Bordo Products Co.

National Labor Relations Board - Board Decisions

Feb 5, 1957

117 N.L.R.B. 313 (N.L.R.B. 1957)

BORDO PRODUCTS COMPANY 313
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT poll or interrogate our employees concerning their union af-
filiations, sympathies, or activities in regard to International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such acts may be affected by an agreement
requiring membership in a labor organization as a condition,of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Jack Griffiths, Julia Capaldi, Beatrice Griffiths, and Nettie
Heddleson immediate and full reinstatement to his or her former or substantially
equivalent position, without prejudice to his seniority or other rights and
privileges, and will make each of them whole for any loss of pay he may have
suffered as a result of the discrimination against him.
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or
any other labor organization, by discriminating in any manner against our
employees in regard to their hire or tenure of employment or any term or
condition of their employment.
WE WILL NOT discriminate in regard to the hire or tenure of employment or any
term or condition of employment, because of membership in, or activities on
behalf of, any such labor organization. -
All our employees are free to become or remain members of the International
Union, United Automobile, Aircraft & Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization.
OLD KING COLE, INC.,
Employer.
Dated ---------------- By ----------------------------------------------
(Itepresentative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Bordo Products Company and International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO , Petitioner. Case No. 12-RC-192 (formerly
10-RC-3590). February 5,1957
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 Allen Sinsheimer, Jr., hear-
ing 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 the business of processing citrus
fruits. This case involved its operation at Winter Haven, Florida.
117 NLRB No. 39.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer in this proceeding contests the Board's jurisdiction
but refuses to disclose any information as to the nature and extent
of its purchases and sales at this plant. The hearing officer placed
in the record certain telegrams, dated in September 1956, from cus-
tomers of the Employer to the Board's Regional Director, which show
that the Employer at the present time ships in interstate commerce
products of an annual value of at least $536,941.
In 1948, the Employer participated in a consent election involving
this Winter Haven plant, pursuant to which a certification was issued
covering the plant.' In 1949, in a proceeding involving its Mission,
Texas, plant,' the Employer admitted it is engaged in commerce within
the meaning of the Act and stipulated certain facts concerning its
operations on the basis of which the Board asserted jurisdiction. We
hereby take official notice of the record in that proceeding.3 The
stipulation therein shows that the Employer is an Illinois corporation
with its home office in Chicago, Illinois, and plants in Mission, Texas,
and Winter Haven, Florida. All the Employer's salesmen work out
of the home office in Chicago and make sales to various customers
over the entire United States. During the operating season, November
1947 to May 1948, the Employer purchased in Texas in excess of
$100,000 worth of citrus fruit for processing at the Mission plant.
During the same period it purchased from the American Can Com-
pany and Kieckhefer Container Company tin cans and corrugated
pasteboard cartons valued at $675,000, which were shipped to Mission
from Houston, Texas. It also purchased in excess of $50,000 worth
of labels for use in its Mission plant, most of which were shipped to
the plant from points outside the State of Texas. During the same
period of time, the Employer's sales at the Mission, Texas, plant alone
were in excess of $1,000,000, of which approximately 90 percent was
shipped to points outside the State of Texas.
The Employer, although contesting jurisdiction herein, neither
asserted nor offered any evidence to show that its operations have sub-
stantially changed since the earlier cases. There is nothing in the
record of the 1949 proceeding or of this proceeding which would in-
dicate that the Employer's operations for the year 1947-48 are not
typical of its business. The Board is aware of no intervening circum-
stances which would raise the probability that the Employer's inter-
state business has declined. The presumption is that a state of affairs
once shown to exist continues until the contrary is shown .4 Our dis-
1 Case No 10-RC-421 (not reported in printed volumes of Board Decisions and Orders).
2 83 NLRB 461
''See Maxwell Brothe,s , Ire, 111 NLRB 1118, Aabel Corporation, 111 NLRB 180, and
Avco Mfg Corp., 107 NLRB 295, where the Board took official notice of eailier proceedings
involving the same employer to get commerce facts
4 N L P. B. v. Whittier Mills Co , 111 F. 2d 474 (C. A. 5) ; see also N. L. R. B. v. Teo•O-
Kan Flour Mills Co , 122 F. 2d 433, 436 (C, A. 5) , N L R B v. J. G Boswell Co., 136 F.
