The Borden Co.

THE BORDEN COMPANY 807 THE BORDEN COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY ENGINEERS, LO- CAL 707, AFL THE BORDEN COMPANY and UNITED PACKINGHOUSE WORK- ERS OF AMERICA, CIO. Cases Nos. 16-CA-632 and 16- CA-641. May 7, 1954 DECISION AND ORDER On November 5, 1953, Trial Examiner Herbert Silberman issued his Intermediate Report in this proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5) and (1) of the Act and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 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 Intermediate Report, the exceptions and brief, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, The Borden Company, Dallas, Texas, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Packinghouse Workers of America, CIO, as the exclusive representative of The Borden Company's production employees at its plant located at 1801 Leonard Street, Dallas, Texas, including those in the ice cream department and garage, but excluding i The Respondent's request for oral argument is hereby denied, because the record, ex- ceptions, and briefs, in our opinion, adequately present the issues and positions of the parties. 2 The Respondent's exceptions dealing with the validity of the certifications issued on January 30, 1953, raise issues which have already been considered in the earlier repre- sentation proceeding (101 NLRB 203, 102 NLRB No. 81, 103 NLRB No 143 (not reported in printed volumes of Board Decisions and Orders)), Wehave reconsidered the issues and hereby approve the earlier rulings. With respect to the remaining exceptions, we find them to be without merit as we agree with the Trial Examiner's findings that the Respondent has refused to bargain collectively with the complaining unions in violation of Section 8 (a) (5) and (1) of the Act. Chairman Farmer, while agreeing to assert jurisdiction, does not thereby adopt the Board's jurisdictional plan as a permanent policy. 108 NLRB No. 116. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all office clerical employees, wholesale and retail truckdrivers, all employees in the engineering department, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Refusing to bargain collectively with International Union of Operating Engineers, Stationary Engineers, Local 707, AFL, as the exclusive representative of The Borden Company's employees in the engineering department at its plant located at 1801 Leonard Street, Dallas, Texas, including the working foreman, but excluding the chief engineer, guards, and super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. (c) Interfering in any manner with the efforts of the above- named Unions to bargain collectively with Respondent on be- half of the employees in the aforesaid respective appropriate units. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Packing- house Workers of America, CIO, as the exclusive representa- tive of all the employees in the appropriate unit of production employees at the Respondent's Dallas plant, described above, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Upon request, bargain. collectively with International Union of Operating Engineers, Stationary Engineers, Local 707, AFL, as the exclusive representative of all employees in the appropriate unit of engineering department employees at Respondent's Dallas plant, described above, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its plant in Dallas, Texas, copies of the notice attached to the Intermediate Report, marked "Appendix A." 3 Copies of such notice, to be furnished bythe Regional Director for the Sixteenth Region, shall', after having been duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof in conspicuous places, including all places where notices to employees are customarily posted and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3Said notice is hereby amended by deleting the words "The Recommendations of a Trial Examiner," and substituting in lieu thereof 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." THE BORDEN COMPANY 809 (d) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Members Rodgers and Beeson took no part in the consider- ation of the above Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a chargeduly filed by international Union of Operating Engineers, Stationary Engineers, Local 707, AFL, herein referred to as Local 707, and upon a charge duly filed by United Packinghouse Workers of America, CIO, herein referred to as the Packinghouse Workers, the General Counsel of the National Labor Relations Board, by the Regional Director for the Six- teenth Region (Fort Worth, Texas), on June 17, 1953, issued a separate complaint in each of the above-unmbered cases against the Respondent, The Borden Company, alleging in each complaint that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 charges, complaints, order consolidating the above-numbered cases and notice of hearing were duly served upon the respective parties. With respect to the unfair labor practices, the complaint in each of the obove-numbered cases alleges, in substance, that on or about January 30, 1953, the charging Union was certified by the Board