The Borden Co.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Borden Company and General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.). Case No. 15-CA-1528. April 21, 1960 DECISION AND ORDER On December 11, 1959, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report, and supporting briefs. 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 Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the modifications and additions herein noted. On November 25, 1957, the Board issued a Decision and Direction of Election 1 finding, contrary to the contentions of the Respondent, that wholesale milk route driver-salesmen helpers were employees of the Respondent at its New Orleans plant, and directed an election among such helpers. The decision also stated that as to those helpers who had been hired and paid by the drivers and of whom the Em- ployer had no knowledge or record, these were not employees of the Employer. At the election which took place December 13, 1957, 16 ballots were cast, of which 3 were for the Union and 13 were challenged. On July 2, 1958, the Regional Director issued his report on challenged ballots and objections, recommending that the objections be overruled, the 13 challenges be sustained, and the Union be certified as bargaining rep- resentative for the helpers. As no exceptions were filed to the Re- gional Director's report by any of the parties, the Board adopted the recommendations and certified the Union on July 18, 1958, and au- thorized it to bargain for the wholesale milk route helpers as part of the broader unit of the Respondent's employees currently represented by the Union. 1 Case No 15-RC-1600, unpublished 127 NLRB No. 39. THE BORDEN COMPANY 305 The General Counsel contends that on and after February 3, 1959, the Respondent refused to bargain in violation of Section 8(a) (1) and (5) of the Act with the Union as certified representative of its employees. The Respondent asserts that immediately after issuance of the Decision and Direction of Election in the representation pro- ceeding on November 15, 1957, is eliminated by administrative action all the employment factors on which the Board based its finding that the helpers involved were the Respondent's employees. Accordingly, Respondent argues that it was not under any statutory obligation to bargain with the Union because it had no knowledge whatever of any helpers in the certified unit for whom it could bargain? The Trial Examiner found that from the time the Respondent in- stituted its administrative changes on December 11 and 19, 1957, the Respondent did not hire any new helpers who acquired status as its employees. However, he also found that the three helpers whose ballots in the December 13, 1957, election were unchallenged remained employees of the Respondent, despite the changes in its employment practices. In so finding with respect to the three helpers, the Trial Examiner relied upon the Board's decision 3 in another representation proceeding involving the wholesale milk route helpers of National Dairy Products Corporation where that employer had made very similar administrative changes with regard to the status of its helpers as were made herein.' In a supplemental decision in National Dairy Products Corporation, Sealtest Southern Dairies Division,5 the Board, 2 The Respondent also contends that there is no evidence in the record upon which to base a finding that it in fact refused to bargain with the Union . In support of this contention , Respondent points to negotiations and correspondence between the parties in which Respondent while taking the position that there were no employees within the unit certified by the Board , nevertheless expressed a willingness to solve the helper 's problem. We find no merit in this contention Thus, the problem with respect to which the Union wished to negotiate, in accordance with the mutual rights and obligations of the parties under Section 8(d) of the Act, was the wages, hours , and other terms and conditions of employment of Respondent 's helpers in the certified unit, for which the Union was the designated bargaining representative , in order to reach an effective collective -bargaining agreement. This, as the record shows , the Respondent was unwilling to do, for its posi- tion was that it had no helpers Accordingly , there is evidence upon which a finding can be based that Respondent in fact refused to bargain with the Union However, the real question at issue here is whether the Respondent's refusal constituted a violation of the Act as a matter of law . The answer depends upon a determination-which is made sntra in this decision-as to whether the Respondent had helpers within the certified unit If it did, then its mere expression of willingness to engage in an abstract dis- cussion on the general subject of the working conditions of helpers but not to execute an agreement with respect thereto, as Respondent apparently was amenable to doing here, would not suffice as an offer to bargain within the meaning of Section 8 ( d). If it did not have helpers, then , as a matter of law, there would be no refusal to bargain by the Respondent even if it expressed an absolute unwillingness to discuss the subject of helpers. National Dairy Products Corporation , Sealte8t Southern Dairies Division, Case No. 15-RC-1611, unpublished In National Dairy the decision stated, inter alia, that "[d]rivers sometimes have helpers who are paid directly by the drivers and of whom the Employer has no knowledge. As to such helpers of whom the Employer has no record, we find these are not employees of the Employer." 