Buitoni Foods Corp.

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BUITONI FOODS CORP. and LOCAL 153, OFFICE EMPLOYEES INTERNA- TIONAL UNION, AFL, PETITIONER. Case No. 9i-RC-7O27. February -16,1955 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 Harry E. Knowlton, hearing officer. 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 Act. 2. The labor organization involved claims 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 Petitioner seeks to represent a unit of the Employer's sales- men working in the New York metropolitan area, including New York City, Long Island, Westchester County, and Northern New Jersey down to Perth Amboy. ' The Employer, which employs approxi- mately 50 salesmen, 15 of whom work in Philadelphia, Connecticut,' New England, Florida, and California, moved to dismiss the petition on the ground that only a nationwide unit of its salesmen is appro- priate. The Employer bases this contention on a prior case, in which the Board found such a broad unit appropriate 2 The Employer has its only office and factory at South Hackensack, New Jersey. Its administration, supervision , sales policy, and per- sonnel policy are handled from this one location. Although it divides the country into zones for shipping purposes and has divisional group- ings to expedite order handling, there are no branch offices, and execu- tive control of salesmen is not broken down into areas or divisions. All the Employer's salesmen have similar working conditions, receive vacations under a uniform plaii and are compensated in the same man- ner. Since the prior proceeding,' the only changes in the Employer's operations have been that a territory in California has been opened, and the total complement of salesmen has been increased from approx- imately 26 to 50. From the foregoing, it is clear that the Employer's operations are centralized to an extremely high degree, and they tend to support the position of the Employer that a nationwide unit may be appro- I A Westchester salesman also goes over into part of Connecticut. However, two sales- men are assigned to work wholly within the State of Connecticut. 2 Bu,to,vs Macaroni. Corp 98 NLRB 359. 3 Footnote 2, supra 111 NLRB No. 108. BUITONI FOODS CORP. 639 priate. However, these facts are not alone determinative of the scope of the unit.' The record also shows that the Employer distinguishes between its so-called "metropolitan area salesmen" and "out of town area salesmen" by dividing them into separate groups for purposes of competing for performance awards, attending sales meetings, as- signing sales numbers, and disseminating information dealing with sales problems in their particular areas. In December 1946, the Em- ployer consented to an election in a unit substantially similar to the one now sought.' There is no history of collective bargaining with respect to the salesmen here involved .6 Furthermore the salesmen in the requested unit work in a distinct metropolitan geographical area. These factors together with the similarity in community of interests obtaining from the social and economic integration of a large metro- politan area in which the salesmen work indicate the appropriateness of the unit sought by the Petitioner.' Accordingly, the Employer's motion to dismiss is hereby denied. The parties are in agreement as to the composition of the unit, except for the assistant sales manager and the district sales managers. The Petitioner contends that they are supervisors and should be ex- cluded, the Employer denies that they are supervisors and would there- fore include them. The assistant sales manager is principally engaged in selling to ac- counts assigned to him by the Employer. He has a salesman who helps him, and to whom he assigns and designates accounts to be contacted. The salesman works under his direction, and he receives an overriding commission on the salesman's annual production. We find that the assistant sales manager responsibly directs this salesman and is there- fore a supervisor. We exclude him from the unit. The Employer employs four district sales managers in the area included within the scope of the unit herein found appropriate. The district sales managers sell and open up new accounts, building up sales in their area. They make factual reports on salesmen in their districts when requested to do so. However, they do not hire, dis- charge, or effectively recommend either, nor do they possess other indicia of supervisory authority. We find these district sales man- agers to be employees and include them in the unit. Accordingly, we find that the salesmen and district sales managers employed by the Employer in New York City, Long Island, West- ' Anheuser-Busch, Inc., 110 NLRB 194; Crown Drug Company, 108 NLRB 1126. e Case No. 2-R-7400 e Although Case No. 2-R-7400 resulted in the certification of another petitioning labor organization, no collective-bargaining contract resulted. In Buitoni Macaroni Corp , supra, a majority of valid ballots was not cast in favor of the petitioning labor organi- zation. 7 Anheuser-Busc's, Inc., supra ; Crown Drug Company, supra ; L. Wiemann Company, 106 NLRB 1167. To the extent that it is inconsistent with this decision, Buitoni Macaroni Corp., 98 NLRB 359, is hereby overruled 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chester County, and Northern New Jersey down to Perth Amboy, excluding the assistant sales manager, office and clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining* MEMBER RODGERS, dissenting : The question of whether the Employer's New York metropolitan area salesmen constitute an appropriate unit was presented to the Board approximately 3 years ago. The Board then decided that they did not, holding that the appropriate unit was one consisting of all the Employer's outside salesmen.' Since the prior proceeding, the only changes in the Employer's operations have been that a territory in California has been opened, and the total complement of salesmen has been increased from ap- proximately 26 to 50. I perceive nothing in these changes warranting a reversal of the Board's previous holding; if anything, they supply additional reasons for adhering to it. All the factors that induced the earlier decision are still present, particularly "the direct supervision and control of all the salesmen by the sales manager, [and] the simi- larity of working conditions and rates of pay of all salesmen." 2 The earlier Board decision cannot be said to have been erroneous; indeed, my colleagues apparently recognize its soundness by pointing to the fact that the centralized nature of the Employer's operations "tend to support the position of the Employer that a nation-wide unit may be appropriate." In the absence, therefore, of any showing that the circumstances involved have changed, I perceive no reason for re- versing a decision concerned with the appropriateness of a particular unit that is patently not a "wrong" one. In my opinion, having previously litigated this question, the parties are entitled to rely on the prior determination unless it can be shown that the circumstances have materially changed, or that the prior deci- sion was erroneous. I Buitoni. Macaroni Corp., 98 NLRB 359 (decided February 21, 1952). s Id. at 360. S. G. TILDEN, INCORPORATED, ET ALS and DISTRICT 15, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, AND LOCAL 917, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, JOINT PETITIONERS. Case No. 2-RC-7046. February 16,1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John J. Carmody, hearing 111 NLRB No. 109.