as the exclusive representative for the purposes of collective bargaining of all employees in a described unit and that thereafter, although requests to bargain were made, the Respondent refused and continues to refuse to bargain collectively with such certified Union. The Respondent in its answers to the respective complaints denies the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held on September 8, 1953, at Dallas, Texas, before Herbert Silberman, the undersigned Trial Examiner The General Counsel and the Respondent were represented at the hearing by counsel and the charging Unions by official representatives Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to present oral argument, and to submit briefs to the undersigned was afforded all parties The Respondent submitted a brief which has been carefully considered Decisions were reserved on Respondent's motion made at the hearing to sever the above- numbered cases and the General Counsel's objection to certain testimony of the witness, J. W. Pollard. The Respondent's motion to sever the above-numbered cases is hereby denied and the General Counsel's aforesaid objection to certain testimony of the witness, J. W. Pollard, is hereby overruled. The General Counsel's motion made at the close of the hearing to con- form the pleadings to the proof was granted. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The Borden Company, a corporation having its principal offices in New York, New York, maintains and operates, through its southern division, plants in the States of Texas, Louisiana, Mississippi, and Oklahoma The Respondent, at its Dallas, Texas, plant, which alone is involved in the proceedings herein, is engaged in the processing, distribution, purchase, and sale of milk and milk products During the 12-month period immediately preceding the issuanca of the complaints herein, which period is representative of all times material hereto, the Respondent in the course and conduct of its business operations at its Dallas plant purchased milk and milk products valued in excess of $4,000,000, of which products valued at approxi- mately $ 250,000 were shipped to the Dallas plant.from points outside the State of Texas Dur- 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the same period, the Respondent sold and shipped from its Dallas plant milk and milk products valued at approximately $ 325,000 to points outside the State of Texas. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers , Stationary Engineers , Local 707, AFL, and United Packinghouse Workers of Americ4, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropriate units and union certifications Following an election by secret ballot which was held on November 25, 1952, pursuant to a Decision and Direction of Election (101 NLRB 203) in cases numbered 16-RC-1145 and 16- RC-1164, the Board on January 30, 1953, issueda Supplemental Decision and Certifications of Representatives (102 NLRB No. 81, not reported in printed volumes of Board Decisions and Orders) in which it certified: (1) United Packinghouse Workers of America, CIO, as the ex- clusive representative of The Borden Company's production employees at its plant located at 1801 Leonard Street, Dallas, Texas, including those in the ice cream department and garage, but excluding all office clerical employees, wholesale and retail truckdrivers, all employees in the engineering department, guards, and supervisors as defined in the Act; and (2) Station- ary Engineers, Local 707, International Union of Operating Engineers, AFL, as the exclusive representative of The Borden Company's employees in theengmeeruig department at its plant located at 1801 Leonard Street, Dallas, Texas, including the working foreman, but excluding the chief engineer, guards, and supervisors as defined in the Act. On April 7, 1953, the Board issued a Second Supplemental Decision and Order (103 NLRB No. 143, not reported in printed volumes of Board Decisions and Orders) in which it denied the Respondent's petition for reconsideration of the Supplemental Decision of January 30, 1953, and for nullification of the election. B. Requests to bargain made by the Packinghouse Workers On February 4, 1953, the Packinghouse Workers wrote to Ted Robinson, general manager of the Respondent, requesting alistofthe job classifications and the rates of pay of the employees in the unit for which the Union was certified as the bargaining representative and advising that, upon receiving the requested information, contract proposals would be drawn up which would be submitted when the parties shall meet for the purpose of negotiating an agreement. The Respondent never furnished the requested information, although on February 9, 1953, Robinson answered the Packinghouse Workers' letter by notifying them that the Company's attorney was going to file with the Board a motion for reconsideration of its certification of representatives of the employees atRespondent's Dallas plant. On April 10, 1953, the Packing- house Workers again wrote to Robinson requesting the same information in order to assist them in drafting contract proposals and also stating that in