The Borden Co.

National Labor Relations Board - Board Decisions

Jul 25, 1946

69 N.L.R.B. 947 (N.L.R.B. 1946)

In the Matter of THE BORDEN COMPANY, EMPLOYER and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL
UNION No. 405, AFL, PETITIONER
Case No. 10-B-1848.-Decided July 25, 1946
Mr. Edwin Clark Davis , of Chicago , Ill., for the Employer.
Mr. A. C. Allen , of Madison , Tenn., and Mr. R. G. Sloan , of Nash-
ville, Tenn., for the Petitioner.
Mr. Bernard Dunau, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, a prehearing election was held in this
case on May 24, 1946, at Nashville, Tennessee, among the employees of
the Employer in the alleged appropriate unit to determine whether or
not they desired to be represented by the Petitioner for the purposes
of collective bargaining. The Tally of Ballots, prepared at the close
of election, shows that of an approximate number of eligible voters
of 21, no void ballots were cast, 16 votes were cast for the Petitioner,
,no votes were cast against representation by any labor organization,
and no votes were challenged. Thereafter, a hearing was held on June
1i, 1946, at Nashville, Tennessee, before Albert D. Maynard, Trial
Examiner. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
At the hearing, the Trial Examiner reserved for ruling by the
Board the Employer's motion to dismiss the petition on the grounds
that the prehearing election machinery was in derogation of the Em-
ployer's constitutional rights, that the Employer was deprived of its
statutory right of an "appropriate hearing upon due notice" in
accordance with Section 9 (c) of the National Labor Relations Act,
and that the Rule providing for a prehearing election is so vague and
indefinite as to fail to apprise the Employer of its meaning. The
Employer further contended that, in any event, the Regional Director
exceeded his authority in ordering a prehearing election in this case
inasmuch as a substantial issue was presented. In its brief the Em-
69 N. L. R. B., No. 114
947
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plover assigned as an additional reason for dismissal the failure to
establish that it was engaged in a business affecting commerce. For
reasons hereinafter set forth, the motion is hereby denied. For the
same reasons, the Employer's motion to strike Exhibits 1-B to 1-I is
denied.
By amendment to Article III, Section 3, of the Board's Rules and
Regulations, effective November 27, 1945, it is provided that : "At any
stage of the investigation, either before hearing or after hearing but
before transfer of the case to the Board, the Regional Director may
in cases which present no substantial issues, conduct a secret ballot
of the employees, or he may decline to continue the investigation."
By amendment to Article III, Section 10, of the Board's Rules and
Regulations, effective November 27, 1945, it is provided that where an
election prior to hearing is held, ". . . the Regional Director fol-
lowing the election, shall provide for an appropriate hearing upon
due notice to all parties, unless it appears to him the investigation
should not be continued; and all issues, including issues with respect
to the conduct of the election or conduct affecting the election results
and issues raised by challenged ballots, shall be heard at such hear-
ing." These amendments are designed to provide a more flexible
procedure for the speedy disposition of simple representation cases
without prejudice to a party's right to a Board determination of dis-
puted issues after an opportunity for hearing upon due notice., Sec-
tion 9 (c) of the Act provides simply that in the course of the investi-
gation of the question concerning representation a hearing shall be
held, but it does not stipulate that the hearing shall be either before
or after an election, or, indeed, that an election need be held. The
amendments to the Rules are, therefore, not in derogation of the
statutory requirements. The Employer does not specify in what
manner its constitutional rights are impinged, but, presumably it
contends that it is being deprived of procedural due process of- law.
Inasmuch as a hearing after notice is accorded the parties on any
disputed issues, the amendments do not offend constitutional require-
ments? The Employer attacks the alleged vagueness of the wording
of the amendments, but fails to explain under what misapprehensions
it is laboring or in what manner it has been misled. We find its
contention without merit.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
i National Labor Relations Board, Tenth Annual Report ( Gov't Prin . Off. 1946 ), p. 15.
2 See Inland Empire District Council, et al. v. Millis , et at., 325 U. S . 697 (1945 ), rehear-
ing denied 66 S. Ct . 11 (1945 ) ; N. L. R. B. v. Jones & Laughlin Steel Corp ., 301 U. S. 1,
46 (1937) ; Matter of E. R. Squibb & Sons , 67 N. L. R. B. 557.
THE BORDEN COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
949
The Barden Company, a New Jersey corporation with principal
offices in New York City, is licensed to do business in the State of
Tennessee, where it operates several plants. The plant located at
613 7th Avenue South, Nashville, Tennessee, is solely involved in this
proceeding. At this plant, the Employer is engaged in the business
of manufacturing and selling butter, cottage cheese, and ice cream
mix. The Employer also distributes various kinds of cheese. During
the year ending 1945, the Employer purchased raw materials, valued
in excess of $500,000, consisting primarily of sour and sweet cream,
skimmed milk, sugar, and cheese, of which about 35 percent was
shipped to the plant from points outside the State of Tennessee. Dur-
ing the same period of time, the Employer sold finished products,
valued at more than $500,000, of which 25 percent was shipped to and
through points outside the State.
Despite the Employer's unparticularized contention that it is not
engaged in business affecting commerce, we find that it is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor claiming to represent employees of the Employer.
