P. Ballantine & Sons

National Labor Relations Board - Board Decisions

Apr 4, 1963

141 N.L.R.B. 1103 (N.L.R.B. 1963)

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.