the near future there would be further communication for the purpose of selecting a suitable date on which to begin negotia- tions. Mr. Robinson's secretary replied to this letter on April 16 and advised the Union that Mr. Robinson had been ill since March 6, but will resume work on a limited scale the next week. On May 19, 1953, the Packinghouse Workers again wrote Robinson requesting sub- stantially the same information asked for in, the February 4 letter and further requesting a meeting on Thursday, May 28, i for the purpose of starting negotiations. Mr. Robinson replied the next day by letter stating: The position of this company with reference to the contention of the United Packing- house Workers of America that their organization is the properly accredited bargaining iThe Packinghouse Workers' letter of May 19, 1953, contains a typographical error in that it requests a meeting on "Thursday, May 28, 1952" instead of "Thursday. May 28, 1953." The Respondent does not contend that it was confused by this error. I find, therefore that the Respondent understood that the Packinghouse Workers in their letter of May 19, 1953, was requesting a meeting on May 28, 1953, and not on May 28, 1952. THE BORDEN COMPANY 811 representative of some of the employees of the Dallas Plant of The Borden Company is fully set forth and outlined in the proceedings which have heretofore transpired before the National Labor Relations Board in Case No. 16-RC -1164. I assume you are fully familiar with all the facts and circumstances in connection with that particular case. Robinson 's letter was acknowledged by the Packinghouse Workers on May 25 , 1953, by a letter in which the writer stated, "I must assume that if I do not hear from you within five (5) days that the Company's position is that they do not recognize the National Labor Relations Board certification, certifying the United Packinghouse Workers of America, CIO, as the bargaining agency for certain groups of the Company 's employees ." The Respondent did not answer this letter. C. Requests to bargain made by Local 707 On April 9, 1953 , J. W. Pollard, business representative of Local 707, wrote to Robinson advising that the Union wished to meet with Respondent o negotiate a contract and requesting designation of a convenient time and place for such meeting. Robinson's secretary replied to this letter and advised that Robinson had been ill and away from his office since March 6. About May 1, 1953 , and again the next day, Pollard unsuccessfully tried to reach Robinson by telephone at his office. However, Pollard spoke to Mr . Robinson's secretary and asked her to make an appointment for him with Mr. Robinson.A few days later Pollard again telephoned Mr. Robinson's secretary and was told by her that she had given Pollard's message to Mr. Robinson, but received no answer from Robinson. Robinson never returned Pollard 's telephone calls or answered his April 9 letter. On May 25, 1953 , Pollard wrote Robinson again request- ing a meeting for the purpose of negotiating an agreement with Local 707 for the employees in the Company 's engineering department. Neither Robinson nor anyone else on behalf of the Respondent replied to this letter. D. Concluding findings The Respondent contends that the certifications of the Packinghouse Workers and Local 707 are invalid. This contention is based upon the same arguments previously advanced by the Respondent in various stages of the representation proceedings (cases numbered 16-RC-1145 and 16 -RC-1164) and which were considered and rejected by the Board as being without merit. I am, therefore, constrained to follow the Board's prior decisions and find that since January 30, 1953 , and during all times material herein, the Packinghouse Workers and Local 707 have been the duly certified , exclusive representatives of the employees in the respective appro- priate units , described above, at Respondent 's Dallas plant. From the inceptionofthe representation proceedings involvingits Dallas plant, the Respond- ent has contended that the actions of the Board in the matter, including its certifications, were invalid. The Respondent at no time material hereto has indicated any intention to fulfill its statutory duty to bargain with the certified representatives of its employees . On the con- trary, on November 21, 1952, Ted Robinson , Respondent's general manager, sent a letter to the employees at the Dallas plant advising them that the Respondent ". . . will refuse to bargain with either of the unions involved [in the pending representation proceedings ] regard- less of the outcome of the election " and ". . . will not sign a union contract with either of the unions regardless of the outcome of the election ." Consistent with this position, after certifications were issued to the Packinghouse Workers and Local 707 , the Respondent ignored or avoided all efforts by these Unions to engage in collective -bargaining negotiations. 