The Borden Co.

National Labor Relations Board - Board Decisions

Apr 21, 1960

127 N.L.R.B. 304 (N.L.R.B. 1960)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Borden Company and General Truck Drivers, Chauffeurs,
Warehousemen & Helpers Local No. 270 (Ind.). Case No.
15-CA-1528. April 21, 1960
DECISION AND ORDER
On December 11, 1959, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent and the Union filed
exceptions to the Intermediate Report, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications and additions
herein noted.
On November 25, 1957, the Board issued a Decision and Direction
of Election 1 finding, contrary to the contentions of the Respondent,
that wholesale milk route driver-salesmen helpers were employees of
the Respondent at its New Orleans plant, and directed an election
among such helpers. The decision also stated that as to those helpers
who had been hired and paid by the drivers and of whom the Em-
ployer had no knowledge or record, these were not employees of the
Employer.
At the election which took place December 13, 1957, 16 ballots were
cast, of which 3 were for the Union and 13 were challenged. On July
2, 1958, the Regional Director issued his report on challenged ballots
and objections, recommending that the objections be overruled, the 13
challenges be sustained, and the Union be certified as bargaining rep-
resentative for the helpers. As no exceptions were filed to the Re-
gional Director's report by any of the parties, the Board adopted the
recommendations and certified the Union on July 18, 1958, and au-
thorized it to bargain for the wholesale milk route helpers as part of
the broader unit of the Respondent's employees currently represented
by the Union.
1 Case No 15-RC-1600, unpublished
127 NLRB No. 39.
THE BORDEN COMPANY 305
The General Counsel contends that on and after February 3, 1959,
the Respondent refused to bargain in violation of Section 8(a) (1)
and (5) of the Act with the Union as certified representative of its
employees. The Respondent asserts that immediately after issuance
of the Decision and Direction of Election in the representation pro-
ceeding on November 15, 1957, is eliminated by administrative action
all the employment factors on which the Board based its finding that
the helpers involved were the Respondent's employees. Accordingly,
Respondent argues that it was not under any statutory obligation to
bargain with the Union because it had no knowledge whatever of any
helpers in the certified unit for whom it could bargain?
The Trial Examiner found that from the time the Respondent in-
stituted its administrative changes on December 11 and 19, 1957, the
Respondent did not hire any new helpers who acquired status as its
employees. However, he also found that the three helpers whose
ballots in the December 13, 1957, election were unchallenged remained
employees of the Respondent, despite the changes in its employment
practices. In so finding with respect to the three helpers, the Trial
Examiner relied upon the Board's decision 3 in another representation
proceeding involving the wholesale milk route helpers of National
Dairy Products Corporation where that employer had made very
similar administrative changes with regard to the status of its helpers
as were made herein.' In a supplemental decision in National Dairy
Products Corporation, Sealtest Southern Dairies Division,5 the Board,
2
The Respondent also contends that there is no evidence in the record upon which to
base a finding that it in fact refused to bargain with the Union . In support of this
contention , Respondent points to negotiations and correspondence between the parties in
which Respondent while taking the position that there were no employees within the unit
certified by the Board , nevertheless expressed a willingness to solve the helper 's problem.
We find no merit in this contention Thus, the problem with respect to which the Union
wished to negotiate, in accordance with the mutual rights and obligations of the parties
under Section 8(d) of the Act, was the wages, hours , and other terms and conditions of
employment of Respondent 's helpers in the certified unit, for which the Union was the
designated bargaining representative , in order to reach an effective collective -bargaining
agreement . This, as the record shows , the Respondent was unwilling to do, for its posi-
tion was that it had no helpers Accordingly , there is evidence upon which a finding
can be based that Respondent in fact refused to bargain with the Union However, the
real question at issue here is whether the Respondent's refusal constituted a violation
of the Act as a matter of law . The answer depends upon a determination-which is
made sntra in this decision-as to whether the Respondent had helpers within the certified
unit If it did, then its mere expression of willingness to engage in an abstract dis-
cussion on the general subject of the working conditions of helpers but not to execute an
agreement with respect thereto, as Respondent apparently was amenable to doing here,
would not suffice as an offer to bargain within the meaning of Section 8 ( d). If it did
not have helpers, then , as a matter of law, there would be no refusal to bargain by the
Respondent even if it expressed an absolute unwillingness to discuss the subject of helpers.
