P. Ballantine & Sons

P. BALLANTINE & SONS 1103 P. Ballantine & Sons and United Brewery Workers Union, Local No. 114, AFL-CIO, USA-CLC, Canada, affiliated with Inter- national Union United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO,' Petitioner P. Ballantine & Sons and Office Employees International Union, Local 153, Salesmen's Division, AFL-CIO,' Petitioner. Cases Nos. 1-RC-6923 and 22-RC-1773. April 4, 1963 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions 3 duly filed under Section 9 (c) of the Na- tional Labor Relations Act, hearings were held in Providence, Rhode Island, and Newark, New Jersey, before hearing officers Orlando Rodio and Earl S. Aronson, respectively. The hearing officers' rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases,4 the Board finds : 1. The Employer is engaged in commerce within the meaning of the 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) and Section 2(6) and (7) of the Act. 4. The Employer, P. Ballantine & Sons, is a nationally known pro- ducer of malt beverages with its headquarters in Newark, New Jersey. Its sales organization, which is headed by a vice president of sales, is functionally divided into two separate sections-distributor operations and branch operations. The distributor operations section is concerned with the promotion and sale of the Employer's products to, and by, independent wholesalers (distributors), who sell the Employer's products to various retail outlets (bars, restaurants, etc.). The sales forces of these distributors are not composed of employees of Ballan- tine and are not involved herein. However, Ballantine's sales person- nel employed in the distributor operations section sell to, service, and assist these distributors in a constant effort to increase the sales of Ballantine beverages. ' The name of the Petitioner appears as amended at the hearing. z The name of 'the Petitioner appears as amended at the hearing. s The two petitions filed herein raise a common issue. As the records in both cases show that the operative facts are the same in all significant respects, and as, in our opinion, none of the parties will in any way be prejudiced by our action, we hereby con- solidate these cases for the purposes of this decision. 4 After the close of the hearing, the Employer filed a motion requesting oral argument in these cases . Local 153, Salesmen's Division, filed a statement in opposition to the motion . As the records and the briefs herein adequately present the issues and the posi- tions of the parties, the Employer's motion is hereby denied. 141 NLRB No. 98. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overall charge of the distributor operations section is vested in a manager of distributor operations. The distributor operations cover a large sector of the United States and are divided into geographic "divisions," s each division headed by a division manager who reports directly to the manager of distributor operations. The divisions are then further divided into districts, each one supervised by a district sales manager who directs the activities of the salesmen and district sales representatives in that district. There are a total of 73 salesmen and sales representatives employed in the distributor operations section. The branches are company-operated distributorships. There are 12 such branches located on the eastern seaboard between Rhode Island and Washington, D.C.' A total of 255 salesmen are employed at these branches. Each branch has a manager who is in charge thereof' and who, inter ilia, is responsible for the overall supervision of the aforementioned salesmen.' The branches are organized into four divisions,9 each headed by a division manager. Thus, under the Em- ployer's chain of command, the branch managers report to the division managers who, in turn, report directly to the sales vice president. In Case No. 1-RC-6923, the United Brewery Workers Union, Local No. 114, AFL-CIO, USA-CLC, Canada, seeks to represent all branch salesmen at the Employer's Cranston, Rhode Island, branch. There are 7 salesmen at the Cranston branch, plus 1 special salesman, Hakim, whose status is in dispute. In Case No. 22-RC-1773, Office Employees International Union, Local 153, Salesmen's Division, AFL-CIO, seeks to represent all 56 branch salesmen at the Employer's Newark, New Jersey, branch. The record discloses that there is a substantial degree of centraliza- tion and integration in the Employer's sales organization . Thus, the sales vice president approves all hiring, firing, and other personnel actions, and determines the number of salesmen to be employed in each branch and the amount of compensation each salesman will receive. The sales vice president and the division manager establish sales i These divisions are the New England Division, Empire Division , Keystone Division, Tidewater Division, Piedmont Division , Dixie Division , and Western Division. There is also a Special Sales Division which covers military sales , special events , chain store sales, marine sales, and concessions sales. e The 12 branches are located at Washington, D C.; Baltimore, Maryland ; Hall, Mary- land ; Red Bank, New Jersey Newark, New Jersey, New York City, New York, Tillson, New York; Albany, New York ; Hamden, Connecticut ; Wethersfield, Connecticut ; Fair- field , Connecticut; and Cranston, Rhode Island ' Some of the larger branches have additional supervisors under the branch manager. 