Ballentine Packing Co., Inc.

BALLENTINE PACKING COMPANY, INC. 923 In its statement in answer to the motion, the Employer admits that it purposely refrained from disclosing Local 976 as an interested party, although it also admits that Local 976 made a demand for recognition as the bargaining agent for the same employees involved in the consent election. It assigns as its reason for this omission that it regarded Local 976 as having abandoned its. representation claim. The Petitioner also filed an opposition to the motion. The Board 1' has considered Local 976's motion, and the answers of the Employer and the Petitioner, and finds merit in the motion. The Employer had a duty to inform the Regional Director of any claims to representation of which it was aware. It is for the Regional Direc- tor or the Board, and not the parties, to determine whether a claim has sufficient validity or vitality to require that notice of the pro- ceeding be given to the claimant and an opportunity be given to be placed on the ballot in any consent election which may be held? As a result of the Employer's omission, Local 976 was never notified of the proceedings nor afforded an opportunity to appear on the ballot. Under the circumstances, the election cannot be said to reflect fairly the desires of the employees. We shall accordingly set aside the election and vacate the certification. We shall also, remand the case to the Regional Director for such further action as may be appro- priate in the circumstances. [The Board vacated the election and certification and remanded the proceeding to the Regional Director for such action as may be ap- propriate in the circumstances.] 1 Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [ Chairman McCulloch and Members Rodgers and Brown]. 2 See Somerville Iron Works, Inc , 117 NLRB 1702. Ballentine Packing Company, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner Ballentine Packing Company, Inc. and Local 71, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases Nos. 11-RC-1370 and 11-RC-1371. August 10, 1961 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held 1 before 1 The captioned cases were consolidated for hearing by order of the, Regional Director dated August 18, 1960. 1132 NLRB No. 75. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jesse L. Butler, 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 2 involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. , 4. The Meat Cutters seeks to represent a unit of all production and maintenance employees at the Employer's Greenville, South Carolina, plant, excluding truckdrivers and other employees. The Teamsters seeks to represent a unit limited to truckdrivers and their helpers only, excluding all other employees. The Employer contends that the pro- posed separate units are too limited in scope, and that only a plantwide unit, embracing both production and maintenance employees and truckdrivers, with the customary exclusions, is appropriate. There is no history of bargaining for any employees of the Employer. , The Employer is engaged in the processing of meat and meat prod- ucts at its Greenville, South Carolina, plant. It employs approxi- mately 135 employees in its production and maintenance operation. In addition, there are approximately 12 truckdrivers. The record here shows that the Employer's drivers have regularly assigned routes and that, though they may work at times inside the plant when there is no driving to do, they regularly spend a majority of their time at their truckdriving duties. Accordingly, we find that the truckdrivers comprise a functionally distinct group of employees whose interests and conditions of employment differ from those of the production and' maintenance employees. The Board has traditionally established such a group as a separate appropriate unit in the absence of a bargaining history affecting such employees 3 where a union seeks to represent- the truckdrivers separately .4 It is also clear, and we find, that the 2 The petition in Case No . 11-RC-1371 was filed by Local 55, International Brother-, hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. After the close, of the hearing, the Teamsters advised the Board that Local 55 had been dissolved on March 16, 1961, being succeeded by Local 71, and, accordingly, moved to have Local 71 substituted as Petitioner in this proceeding. In the absence of objection thereto, we grant- the motion . Accordingly, the petition and other formal papers are hereby amended to, reflect the correct name of the Petitioner in Case No. 11-RC-1371 , as it appears in the, caption. 