The Borden Co.

National Labor Relations Board - Board Decisions

Aug 3, 1955

113 N.L.R.B. 459 (N.L.R.B. 1955)

- THE BORDEN FOOD PRODUCTS COMPANY 459
Company to assign to its members rather than to over-the-road drivers
the city pickup and delivery work on solid loads of iron and steel.
-However, we are not by this action to be regarded as "assigning" the
work in question to the over-the-road drivers.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact, and upon the entire
-record in this case , the Board makes the following determination of
dispute pursuant to Section 10 (k) of the amended Act :
1. Truck Drivers Local Union No. 375, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
A. F. L., and its agents are not, and have not been, lawfully entitled
to force or require Service Transport Co. of Cleveland , Ohio, by means
proscribed by Section 8 (b) (4) (D ) of the Act , to assign the city
pickup and delivery work on solid loads of iron and steel in and
around Buffalo, New York, to members of Local 375 rather than to
Service Transport Co.'s over-the -road drivers.
2. Said Local Union No . 375 shall , within ten (10 ) days from the
date hereof, notify the Regional Director for the Third Region in
writing , whether or not it accepts the Board 's determination of this
dispute, and whether or not it will refrain from forcing or requiring
Service Transport Co. of Cleveland , Ohio, by means proscribed by
Section 8 (b) (4) (D ) of the Act, to assign the work described in
paragraph 1, above, to members of Local 375 rather than Service
Transport Co.'s over -the-road drivers.
The Borden Food Products Company, Division of The Borden
Company and International Association of Machinists, AFL,
Petitioner. Case No. 3-RC-1510. August 3, 1955
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 Bernard Marcus,
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. 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.
At the hearing, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL, hereinafter referred to as Meat Cutters,
sought to intervene in this proceeding on the ground that, under a
recent merger, it is the legal successor to International Fur and
113 NLRB No. 51.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leather Workers Union of the United States and Canada, hereinafter
referred to as IFLWU, and that, as successor, it has assumed all rights
and interests of the IFLWU under the latter's existing contract with
the Employer. Over the objections of the Petitioner, hereinafter
referred to as IAM, and the Employer, the hearing officer permitted
the intervention on the basis of the Meat Cutters' assertion that it is
the legal successor to the IFLWU, but reserved for the Board the
question of whether the Meat Cutters has in fact succeeded the
IFLWU as party to the contract and inherited the latter's contractual
interest. Without deciding what rights, if any, the Meat Cutters
may have received from the IFLWU, we find, for the purpose of
intervention only, that the Intervenor's alleged contractual interest
and colorable claim to representation justified the hearing officer's
granting the motion to intervene.'
3. The Meat Cutters contends that the existing contract between the
Employer and the IFLWU, to which it has succeeded as the union
party, constitutes a bar to this proceeding. The record discloses that
in March 1953, the Employer and the IFLWU negotiated a collective-
bargaining contract covering the employees here involved, effective
January 1, to December 31, 1953, and that on February 26, 1954, this
contract, which contains a maintenance-of-membership clause, was
amended and extended from January 1, 1954, to December 31, 1955,
by a supplemental agreement signed by representatives of the IFLWU
and a local negotiating committee on behalf of its Local Union 805.
We are administratively advised that Local Union 805 has never
been in compliance with the filing requirements of Section 9 (f), (g),
and (h) of the Act. Section 8 (a) (3) of the Act, as amended in
October 1951, sanctions a union-security clause provided that "at the
time the agreement was made or within the preceding twelve months
(the contracting union) has received from the Board a notice of
compliance with Section 9 (f), (g), and (h)" of the Act. As the,
contracting local union was not in compliance during the period re-
quired by the statute, we find the contract constitutes no bar to a
present determination of representatives?
The Intervenor moved to dismiss the petition on the ground that
the Petitioner is acting on behalf of a noncomplying local union. It
appears from the record that there is in existence at the Employer's
operations a local union, all members of which have signed IAM au-
thorization cards.' Although, in organizing the Employer's em-
i See A. Siegel & Sons, Inc, 94 NLRB 471, at 472-473, Pacific Tankers, Inc, 81 NLRB
325, at 326.
a See The D. M Bare Paper Company, 99 NLRB 1487 , at 1488; Caribe Plastics Corp.,
107 NLRB 7, Westinghouse Electric Corporation, 102 NLRB 275, at 276, footnote 1 , and
Fesn'8 Tin Can Co ., Inc., 99 NLRB 158, at 159.
8 This local was formerly affiliated with the IFLWU, but allegedly has disaffiliated
therefrmn.
THE BORDEN FOOD PRODUCTS COMPANY 461
ployees, the Petitioner acted through an IAM organizing committee
comprised of the existing local's officers, testimony elicited at the hear-
ing indicates that the local is presently functioning as an independent
union, and not as an IAM local. Thus, there has been no request for,
or issuance of, an IAM charter ; no dues have been submitted to the
IAM ; no IAM local lodge has been set up and no local number as-
signed; no officers have been recognized or designated by the IAM; no
grievances have been processed on behalf of the IAM; and, other than
the existence of individual authorization cards, there has been no desig-
nation of the IAM as collective-bargaining representative. The Peti-
tioner's request for recognition was made by a business representative
of the IAM and the petition was filed by the IAM. Under normal
IAM procedure, a request for an TAM charter is granted, where sup-
ported by 15 applications and an application fee, only after an election
has been conducted, a Board certification issued, and a meeting held
at which officers are elected.
Under these circumstances, we find without merit the Intervenor's
contention that the IAM is not the real party in interest and is fronting
for a noncomplying local union. We are satisfied upon the record that
the IAM is in fact the real party in interest and, as such, is entitled to
maintain this proceeding on its own behalf. The Board has held that
whether or not a local union will be established, and whether or not its
officers will comply with the Act, is conjectural and too premature to
warrant consideration.4 Accordingly, the Intervenor's motion to dis-
miss the petition is hereby denied. However, should the IAM win an
election, a certification would not issue if a local were in fact in the
picture at that time unless such local were in compliance.5
We find that 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. We find, as stipulated by the parties, that the following employees
of the Employer constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees, including firemen,
truckdrivers, and assistant laboratory technicians, employed at the
Employer's Georgetown and Cincinnatus, New York, plants, but ex-
cluding all office clerical employees, guards, professional employees,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4The Englander Company, Inc, 100 NLRB 164, at footnote 1; Minneapolis Kntttzng
Works, 84 NLRB 826 , at 828 . Cf. Lane-Wells Company, 77 NLRB 1051
5 See Brooklyn Borough Gas Company, 110 NLRB 18.
6In view of our determination herein, we find it unnecessary to pass upon the Inter-
venor's contention that it has succeeded as party to the contract and on the Petitioner's
assertion-that a schism occurred °wrthin• the,ranks of the,contracting, IFLWU union