8 In addition to salesmen , the Employer also has the following types of employees at its branches , although not all classifications can be found in each branch: warehouse or traffic managers , servicemen , clerical employees , office managers , merchandise assistants , repre- sentatises and supervisors, inessengeis, telephone sales solicitors, and other supervisors. 8 (1) District of Columbia, Maryland, Rhode Island , and Red Bank Division; (2) New York State Division ; (3) Metropolitan New York and New Jersey Division, and (4) Connecticut Division. P. BALLANTINE & SONS 1105 quotas for each branch. The sales vice president and manager of dis- tributor operations determine the number of salesmen and sales rep- resentatives to be employed in each division and the sales quotas there- for. All salesmen and sales representatives in both branch and distributor operations are paid by check from Newark, receive the same employee benefits, and attend the same orientation and training pro- gram in Newark to familiarize them with the Company's products, operations and policies. Moreover, the Employer's industrial relations staff in Newark handles all that firm's labor relations matters, and the Newark headquarters office handles all matters relating to inven- tory control, transportation of the Employer's products from the brewery to the branches, advertising, promotion, customer accounts, and credit. On the other hand, the record also shows that the effectuation of the Employer's aforementioned policy decisions on a day-to-day basis is left, to a considerable extent, in the hands of the individual branch managers. They direct, supervise, and are responsible for the over- all performances of their respective branches.10 In carrying out this responsibility, the branch managers initiate and recommend all per- sonnel actions and make recommendations to the sales vice president on a wide variety of matters affecting branch operations (including the number of salesmen to be employed at each branch). Their rec- ommendations on personnel matters are approved by the sales vice president approximately 90 percent of the time. The branch managers also conduct weekly meetings to discuss various sales problems and tactics, set sales quotas for individual salesmen, assign salesmen to their respective territories within the branches, maintain branch sales records, control expense accounts of salesmen, grant time off to branch employees, effectively recommend salary increases, can exercise power to veto any proposed transfer into or out of their branches, and are responsible for keeping the expenses of their branches within a pre- determined budget. Moreover, there has been only a small amount of interchange and transfer of sales personnel either between the various branches or between distributor operations and the branches. There is no bargaining history for any of the Employer's salesmen." However, the truckdrivers and warehousemen at five of the branches are represented in single-branch units by various local unions under separate contracts. 10 W. H. Alley, sales vice president, testified that the branch manager "is in complete charge of the branch under his jurisdiction " and is "the guy who is going to determine whether we make money in the branch or lose money." 11 In P Ballantine & Sons, 18 NLRB 1007 (1939), the Board directed an election among all the Employer' s bottle and draught salesmen at its Plaza , New York, office However, the Union lost the election and no representation resulted. Also , cf. 33 NLRB 374 (1941) and 120 NLRB 86 (1958 ) for instances where the Board dismissed petitions seeking to represent different units of salesmen of the Employer involved in this proceeding 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer contends that its sales operations are so highly in- tegrated that only a companywide unit of all its salesmen and sales representatives in both the branch and distributor operations (includ- ing those in the special sales division) is appropriate, or, at the very least, that the appropriate unit should encompass all salesmen at its 12 branches. In support of this alternative position, the Employer relies on a previous decision of the Board, P. Ballantine & Sons, 120 NLRB 86, involving the same parties as are involved in Case No. 22-RC-1773. In that case, the Board denied, inter alia, the Peti- tioner's request for single-branch units of the Newark and New