National Dairy Products Corp.

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 has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of 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-123/. 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. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases 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, the briefs, and the entire record in these cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications and addi- tions herein noted. 1. Based upon credited, uncontradicted testimony of the Respond- ent, the Trial Examiner found that the changes instituted by the Respondent on December 2, 1957, which manifested its intention not to continue the helpers as its employees stemmed solely from the eco- nomic considerations advanced by it at the hearing and were totally unrelated to the union activities or membership of the helpers. The Trial Examiner noted the complete absence in this record of any evi- dence of union animus by the Respondent. We agree with him that in these circumstances the Respondent cannot be held to have violated Section 8 (a) (1) and (3) of the Act. Where, as here, an employer's conduct results in termination of the employment of his unionized employees, such conduct is not proscribed by this section of the Act, so long as it was not motivated by the employer's desire to discourage membership of the employees in their union.1 2. We also agree with the Trial Examiner that the Respondent did not violate Section 8(a) (1) and (5) of the Act. The Board's Decision and Direction of Election in the representation proceeding 2 involving this Employer found that regular wholesale milk route driver- salesmen helpers were employees of the Respondent. In the Supple- mental Decision 3 issued on January 8, 1959, the Board held that the administrative changes made by the Employer on December 2, 1957, did not destroy the established relationship of the helpers or reduce their status from regular employees of the Employer to that of casual helpers. There were nine regular helpers in the Respondent's employ at the time of the Supplemental Decision. The Union was subse- quently certified as bargaining representative of the helpers and au- thorized to bargain for these employees as part of the broader unit of the Respondent's employees which the Union already represented. Once the General Counsel showed the certification of the Union in the representation case, and the subsequent request and refusal to bargain by the Respondent on March 10, 1959, the General Counsel established a prima facie case of a violation of Section 8(a) (5) of 1Brown Truck and Trailer Manufacturing Company, Inc., et al., 106 NLRB 999; Shamrock Dairy, Inc, at al., 119 NLRB 998. 'Case No 15-RC-1611, unpublished. 3 122 NLRB 880. NATIONAL -DAIRY PRODUCTS CORPORATION 315 the Act. 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 prin- ciple that a state of affairs shown to exist is presumed to continue until the 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 circumstances upon which that decision was based no longer existed. This the Respondent has done. For it submitted evidence, accepted by the Trial Examiner, that the nine helpers who were found by the Board to be employees had left the Respondent's employ for nondiscriminatory reasons before March 10, 1959, and no regular helpers were thereafter hired.' In these circumstances, we find, as did the Trial Examiner, that on and after March 10, 1959, the Re- spondent did not employ any helpers for whom the Union sought bargaining and therefore the Respondent did not violate Section 8(a) (5) of the Act by notifying the Union that it would be a waste of time to negotiate for persons it did not employ. We shall therefore dis- miss the complaint. [The Board dismissed the complaint.] A See The Borden Company, 127 NLRB 304, footnote 6 5 while we agree with the Trial Examiner that the nine helpers found by the Board to be employees were no longer in Respondent ' s employ and the General Counsel failed to prove that other regular helpers had been hired thereafter , we do not agree with him to the extent that lie implies that the continued existence of the unit depends upon the continuous employment of particular individuals rather than upon classifications of employees. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges filed by General Truckdrivers, Chauffeurs, Warehousmen & Helpers, Local No. 270, Ind., herein called the Union , the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region, issued his consolidated complaint dated June 30, 1959, against National Dairy Products Corporation, Sealtest Southern Dairies Division, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3 ), 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, order consolidating cases, charges , 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 observation of the witnesses, the Trial Examiner makes the following: 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE LABOR ORGANIZATION INVOLVED General Truckdrivers, Chauffeurs, Warehousmen & Helpers, Local No. 270, Ind., is a labor organization which admits to membership employees of the Respondent. II. PERTINENT COMMERCE FACTS The complaint alleges and the answer admits that the Respondent is a Delaware 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 busi- ness operations during the year ending December 31, 1958, the Respondent pur- chased 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 ALLEGED UNFAIR LABOR PRACTICES A. The issues Two main questions are posed in this proceeding. 