National Dairy Products Corporation , Sealte8t Southern Dairies Division , Case No.
15-RC-1611, unpublished
In National Dairy the decision stated, inter alia, that "[d]rivers sometimes have
helpers who are paid directly by the drivers and of whom the Employer has no knowledge.
As to such helpers of whom the Employer has no record, we find these are not employees
of the Employer."
5122 NLRB 880.
560040-61-vol . 127-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in discussing the impact of the administrative changes "ulson -its 'de-
cision regarding the helpers, pointed out that such changes did not
materially affect, much less destroy, the established employment rela-
tionship ; that the employer's action did not reduce the status of the
regular employees involved to that of the casual employees referred to
in the decision who were sometimes hired by the drivers and of whom
the employer had no knowledge at all; and that the keeping of records
was not to be equated with the finding that these helpers had employee
status.
We agree with the Trial Examiner that the circumstances in the
National Dairy case are so analogous to those of the instant one with
regard to the specific administrative changes made as to require the
conclusion that the three helpers were regular and not casual em-
ployees of the Respondent. However, we do not agree with him to
the extent that he implies that the continued existence of the unit
depends upon the continuous employment of particular individuals
rather than upon classifications of employees.
The Trial Examiner found that as the Respondent failed to furnish
evidence to indicate that the three regular helpers were no longer
employees after they voted in the election of December 13, 1957 (in-
deed, Respondent stated it had no knowledge with regard to their
status), it was fair and reasonable to presume that their employment
continued to and beyond February 3, 1959, when the Union requested
bargaining for the helpers. Accordingly, as the helpers were em-
ployees of the Respondent on and after February 3, 1959, within the
meaning and intendment of the Board's exclusive bargaining cer-
tificate, the Trial Examiner held that Respondent's refusal to nego-
tiate terms and conditions of employment with respect to them was
a violation of Section 8 (a) (1) and (5) of the Act. The Respondent
contends that the Trial Examiner erred in presuming that the helpers
conbinued in Respondent's employ on and after February 3, 1959, and
that it was incumbent upon the General Counsel, not the Respondent,
to prove the existence of such employees.
We agree with the Trial Examiner that the burden was on the Re-
spondent to show that the helpers found to be employees on the date
of the election did not continue their employment. Once the General
Counsel has shown the certification of the Union in the representation
case, and a subsequent request and refusal to bargain, the General
Counsel has established a prima facie case of a violation of Section
8 (a) (5), and even assuming that there was a further burden on the
General Counsel to show that the employee status of the helpers con-
tinued, that burden was met by the Board's finding of employee status
in the prior representation case, and the well established legal principle
that a state of affairs shown to exist is presumed to continue until the
THE BORDEN COMPANY 307
contrary is shown.' The Board having found in its decision in the
representation case that regular helpers were employees, the burden
was on the Respondent in this proceeding to establish that the circum-
stances upon which that decision was based no longer existed. This the
Respondent failed to do. As heretofore indicated, the administrative
changes in the relationship between the three helpers and the Re-
spondent were insufficient to affect the employee status previously
found. Nor is the testimony of the Respondent that it had no knowl-
edge of what happened to these helpers evidence that the circumstances
had changed. Certainly, the statement of the Respondent that it did
not know whether or not it had helpers cannot be equated to a position
that it had no such helpers, as it would be required to'show in order
for it to meet its burden. While the burden of disproving the allega-
tions of the complaint was not on the Respondent, the burden was on
it to rebut the presumption which had been established that the three
employee helpers were still in an employee status. The General
Counsel having established this presumption and the remainder of
his prima facie case, the burden of going forward, and not the burden
of proof, was on the Respondent. This it did not do. We therefore
find that the helpers were still employees at the date of request to bar-
gain and the Respondent's refusal to bargain concerning them con-
stitutes a violation of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, The Borden Company, New
Orleans, Louisiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively, with re-
spect to rates of pay, wages, hours of employment, and other terms
and conditions of employment, with General Truck Drivers, Chauf-
feurs, Warehousemen & Helpers Local No. 270 (Ind.), as the exclu-
sive representative of all its employees in the appropriate unit, which
is all hourly paid inside production and maintenance employees; re-
tail, wholesale and relief milk route salesmen and supervisors; ice
cream route salesmen; platform employees; tank truckdrivers and
porters, and all wholesale milk route helpers, excluding all other
classifications of employees such as executives, administrative em-
ployees, office and clerical employees, telephone operators, outside
6 National Van Lines, 123 NLRB 1272, enforcement denied on other grounds 273 F. 2d
402 (C.A 7) ; United Insurance Company of America, 122 NLRB 911, enforcement denied
and remanded to Board 272 F. 2d 446 (C A. 7). We view the decision of the seventh
Circuit Court in United Insurance as confined to the special facts of that case and not in
any sense a departure from the Supreme Court's ruling in Pittsburgh Plate Glass Company,
313 U.S. 146, 162.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesmen ( other than route salesmen ), fieldmen , guards, watchmen,
and all supervisory employees.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with General Truck Drivers,
Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), as the
exclusive representative of the employees in the above-described ap-
propriate unit and embody any understanding reached in a signed
contract.
