Toledo Scale Company, Employer And Scale Salesxme Association, Petitioner, 826 (1949)

In the Matter of TOLEDO SCALE COMPANY, EMPLOYER and SCALE SALESxME ASSOCIATION, PETITIONER Case No. 2-RC-621 and 9-RC-795.-Decided April 6, 19Ji9 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed, a consolidated hearing was held before a hearing officer of the National Labor Relations Board. At the hearing, the Employer moved to dismiss the petition upon the ground that the employees involved are independent contractors. The motion is hereby denied for the reasons given in paragraph 4, below.

The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.

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 Petitioner is a labor organization claiming to represent employees of the Employer.

3. A question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.

4. The appropriate unit:

The Petitioner seeks to represent a unit composed of all industrial and retail sales representatives working out of the New York City and Newark, New Jersey, district offices of the Employer. The Employer does not object to the proposed grouping of employees, but contends that these sales representatives are independent contractors and therefore are not within the coverage of the Act, as amended.

The Employer manufactures, distributes, and services scales and food machines for use in retail stores and industrial establishments.

It maintains a field selling organization, under the direction of a general sales manager whose office is in Toledo, Ohio. For the purposes of the field organization, the United States is divided into 12 zones, each managed by a zone manager. The zones are further divided into districts, under district managers; each district in turn is divided into 826 827 the several territories in which the sales representatives sell Toledo products.1 As their titles indicate, retail sales representatives sell to retail stores, and industrial sales representatives sell to industrial establishments.

Whether the sales representatives are employees within the meaning of the Act is to be resolved by application of the ordinary commonlaw 'right of control' test.2 An employee relationship exists when the person for whom the services are performed reserves the right (even if not exercised) to control...