Hunt & Mottet Co.

National Labor Relations Board - Board Decisions

Oct 4, 1973

206 N.L.R.B. 285 (N.L.R.B. 1973)

HUNT & MOTTET CO. 285
Hunt & Mottet Company and Teamsters, Chauffeurs,
Warehousemen and Helpers Union Local No. 313,
affiliated with - the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Independent , Petitioner. Case 19-
RC-6677
October 4, 1973
DECISION AND DIRECTION OF ELECTION
BY CHARIMAN MILLER AND MEMBERS FANNING
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 Lynne C. Litwiller of
the National Labor Relations Board. Following the
close of the hearing the Regional Director for Region
19 transferred this case to the Board for decision.
Thereafter, the Petitioner and the Employer filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent 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
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a residual unit of
buyers, commission salesmen, salaried salesmen, and
a printer, being all of the unrepresented employees at
the Employer's Tacoma, Washington, wholesale
hardware distributing facility. The Employer con-
tends that the requested unit is inappropriate because
the 6 buyers and 22 commission salesmen should be
excluded from the unit while the remaining salaried
salesmen and printer should be included in a clerical
unit already represented by Petitioner.
The buyers are vested with a substantial degree of
discretion in their decisions and are able to pledge
large amounts of Employer's credit. These buyers are
"managerial" employees who- are entitled to the pro-
tection of the-Act.' Nonetheless, we have consistently
held that managerial employees should be excluded
from bargaining units of other types of employees 2
We find that the commission salesmen are indepen-
dent contractors and excluded from the coverage of
the Act (§2(3) ). The Employer had changed the status
of the commission salesmen from employee to inde-
pendent contractor and had included specific lan-
guage in its contracts with the commission salesmen
establishing their independent contractor status.
These Salesmen are not required to sell exclusively for
the Employer, have the right to employ others to help
in their work, must provide their own cars, and must
pay their own expenses, including taxes and insur-
ance, without any advances, reimbursements, or guar-
antees of earnings by the Employer. Commissions are
paid by the Employer without withholding any sums
for income taxes, social security, or unemployment
compensation. The commission salesmen are given
the sole right to determine when, where, and to whom
they are going to show the Employer's lines and solicit
sales within their territory. There is no showing in the
record of any substantial day-to-day control over the
activities of the salesmen. Under these circumstances,
the commission salesmen are independent contractors
who have control of the "manner and means" while
the Employer controls only the result .3
Petitioner represents a unit of 18 clerical employees
who, like the remaining 5 unrepresented employees,
perform clerical tasks, are subject to the same terms
and conditions of employment, and are on the same
payroll. The salaried salesmen primarily perform an
order-taking function. The printer, while not perform-
ing clerical functions per se, works closely with the
clerical personnel in the catalog department in the
preparation and production of weekly revisions of the
Employer's catalog. Under these circumstances, we
conclude that the five unrepresented employees have
a sufficient community of interest with the employees
in the clerical unit to warrant Petitioner representing
them as a part of its existing unit. Furthermore, no
other organization has asserted to claim to these unre-
presented employees.4
Accordingly, we find that the following employees
constitute an appropriate voting group:
All salaried salesmen'and printers, excluding all
other employees and supervisors as defined in the
Act.
We shall direct that an election be conducted among
I
Bell Aerospace Company, Division of Textron, Inc, 196 NLRB 827.
z See, e.g., Western Gear Corporation, Heavy Machine Division, 160 NLRB
272; Interstate Co. Glass House Restaurants, Indiana Toll Road, 125 NLRB
101, Sunnyland Packing Company and Sunnyland Poultry Company, 113
NLRB 162; cf Banco Credito y Ahorro Ponceno, 160 NLRB 1504, 1509
3 Bambury Fashions, Inc., 179 NLRB 447.
4 Budd Company Automotive Division, 154 NLRB 421; see also N.L.R.B. v.
Horn & Hardart Company, 439 F.2d 674, 681 (C.A. 2, 1971).
206 NLRB No. 85
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voting group found appropriate.5 If' a majority of this voting group selects Petitioner as their bargaining
5 Inasmuch as the voting group found appropriate is substantially smaller
than the unit requested by the Petitioner, the Direction of Election is condi-
tUoned upon the Petitioner 's demonstrating , within 10 days from the date
hereof, that it has an adequate showing of interest in the voting group found
appropriate . In the event that the Petitioner does not wish to participate in
an election in the voting group found appropriate , we shall permit it to
withdraw its petition upon notice to the Regional Director for Region 19
within 10 days from the date of this Decision.
Member Penello would not require such a showing of interest in these
circumstances
representative, they shall be included in the clerical
unit presently represented by Petitioner; otherwise,
they shall remain unrepresented.
[Direction+of Election and Excelsior footnote omit-
ted from publication.]