(b) Post at its plant in New Orleans, Louisiana, copies of the
notice attached to the Intermediate Report marked "Appendix."'
Copies of said notice, to be furnished by the Regional Director for
the Fifteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply therewith.
4 This notice Is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by General Truck Drivers, Chauffeurs , Warehousemen &
Helpers Local No . 270 (Ind .), herein called the Union , the General Counsel for
the National Labor Relations Board , herein called the Board , by the Regional
Director for the Fifteenth Region , issued his complaint dated June 30, 1959 , against
The Borden Company, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8(a)(1) and ( 5) and Section 2(6) and ( 7) of the National Labor Relations
Act, 61 Stat . 136, herein called the Act . Copies of the complaint , charge, and
notice of hearing were duly served upon the parties. The Respondent 's answer
duly filed denies the allegations of unlawful conduct in the complaint.
A hearing was held at New Orleans , Louisiana , on October 13, 1959 , before the
Trial Examiner duly designated to conduct the hearing. All parties were repre-
sented by counsel . Full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence and submit argument was afforded all parties.
The Respondent 's motion at the close of the hearing for dismissal of the complaint
as to which ruling was reserved is disposed of in accordance with the findings and
conclusions herein.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
THE BORDEN COMPANY
FINDINGS OF FACT
309
1. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270
(Ind.), is a labor organization which admits to membership the employees of the
Respondent.
IT. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is a New
Jersey corporation engaged in the manufacture and sale of dairy products in the
State of Louisiana and in several other States of the United States. In the course
of its business operations during the year ending December 31, 1958, the Respondent
purchased dairy products and related materials valued in excess of $1,000,000 which
were shipped to it from points outside the State. During the same period the Re-
spondent shipped finished products valued in excess of $50,000 from its plant to
points outside the State. From these facts I find that the Respondent is engaged in
interstate commerce and that it will effectuate the policies of the Act to assert juris-
diction over its business in this proceeding.
III. THE UNFAIR LABOR PRACTICES
The General Counsel contends that the Respondent has refused, in violation of
Section 8(a)(5) and (1) of the Act, to bargain with the Union as the certified
representative of the Respondent's wholesale milk route helpers. The Respondent
maintains that it did not in fact refuse to bargain with the Union, but in any event
it was under no statutory obligation to bargain with the Union because when the
parties met to negotiate pursuant to the Union's request the Respondent did not
have in its employ any employees designated wholesale milk route helpers for whom
it could bargain.
Pursuant to a representation hearing held in Case No. 15-RC-1606 (unpublished),
the Board, on November 25, 1957, ordered an election among certain persons
designated as wholesale milk route helpers who, according to the Board's finding,
were the Respondent's employees at its New Orleans plant. In the election held on
December 13, 1957, 16 ballots were cast. Thirteen ballots were challenged and these
challenges were ultimately sustained by the Board. The three unchallenged ballots
having been cast for the Union, the Board issued a Supplemental Decision and Cer-
tification on July 18, 1958, certifying the Union as the exclusive bargaining repre-
sentative of the Respondent's wholesale milk route helpers and authorizing the
Union to bargain for them as part of the broader unit of the Respondent's em-
ployees currently represented by it.