5122 NLRB 880. 560040-61-vol. 127-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in discussing the impact of the administrative changes "ulson -its 'de- cision regarding the helpers, pointed out that such changes did not materially affect, much less destroy, the established employment rela- tionship ; that the employer's action did not reduce the status of the regular employees involved to that of the casual employees referred to in the decision who were sometimes hired by the drivers and of whom the employer had no knowledge at all; and that the keeping of records was not to be equated with the finding that these helpers had employee status. We agree with the Trial Examiner that the circumstances in the National Dairy case are so analogous to those of the instant one with regard to the specific administrative changes made as to require the conclusion that the three helpers were regular and not casual em- ployees of the Respondent. However, we do not agree with him to the extent that he implies that the continued existence of the unit depends upon the continuous employment of particular individuals rather than upon classifications of employees. The Trial Examiner found that as the Respondent failed to furnish evidence to indicate that the three regular helpers were no longer employees after they voted in the election of December 13, 1957 (in- deed, Respondent stated it had no knowledge with regard to their status), it was fair and reasonable to presume that their employment continued to and beyond February 3, 1959, when the Union requested bargaining for the helpers. Accordingly, as the helpers were em- ployees of the Respondent on and after February 3, 1959, within the meaning and intendment of the Board's exclusive bargaining cer- tificate, the Trial Examiner held that Respondent's refusal to nego- tiate terms and conditions of employment with respect to them was a violation of Section 8 (a) (1) and (5) of the Act. The Respondent contends that the Trial Examiner erred in presuming that the helpers conbinued in Respondent's employ on and after February 3, 1959, and that it was incumbent upon the General Counsel, not the Respondent, to prove the existence of such employees. We agree with the Trial Examiner that the burden was on the Re- spondent to show that the helpers found to be employees on the date of the election did not continue their employment. Once the General Counsel has shown the certification of the Union in the representation case, and a subsequent request and refusal to bargain, the General Counsel has established a prima facie case of a violation of Section 8 (a) (5), and even assuming that there was a further burden on the General Counsel to show that the employee status of the helpers con- tinued, that burden was met by the Board's finding of employee status in the prior representation case, and the well established legal principle that a state of affairs shown to exist is presumed to continue until the THE BORDEN COMPANY 307 contrary is shown.' The Board having found in its decision in the representation case that regular helpers were employees, the burden was on the Respondent in this proceeding to establish that the circum- stances upon which that decision was based no longer existed. This the Respondent failed to do. As heretofore indicated, the administrative changes in the relationship between the three helpers and the Re- spondent were insufficient to affect the employee status previously found. Nor is the testimony of the Respondent that it had no knowl- edge of what happened to these helpers evidence that the circumstances had changed. Certainly, the statement of the Respondent that it did not know whether or not it had helpers cannot be equated to a position that it had no such helpers, as it would be required to'show in order for it to meet its burden. While the burden of disproving the allega- tions of the complaint was not on the Respondent, the burden was on it to rebut the presumption which had been established that the three employee helpers were still in an employee status. The General Counsel having established this presumption and the remainder of his prima facie case, the burden of going forward, and not the burden of proof, was on the Respondent. This it did not do. We therefore find that the helpers were still employees at the date of request to bar- gain and the Respondent's refusal to bargain concerning them con- stitutes a violation of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Borden Company, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively, with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with General Truck Drivers, Chauf- feurs, Warehousemen & Helpers Local No. 270 (Ind.), as the exclu- sive representative of all its employees in the appropriate unit, which is all hourly paid inside production and maintenance employees; re- tail, wholesale and relief milk route salesmen and supervisors; ice cream route salesmen; platform employees; tank truckdrivers and porters, and all wholesale milk route helpers, excluding all other classifications of employees such as executives, administrative em- ployees, office and clerical employees, telephone operators, outside 6 National Van Lines, 123 NLRB 1272, enforcement denied on other grounds 273 F. 2d 402 (C.A 7) ; United Insurance Company of America, 122 NLRB 911, enforcement denied and remanded to Board 272 F. 2d 446 (C A. 7). We view the decision of the seventh Circuit Court in United Insurance as confined to the special facts of that case and not in any sense a departure from the Supreme Court's ruling in Pittsburgh Plate Glass Company, 313 U.S. 146, 162. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salesmen (other than route salesmen), fieldmen, guards, watchmen, and all supervisory employees. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), as the exclusive representative of the employees in the above-described ap- propriate unit and embody any understanding reached in a signed contract. (b) Post at its plant in New Orleans, Louisiana, copies of the notice attached to the Intermediate Report marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent im- mediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 4 This notice Is amended by substituting for the words "The Recommendations of a Trial Examiner" 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." INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by General Truck Drivers, Chauffeurs , Warehousemen & Helpers Local No . 270 (Ind.), herein called the Union , the General Counsel for the National Labor Relations Board , herein called the Board , by the Regional Director for the Fifteenth Region, issued his complaint dated June 30, 1959 , against The Borden Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices 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 complaint , charge, and notice of hearing were duly served upon the parties. The Respondent's answer duly filed denies the allegations of unlawful conduct in the complaint. A hearing was held at New Orleans, Louisiana, on October 13, 1959 , before the Trial Examiner duly designated to conduct the hearing. All parties were repre- sented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence and submit argument was afforded all parties. The Respondent's motion at the close of the hearing for dismissal of the complaint as to which ruling was reserved is disposed of in accordance with the findings and conclusions herein. Upon the entire record in the case , and from his observation of the witnesses, the Trial Examiner makes the following: THE BORDEN COMPANY FINDINGS OF FACT 309 1. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), is a labor organization which admits to membership the employees of the Respondent. IT. PERTINENT COMMERCE FACTS The complaint alleges and the answer admits that the Respondent is a New Jersey corporation engaged in the manufacture and sale of dairy products in the State of Louisiana and in several other States of the United States. In the course of its business operations during the year ending December 31, 1958, the Respondent purchased dairy products and related materials valued in excess of $1,000,000 which were shipped to it from points outside the State. During the same period the Re- spondent shipped finished products valued in excess of $50,000 from its plant to points outside the State. From these facts I find that the Respondent is engaged in interstate commerce and that it will effectuate the policies of the Act to assert juris- diction over its business in this proceeding. III. THE UNFAIR LABOR PRACTICES The General Counsel contends that the Respondent has refused, in violation of Section 8(a)(5) and (1) of the Act, to bargain with the Union as the certified representative of the Respondent's wholesale milk route helpers. The Respondent maintains that it did not in fact refuse to bargain with the Union, but in any event it was under no statutory obligation to bargain with the Union because when the parties met to negotiate pursuant to the Union's request the Respondent did not have in its employ any employees designated wholesale milk route helpers for whom it could bargain. Pursuant to a representation hearing held in Case No. 15-RC-1606 (unpublished), the Board, on November 25, 1957, ordered an election among certain persons designated as wholesale milk route helpers who, according to the Board's finding, were the Respondent's employees at its New Orleans plant. In the election held on December 13, 1957, 16 ballots were cast. Thirteen ballots were challenged and these challenges were ultimately sustained by the Board. The three unchallenged ballots having been cast for the Union, the Board issued a Supplemental Decision and Cer- tification on July 18, 1958, certifying the Union as the exclusive bargaining repre- sentative of the Respondent's wholesale milk route helpers and authorizing the Union to bargain for them as part of the broader unit of the Respondent's em- ployees currently represented by it. By letter dated September 8, 1958, the Union requested the Respondent to ne- gotiate for the helpers. Following an exchange of letters the parties agreed to and apparently did meet on October 13, 1958. A letter, dated