1. Did the Respondent violate Section 8(a)(3) of the Act when in the course of a representation proceeding and following issuance of the Board's Decision and Direction of Election holding that certain persons were the Respondent's employees, it unilaterally changed the conditions of employment of these employees to deprive them of employee status? 2. Did the Respondent violate Section 8(a)(5) of the Act by insisting in the circumstances of this case that there were no employees within the meaning of the Board's decision and certification for whom bargaining was sought? B. The facts On November 25, 1957, the Board issued its Decision and Direction of Election in Case No. 15-RC-1611. The principal issue in that proceeding involved the status of a classification called wholesale milk route helpers. The Union (petitioner in the R proceeding) contended that these helpers were the Respondent's employees The Respondent (employer in the R proceeding) contended they were not its em- ployees. The Board held they were the Respondent's employees, and ordered a rep- resentation election. In deciding that the helpers were the Respondent's employees, the Board noted, inter alia, that the Respondent kept weekly records of the number of hours worked by the helpers, paid them by company check deducting these amounts from the driver's commissions, and deducted social security and income taxes from their pay. The Board observed that helpers are sometimes hired and paid directly by the drivers whom they assist, and declared "as to such helpers concerning whom the employer has no record, we find they are not employees of the Employer." The election ordered by the Board was held on December 13, 1957. Before then, on December 2, 1957, the Respondent notified the wholesale route drivers whose helpers were listed on payroll records that: Effective Monday, December 2, 1957, we are discontinuing our practice of handling payroll deductions from the pay of your helpers. You may continue to use a helper or not, as you choose. We will pay you your full earnings, and you may pay your helper direct. Eleven ballots were cast at the election, and all were challenged by the Respondent. Thereafter, the Respondent filed objections to conduct affecting the results of the election. On October 21, 1958, the Regional Director issued his report on challenged ballots and objections to election recommending that all objections involving im- proper election conduct be dismissed, but that the challenges to all the ballots be sustained. Two ballots were found to have been cast by persons whose names were concededly on no eligibility list, and the Union did not contest the challenges as to them. As to the other nine ballots, the Regional Director found that they were cast by helpers whose names had been carried on the November 24, 1957, eligibility payroll, but that thereafter, particularly after December 2, 1957, their names had NATIONAL DAIRY PRODUCTS CORPORATION 317 been permanently removed from the Respondent's payroll records. The Regional Director reasoned that because the Respondent had stopped maintaining payroll rec- ords for these helpers before the election, they ceased to be the Respondent's employees as delineated by the Board in its aforementioned Decision and Direction of Election. Accordingly, he recommended that the challenges to their ballots be sustained. Upon exceptions filed to the Regional Director's report, the Board, on January 8, 1959, issued a Supplemental Decision and Direction of Election rejecting the Regional Director's recommendation that the challenges to the ballots be sustained, and directed instead that they be opened and counted. Referring to the Regional Di- rector's findings and recommendation, the Board said, We do not agree. The Regions' Directo, apparently has misinterpreted the Board's Decision. On the eligibility,, date. the Employer had knowledge of the nine helpers employed, how long tl.ey had been in its employ and the duties they performed. The Employer alE, 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 rehitionship. Certainly, the Employer's action did not reduce the status of the se regular employees to that of the casual employees referred to in our Jecision who are sometimes hired by the drivers and of whom the Employer hint 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. The tally of ballots prepared pursuant to the Board's direction showed that seven votes were cast for the Union and two against. Accordingly, the Regional Director issued a certification of results of election on January 22, 1959, certifying the Union as the exclusive bargaining representative of the Respondent's wholesale milk route helpers, and further authorizing the Union to bargain for these employees as part of the broader unit of the Respondent's employees which the Union already represented On March 10, 1959, the Union and Respondent met concerning the helpers. In response to the Union's demand that terms and conditions of employment be negotiated for the helpers, the Respondent insisted that it had no such employees for whom it could bargain. The Respondent took the position that the Board's holding that the helpers were its employees was incorrect, and in any event, it was impossible to bargain for helpers because the rune helpers who had voted in the election no longer held their jobs, and the Respondent had no information as to the identity of any others who might be working as helpers to its drivers. The Respond- ent's position is amplified in the letter from its Assistant Zone Manager in charge of labor relations to the Regional Office in the course of the investigation of the case. In this letter, dated May 11, 1959, the Respondent denies a refusal to "negotiate" with the Union, but emphasized that it had informed the Union that there were no employees within the meaning of the Board's decision and certification for whom to bargain. 