2d 585 (C. A. 9).
BORDO PRODUCTS COMPANY 315
senting colleague fails to cite any authority which holds that there is
an exception to this general rule of law which precludes its application
to facts as to business operations simply because such facts are utilized
to determine jurisdiction. Indeed, we note that he participated in
2 of the 3 cases cited in footnote 3, supra, where the Board did take
official notice of the commerce facts in a prior proceeding as a basis
for asserting jurisdiction. Accordingly, in the absence of evidence to
the contrary, which the Employer may still present if it desires to do
so, should it promptly make a sufficient offer of proof, the Board con-
cludes that the commerce data heretofore presented to the Board con-
tinues to be representative of the Employer 's business.
The Board finds that the Employer is engaged in commerce within
the meaning of the Act, and inasmuch as the Employer meets the
Board's jurisdictional standards with respect to multistate operations,'
it will effectuate the purposes of the Act to assert jurisdiction in this
case.
2. The record shows that the Petitioner and the Intervenor, Can-
nery, Citrus Workers, Drivers, Warehousemen and Allied Employees
Local 60, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO, exist for the purpose of
bargaining collectively with employers concerning the wages, hours,
and working conditions of employees. We find that both are labor
organizations within the meaning of Section 2 (5) of the Act and
claim to represent certain employees of the Employer.
Citrus Workers' Local Union 24215, AFL-CIO, party to a bar-
gaining contract with the Employer, was duly notified but did not
intervene in this proceeding.
3. The Employer moves to dismiss the petition on numerous
grounds. For reasons indicated below, we deny the motion.
The Employer alleges first a contract bar to the petition. A con-
tract was entered into between the Employer and the Citrus Workers'
Local Union 24215, affiliated with the AFL, on December 15, 1955,
which contained an expiration date of October 29, 1956, unless auto-
matically renewed by failure of either party to give 60 days' notice
prior to the expiration date. The petition herein was filed on August
8, 1956, prior to the operative date of the automatic renewal clause.
We, therefore, find that it was timely filed. Accordingly, the con-
tract is no bar.' In view of bur finding that the petition was filed at
a time appropriate with respect to the contract's term for a change
of representation, the grounds urged by the Employer to support its
dismissal motion relating to raiding, disaffiliation, or defunctness are
not pertinent, and we shall not discuss them.
H See Jonesboro G,aen, Drying Cooperative, 110 NLRB 481, The Ransom and Randolph
Company, 110 NLRB 2204.
6 See International Harvester Company, 113 NLRB 750
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer also contends that the Petitioner has not made a
proper showing of interest in view of the seasonal nature of the
business involved. The Employer urges that a showing of interest
among employees on its payroll at the time the petition was filed is
inadequate because of the greatly increased number of employees who
will be working during the season. We find no merit in the conten-
tion. The showing of interest is an administrative matter not subject
to collateral attack, and the Board has consistently found that a
showing among current employees in a seasonal industry is ade-
quate?
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 Petitioner seeks a unit of all production and maintenance
employees at the Employer's operation located at Winter Haven,
Florida. The parties are generally in agreement as to the composi-
tion of the unit. There is some problem raised as to the unit place-
ment of plant clerical employees and the supervisory status of car
checkers.
Although the parties seem to have agreed that "clerical" employees
should be excluded from the unit they are in specific disagreement
concerning scalemen and possibly stock clerks. The 1948 certification
following a consent election covered all employees including specifi-
cally stockroom clerks. The most recent bargaining contract recog-
nized a unit of all employees, and although the recognition clause did
not mention specifically plant clerical employees as a group or the
individual classifications here in dispute, an addendum to the contract
provides wage rates for scalemen and stockroom clerks.