8 See, e.g., George H. Braun, d/b/a Alamo-Braun Beef Company, 128 NLRB 32 Vanadium Corporation of America, 117 NLRB 1390; Volney Felt Malls, Inc , 110 NLRB 1244 ; Andrew Brown Company, 115, NLRB 886; Riteway Motor Products Corp., 115 NLRB 294; Dallas Transfer i Terminal Warehouse Company, 114 NLRB 18 ; Glensade Lumber and Coal Co., 100 NLRB 1470. Contrary to the implication of the dissent, these cases represent the Board 's rule, and Independent Linen Supply Company of Mississippi, 122 NLRB 1002, does not. 4 Cf. The Valley of Virginia Cooperative Milk Producers Association, 127 NLRB 785; Thomas Electronics, Inc., 107 NLRB 614. Contrary to the implication of our dissenting BALLENTINE PACKING COMPANY, INC. 925 production and maintenance employees, excluding the truckdrivers, comprise an appropriate unit of the type which the Board, under the circumstances of this case, has historically found to be appropriate a Therefore, in view of the homogeneity of each group, the absence of a bargaining history for, the Employer's employees, and the fact that no labor organization seeks to represent them in a unit of larger scope, we find that the truckdrivers and the production and maintenance employees constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act .6 We do not agree with our dissenting colleagues that a determina- tion of the appropriateness of the above units should be deferred until it is known whether the truckdrivers desire to be represented by the Teamsters. It has not been the Board's policy to compel labor organ- izations to represent the most comprehensive grouping? It is not the Board's function to compel all employees to be represented or un- represented at the same time or to require that a labor organization represent employees it does not wish to represent unless an appropri- ate unit does not otherwise exist. It is clear that under the Act a unit of less than all employees may be appropriate. And that while a plantwide unit, such as the overall unit urged by the Employer and favored by the minority opinion herein, may also be an appropriate unit, a union is not required to seek representation in the largest pos- sible unit. Therefore, the crucial question in each case is whether the unit sought is appropriate, and the Act requires the Board to make unit determinations which will "assure to employees the fullest free- dom in- exercising the rights guaranteed by this Act." The Peti- tioners herein have satisfied the requirement placed upon them, and, in view of the differences in the functions, interests, and conditions of employment, we believe that our unit finding satisfies the obliga- colleagues , the Board does, in fact, treat craft groups in this same fashion where no union seeks to represent them as part of a broader unit . See, e.g, Mountain States Woodworkers Association, 118 NLRB 806; Weis Markets, Ino., 116 NLRB 1993. 5 See cases cited in footnote 3, supra. 9 Dallas Transfer & Terminal Warehouse Company, supra, at 20. 7 In certain situations ( e.g , retail department stores' and insurance agencies) the Board has held that a unit which does not include all employees in the store or geo- graphic area is inappropriate . And in other situations (e.g., where one labor organiza- tion seeks to represent production and maintenance employees , excluding truckdrivers, or plant clericals, or some craft group, and the employer objects to the exclusion) the Board has required the' inclusion of such employees . However, in these latter cases, the Board will exclude such employees by agreement of the parties . Moreover, especially with respect to truckdrivers or craft groups , their Inclusion has been the result of the absence of a separate bargaining history and of a union seeking to represent them sepa- rately. See, e.g., The Valley of Virginia Cooperative Milk Producers Association, supra. But the absence of the separate claim is the condition in the preliminary stages of the proceeding, not after the conduct of an election. See, a g., Safeway Stores, Inc., 129 NLRB 993 We fail to see the analogy drawn by our dissenting colleagues between the two sets of circumstances. Despite these distinctions, it may well be that, as suggested in the minority decision , the Board's policy as to the unit placement of truckdrivers in one-union situations (e.g, The Valley of Virginia Milk Producers Association, supra)' should be reconsidered. However, that question is not before us at the present time, and we, therefore, do not pass on it. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion placed on the Board. Accordingly, whether the truckdrivers vote for or against representation by the Teamsters, our finding that each of the units sought is appropriate would remain unchanged. This is not a case in which the desires of the truckdrivers as to the unit in which they wish to be represented in one of the crucial factors bearing on the appropriateness of a separate unit for theme Neither is this a case in which the truckdrivers are denied an opportunity to have representation because of their exclusion from the production and maintenance unit. Therefore, the special considerations which have led the Board to include truckdrivers in units with production and maintenance employees over the objection of the sole participat- ing union are not present here.' Under