By letter dated September 8, 1958, the Union requested the Respondent to ne-
gotiate for the helpers. Following an exchange of letters the parties agreed to and
apparently did meet on October 13, 1958. A letter, dated April 2, 1959, from the
Union to the Respondent reveals that at this meeting the Respondent had main-
tained it did not have any helpers in its employ as this employee description was
delineated by the Board in its Decision and Direction of Election and Certification
and that the Respondent was therefore not required to bargain for helpers. The
Union nevertheless requested further bargaining. The Respondent's reply to this
letter acknowledged this had been its position, but agreed to meet with the Union
to discuss the matter and to seek a solution. An April 21, 1959, letter from the
Respondent to the Union refers to a meeting of April 20 between them concerning
the helpers. In this letter counsel for the Respondent, in accordance with his prom-
ise at the meeting, undertook to clarify the Respondent's position. He said,
I 'am writing this letter to clarify the Company's position and state that the
Company contends that it is not compelled to bargain for the helpers at this
time because there are no helpers within the category described by the Board
in its certification. The basis for the Company's position is well stated in the
"REPORT ON CHALLENGED BALLOTS and OBJECTIONS TO ELEC-
TION" signed by Mr. Charles M. Paschal, Jr., acting Regional Director, Na-
tional Labor Relations Board, on July 2, 1958, in Case No. 15-RC-1606, in
which he stated:
In its Decision and Direction of Election in this matter, the Board
specifically stated:
"As to those helpers hired and paid by the drivers of whom the em-
ployer has no knowledge or record, these are not employees of the em-
ployer."
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The investigation failed to disclose any evidence that the individuals
whose votes were challenged were carried on the Company 's employment
records, or that they were considered employees of the employer in any
capacity.
Although the foregoing quote appears to argue only that the Respondent was not
obligated to bargain for the 13 persons whose votes were successfully challenged, I
deem it to have been the Respondent 's position at all times that it was also not
obligated to bargain for the three helpers whose unchallenged votes had been cast
for the Union and at least for whom the Union received the Board 's certificate as
bargaining representative.
In support of its insistence that the foregoing three helpers as well as any others
are not its employees , the Respondent asserts that directly after the Board issued
its November 25, 1957, Decision and Direction of Election finding that the helpers
involved were the Respondent 's employees , it eliminated by administrative action
the employment factors pertaining to the helpers on which the Board based its
finding. It should here be noted that this proceeding does not involve any claim by
the General Counsel that the Respondent by this unilateral conduct violated Sec-
tion 8 ( a)(l), (3), or ( 5) of the Act , and that the only allegation of statutory vio-
lation in this case involves the refusal of the Respondent to bargain for helpers on
and after February 3, 1959. Consequently , if, as the Respondent contends , its ad-
ministrative actions before then succeeded in depriving the persons held by the
Board on November 27, 1957, to be employees of that status , and if on and after
February 3, 1959, the Respondent had no other helpers who on the basis of the em-
ployment conditions then obtaining could be regarded as the Respondent 's employees,
a finding must here be made that in fact there were no employees within the mean-
ing of the Board's decision and certification for whom the Respondent was obligated
to bargain on and after February 3, 1959. In this circumstance the Respondent's
defense that it did not violate Section 8(a)(5) of the Act would be sustainable,
because the Act requires an employer to bargain only for his employees.
On December 11, 1957, the Respondent directed the following notice to its whole-
sale milk route salesmen:
WHOLESALE MILK ROUTE SALESMEN
By its ruling on November 25, 1957, the National Labor Relations Board de-
cided that the helpers of the Wholesale Milk Route Salesmen who are carried
on the Company payroll are employees of the Borden Company . In the same
decision the National Labor Relations Board held that all helpers hired and
paid by the drivers , of whom the Company has no knowledge or record are
not employees of the Company.
The practice of issuing company checks to some of the helpers arose at the
request of the route men and as an accommodation to them. It was not the
Company's intention to make any helper an employee of the Company.
In order to minimize a result which was never intended by the parties, the
Company intends to avoid the possibility that additional persons not hired by
the Company may claim employee status. Accordingly, the Company will not
in the future place on its payroll or issue a Company check to any person not
hired by the Company through its regular personnel channels.
On December 19, 1957, the Respondent directed the following notice to its whole-
sale milk route salesmen:
NOTICE TO ALL WHOLESALE MILK ROUTE SALESMEN
Beginning with the current payroll period, the Company will discontinue the
practice of issuing checks and the names of any of the helpers of the wholesale
milk route salesmen.
In view of the recent action of the National Labor Relations Board, which
has resulted in a situation not intended by the parties at the time the practice
of using helpers arose, the Company states its preference that the practice of
using helpers on the wholesale milk routes be discontinued as soon as possible.