April 2, 1959, from the Union to the Respondent reveals that at this meeting the Respondent had main- tained it did not have any helpers in its employ as this employee description was delineated by the Board in its Decision and Direction of Election and Certification and that the Respondent was therefore not required to bargain for helpers. The Union nevertheless requested further bargaining. The Respondent's reply to this letter acknowledged this had been its position, but agreed to meet with the Union to discuss the matter and to seek a solution. An April 21, 1959, letter from the Respondent to the Union refers to a meeting of April 20 between them concerning the helpers. In this letter counsel for the Respondent, in accordance with his prom- ise at the meeting, undertook to clarify the Respondent's position. He said, I 'am writing this letter to clarify the Company's position and state that the Company contends that it is not compelled to bargain for the helpers at this time because there are no helpers within the category described by the Board in its certification. The basis for the Company's position is well stated in the "REPORT ON CHALLENGED BALLOTS and OBJECTIONS TO ELEC- TION" signed by Mr. Charles M. Paschal, Jr., acting Regional Director, Na- tional Labor Relations Board, on July 2, 1958, in Case No. 15-RC-1606, in which he stated: In its Decision and Direction of Election in this matter, the Board specifically stated: "As to those helpers hired and paid by the drivers of whom the em- ployer has no knowledge or record, these are not employees of the em- ployer." 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The investigation failed to disclose any evidence that the individuals whose votes were challenged were carried on the Company 's employment records, or that they were considered employees of the employer in any capacity. Although the foregoing quote appears to argue only that the Respondent was not obligated to bargain for the 13 persons whose votes were successfully challenged, I deem it to have been the Respondent's position at all times that it was also not obligated to bargain for the three helpers whose unchallenged votes had been cast for the Union and at least for whom the Union received the Board's certificate as bargaining representative. In support of its insistence that the foregoing three helpers as well as any others are not its employees , the Respondent asserts that directly after the Board issued its November 25, 1957, Decision and Direction of Election finding that the helpers involved were the Respondent 's employees, it eliminated by administrative action the employment factors pertaining to the helpers on which the Board based its finding. It should here be noted that this proceeding does not involve any claim by the General Counsel that the Respondent by this unilateral conduct violated Sec- tion 8 ( a)(l), (3), or ( 5) of the Act , and that the only allegation of statutory vio- lation in this case involves the refusal of the Respondent to bargain for helpers on and after February 3, 1959. Consequently, if, as the Respondent contends , its ad- ministrative actions before then succeeded in depriving the persons held by the Board on November 27, 1957, to be employees of that status , and if on and after February 3, 1959, the Respondent had no other helpers who on the basis of the em- ployment conditions then obtaining could be regarded as the Respondent 's employees, a finding must here be made that in fact there were no employees within the mean- ing of the Board's decision and certification for whom the Respondent was obligated to bargain on and after February 3, 1959. In this circumstance the Respondent's defense that it did not violate Section 8(a)(5) of the Act would be sustainable, because the Act requires an employer to bargain only for his employees. On December 11, 1957, the Respondent directed the following notice to its whole- sale milk route salesmen: WHOLESALE MILK ROUTE SALESMEN By its ruling on November 25, 1957, the National Labor Relations Board de- cided that the helpers of the Wholesale Milk Route Salesmen who are carried on the Company payroll are employees of the Borden Company . In the same decision the National Labor Relations Board held that all helpers hired and paid by the drivers, of whom the Company has no knowledge or record are not employees of the Company. The practice of issuing company checks to some of the helpers arose at the request of the route men and as an accommodation to them. It was not the Company's intention to make any helper an employee of the Company. In order to minimize a result which was never intended by the parties, the Company intends to avoid the possibility that additional persons not hired by the Company may claim employee status. Accordingly, the Company will not in the future place on its payroll or issue a Company check to any person not hired by the Company through its regular personnel channels. On December 19, 1957, the Respondent directed the following notice to its whole- sale milk route salesmen: NOTICE TO ALL WHOLESALE MILK ROUTE SALESMEN Beginning with the current payroll period, the Company will discontinue the practice of issuing checks and the names of any of the helpers of the wholesale milk route salesmen. In