York City branches, and found instead, that a unit consisting of salesmen at all the Employer's branches was appropriate for collective bargain- ing. However, the Board also stated that the branch salesmen have interests different from those of the Employer's other salesmen, thereby implicitly rejecting the Employer's primary contention herein. Section 9 (b) of the Act empowers the Board to decide in each case "the unit appropriate for the purposes of collective bargaining." Al- though the Board necessarily has wide discretion in the exercise of this authority, the statute does provide certain explicit guidelines. First and foremost is the requirement that each appropriate unit determina- tion should "assure to employees the fullest freedom in exercising the rights guaranteed by this Act," i.e., the rights to self-organization and to collective baragining. In order to effectuate this fundamental policy declaration of the Congress, the Board must be wary lest its unit determinations unnecessarily impede the exercise by employees of these rights. Such would be the result in the instant case if the Board were to continue to insist, as it did in P. Ballantine & Sons, 120 NLRB 86, that the branch salesmen must organize on the basis of a unit of employees in all 12 branches which are scattered throughout 5 States and the District of Columbia and which extend over hundreds of miles of the eastern seaboard from Rhode Island to Washington, D.C. To withhold from these employees the opportunity to express their wishes unless and until the Employer's vast multi-State opera- tion is successfully organized would, in practical effect, deny them their statutory rights to self-organization and bargaining.12 Nor is this assertion mere conjecture on our part. The failure of any labor organization to file a petition for, no less win an election in, a branch- wide unit of salesmen employed by P. Ballantine & Sons since that 1958 decision, vividly attests to its adverse impact on organizational development. It was not contemplated by the Act that Board unit determinations would frustrate the organization of employees, and this result could not have been either intended or anticipated by the Board in deciding the aforementioned case. P. BALLANTINE & SONS 1107 To effectuate the clear mandate of Section 9, the Board, in Dixie Belle Mills," Sav-On Drugs ,14 and Quaker City Life Insurance Com- pany,15 has recently reemphasized its long-standing policy not to com- pel labor organizations to seek representation in the most comprehen- sive grouping unless an appropriate unit compatible with that re- quested does not exist. While a unit consisting of all branch salesmen in the Employer's 12 branches would be appropriate for the purposes of collective bargaining," this does not establish it as the only appro- priate one." The issue at hand thus is the appropriateness of the single-branch units requested by the Petitioners. The branches involved here are equivalent to single plants.18 It is well established that a single-plant unit, one of the units specifically listed in the statute as appropriate for bargaining purposes, is pre- sumptively appropriate.19 This presumption is ordinarily rebuttable, however, only by evidence that the single plant has been effectively merged into a more comprehensive unit so as to have lost its individual identity 20 The problem posed in evaluating whether there was such a consolidation is not peculiar to the brewery industry; nor have any circumstances been presented which would require that the Board accord special treatment to this industry in making appropriate unit determinations. Rather, the instant unit issue represents another in a long line of problems which, in essence, can be traced to the develop- ment of multi-State employer operations as a fact of economic life. Obviously, a case-by-case approach has been dictated by this develop- ment, because the history of collective bargaining, the geographic separation of individual plants, the degree to which overall corporate operations are integrated, the extent to which policy control is vested in the upper echelon officers at company headquarters, the degree to which responsibility is delegated to their subordinates at the plant level, and the nature of the corporate hierarchy, all vary, to some degree, from company to company. Directing our attention to the instant case, we are satisfied that the record before us does not evince such a consolidation of the Em- ployer's operations as to overcome the presumption that single-plant 1, Joseph E Seagram if Sons, Inc., 101 NLRB 101, 103. 13139 NLRB 1032. 14138 NLRB 61. 16134 NLRB 960. "The record discloses that an employerwide unit of salesmen and sales representatives in the branch and distributor operations (including the special sales division ), might possibly constitute an appropriate unit. "Dixie Belle Mills, Inc , footnote 13, supra. 