all these circumstances, we can see no objections to the truck- drivers remaining unrepresented in the event they reject representa- tion by the Teamsters. This possible outcome has long been accepted by the Board and the parties in situations like the instant one. It has also been acceptable as the result of the parties' agreement to ex- clude such groups of employees and is in accord with long-accepted collective-bargaining practices. We can see no undue uncertainty concerning the treatment of truckdrivers as a result of our adhering to the established practice. On the contrary, much greater uncertainty would result were the view of our dissenting colleagues to prevail. Thus, they do not set forth the manner in which their proposed result would be imple- mented. Presumably, they would require the Meat Cutters to appear on the ballot in the truckdrivers unit and not permit it to withdraw therefrom unless it also withdrew from the ballot in the production and maintenance unit. This would be a complete departure from the Board's established practice of permitting a labor organization to withdraw from the ballot in any unit if it does not wish to partici- pate.l' We can see no valid reason for such a change. Rather, we believe that such a requirement would only serve to confuse the entire matter, lead to interunion conflicts, create obstacles to the organiza- tion of employees, and result more often in production and mainte- nance employees, as well as truckdrivers remaining unrepresented. 8 As was true in Reichhold Chemicals, Inc., 126 NLRB 619, where one union sought production and maintenance employees including truckdrivers ; one union sought only the production and maintenance employees , excluding truckdrivers ; and another union sought only truckdrivers , and any of the units sought could be appropriate. Moreover, there was no limitation on the right to withdraw from the election in the truckdrivers' group. 8 National Welders Supply Company, Inc., 129 NLRB 514. 10 The only case in which the Board 's established practice was not followed and with- drawal from the truckdriver's ballot was not permitted was American Linen Supply Co., Inc, 129 NLRB 993. However, unusual circumstances existed there which are not present in the usual case, and we hereby overrule it insofar as it, is in conflict with our decision herein. BALLENTINE PACKING COMPANY, INC. 927 Thus, the forced participation of the Meat Cutters in the truckdrivers' election, and the consequent necessity for it to compete for the votes of employees it does not seek to represent, would unduly confuse the question concerning representation in that unit and might divert sufficient support from the Teamsters to defeat that union. The truckdrivers would thereupon be included in the production and maintenance unit, where their votes might then serve to defeat the Meat Cutters in that unit despite a majority vote by the production and maintenance employees favoring such representation. And the Meat Cutters' very efforts to campaign among the truckdrivers could- cause it to lose support among production and maintenance employees. But even if -the Meat Cutters fail to campaign among truckdrivers, its mere presence on 'the'ballot could divert sufficient support from the Teamsters to defeat that union but not enough to give the Meat Cut- ters a majority vote in the combined unit. There are many other possible results flowing from such forced participation of the Meat Cutters in the truckdrivers' election, and they all serve -to demonstrate that such participation causes confusion and creates unnecessary ob- stacles to the organization of employees. Accordingly, we find that it will best effectuate the policies of the Act to direct separate elections, as sought by the Petitioners, in the following units at the Employer's Greenville, South Carolina, plant, which we find to -be appropriate:i' (a) All production and maintenance employees, including the night shipping clerk,12 but excluding all truckdrivers, office clerical em- ployees, professional employees, salesmen, 'buyers, watchmen, guards, and supervisors as defined in the Act. (b) All truckdrivers and their helpers,13 excluding all other em- ployees, office clerical employees, professional employees, salesmen, buyers, watchmen, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 11 George H. Braun, etc., supra To the extent that Independent Linen Service Company of Msssissspps„supra, is inconsistent , it is overruled. 