's Fund Insurance Company, 173 NLRB 982, American Automobile Association, Wisconsin Division, 172 NLRB No. 131, and 219 customers. At the start of any given canvass, the clericals divide the market between premise sales, telephone sales, and customers who are to be contacted by mail. The clericals prepare and mail the letters to customers. Although there have been five transfers from sales to clerical and clerical to sales, there is no showing that this occurs with any frequency. While the record reveals that the clericals are engaged in daily work tasks which necessarily bring them into contact with the premise sales and telephone sales employees and that they perform clerical tasks related to the sales campaign, we find that the clericals do not have the same employment interests as the premise sales and telephone sales employees in view of their separate supervision, different method of compensation, different working conditions, lack of transfer to sales positions, and the facts that clericals do not have to pass hiring tests or meet quotas. Moreover, it is the normal practice of the Board not to include clericals in other units.2 Accordingly, we find an insufficiently close commu- nity of interests existing between office clericals and the premise sales and telephone sales employees to require their inclusion in the sales unit, and we shall exclude them. As noted above, the Employer would include in the unit the five clericals who are assigned to sales. The record discloses that there are three clericals assigned to telephone sales and they report to the telephone sales manager. They maintain records, pull accounts for telephone sales, handle the mail, and perform various other clerical duties. There are two clericals assigned to premise sales- work. They report to the Milwaukee area manager. One clerical maintains contest charts and records in the sales office and checks accounts for possible errors. The other clerk assigned to premise sales makes a daily report called a "Berry" report which reflects the activity of the salespeople and the entire sales campaign. In addition, this clerk works on a flash report which indicates the status of the canvass. The record, however, fails to support a finding that the interests and working conditions of these five clericals are any more similar to the telephone sales and premise sales employees than, or that they are any different from, those of the other clericals. In view of the great disparity in working conditions, compensation, and skills between the sales employ- ees and the five clericals, we find that the work of the five clericals assigned to saleswork is more closely allied to that of the other clerical employees whom we have excluded from the unit. We shall therefore exclude these five clericals from the unit. Neptune Broadcasting Company, supra 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties are in disagreement as to the status of Anderson, Deno, Dohmann, Van Wormer, and Williamson. The Petitioner would include them because they are not supervisors under the Act. The Employer contends they are classified as sales supervisors; that they are supervisors within the meaning of the Act; and that they should be excluded. As set forth above, the Milwaukee sales campaign or canvass is conducted by a canvass manager, 4 district sales managers, 5 sales supervisors, and 24 salesmen or 6 in each of the 4 districts. The record shows that the sales supervisors have been referred to as team captains or line supervisors and that such terms are synonomous with the present supervisor term; they do not have authority to hire, discharge, or promote employees; they do not assign salesmen ; they have no authority to suspend sales- men; they spend 6 or 7 hours of each 8-hour day selling by themselves, or 30 hours of a 40-hour workweek; 93 percent of the supervisors' earnings are from selling and the supervisors are generally sales employees with long service who have gathered a lot of experience. The record also shows that the supervisors receive extra compensation in the form of a fixed sum "override," that they receive 10 percent more commission than the salesmen, and that on occasion a supervisor may be in charge of a canvass. While there is evidence that the supervisors receive extra compensation, and at times a supervisor may be in charge of a canvass, the Employer's customary practice is for the supervisor to assist the district manager who is primarily responsible for his entire district. There is no evidence that supervisors are placed in charge of canvasses on a regular basis, or that such departure from the Employer' s normal practice involves anything other than small directo- ries. Moreover, a district manager is always assigned to a directory, in addition to the supervisor. Under the foregoing circumstances, and particular- ly as sales supervisors perform the same functions as the premise sales employees, they are compensated on the same basis by commission, and they also work under the immediate supervision of the district sales managers who have authority to hire, make work assignments, and suspend and discharge employees, we find that the sales supervisors are the most experienced sales employees who direct less experi- enced sales employees.3 We agree with the Petitioner that Anderson, Deno, Dohmann, Van Wormer, and Williamson are not supervisors within the meaning of the Act, and we shall, therefore, include them in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All premise sales and telephone sales employees, including sales supervisors, employed by the Employer at its location at 4757 North 76 St., Milwaukee, Wisconsin, excluding office clerical employees, artists, professional employees confi- dential employees, janitor, maid, office boy, all other employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 3 RCA Corporation, 184 NLRB No 63, We note that in a pnor and were not supervisors within the meaning of the Act. Moreover, this proceeding in 1969 , not published and involving a different petitioner, the record shows that the duties of the sales supervisors have not changed Employer took the position therein that the sales supervisors were leadmen