The Borden Co.

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.