I am satisfied that adherence by the Respondent to the directives in the foregoing
notices after their promulgation precludes the possibility that it thereafter hired as
its employees any helpers within the meaning of the Board 's Decision and Direction
of Election . Testimony by E. A. Honore, the Respondent 's sales manager in charge
of labor relations and the policies of its wholesale department , reveals that not only
was there adherence to these directives with resultant lack of any knowledge by the
Respondent of the identity of helpers engaged by drivers to assist them , but addi-
THE BORDEN COMPANY 311
tionally the Respondent eliminated all the practices pertaining to the hire of helpers
which had prevailed before the Board's Decision and Direction of Election. Thus,
applicants for helper jobs no longer applied at the plant and no file of their names
and addresses was kept which could be used by the drivers to recruit helpers; the
Respondent had no knowledge of any instance in which its own employee hired or
fired a helper to a driver; along with the elimination of payroll records of helpers
the Respondent ceased directly after the hearing in Case No. 15-RC-1606 to require
physical examinations by its own doctor of helpers before putting them on its payroll;
and helpers neither participate in the Respondent's various insurance benefits for
employees, nor have the right to choose participation in such benefits. I am con-
vinced that from the time of the adoption of these practices the Respondent did not
hire new helpers who acquired status as its employees, 'and that on and after February
3, 1959, the only helpers who could be deemed its employees were the three helpers
whose ballots in the December 13, 1957, election were unchallenged. I am satisfied
this is so whether the Respondent continued its practice existing before December 13,
1957, of substituting a supervisor for a driver who is ill or on vacation to "pull"
the driver's route and in which case the Respondent pays the going rate of the helper
without deductions from the supervisor's pay. This factor, absent those eliminated
by the Respondent's administrative changes, would not in my opinion confer status
on the helpers as the Respondent's employees.
The fact, however, that there were not, as I find, other helpers with employee
status on and after February 3, 1959, does not necessarily absolve the Respondent
of liability for a refusal to bargain for helpers, for if the three helpers who had been
its employees on and before December 13, 1957, retained that status, the Respondent's
refusal to bargain for them was violative of the Act. The ultimate question then
remains whether these helpers may be regarded as still holding their jobs on and after
February 3, 1959, and if so, whether they retained their former status as the Re-
spondent's employees.
In another representation proceeding, also involving a New Orleans dairy, National
Dairy Products Corporation, Sealtest Southern Dairies Division , Case No. 15-RC-
1611 (unpublished), the Board issued a Decision and Direction of Election on
November 25, 1957, finding that that employer' s wholesale milk route helpers were
its employees and relied upon the identical employment terms and conditions set out
in the Decision and Direction of Election involving the Respondent in the instant
case. Thereafter, Sealtest, in an effort to deprive the helpers of the employee status
which the Board had found, ceased keeping their payroll records, stopped paying
them by company check, and required the drivers to pay them directly from their
earnings . It also discontinued deducting from helper earnings social security and
withholding taxes. Having done this before the representation election ordered by the
Board, Sealtest challenged the ballots of the helpers who voted on the ground that
the aforementioned changes had divested the helpers of status as its employees.
This belief was based on the caveat in the Board's Decision and Direction of Elec-
tion, also contained in the Decision and Direction of Election in Case No. 15-RC-
1606 involving the Respondent herein, that:
As to those helpers hired and paid by the drivers of whom the employer has
no knowledge or record, these are not employees of the Employer.
In a Supplemental Decision 1 ruling on exceptions to the Regional Director's report
on challenged ballots, the Board held that Sealtest had not by these administrative
changes altered the status of the helpers as employees. The Board, in disagreement
with the Regional Director's contrary view, said,
The Regional Director apparently has misinterpreted the Board's Decision On
the eligibility date, the Employer had knowledge of the nine helpers employed,
how long they had been in its employ and the duties they performed. The
Employer also kept a record with respect to, and paid, them. The mere fact
that thereafter the Employer declined to maintain such a record or to pay these
helpers directly did not materially affect, much less destroy, the established
employment relationship. Certainly, the Employer's action did not reduce the
status of these regular employees to that of the casual employees referred to in
our decision who were sometimes hired by the drivers and of whom the Em-
ployer had no knowledge at all. We think that where the Regional Director
erred was in equating the keeping of records with our finding that the helpers
involved herein had employee status.
