Arden Farms

National Labor Relations Board - Board Decisions

Feb 5, 1957

117 N.L.R.B. 318 (N.L.R.B. 1957)

318 DECISIONS OF NATIONAL LAMP RELATIONS BOARD
Certainly any rule of law to the effect that facts once established are
presumed to continue does not apply to the determination by a quasi-
judicial tribunal of its right to adjudicate a given matter at a given
time.12
The Board in its investigation of this case had the statutory right
to subpena all pertinent evidence and failed to exercise this right. I
see no justification, therefore, in presuming to be jurisdictional facts,
materials that are not in this record but in the record of a case litigated
8 years ago. Accordingly, I would remand this case for appropriate
further investigation in conformity with our usual practice.
1211. . . such generalizations , useful enough, perhaps, in solving some problem of a par-
ticular case, are not rules of law to be applied to all cases , with or without reason."
Maggw V. Zestz, 333 U. S. 56, 65.
The cases cited by the majority in support of this rule ( supra, footnote 3) are not appli-
cable. In both the Boswell and Tex-O -Kann Flour Mills cases, the Board made specific find-
ings of jurisdictional facts based upon what appears to be the most current figures avail-
able ( 26 NLRB 765 , 768; 35 NLRB 968, 974 ( C. A. 5)). The court ' s affirmance of these
findings in the Tex-O-Kan case stressed that the information was, in fact, the "last ap-
parently for which the record had been made up" (122 F. 2d 433 , 436) ; and significantly
the Boswell findings were presumed by the court not to have changed "in the following
month" (136 F. 2d 585, 589). The facts in the Whittier Malls case that were presumed by
the court to have continued involved substantive matters having no bearing upon the
Board's jurisdiction . 111 F. 2d 474, 478 (C. A 5)
There is, of course , an obvious distinction between the Board taking official notice of con-
temporaneous facts as it did in the two cases in which I participated (footnote 3, majority
opinion ) and presuming to be contemporaneous in 1957 , as it does here, facts established
in 1948.
Arden _ Farms ; Bordens Capital Dairy; Carnation Co.; Golden
State Co . Ltd.; Challenge Cream & Butter Association; Crystal
Cream and Butter Company; Inderkums Dairy; and Taylor's
Dairy 1 and Office Employees International Union, Local No.
29, AFL-CIO, Petitioner
Golden State Co. Ltd. and Chauffeurs, Teamsters & Helpers,
Local 150, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America , AFL-CIO,
Petitioner
Arden Farms and Chauffeurs, Teamsters & Helpers, Local 150,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO, Petitioner. Cases
Nos. 20-IBC-3155, 20-RC-3162, and 20IBC-3164. February 5,
1957
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before L. D. Mathews, Jr.,
I
At the hearing, without objection, the petition in Case No . 20-RC-3155 was amended
to substitute Crystal Cream and Butter Company for Home Milk and Ice Cream Co.
117 NLRB No. 37.
ARDEN FARMS 319
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. Golden State Co. Ltd. and Arden Farms are engaged in com-
merce within the meaning of the Act. In view of the 'unit finding
below, we do not pass upon whether the Association and its members,
other than Golden State Co. Ltd. and Arden Farms, are engaged in
commerce within the meaning of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. In Case No. 20-RC-3155, no question concerning representation
exists. However, in Cases Nos. 20-RC-3162 and 20-RC-3164 ques-
tions affecting commerce do exist concerning the representation of
employees of the Employers within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The Employers and Local 29 contend that a multiemployer unit
of office clerical employees of all the Employers in Case No. 20-RC-
3155 is appropriate. Local 150 seeks separate units of the office clerical
employees of two of these Employers, contending that only single-
employer units are appropriate.
In support of their position, the Employers and Local 29 point to
the facts that recently all of the Employers joined an employer associa-
tion, Sacramento Valley Associated Industries, held meetings under
the auspices of the association, and decided at these meetings that
