L. Fatato, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1949

87 N.L.R.B. 546 (N.L.R.B. 1949)

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.