12 The Meat Cutters would include Alva S Pack, Jr ., night shipping clerk, in the pro- duction and maintenance unit, while the Employer would exclude him as a supervisory employee The night shipping clerk reads out orders over a loud speaker to the men in the cooler, who thereupon place the orders on a conveyor, box and weigh them, and prepare them for truck delivery . He is responsible to the foreman of the shipping depart- ment He has no ,authority to hire, -discharge, or change the status of any employee, or to make effective recommendations in these respects Any assignments or directions he gives to other employees are of a routine nature only , not requiring the use of inde- pendent judgment We find that Alva S. Pack , Jr, is not a supervisor within the mean- ing of the Act, and accordingly , we have included him in the unit of production and maintenance employees. Wm if. Whittaker Co, Ltd., 117 NLRB 339, 345 is It is not clear from the record whether the Employer employs truckdriver helpers. In these circumstances , we shall provide for ,the ,inclusion in the unit of such helpers who work as helpers to the truckdrivers in the unit on a regular basis or at least for a majority of their time See Graver Construction Company, et al, 118 NLRB 1650, 1053. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS RODGERS and LEEDOM, concurring in part and dissenting in part : We agree with the majority that the truckdrivers comprise a func- tionally distinct group which may properly be separately represented by the Teamsters and that the remaining production and maintenance employees might also constitute an appropriate unit. However, we would make no final unit determinations at this time; for, in our view, sound policy requires and certain past practice supports the place- ment of the drivers in the production and maintenance unit should they fail to vote for separate representation. It is apparent that, should the Teamsters lose their bid for a sepa- rate unit, the resulting situation would be that of a single union seek- ing a production and maintenance unit excluding, over the Employ- ers' objection, the truckdrivers. In such a situation, the Board would in accord with its usual practice include the drivers in the production and maintenance unit.'' Instead our colleagues of the majority pro- vide, solely because another union seeks to represent the truckdrivers separately, for their separate "unrepresentation" in that contingency. In fact, the broad reach of the majority's argument would require un- der similar circumstances such treatment be accorded every craft or departmental group which the Board would recognize as constituting an appropriate unit. However, the purpose of a self-determination election is to provide for the separate representation of certain groups of employees having specialized interests. It was not intended to create a fragmentation of production and maintenance or other broad groups of employees into small groups of unrepresented employees.15 The majority seeks to avoid the inconsistency of its position with the one-union situation by contending, first, that in such cases no union seeks to represent the drivers separately, which is of course, merely to beg the question and to repeat in another way-and still without explanation-its conclusion that the appropriateness of a unit may depend in part solely on the number of unions that happen to be interested. Second, it hesitantly concedes that the one-union situation might require reconsideration, but fails to reconsider be- cause "that question is not before us." Also, they avoid dealing with the broad implications of their argument with respect to craft and departmental groups other than drivers because, we suppose, those situations are not before them either. While we have great respect 14 See, e.g., National Welders Supply Company, Inc., supra. ' Cf. Campbell Soup Company, 111 NLRB 234, and Westinghouse Electric Corporation, 115 NLRB 530, 533, where the Board refused to permit decertification of craft or other specialized groups from an established unit because it would not result in the separate representation of the specialized interests . Also, Amerscan Tobacco Company, Incorpo- rated, 115 NLRB 218, in which the "no union" choice was deleted from the ballot in severance cases for the same reason. BALLENTINE PACKING COMPANY; INC. 929 for the case-by-case development of the law, the problems before us are ones of policy, not ones turning on the facts peculiar to a par- ticular case. In such circumstances, we feel this Board has respon- sibility to consider and make clear the ramifications of a. decision so that unions, employers, and employees will understand' what is ex- pected of them and where their rights lie. If the Board's recent delegation of authority to its Regional Directors to decide representa- tion cases is to have the desired results, our decisions should lay down clear guide lines to help them in their decisional work, not create by implication or otherwise a morass of uncertainty and confusion such as is almost certain to flow from the majority decision. We, of course, agree with the majority that the crucial question in the case is whether the units sought are appropriate and that it is for this Board to make that determination. The Act says as much and no one insofar as we know has contended to the contrary in this case. Similarly, we can agree that under the Act a unit of less than all