'It declares that- when the Board ruled that under certain circumstances they would consider certain helpers as "employees" of our Company, we made the only moves available to us to eliminate the "employee" status of such persons. For us to instruct the wholesale drivers that they could not utilize helpers at their own expense would under our present contract with wholesale drivers subject us to a charge of violation of said contract under maintenance of standards clause. Had the Board held that all helpers were employees of Sealtest, we would have had no other choice, except to order elimination of all helpers. Since the Board chose to distinguish between those carried on the payroll and those hired, utilized and paid in the sole discretion of the drivers, and without knowledge of the Company, the Company's only recourse without subjecting itself to a charge of violation of the contract was to merely sever the connection which was determinative of their employment status, and which still would not subject us to grievance under the contract. The Company can not afford helpers and the accompanying expense connected with benefits which move to employees of the Company as such, and feels that the Board is not in position to rule the Company has to continue to employ such helpers The letter closes with an expression by the Respondent of its willingness to bargain, but emphasizes the futility of such procedure in view of the fact that there are no employees within the terms of the certification The Union had on April 2, 1959, sent a letter to the Respondent noting that the Respondent had at their last meeting 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintained that it was under no compulsion to bargain because there were no employees within the meaning of the certification for whom it could bargain, and demanding nevertheless that the Respondent bargain under the certification. The Respondent replied by letter dated April 20, 1959, restating its position as already expressed, expressing its willingness to meet again with the Union if it were to insist, but pointing out that "a session for the purpose of negotiating for a classification in which we do not intend employing any persons would be a waste of time." Since the foregoing exchange of letters between the Union and the Respondent there have been no further discussions with respect to bargaining As to the Respondent's economic reasons for opposing the grant of employee status to helpers, Assistant Zone Manager J. B. Coincon testified that the Respondent has a noncontributory pension plan for its employees which costs the Respondent approximately $9 per employee monthly. Under the Respondent's contract with the underwriting firm every employee on 'pe Respondent's payroll must be covered. The Federal Internal Revenue Service las also informed the Respondent that it could rely on these costs for tax deductions only if each employee were covered. All the Respondent's employees as a matter of general policy receive paid vacations and holiday pay. In addition the Respondent provides various insurance plans for its employees for which the major cost is borne by the Respondent . It also provides all employees at its expense with soi;iai, and recreational programs and safety and service awards . Because the Respond1e ,it had not regarded them as its employees, helpers had never shared in these pans or programs. Retention by the helpers of the employee status which the Board held they possessed would, in the Re- spondent's view, have compelled it to extend to them all the foregoing services and benefits at its expense The Respondent had never done so in the past and was unwilling to do so now. I infer in this connection that the reference to the "maintenance of standards" clause in the Respondent's May 11, 1959, letter to the Union, quoted above, relates to article 7 of the current contract with the Union which obligates the Respondent to maintain all "general working conditions" in effect at the time the contract was signed on June 1, 1958. The Respondent appar- ently argues that the helpers could not be carried as employees on its payroll without according them full participation in the aforementioned plans and programs lest it be charged by the Union with a violation of article 7 of the contract C. Findings • While the issues posed above are linked by consolidation of the proceeding, they must be considered separately . The charge in Case No. 15-CA-1234 and the complaint allegations related thereto are confined to the claim that the Respondent by its December 2, 1957, conduct changing the employment conditions of the helpers violated Section 8(a)(3) and (1) of the Act. It was not charged nor alleged in the complaint that this unilateral conduct by the Respondent contravened Section 8(a)(5) of the Act. It was only subsequent to the Respondent's alleged refusal