view of the recent action of the National Labor Relations Board, which has resulted in a situation not intended by the parties at the time the practice of using helpers arose, the Company states its preference that the practice of using helpers on the wholesale milk routes be discontinued as soon as possible. I am satisfied that adherence by the Respondent to the directives in the foregoing notices after their promulgation precludes the possibility that it thereafter hired as its employees any helpers within the meaning of the Board's Decision and Direction of Election. Testimony by E. A. Honore, the Respondent's sales manager in charge of labor relations and the policies of its wholesale department , reveals that not only was there adherence to these directives with resultant lack of any knowledge by the Respondent of the identity of helpers engaged by drivers to assist them , but addi- THE BORDEN COMPANY 311 tionally the Respondent eliminated all the practices pertaining to the hire of helpers which had prevailed before the Board's Decision and Direction of Election. Thus, applicants for helper jobs no longer applied at the plant and no file of their names and addresses was kept which could be used by the drivers to recruit helpers; the Respondent had no knowledge of any instance in which its own employee hired or fired a helper to a driver; along with the elimination of payroll records of helpers the Respondent ceased directly after the hearing in Case No. 15-RC-1606 to require physical examinations by its own doctor of helpers before putting them on its payroll; and helpers neither participate in the Respondent's various insurance benefits for employees, nor have the right to choose participation in such benefits. I am con- vinced that from the time of the adoption of these practices the Respondent did not hire new helpers who acquired status as its employees, 'and that on and after February 3, 1959, the only helpers who could be deemed its employees were the three helpers whose ballots in the December 13, 1957, election were unchallenged. I am satisfied this is so whether the Respondent continued its practice existing before December 13, 1957, of substituting a supervisor for a driver who is ill or on vacation to "pull" the driver's route and in which case the Respondent pays the going rate of the helper without deductions from the supervisor's pay. This factor, absent those eliminated by the Respondent's administrative changes, would not in my opinion confer status on the helpers as the Respondent's employees. The fact, however, that there were not, as I find, other helpers with employee status on and after February 3, 1959, does not necessarily absolve the Respondent of liability for a refusal to bargain for helpers, for if the three helpers who had been its employees on and before December 13, 1957, retained that status, the Respondent's refusal to bargain for them was violative of the Act. The ultimate question then remains whether these helpers may be regarded as still holding their jobs on and after February 3, 1959, and if so, whether they retained their former status as the Re- spondent's employees. In another representation proceeding, also involving a New Orleans dairy, National Dairy Products Corporation, Sealtest Southern Dairies Division, Case No. 15-RC- 1611 (unpublished), the Board issued a Decision and Direction of Election on November 25, 1957, finding that that employer' s wholesale milk route helpers were its employees and relied upon the identical employment terms and conditions set out in the Decision and Direction of Election involving the Respondent in the instant case. Thereafter, Sealtest, in an effort to deprive the helpers of the employee status which the Board had found, ceased keeping their payroll records, stopped paying them by company check, and required the drivers to pay them directly from their earnings. It also discontinued deducting from helper earnings social security and withholding taxes. Having done this before the representation election ordered by the Board, Sealtest challenged the ballots of the helpers who voted on the ground that the aforementioned changes had divested the helpers of status as its employees. This belief was based on the caveat in the Board's Decision and Direction of Elec- tion, also contained in the Decision and Direction of Election in Case No. 15-RC- 1606 involving the Respondent herein, that: As to those helpers hired and paid by the drivers of whom the employer has no knowledge or record, these are not employees of the Employer. In a Supplemental Decision 1 ruling on exceptions to the Regional Director's report on challenged ballots, the Board held that Sealtest had not by these administrative changes altered the status of the helpers as employees. The Board, in disagreement with the Regional Director's contrary view, said, The Regional Director apparently has misinterpreted the Board's Decision On the eligibility date, the Employer had knowledge of the nine helpers employed, how long they had been in its employ and the duties they performed. The Employer also kept a record with respect to, and paid, them. The mere fact that thereafter the Employer declined to maintain such a record or to pay these helpers directly did not materially affect, much less destroy, the established employment relationship. Certainly, the Employer's action did not reduce the status of these regular employees to that of the casual employees referred to in our decision who were sometimes hired by the drivers and of whom the Em- ployer had no knowledge at all. We think that where the Regional Director erred was in equating the keeping of records with our finding that the helpers involved herein had employee status. 