The Borden Co.

- THE BORDEN FOOD PRODUCTS COMPANY 459 Company to assign to its members rather than to over-the-road drivers the city pickup and delivery work on solid loads of iron and steel. -However, we are not by this action to be regarded as "assigning" the work in question to the over-the-road drivers. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and upon the entire -record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the amended Act : 1. Truck Drivers Local Union No. 375, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., and its agents are not, and have not been, lawfully entitled to force or require Service Transport Co. of Cleveland , Ohio, by means proscribed by Section 8 (b) (4) (D ) of the Act, to assign the city pickup and delivery work on solid loads of iron and steel in and around Buffalo, New York, to members of Local 375 rather than to Service Transport Co.'s over-the -road drivers. 2. Said Local Union No . 375 shall, within ten (10) days from the date hereof, notify the Regional Director for the Third Region in writing, whether or not it accepts the Board's determination of this dispute, and whether or not it will refrain from forcing or requiring Service Transport Co. of Cleveland, Ohio, by means proscribed by Section 8 (b) (4) (D ) of the Act, to assign the work described in paragraph 1, above, to members of Local 375 rather than Service Transport Co.'s over-the-road drivers. The Borden Food Products Company, Division of The Borden Company and International Association of Machinists, AFL, Petitioner. Case No. 3-RC-1510. August 3, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Marcus, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. - 2. The labor organizations involved claim to represent certain em- ployees of the Employer. At the hearing, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, hereinafter referred to as Meat Cutters, sought to intervene in this proceeding on the ground that, under a recent merger, it is the legal successor to International Fur and 113 NLRB No. 51. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leather Workers Union of the United States and Canada, hereinafter referred to as IFLWU, and that, as successor, it has assumed all rights and interests of the IFLWU under the latter's existing contract with the Employer. Over the objections of the Petitioner, hereinafter referred to as IAM, and the Employer, the hearing officer permitted the intervention on the basis of the Meat Cutters' assertion that it is the legal successor to the IFLWU, but reserved for the Board the question of whether the Meat Cutters has in fact succeeded the IFLWU as party to the contract and inherited the latter's contractual interest. Without deciding what rights, if any, the Meat Cutters may have received from the IFLWU, we find, for the purpose of intervention only, that the Intervenor's alleged contractual interest and colorable claim to representation justified the hearing officer's granting the motion to intervene.' 3. The Meat Cutters contends that the existing contract between the Employer and the IFLWU, to which it has succeeded as the union party, constitutes a bar to this proceeding. The record discloses that in March 1953, the Employer and the IFLWU negotiated a collective- bargaining contract covering the employees here involved, effective January 1, to December 31, 1953, and that on February 26, 1954, this contract, which contains a maintenance-of-membership clause, was amended and extended from January 1, 1954, to December 31, 1955, by a supplemental agreement signed by representatives of the IFLWU and a local negotiating committee on behalf of its Local Union 805. We are administratively advised that Local Union 805 has never been in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act. Section 8 (a) (3) of the Act, as amended in October 1951, sanctions a union-security clause provided that "at the time the agreement was made or within the preceding twelve months (the contracting union) has received from the Board a notice of compliance with Section 9 (f), (g), and (h)" of the Act. As the, contracting local union was not in compliance during the period re- quired by the statute, we find the contract constitutes no bar to a present determination of representatives? The Intervenor moved to dismiss the petition on the ground that the Petitioner is acting on behalf of a noncomplying local union. It appears from the record that there is in existence at the Employer's operations a local union, all members of which have signed IAM au- thorization cards.' Although, in organizing the Employer's em- i See A. Siegel & Sons, Inc, 94 NLRB 471, at 472-473, Pacific Tankers, Inc, 81 NLRB 325, at 326. a See The D. M Bare Paper Company, 99 NLRB 1487 , at 1488; Caribe Plastics Corp., 107 NLRB 7, Westinghouse Electric Corporation, 102 NLRB 275, at 276, footnote 1 , and Fesn'8 Tin Can Co., Inc., 99 NLRB 158, at 159. 8 This local was formerly affiliated with the IFLWU, but allegedly has disaffiliated therefrmn. THE BORDEN FOOD PRODUCTS COMPANY 461 ployees, the Petitioner acted through an IAM organizing committee comprised of the existing local's officers, testimony elicited at the hear- ing indicates that the local is presently functioning as an independent union, and not as an IAM local. Thus, there has been no request for, or issuance of, an IAM charter ; no dues have been submitted to the IAM ; no IAM local lodge has been set up and no local number as- signed; no officers have been recognized or designated by the IAM; no grievances have been processed on behalf of the IAM; and, other than the existence of individual authorization cards, there has been no desig- nation of the IAM as collective-bargaining representative. The Peti- tioner's request for recognition was made by a business representative of the IAM and the petition was filed by the IAM. Under normal IAM procedure, a request for an TAM charter is granted, where sup- ported by 15 applications and an application fee, only after an election has been conducted, a Board certification issued, and a meeting held at which officers are elected. Under these circumstances, we find without merit the Intervenor's contention that the IAM is not the real party in interest and is fronting for a noncomplying local union. We are satisfied upon the record that the IAM is in fact the real party in interest and, as such, is entitled to maintain this proceeding on its own behalf. The Board has held that whether or not a local union will be established, and whether or not its officers will comply with the Act, is conjectural and too premature to warrant consideration.4 Accordingly, the Intervenor's motion to dis- miss the petition is hereby denied. However, should the IAM win an election, a certification would not issue if a local were in fact in the picture at that time unless such local were in compliance.5 We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. We find, as stipulated by the parties, that the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, including firemen, truckdrivers, and assistant laboratory technicians, employed at the Employer's Georgetown and Cincinnatus, New York, plants, but ex- cluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 4The Englander Company, Inc, 100 NLRB 164, at footnote 1; Minneapolis Kntttzng Works, 84 NLRB 826 , at 828. Cf. Lane-Wells Company, 77 NLRB 1051 5 See Brooklyn Borough Gas Company, 110 NLRB 18. 6In view of our determination herein, we find it unnecessary to pass upon the Inter- venor's contention that it has succeeded as party to the contract and on the Petitioner's assertion-that a schism occurred °wrthin• the,ranks of the,contracting, IFLWU union