18 Note, for example, that the Board has treated a construction project (Greene Con- struction Company, etc., 133 NLRB 152, 153 ) and a beauty shop in a department store (Macy's San Francisco, etc., 120 NLRB 69, 72 ), as equivalent to single plants 19 Section 9(b) of the Act. =9 Dixie Belle Mills, Inc., footnote 13, supra. Also, see Temco Aircraft Corporation, 121 NLRB 1085, 1088, and cases cited therein. 708-006-64-vol. 141-71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD units are appropriate; instead, it clearly establishes the appropriate- ness thereof. Thus, we have previously noted the substantial degree of autonomy in the day-to-day operations of individual branches, the wide geographic separation of the branches, the lack of any significant interchange of employees between the Employer's 12 branch offices and the absence of any bargaining history for the branch salesmen. Fur- thermore, in support of the requested units, we also note that no labor organization seeks to represent these employees in a broader unit and that the Employer has bargained with its truckdrivers and warehouse- men in single-branch units, thereby pointing up, contrary to our dis- senting colleague's assertion, the feasibility of labor-management rela- tionships within the framework of such units. On the basis of all the foregoing, we conclude that, as hereinafter set forth, the single-branch units requested by the Petitioners are ap- propriate and will "assure to employees the fullest freedom in exercis- Ing the rights guaranteed by this Act." 21 We are mindful that the Board reached a contrary conclusion in passing upon the identical unit issue 5 years ago. Of necessity, there- fore, our decision to overturn this prior ruling has not been made lightly. However, we will not abstain from modifying a position where, as here, our experience under an earlier ruling produces un- intended results inconsistent with a basic purpose of the Act. This is especially true in the area of appropriate unit determinations wherein the Board is vested with discretionary authority and is obliged to proceed on a case-by-case basis. Therefore, upon careful examination, we are constrained to conclude that the Board's prior ruling in P. Bal- lantine cC Sons, 120 NLRB 86, unduly restricted the right of employees to self-organization and bargaining. That decision is hereby reversed to the extent that it held that single-branch units could not be appropriate.22 Accordingly, we find that the following employees of the Employer constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 21,See cases cited in footnotes 13, 14, and 15, supra; also cf. Anheuser-Busch, Inc, 110 NLRB 194; Feigenspan Brewing Co., 29 NLRB 1136; and P Ballantine & Sons, 18 NLRB 1007 It is evident that, contrary to our dissenting colleague's assertion, the Board's approxi- mate unit determination is not based solely on the Unions' extent of organization, but upon sundry factors wholly unrelated thereto. Accordingly, the dissent's reliance on Sec- tion 9(c) (5) of the Act is misplaced. The Board has consistently taken the position that the Congress, in enacting Section 9(c) (5), merely sought to preclude the Board from finding a unit appropriate where the only possible basis therefor was the extent of the Union's organization See, e.g., Dixae Belle Mills, Inc , etc, 139 NLRB 629, and the cases cited therein at footnote 7. The legislative history as well as the explicit statutory language bear out this interpretation. Our discussion herein and the very basis of our decision is sufficient response to our dissenting colleague's rhetorical question at footnote 27 2- Lsebmann Breweries, Inc, 92 NLRB 1740, and Liebmann Breweries, Inc, 101 NLRII 616, are also overruled to the extent that they are inconsistent with the instant appropri- ate unit determination. P. BALLANTINE & SONS 1109 All salesmen of the Employer employed at its Cranston, Rhode Is- land, branch, excluding all other employees, office clerical employees, guards, and supervisors 23 as defined in the Act. All salesmen of the Employer employed at its Newark, New Jersey, branch, including bottle salesmen, draught salesmen, relief salesmen, and special salesmen, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] MEMBER LEEDOM, concurring : I concur in the result. MEMBER RODGERS, dissenting : In P. Ballantine & Sons, 120 NLRB 86, the Board, faced with the same issue and the same material facts as here, decided that single- branch units of Ballantine's salesmen were not appropriate for the purposes of collective bargaining. That case followed a line of cases involving various employers in the brewing industry in which the Board had consistently held, in similar circumstances, that single- branch units of salesmen were not appropriate for the purposes of collective bargaining.24 My colleagues have now decided to reverse that line of cases. I do not agree. The record in the instant cases, like that in the Ballantine case, supra, shows in great detail that the Employer's sales department is highly centralized and highly integrated with respect to both its operation and organization. Thus all but the most perfunctory and routine matters are decided by, or require the approval of, the higher echelon supervisors of the sales department located at the Newark headquarters.25 Moreover, in view of the fact that all branch sales- men, regardless of location, have the identical function, perform iden- tical duties, and have identical terms and conditions of employment, it can hardly be said that the interests of the branch salesmen at any one branch are in any way separate, or different, from the interests of the branch salesmen at any of the other branches. 