1. As to Respondent's refusal to bargain with the Packinghouse Workers On February 4, April 10, and May 19, 1953, the Packinghouse Workers requested the Respondent to furnish it with information concerning the job classifications and rates of pay of the employees in the unit which the Union represented . The Respondent never furnished the requested information . Instead, on February 9, the Respondent wrote the Packinghouse Workers that it intended to seek reconsideration by the Board of the Union 's certification. Furthermore, on May 20, Robinson wrote the Packinghouse Workers that the Respondent did not recognize their certification . This letter was in reply to the Packinghouse Workers' letter of May 19 which also specifically requested a meeting with the Respondent on May 28 for the 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of beginning negotiations. The Respondent's letter of May 20, therefore, constituted an effective rejection of the proposed meeting. Any possible ambiguity as to the Respondent's attitude, expressed in its May 20 letter, that it would not bargain with the Packinghouse Workers is effectively dispelled by Respondent's failure to reply to the Packinghouse Workers' letter of May 25. The Respondent contends that there was no obligation on its part to bargain with the Pack- inghouse Workers before April 7, 1953, when the Board denied its petition for reconsideration of the supplemental decision of January 30, 1953, certifying the Packinghouse Workers and Local 707 as the exclusive representatives of described appropriate employee units. I find this contention to be without merit. The obligation and duty of an employer, upon request, to bargain collectively with the certified, exclusive representative of an appropriate unit of its employees is not postponed by the pendency of a petition asking for reconsideration by the Board of the union's certification. Trinity Steel Company, Inc., 103 NLRB 1470. The Respondent has refused to bargain collectively with the Packinghouse Workers not only by rejecting the Union 's request to meet for the purpose of negotiating a collective- bargaining agreement, but also by failing and refusing to furnish the Packinghouse Workers with the information requested by the Union to aid in the performance of their statutory functions.3 Accordingly, I find that from February 9, 1953, and at all tunes thereafter, the Respondent has refused and continues to refuse to bargain collectively with the Packinghouse Workers as the exclusive representative of all of the employees in the appropriate unit, described above, for which the Union was certified by the Board. 2. As to Respondent's refusal to bargain with Local 707 Local 707 made its first request to bargain with the Respondent by letter dated April 9, 1953. The next day Mr. Robinson's secretary advised the Union that Robinson was ill and away from the office. Subsequent efforts by the representative of Local 707 to arrange a meeting with Robinson proved unavailing. On May 25, 1953, the Union once again wrote the Respondent requesting a meeting for the purposes of collective bargaining . This letter was not answered. The Respondent offers various arguments in defense to the allegation that it has refused to bargain collectively with Local 707 in violation of the Act. First, the Respondent contends that Ted Robinson was the only person authorized to bargain on behalf of the Respondent and that his illness during the early weeks of April excused the Respondent's failure to arrange a meeting in response to the Union 's request of April 9. Second, the Respondent contends that it was under no duty to bargain with the Union after May 8, 1953, because on that date there was mailed to the Respondent a notice that Local 707 had filed an unfair labor practice charge against the Respondent. Finally , the Respondent contends that the Union 's letter of May 25 is the product of collusion and excuses the Respondent's failure to reply thereto. The Respondent's contention that it was under no duty to bargain with Local 707 while the unfair labor practice charges in these cases were pending is without merit. See N. L. R. B. v. Taormina Co., 207 F. 2d 251 (C. A. 5) and cases cited therein. There is no evidence in the record herein which tends to prove the Respondent's contention that Local 707 and the Packinghouse Workers wrote to Respondent on May 25 in pursuance of some prearranged plan. The mere coincidence that both Unions wrote on the same date is not proof of any collu- sion. 4 I also find no merit to Respondent's contention that Mr. Robinson's illness during the early weeks of April excused its failure to arrange a meeting with Local 707 in response to the Union's letter of April 9, 1953. Robinson not only failed to answer the April 9 letter after 2 The Board denied Respondent 's petition. It is unnecessary to consider here whether the rule would be the same in a case where the Board grants such motion. 3Hekman Furniture Company, 101 NLRB 631, enfd. 207 F. 2d 561 (C. A. 6); Leland-Gifford Company, 95 NLRB 1306, enfd. 200 F. 2d 620 (C. A. 1); Yawman & Erbe Manufacturing Com- pany, 89 NLRB 881,enfd. 187 F. 2d 947 (C. A. 2). 