Scalemen work in the scalehouse weighing fruit. A loaded truck
is driven on the scales and the scalemen press a button which auto-
matically records the weight on ,a scale ticket. Then, after the truck
has been unloaded, the truck is driven on the scales empty and the
weight is recorded in the same manner. The scalemen make a manual
calculation of the differential, record all information relating to the
type of fruit, the supplier of fruit, and other information. Stock clerks
perform clerical duties in keeping track of materials. We find the
scalemen and stock clerks are plant clerical employees. Inasmuch as
the Board finds it desirable to include plant clericals with production
and maintenance employees with whom they are closely associated,$
and, the bargaining history appears to have covered such employees,
we shall include all plant clericals, including scalemen and stock
clerks, in the unit hereinafter found appropriate.
The car checkers work in the warehouse or at any point where there
are shipping operations. Each checker has a crew of three or more
7 See Sebastopol Cooperative Cannery, 111 NLRB 530, 532.
S See Mrs . Tucker's Products , 106 NLRB 533
BORDO PRODUCTS COMPANY 317
employees, called car loaders . The checker receives a tally which
indicates the amount and size of merchandise to be loaded into the car
or truck and it is his responsibility to see that the merchandise is
loaded correctly by the loaders, and he signs the tally when loading is
completed. He has the authority to effectively recommend discharge.
We find that the car checkers responsibly direct the loaders and are
supervisors as defined in the Act. Accordingly, we shall exclude them
from the unit.
We find the following unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer fruit
processing plant at Winter Haven, Florida, including scalemen, stock
clerks and all plant clericals, and truckdrivers and warehouse em-
ployees, but excluding all new construction, installation, and agricul-
tural employees,9 office clerical employees, cafeteria employees, labora-
tory and first aid personnel, technicians, professional employees,
watchmen and guards, sectionizing supervisors, car checkers, and all
other supervisors as defined in the Act.
5. The Employer's business is seasonal. The plant was closed on
March 28, 1956, and remaining on the payroll as of August 8, 1956,
were 107 employees. At the peak of the season there are approxi-
mately 1,200 employees. The season is influenced by the weather.
The record shows that in 1955 the peak of employment was reached
sometime after the first of December, and probably remained at the
peak for a couple of months. The Employer moves to dismiss the
petition on the basis that since employees had not been hired for
the current season's operations at the time of the hearing, it is im-
proper to provide for an election among employees not yet employed.
We find no merit to the contention.10
We shall in accordance with our usual practice in seasonal indus-
tries direct that an election be held at or about the peak of the season,
on a date to be determined by the Regional Director, among the em-
ployees in the appropriate unit who are employed during the payroll
period immediately preceding the date of the issuance of. notice of
election by the Regional Director.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
I know of no case before this Board, or before the courts, where
the facts upon which the forum's jurisdiction rests may be presumed."
"The parties agreed that "agricultural employees" is defined to mean those employees
who xvoi k in the groves
See Sebastopol Ooopeiattie Cannery, sepia
42 Am Jui. 440, Pubic Adnumstiative.Law § 109 , 42,Am.,Jur, 513, Public Adminis-
trative Law § 157 ; 20 Ant Jur 172. Evidence § 167 Cf. 31 Am Jui 79, Judgments § 416
31 Am Jur 81, Judgments § 419
318 DECISIONS OF NATIONAL LABOR RELATIONS IIOARD
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.
12 " . 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 "
Maggio v. Zeitz, 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 -Ilan 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-0-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 lVhittser Mills 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. 2O-RC-3155, 1O-RC-3162, and 20-RC-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.,
1 At the hearing, without objection , the petition in Case No . 20-RC-3155 was amended
to substitute Crystal Cream and Butter Company for Hone Milk and Ice Cream Co.
117 NLRB No. 37.