The Borden Co.

National Labor Relations Board - Board Decisions

May 28, 1946

68 N.L.R.B. 399 (N.L.R.B. 1946)

In the Matter of THE BORDEN COMPANY , SOUTHERN DIVISION and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA , A. F. OF L., LOCAL No. 894
Case No. 16-R-1653.-Decided May 28, 1946
Baker, Box, Andrews and Worton, by Mr. Tom M. Davis, of Houston,
Tex., and Messrs. D. A. Laird and Bryan Blalock, of Marshall, Tex.,
for the Company.
Mr. Paul C. White, of Marshall, Tex., for the Union.
Mr. F G. Dunn, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. of L., Local
No. 894, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of The
Borden Company, Southern Division, Marshall, Texas, herein called
the Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Claude H. Eads, Trial Ex-
aminer . The hearing was held at Marshall, Texas, on April 16, 1946.
The Company and the Union appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues.' The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
i The Union filed charges on February 25, 1946, against the Company alleging violation of
Section 8 (1) and (3 ) of the Act, Case No. 16-C-1331. Prior to the hearing , the Union waived
the unfair labor practices insofar as they might constitute a basis for objecting to the instant
proceeding.
68 N. L. R. B., No. 48.
399
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Borden Company is a New Jersey corporation with its home office
in New York City. It is engaged in the purchase, sale, and distribution
of milk and milk products in various States of the United States. It
operates approximately 30 branches in the States of Texas, Louisiana,
Mississippi, and Oklahoma under the name "The Borden Company,
Southern Division," which maintains its principal office at Houston,
Texas. Its plant located at Marshall, Texas, and the cooling plants lo-
cated at Maud, and Timpson, Texas, are the sole operations involved
in this proceeding. During the year 1945, the Company at its Marshall
plant purchased raw materials valued in excess of $800,000, approxi-
mately 12 percent of which was shipped to its Marshall plant from points
outside the State of Texas. During the same period, it received in excess
of $950,000 for the processing, sale, and delivery of milk, butter, and
ice cream, approximately 13 percent of which was shipped to points out-
side the State of Texas.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 894, is a labor organization, affiliated
with the American Federation of Labor, admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit composed of all employees of the Company
at its Marshall, Texas, plant, excluding all employees at its cooling plants
at Maud, and Timpson, Texas, all office employees, all casual or sea-
sonal employees, and all supervisory employees. The Company con-
tends that the unit should be extended to include the cooling plants
THE BORDEN COMPANY 401
mentioned above, and further contends that it employs no casual or sea-
sonal workers. There is also disagreement as to the supervisory author-
ity of two employees hereinafter discussed.
The cooling plant at Maud, Texas, is located approximately 55 miles
north, and the Timpson cooling plant is located approximately 55 miles
south, of the Marshall plant. The men employed at these two plants live
at Maud and Timpson and come in contact with Marshall plant em-
ployees only when they deliver a load of milk to Marshall. The employees
at Maud are 110 miles from the employees at Timpson and seldom, if
ever, come in contact with each other. Although working conditions and
wage rates are similar in all the plants, the employees at Maud and Timp-
son work less hours and thus have less "take home" pay. Because of the
distance involved making it necessary for employees at the cooling plants
to live at Maud and Timpson, there is little, if any, interchange of em-
ployees with the Marshall plant. There has been no collective bargaining
with the Company prior to this time and the Union has not extended its
organization to employees in the cooling plants at Maud and Timpson.
In view of the wide geographical separation of the plants, the absence
ny substantial interchange of employees between them, and the lim-
ent of organization, we find the employees of the Marshall, Texas,
lone constitute an appropriate unit.2
record reveals that the Company does not intend to hire any men
the summer months other than permanent employees, and inas-
as there was no evidence presented that casual or seasonal employees
ow working in the plant, we shall not exclude this category.
e Union would exclude Charles Lea, shipping clerk, and Robert
relief salesman, from the unit on the grounds that they are acting
in a supervisory capacity. However, the record shows that these men
work along with other employees and, in some instances, receive less com-
pensation than employees doing similar work. They do not have the
power to effectively recommend a change in the status of other
employees. We shall include them in the unit.
We find, therefore, that all employees at the Company's Marshall,
Texas, plant, including the relief salesman and the shipping clerk, but
excluding all employees at cooling plants located at Maud and Timpson,
Texas, all office employees, the plant superintendent, and all supervisory
employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute a union appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
2 See Matter of Woodside Cotton Mills Company, 48 N. L. R. B. 518; Matter of Dixie Manu-
facturang Company, Inc., 54 N. L. R. B 384; Matter of Gaylord Bros., Inc. 64 N. L. It B. 1350.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
The Union requests that a February pay-roll period be used in deter-
mining eligibility to vote. However, no sufficient reason appears in the
record to warrant a departure from the Board's customary eligibility
practice in this regard.
Accordingly, we shall direct that the question concerning representa-
tion which has arisen be resolved by an election by secret ballot among
employees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with The Borden Company,
Southern Division, Marshall, Texas, an election by secret ballot shall b-
conducted as early as possible, but not later than thirty (30) days.
the date of this Direction, under the direction and supervision
Regional Director for the Sixteenth Region, acting in this mat
agent for the National Labor Relations Board, and subject to
III, Sections 10 and 11, of said Rules and Regulations, among emp,
in the unit found appropriate in Section IV, above, who were emp
during the pay-roll period immediately preceding the date of this L
tion, including employees who did not work during said pay-roll pe
because they were ill or on vacation or temporarily laid off, a . .
including employees in the armed forces of the United States who pre-
sent themselves in person at the polls, but excluding those employees
who have since quit or been discharged for cause and have not been re-
hired or reinstated prior to the date of the election, to determine whether
or not they desire to be represented by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F.
of L., Local No. 894, for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.