1122 NLRB 880.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The circumstances in Sealtest are sufficiently close and analogous to those of the
instant case to compel the conclusion here that the Respondent by elimination of
the payroll and other records and services pertaining to the aforementioned three
helpers did not deprive them of status as its employees . The Board 's finding that
they were the Respondent 's employees requires that I regard them as regular and not
the casual employees referred to by the caveat excluding from employee status those
helpers as to whom the respondent had no records or knowledge , just as the Board
did with respect to the helpers involved in the Sealtest case. I find that the three
helpers in question remained employees of the Respondent despite the administrative
changes instituted by the Respondent on December 11 and 19, 1957.
Finally, there remains for determination whether these three employees were
employed by the Respondent on and after February 3, 1959, when the Union re-
quested bargaining for helpers . While there is no direct evidence that at these
times these helpers were still employed , I believe it fair and reasonable to presume
that the employment which they were shown to have held on December 13, 1957,
when they voted in the Board's representation election continued to and beyond
February 3, 1959. There was no evidence furnished by the Respondent to indicate
that they no longer were employed and in fact the only comment with respect to
the continuation of their employment was testimony by Honore that he had no
knowledge thereof. Accordingly, I find that they were on and after February 3,
1959, employees of the Respondent within the meaning and intendment of the
Board 's exclusive bargaining certification to the Union . The Respondent 's refusal
to negotiate terms and conditions of employment for these employees with the
Union on the erroneous ground that they are not its employees constitutes a violation
of Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate, and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent has refu °ed and still refuses to bargain
collectively with the Union as the exclusive representative of the employees in the
appropriate unit described herein. It will therefore be recommended that the
Respondent bargain collectively , upon request, with the Union as the exclusive
representative of the employees in the appropriate unit, and, if an understanding
is reached, embody such understanding in a signed agreement.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Borden Company is an employer within the meaning of Section 2(2) of
the Act, and is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270
(Ind.), is a labor organization within the meaning of Section 2(5) of the Act.
3. The following employees at the Respondent 's New Orleans, Louisiana, plant,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All hourly paid inside production and maintenance employees; retail , wholesale,
and relief milk route salesmen and supervisors ; ice cream route salesmen ; platform
employees ; tank truck drivers and porters and all wholesale milk route helpers; and
excluded are all other classifications of employees such as the following : executives,
administrative employees , office and clerical employees, telephone operators, outside
salesmen (other than route salesmen ), fieldmen , guards, watchmen , and all super-
visory employees.
4. On February 3, 1959, and at all times thereafter , General Truck Drivers,
Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), was, and now is, the
representative of a majority of the Respondent 's employees in the appropriate unit
NATIONAL DAIRY PRODUCTS CORPORATION 313
described above for the purposes of collective bargaining within the meaning of
Section 9 ( a) of the Act.
5. By refusing from February 3, 1959, and thereafter , to bargain with the
Union as the exclusive representative of all its employees in the above -described
appropriate unit , the Respondent ha' engaged in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) o the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
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 bargain collectively upon request with General Truck Drivers,
Chauffeurs, Warehousemen & Helpers Local 270 (Ind.), as the exclusive bar-
gaining representative of all our employees in the appropriate unit described
below with respect to rates of pay , wages, hours of employment , and other
terms and conditions of employment , and if an agreement is reached , embody
such understanding in a signed contract. The appropriate unit is:
All hourly paid inside production and maintenance employees ; retail,
wholesale, -and relief milk route salesmen and supervisors ; ice cream
route salesmen; platform employees ; tank truck drivers and porters and
all wholesale milk route helpers; and excluded are all other classifica-
tions of employees such as the following: executives , administrative em-
ployees, office and clerical employees , telephone operators, outside salesmen
(other than route salesmen ), fieldmen , guards, watchmen , and all super-
visory employees.
THE BORDEN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posited for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
National Dairy Products Corporation , Sealtest Southern Dairies
Division and General Truckdrivers , Chauffeurs , Warehouse-
men & Helpers , Local No. 270 , Ind. Cases Nos. 15-CA-1527
and 15-CA-19234. April 21, 1960
DECISION AND ORDER
On December 11, 1959, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Union filed exceptions to the Intermediate Report,
the Respondent filed a brief in support of the Intermediate Report,
and the General Counsel filed a brief in support of his exceptions.
127 NLRB No. 40.