III. THE QUESTION CONChRNING REPRESENTATION
Pursuant to an Agreement For Consent Election 3 between the
Employer and the Petitioner approved on March 8, 1946, by the Re-
gional Director for the Tenth Region, an election was held among the
employees in the unit described therein. A Tally of Ballots issued
on March 15, 1946, shows that of an approximate number of eligible
voters of 20, 7 votes were cast for the Petitioner and 12 votes were
cast against representation by any labor organization. Thereafter,
the petition in this proceeding, alleging the same appropriate unit, was
filed by the Petitioner and was docketed on April 23, 1946. A pre-
hearing election was held on May 24, 1946, in which the employees
participating unanimously cast their votes for the Petitioner. There
was no material change in the personnel in the unit between the 2
elections. The Employer contends that, in the absence of unusual
circumstances, the Board's established policy is not to order a second
3 Case No. 10-R-1848.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election until 1 year has elapsed since the prior election, and that,
accordingly, the prehearin.g election directed by the Regional Director
was premature. The Employer further contends that this presents
a substantial issue, and that, therefore, the Regional Director exceeded
his authority under the Board's Rules and Regulations in ordering a
prehearing election.
One answer to the Employer's contention is that "no substantial
issue," within the meaning of the Rule, was presented to the Regional
Director. Ordinarily the Board will decline to proceed with an, in-
vestigation of representatives upon a petition by a labor organization
which unsuccessfully participated as a petitioner in an election among
employees in substantially the same unit within a year of the previous
election without a showing of renewed and extended organizational
efforts.' The basis of this policy is quite different from that under-
lying the Board's refusal to entertain a petition within a year of the
certification of a bargaining representative 5 or during the term of
a not unreasonably long collective bargaining agreement.' In the
first instance there is no bargaining relationship which the Board
desires to encourage by providing a relatively stable atmosphere in
which the processes of collective bargaining can bear fruit. The policy
is based rather on the Board's unwillingness to expend its time, money,
and effort upon an election within a year of a prior unsuccessful elec-
tion without an improved showing by the labor organization of a like-
lihood of receiving a majority vote." When such a showing is made it
is in accord with the statutory objective of encouraging collective bar-
gaining to set in motion the Board's election machinery. In this
case, the results of the election vindicate the Regional Director's judg-
ment that the Petitioner had made a sufficiently improved adminis-
trative showing to warrant an election within the relatively short
period of time since its earlier defeat.
Even conceding that a substantial issue was presented, it does not
follow that the Regional Director exceeded his authority. In the
practical administration of the Rule providing for prehearing elec-
tions, the determination of any question as to the substantiality of the
issues must in the first instance lie within the sole discretion of the
Regional Director. The phrase "in cases which present no substantial
issues" is to be construed not as a limitation upon the Regional Di-
rector's power, but as a guide to the exercise of his discretion. This
in no wise prejudices the rights of a party to a representation proceed-
' See Matter of Douglas Mill, Inc., 66 N. L. It. B. 218; Matter of Lincoln Steel Works,
66 N. L. It. B. 215; Matter of Joseph Bancroft & Sons Company, 64 N. L. It. B. 74.
5 See Matter of Con P. Curran Printing Company, 67 N. L. It. B. 1419.
9 See Matter of Uxbridge Worsted Company, Inc., 60 N. L. It. B. 1395.
' See Matter of World Publishing Company, 63 N. L. It. B. 462; Matter of Wagner Elec-
tric Corporation, 53 N. L. R. B. 543 ; at. Matter of 0. D. Jennings & Company, 68 N. L. R, B.
516.
THE BORDEN COMPANY 951
ing, inasmuch as full opportunity is afforded in the subsequent hearing
for a complete exploration of the disputed issues.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
The results of the prehearing election show that the Petitioner has
received a. majority of the valid votes cast, and we shall, therefore,
certify it as the collective bargaining representative of the employees
in the unit found appropriate in Section IV, infra.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
production and maintenance employees at the Employer's 613 7th
Avenue, South, Nashville, Tennessee, plant, but excluding clerical and
managerial employees, outside salesmen, working foremen, cream pro-
curement-supervisor, cream buyers, and all or any other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recom-
mend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
CERTIFICATION OF REPRESENTATIVES
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,-Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3, as amended,
IT IS HEREBY CERTIFIED that Amalgamated Meat Cutters and Butcher
Workmen of North America, Local Union No. 405, AFL, has been
designated and selected by a majority of all production and mainte-
nance employees of The Borden Company at its 613 7th Avenue, South,
Nashville, Tennessee, plant, but excluding clerical and managerial em-
ployees, outside salesmen, working foremen, cream procurement super-
visor, cream buyers, and all or any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, as their representative for the purposes of collective bargaining,.
and that pursuant to Section 9 (a) of the Act, the said organization
is the exclusive representative of all such employees for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Certification of Representatives.