23 The parties disagree as to the status of a special salesman, Hakim , alleged by the Brewery Workers Union to be a supervisor . We are unable to make a determination as to Hakim's true status on the basis of the record before us Accordingly, we shall permit him to vote subject to challenge 24 For example, P Ballantine & Sons, 120 NLRB 86; Liebmann Breweries, Inc, 101 NLRB 616; Liebmann Breweries, Inc, 92 NLRB 1740; John F. Tromer, Inc , 90 NLRB 1200 , of Anheuser-Busch, Inc., 110 NLRB 194. s All hiring, firing, promotions, salary increases, and other personnel matters concern- ing branch salesmen require the approval of the sales vice president . The size of the sales force in each branch is determined by the sales vice president . The compensation of all branch salesmen is determined by the sales vice president The sales vice president and the division manager set the sales quotas for each branch. All branch salesmen enjoy the same fringe benefits . All branch salesmen go through the same orientation program All branch salesmen are paid by check from Newark . The Newark headquarters office handles labor relations , inventory control, transportation, advertising, promotion, and accounting for all the branches. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In short, it would seem that the Board's action in now specifically overruling the Ballantine case, supra, and other similar decisions in- volving branch operations in the brewing industry,26 is based solely on the Union's extent of organization. This approach is not sanc- tioned by the statute?' Accordingly, as I would find that a unit consisting of the branch salesmen at the Employer's 12 branches constitutes the narrowest ap- propriate unit, I would dismiss the petitions herein. 26 See cases cited in footnote 24, supra. 27 Section 9(c) specifically prohibits the Board from giving "controlling" weight to the extent of organization in determining whether a unit is appropriate. My colleagues refer to the rule that employees who might otherwise constitute an appro- priate plant unit may be so integrated into a more comprehensive grouping as to destroy the appropriateness of the plant unit. They then equate the branch units here to single- plant units, and find the requisite degree of integration lacking. I do not agree that the Employer's branches are equivalent to single plants. But even if they were, my colleagues' failure to find the rule controlling in the instant case, in spite of the extent to which the Employer's branch operations have been integrated , causes me to question whether the rule has any real meaning. My colleagues also assert that the Board's prior determination involving the Employer impeded the employees' exercise of their rights under the Act. But the Ballantine case, supra, like the others which are now being overruled, was decided not for the purpose of impeding the organization of employees , but rather to establish a realistic bargaining unit which can be administered without unduly disrupting, or doing violence to, Ballantine's operations . Moreover, I note that my colleagues, to show "the adverse impact on organi- zational development" of the Ballantine case, supra, point to the fact that no labor organization has petitioned for a companywide unit of Ballantine 's branch salesmen since 1958. Do my colleagues also deprecate the Board's traditional production and mainte- nance unit rule as unduly impeding the organization of the myriad number of unorganized plants in this country as to which petitions have never been filed? Spector Freight System , Inc. and Thomas Joseph Ferro. Case No. 13-CA-4632. April 5, 1963 DECISION AND ORDER On August 27,1962, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Charging Party filed exceptions to the Intermediate Report and a brief in sup- port thereof, and moved for a new hearing. The General Counsel and the Respondent filed no exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings, except as noted herein, are hereby affirmed. The Board has considered the Intermediate Report, the Charging Party's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The Charging Party's motion for a new hearing is denied. 141 NLRB No. 86.