The Borden Co.

THE BORDEN COMPANY 203 THE BORDEN COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO,1 PETITIONER THE BORDEN COMPANY and STATIONARY ENGINEERS, LOCAL 707, IN- TERNATIONAL UNION OF OPERATING ENGINEERS, AFL,2 PETITIONER. Cases Nos. 16-RC-1164 and 16-RC-1145. November 4, 1952 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Edwin Youngblood, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.$ 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 Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds : 1. In The Borden Company.,' the Board on June 19, 1951, found that the Employer was engaged in commerce at the plant involved in this case. In the absence of any evidence of changed circumstances since the date of that decision, we find, contrary to the contention of the Employer, that the Employer is engaged in commerce within the meaning of the Act.5 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Packinghouse Workers in Case No. 16-RC-1164 contends that all production and maintenance employees working inside the Employer's plant at 1801 Leonard Street, Dallas, Texas, constitute the only appropriate unit for the purposes of collective bargaining. Herein called the Packinghouse workers. s Herein called the Operating Engineers. At the hearing the Employer moved to dismiss the petitions on the ground that (1) the hearing officer was not qualified under the Administrative Procedure Act, (2) the Board has not complied with the showing of interest requirement in Section 9 (c) of the Act, and ( 3) there has been no compliance with Section 9 (f) of the Act. The hearing officer referred the motion to the Board for ruling. As sections 5, 7, and 8 of the Administrative Procedure Act do not apply to proceedings involving certification of em- ployees' representatives , the first contention is without merit, Angelus Chevrolet Co., 88 NLRB 929. As the questions of the sufficiency of the showing of interest required by Section 9 (c) and of compliance with Section 9 (f) by labor unions are matters for administrative determination and not subject to litigation by the parties , the second and third contentions are also without merit . International Trade Mart, 87 NLRB 616; Ann Arbor Press, 85 NLRB 58. The motion is denied. I Cases Nos . 16-RC-724 and 16-RC-725 ( not reported in printed volumes of Board Decisions). 5 Ann Arbor Press, supra. The Borden Company, Southern Division , 91 NLRB 628. 101 NLRB No. 52. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is the same unit as that found appropriate in The Borden Com- pany.6 However, in Case No. 16-RC-1145 the Operating Engineers contends,,contrary to the Packinghouse Workers, that a separate unit of the employees of the engineering department is also appropriate. In the previous case this separate unit was not sought . The Employer takes no position with respect to the appropriateness of either unit. There are three maintenance engineers, seven maintenance mechan- ics, one oiler and general cleanup man , and one working foreman in the engineering department, all under the supervision of the chief engineer, who supervises no other employees . These employees do not interchange with employees in other departments although they do interchange among themselves. The engineering department is treated separately for purposes of time records and payroll. These employees receive about 10 cents an hour more than the highest paid employees elsewhere in the plant. They are assigned to a separate area; however, the maintenance mechanics engage in general mainte- nance work wherever required throughout the plant . About 3 years of training are required to qualify as either a maintenance engineer or a maintenance mechanic. Insofar as appears from the record, there are no other maintenance employees in the plant. While we have previously found that a plant-wide unit was appro- priate at the plantj and an election was held as result of which the Dallas General Drivers, Warehousemen and Helpers, Local Union 745, AFL, was certified as bargaining representative for that unit,8 no contract was subsequently executed, and the certified representative did not intervene or appear in this case. The group of maintenance employees presently sought by the Operating Engineers is identifiable, homogeneous, and functionally distinct, with interests apart from those of other employees at the plant. Absent any conclusive bar- gaining on a plant-wide basis,9 we are not precluded from finding, and we do find, that the engineering department unit may constitute a separate appropriate unit 10 or may be included in the production and maintenance unit sought by the Packinghouse Workers, which we also find to be appropriate. However, we shall make no unit determina- tion pending the outcome of the elections hereinafter directed. Accordingly we shall direct that separate elections be conducted among the following groups of employees at the Employer's plant located at 1801 Leonard Street, Dallas, Texas : 1. All production employees, including those in the ice cream de- partment and garage, but excluding all office clerical employees , whole- Footnote 4, supra. * Ibid. s Certification of representatives on July 25, 1951. Mascot Stove Co., 75 NLRB 427. 10 Armstrong Cork Company, 80 NLRB 1328. DOFFLEMYER BROS. 205 sale and retail truck drivers, all employees in the engineering department, guards, and supervisors as defined in the Act. 2. All employees in the engineering department, including the working foreman,u but excluding the chief engineer,- guards, and supervisors as defined in the Act. If a majority of the employees in each of the voting groups 1 and 2 select the Packinghouse Workers, they will be taken to have indicated their desire to constitute a single unit. If a majority of the employees in voting group 2 select a labor organization which is not selected by the employees in voting group 1, the employees in voting group 2 will be taken to have indicated their desire to constitute a separate unit. If a majority of the employees in voting group 1 alone vote for Pack- inghouse Workers, that Union will be certified for such unit. The Re- gional Director is instructed to issue a certification of representatives consistent herewith to the bargaining agent or agents selected for such unit or units, which the Board, under the circumstances, find to be appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. [Text of Direction of Elections omitted from publication in this volume.] 11 The parties agree that this employee is not a supervisor , and we so find. v The parties agree that this employee is a supervisor, and we so find. W. TODD DOFFLEMYER, LEwis L. DOFFLEMYER, AND ROBERT T. DOFFLE- MYER, INDIVIDUALLY AND AS CO-PARTNERS D/B/A DooPLEMYER BROS. and FLOSSIE M. BATY. Cage No. 20-CA-650. November 5, 1952 Decision and Order On April 8, 1952, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions and brief, and the en- 1 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 Herzog and :Members Styles and Peterson]. 101 NLRB No 63.