1122 NLRB 880. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The circumstances in Sealtest are sufficiently close and analogous to those of the instant case to compel the conclusion here that the Respondent by elimination of the payroll and other records and services pertaining to the aforementioned three helpers did not deprive them of status as its employees . The Board's finding that they were the Respondent's employees requires that I regard them as regular and not the casual employees referred to by the caveat excluding from employee status those helpers as to whom the respondent had no records or knowledge , just as the Board did with respect to the helpers involved in the Sealtest case. I find that the three helpers in question remained employees of the Respondent despite the administrative changes instituted by the Respondent on December 11 and 19, 1957. Finally, there remains for determination whether these three employees were employed by the Respondent on and after February 3, 1959, when the Union re- quested bargaining for helpers. While there is no direct evidence that at these times these helpers were still employed , I believe it fair and reasonable to presume that the employment which they were shown to have held on December 13, 1957, when they voted in the Board's representation election continued to and beyond February 3, 1959. There was no evidence furnished by the Respondent to indicate that they no longer were employed and in fact the only comment with respect to the continuation of their employment was testimony by Honore that he had no knowledge thereof. Accordingly, I find that they were on and after February 3, 1959, employees of the Respondent within the meaning and intendment of the Board's exclusive bargaining certification to the Union . The Respondent's refusal to negotiate terms and conditions of employment for these employees with the Union on the erroneous ground that they are not its employees constitutes a violation of Section 8(a) (5) and (1) 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refu °ed and still refuses to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be recommended that the Respondent bargain collectively , upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Borden Company is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees at the Respondent's New Orleans, Louisiana, plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid inside production and maintenance employees; retail , wholesale, and relief milk route salesmen and supervisors ; ice cream route salesmen ; platform employees ; tank truck drivers and porters and all wholesale milk route helpers; and excluded are all other classifications of employees such as the following : executives, administrative employees, office and clerical employees, telephone operators, outside salesmen (other than route salesmen), fieldmen, guards, watchmen, and all super- visory employees. 4. On February 3, 1959, and at all times thereafter, General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local No. 270 (Ind.), was, and now is, the representative of a majority of the Respondent 's employees in the appropriate unit NATIONAL DAIRY PRODUCTS CORPORATION 313 described above for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing from February 3, 1959, and thereafter, to bargain with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent ha' engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) o the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with General Truck Drivers, Chauffeurs, Warehousemen & Helpers Local 270 (Ind.), as the exclusive bar- gaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All hourly paid inside production and maintenance employees ; retail, wholesale, -and relief milk route salesmen and supervisors ; ice cream route salesmen; platform employees; tank truck drivers and porters and all wholesale milk route helpers; and excluded are all other classifica- tions of employees such as the following: executives, administrative em- ployees, office and clerical employees, telephone operators, outside salesmen (other than route salesmen ), fieldmen, guards, watchmen, and all super- visory employees. THE BORDEN COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posited for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. National Dairy Products Corporation, Sealtest Southern Dairies Division and General Truckdrivers, Chauffeurs, Warehouse- men & Helpers, Local No. 270, Ind. Cases Nos. 15-CA-1527 and 15-CA-19234. April 21, 1960 DECISION AND ORDER On December 11, 1959, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Union filed exceptions to the Intermediate Report, the Respondent filed a brief in support of the Intermediate Report, and the General Counsel filed a brief in support of his exceptions. 127 NLRB No. 40.