employees may be appropriate, but we cannot agree that a production and maintenance unit, such as the Meat Cutters seeks, can properly be construed as including only some of the unrepresented production and maintenance employees. But this is clearly the result of the majority's decision in permitting, in effect, the Meat Cutters to decide that drivers, usually considered production and maintenance employees, should be excluded from its requested unit whether or not they take advantage of their special interests and vote for separate representation. Moreover, the majority in giving no weight to the Employer's unit position is ignoring without explanation a factor that is frequently considered to be of more than passing concern. Thus, in cases too numerous to cite, the Board, because no interested party opposes them, has found proposed units to be appropriate which it would not neces- sarily have found appropriate if there had been opposition and, as noted above, in the one-union case truckdrivers are included in a pro- duction and maintenance unit if the Employer, over the Union's ob- jections, so insists. After all, an Employer should have some under- standing of the functioning and organization of its plant and, thus, some appreciation of what might constitute a viable, effective bar- gaining unit. Consequently, we fail to see why consideration should not be given to the unit position of an employer as a party to a pro- ceeding and as one who, like a union must meet the Act's requirement to bargain in the resulting certified unit. The Act requires this Board to decide a case on the entire record. The Employer's unit position is part of that record, yet in this case the majority without explana- tion has chosen to ignore it. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing considerations, we would make provision for including the truckdrivers in the production and maintenance unit should they not vote for separate representation.16 16 Independent Linen Supply Company of Mississippi, supra, where the Board in a situa- tion identical to that not before It did provide , as we contend it should, for including the drivers in a production and maintenance unit if they did not vote for separate representa- tion. We would reverse cases such as George H. Braun, d/b/a Alamo-Braun Beef Com- pany, et al , supra, cited by the majority in support of their position. Eastern Shipping Corporation ; McCormick Shipping Corpora- tion and Seafarers International Union of North America, Atlantic & Gulf District, AFL-CIO, Petitioner. Case No. 13- RC-415. August 10, 1961 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 Herbert N. Watterson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record 1 in this case, the Board finds : 1. Jurisdiction: The Petitioner seeks to represent a unit of unli- censed personnel on the SS Yarmouth. Eastern and McCormick con- tend that the Board is without jurisdiction to proceed in this case be- cause the Yarmouth, is a Panamanian vessel, owned and operated by McCormick, a Panamanian corporation, and manned by a crew com- prised primarily of nonresident aliens. However, as we concluded in the West India and Peninsular d Occidental cases, the mere presence of such foreign attributes as those just mentioned does not necessarily require a finding that the Act does not cover the maritime operation involved or that the Board should not assert jurisdiction 2 Rather, the question of jurisdiction is to be decided by determining whether i On May 18, 1960, the Board issued a notice of hearing consolidating the present case with West India Fruit and Steamship Company, Inc., 130 NLRB 343, and Peninsular & Occidental Steamship Company and Green Trading Company, 132 NLRB 10, for purposes of oral argument on certain jurisdictional and public policy issues common to the three cases. The hearing was held on May 31 , 1960, and all parties in the consolidated cases were represented by counsel and participated in the argument . See, West India Fruit, etc, supra, footnote 5. All requests for reargument or additional argument have been duly denied. See, West India Fruit, etc., supra, footnotes 5 and 6. Further, as set forth in our decision 'in West India Fruit and Steamship Company, Inc., supra, footnote 4, the Attorney General of the United States was permitted to intervene in this case and in West India and Peninsular & Occidental, and, in his brief, filed November 18, 1960, presented on behalf of the Department of State and Department of Defense certain con- siderations of International law and national defense policy bearing upon the jurisdictional issues common to the three cases. 2 As noted In footnote 10 of the West India decision, in deciding certain jurisdictional issues present not only in that case but in the instant proceeding, full consideration was given not only to the arguments and positions of the parties in West India but also to those of the parties in this proceeding. 132 NLRB No. 72.