4 This coincidence is readily explained. The May 25 letter from Local 707 shows on its face that it was prompted by a letter mailed to the Union on May 20 by Respondents' attorney. Similarly, the Packinghouse Workers wrote to the Respondent on May 25 in response to a letter from Ted Robinson also dated May 20. Considering that the May 20 letters from the Company's attorney and Robinson required 1 or 2 days to reach their respective addresses and that a weekend intervened, it is not surprising that both Unions replied on Monday, May 25. THE BORDEN COMPANY 813 he returned to work at the end of the month, but he did not reply to the subsequent letter of May 25 from Local 707 and ignored the telephone messages left by Mr. Pollard early in May requesting a meeting. In the light of these facts and Respondent's assertion in its letter of November 21, 1952, that it would not bargain with Local 707 or the Packinghouse Workers, I find that the Respondent failed to reply to the April 9 letter from Local 707, not because of Robinson's illness, but because of the Respondent's predetermination not to bargain collec- tively with Local 707 regardless of its statutory obligation in this respect. I find, therefore, that from April 10, 1953, and at all times thereafter, the Respondent has refused and continues to refuse to bargain collectively with Local 707 as the exclusive repre- sentative of all the employees in the appropriate unit, described above, for which the Union was certified by the Board. 3. As to interference, etc. I further find that the Respondent by its refusals to bargain collectively with the Packing- house Workers and Local 707, as set forth above, has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has refused and continues to refuse to bargain collectively with the Packinghouse Workers and Local 707 as the exclusive representatives of the em- ployees in the respective appropriate units, described above, it shall be recommended that the Respondent cease and desist therefrom and from like or related conduct. It will be further recommended that the Respondent bargain collectively, upon request, with the said Unions as the exclusive representatives of the employees in the respective units described above, and, if any understandings are reached, embody such understandings in signed agreements. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Borden Company is, and at all times relevant herein was, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Packinghouse Workers and Local 707 were on January 30, 1953, and at all times since, the exclusive representatives of all the employees in the respective appropriate units, described above, for such such Unions were certified by the Board in cases numbered 16-RC- 1145 and 16-RC-1164 (102 NLRB 81). 3. By refusing on and after February 9, 1953, to bargain with the Packinghouse Workers as the exclusive representative of all of the employees in an appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 4. By refusing on and after April 10,1953, to bargain collectively with Local 707 as the ex- clusive representative of all employees in an appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid refusals to bargain, theRespondenthas also interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A 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 National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with United Packinghouse Workers of America, CIO, as the exclusive representative of all production employees in our plant located at 1801 Leonard Street , Dallas , Texas, includingthose in the ice cream department and garage, but excluding all office clerical employees, wholesale and retail truckdrivers, all employees in the engineering department, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached , embody such understanding in a signed agreement. WE WILL bargain collectively, upon request, with International Union of Operating Engineers, Stationary Engineers, Local 707, AFL, as the exclusive representative of all employees in the engineering department at our plant located at 1801 Leonard Street, Dallas, Texas, including the working foreman, but excluding the chief engineer, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. WE WILL NOT in any manner interfere with the efforts of the above-named Unions to bargain collectively with us, or refuse to bargain collectively with said Unions as the exclusive representative of all our employees in the respective appropriate bargaining units described above. THE BORDEN COMPANY, Employer.. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BARBY'S FROSTED FOODS, INC.. and LOCAL 2, INTERNA- TIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, CIO, Petitioner. Case No. 4-RC-1743. May 7, 1954 SUPPLEMENTAL DECISION AND ORDER Pursuant to a Decision and Direction of Election issued by the Board on May 13, 1953,1 an election was conducted on June 9, 1953, among employees in the appropriate unit at the Em- ployer's plant in Perth Amboy, New Jersey. The tally of ballots showed that, of approximately 46 eligible voters (in- cluding those whose votes were challenged ), 27 votes were counted , with 8 for and 19 against the Petitioner, and 18 votes were challenged. 'Not reported in printed volumes of Board Decisions and Orders. 108 NLRB No. 112.