on March 10, 1959 , and thereafter to bargain with the Union for the helpers that the charge in Case No. 15-CA-1527 was filed. The complaint allegations relative to a violation of Section 8(a)(5) of the Act are confined to this conduct Thus, the Respondent's unilateral conduct of December 2, 1957, though in derogation of its duty to bargain with the Union , may not in this proceeding be found violative of Section 8 (a)(5) of the Act. I turn first to a consideration of the Section 8(a)(3) and (1 ) violations alleged in Case No. 15-CA-1234. As I understand the Board's holdings in Brown Truck and Trailer Manufacturing Company, Inc., et al., 106 NLRB 999, and in Shamrock Dairy, Inc., et al , 119 NLRB 998, an employer's conduct resulting in the termination of the employment of his unionized employees is not proscribed by Section 8(a)(3) and ( 1) of the Act so long as this conduct was not motivated by the employer's intention to avoid collec- tive bargaining with or to discourage membership in their union but was predicated solely on economic considerations , and this despite the fact that by such unilateral conduct the employer disregarded its duty to bargain with the union representing the affected employees and thereby violated Section 8(a)(5) of the Act. Applying these holdings to the facts of this case I find no violation by the Respondent in Case No. 15-CA-1234 of Section 8(a)(3) and (1). The record convinces me that the December 2, 1957, changes instituted by the Respondent were motivated only by its desire that the helpers whom it had never believed or intended to be its employees should not, after its mistaken belief was exposed by the Board's Decision and Direction of Election , continue to be its em- ployees within the meaning of the Board's holding I am persuaded that the Re- spondent's intention not to continue the helpers as its employees stemmed from the economic considerations advanced by it at the hearing and was totally unrelated to APPLIANCE SUPPLY COMPANY 319 the union activities or membership of the helpers. There is no showing in this record of any union animus by the Respondent. On the contrary there is affirmative evidence that its relations with the Union are harmonious. I am satisfied that even if the Union had not, organized the helpers and petitioned for the election which resulted in the Board's finding that they were the Respondent's employees the Respondent would have taken the December 2 measures if in some other way, as for example by opinion of its attorney, it had believed the helpers could legally be deemed its employees because of the conditions which obtained before the December 2 changes. Accordingly, I find that the Respondent did not violate Section 8(a)(3) and (1) of the Act as alleged in Case No. 15-CA-1234. Nor do I find a violation of Section 8 (a) (5) of the Act as alleged in Case No. 15-CA-1527. Here it must be noted that the claim of violation is the Respondent's refusal on and after March 10, 1959, to bargain with the Union for helpers. If, as the Respondent contends, it employed no helpers on these dates, its denial of refusal to bargain must be sustained, for the statutory mandate compels an employer to bargain only with the representative of his employees. The Board's Decision and Direction of Election and its Supplemental Decision and Direction of Election in Case No. 15-RC-1611 referred ultimately only to the status of the nine helpers whose ballots were challenged in the December 13, 1957, representation election. These decisions did not constitute specific findings that any helpers other than those nine whose ballots were deemed valid were employees. Bearing in mind that the Board had crucially distinguished these nine helpers from those who were directly hired and paid by drivers and of whom the Respondent had no knowledge, it follows that helpers who had been then or were afterward hired by drivers on this basis were not employees of the Respondent. The foregoing nine helpers who were found by the Board to be employees had left the Respondent's employ for nondis- criminatory reasons before March 10, 1959. The hire of all other helpers after December 2, 1957, was governed by the Respondent's notice to its drivers of that date. Because by its deliberate lawful action of December 2, 1957, the Respondent ceased acquiring knowledge pertaining to the identity of any helpers subsequently hired by drivers, at least in the sense implied by the Board. I find that on and after March 10, 1959, the Respondent did not employ any helpers for whom the Union sought bargaining. I consequently find that by notifying the Union it would be a waste of time to negotiate for persons it did not employ and by continuing to adhere to this position the Respondent did not violate Section 8(a) (5) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. National Dairy Products Corporation, Sealtest Southern Dairies Division, New Orleans, Louisiana, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truckdrivers, Chauffeurs, Warehousemen & Helpers, Local No. 270, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, have not been sustained. [Recommendations omitted from publication.] Appliance Supply Company and Local Union 2261, Gulf Coast District Council, United Brotherhood of Carpenters apd Joiners of America, AFL-CIO, Petitioner. Case No. 12-RC- 772. April 21, 1960 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 Roy M. Speer, Jr., hearing 127 NLRB No. 47.