they would like to bargain on a multiemployer basis through the as-
sociation. However, there is no history of collective bargaining with
respect to the office clerical employees of the Employers, and the
record does not show that there is any history of collective bargaining
on a multiemployer basis with respect to any other employees of the
Employers. It is well established that presumptively a single-em-
ployer unit is appropriate, and to defeat a claim for such a unit in
favor of a broader unit a controlling history of collective bargaining
on the broader basis must exist.' Accordingly, in the absence of any
history of collective bargaining on a multiemployer basis with respect
to employees of the Employers, we find that the single-employer units
sought by Local 150 are appropriate .4 We shall, therefore, direct elec-
tions in these single-employer units, and dismiss the petition in Case
No. 20-RC-3155 fora multiemployer unit.
2 The Petitioner in Cases Nos 20-RC-3162 and 20-RC-3164, herein called Local 150,
inteivened in Case No 20-RC-3155 on the hasps of a showing 'f interest The Petitioner
in Case No 20-RC-3155, herein called Local 29, intervened in Cases Nos 20-RC-3162 and
20-RC-3164 on the basis of a showing of interest
Rainbo Jti ead Co , 92 NLItP, 181
See Rau'bo Bi cad Co, sepia Cf Peninsula Anto Dealers Association, 107 NLRB 56,
where the Boaid found a iniiltieniplover aunt of salesmen appropiinto because there had
been a successful history of collective baigannng on such a basis with respect to suhstan-
tiall% all other eniplo3ees of the eniployeis
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the question of whether the fol-
lowing employees of Golden State Co., Ltd., should be included in the
unit of that Employer's employees or excluded therefrom :
Robert White, Melvin Hunter, Rolla Gish, and Harold Fish are
classified, respectively, as accountant grade III, accountant grade II,
product clerk, and accountant trainee, and they all do accounting
work. There is no evidence that any of them is required to be, or is,
a certified public accountant or college graduate. Accordingly, we
find that they are not professional employees as defined in Section
2 (12) of the Act.5 Some of their work requires reference to the
employee payroll, but in the absence of evidence that they assist or
act in a confidential capacity to any person who formulates, deter-
mines, and effectuates management policies in the field of labor rela-
tions, their access to such data and to other financial and business
data does not render them confidential employees.6 Nor is there any
evidence that they are supervisors. Accordingly, we shall include
these four employees in the unit.
Manthea Marmas is classified as payroll clerk, and as such she
prepares the payroll. She also maintains personnel records and pre-
pares "personnel action" forms. The here fact that she has access
to personnel matters does not render her a confidential employee.7
Accordingly, we shall include her in the unnit.°
We find that the following employees of the Employers in Cases
Nos. 20-RC-3162 and 20-RC-3164 constitute units appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
1. All office clerical employees of Arden Farms in Sacramento,
California, excluding the office manager, the credit manager,' confi-
dential employees, managerial employees, and supervisors as defined
in the Act.
2. All office clerical employees of Golden State Co., Ltd., in Sacra-
mento, California, including Robert White, Melvin Hunter, Rolla
Gish, Harold Fish, and Manthea Marmas, but excluding confidential
employees,10 managerial employees, and supervisors as defined in the
Act.11
[The Board dismissed the petition in Case No. 20-RC-3155.]
[Text of Direction of Elections omitted from publication.]
See The B F Goodrich Company, 115 NLRB 722, 728
See il'algrcen Company, 114 NLRB 1168, 1170, 1171
° See ltialgreen Company supra , at 1170
See The R. F Goodsich Company, supra, at 725
'The paulies stipulated to these exclusions
"'In accordance ssith the stipulation of the parties, we exclude Maxine Schultz as a con-
fidential employee
11 The panties stipulated, and the recoid shows, that the distriet office managei, the office
supervisor , and the order department supervisor are supervisors as defined in the Act