The Borden Co.

National Labor Relations Board - Board Decisions

Nov 4, 1952

101 N.L.R.B. 203 (N.L.R.B. 1952)

THE BORDEN COMPANY 203
THE BORDEN COMPANY and UNITED PACKINGHOUSE WORKERS OF
AMERICA, CIO,1 PETITIONER
THE BORDEN COMPANY and STATIONARY ENGINEERS, LOCAL 707, IN-
TERNATIONAL UNION OF OPERATING ENGINEERS , AFL,2 PETITIONER.
Cases Nos. 16-RC-1164 and 16-RC-1145. November 4, 1952
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing was held before Edwin
Youngblood, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.$
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 Herzog and Members Styles and Peterson].
Upon the entire record in this case, the Board finds :
1. In The Borden Company.,' the Board on June 19, 1951, found
that the Employer was engaged in commerce at the plant involved in
this case. In the absence of any evidence of changed circumstances
since the date of that decision, we find, contrary to the contention of
the Employer, that the Employer is engaged in commerce within the
meaning of the Act.5
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Packinghouse Workers in Case No. 16-RC-1164 contends
that all production and maintenance employees working inside the
Employer's plant at 1801 Leonard Street, Dallas, Texas, constitute
the only appropriate unit for the purposes of collective bargaining.
Herein called the Packinghouse workers.
s Herein called the Operating Engineers.
At the hearing the Employer moved to dismiss the petitions on the ground that (1)
the hearing officer was not qualified under the Administrative Procedure Act, (2) the
Board has not complied with the showing of interest requirement in Section 9 (c) of the
Act, and ( 3) there has been no compliance with Section 9 (f) of the Act. The hearing
officer referred the motion to the Board for ruling. As sections 5, 7, and 8 of the
Administrative Procedure Act do not apply to proceedings involving certification of em-
ployees' representatives , the first contention is without merit, Angelus Chevrolet Co.,
88 NLRB 929. As the questions of the sufficiency of the showing of interest required
by Section 9 (c) and of compliance with Section 9 (f) by labor unions are matters for
administrative determination and not subject to litigation by the parties , the second and
third contentions are also without merit . International Trade Mart, 87 NLRB 616;
Ann Arbor Press, 85 NLRB 58. The motion is denied.
I Cases Nos . 16-RC-724 and 16-RC-725 ( not reported in printed volumes of Board
Decisions).
5 Ann Arbor Press, supra . The Borden Company, Southern Division , 91 NLRB 628.
101 NLRB No. 52.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is the same unit as that found appropriate in The Borden Com-
pany .6 However, in Case No. 16-RC-1145 the Operating Engineers
contends,,contrary to the Packinghouse Workers, that a separate unit
of the employees of the engineering department is also appropriate.
In the previous case this separate unit was not sought . The Employer
takes no position with respect to the appropriateness of either unit.
There are three maintenance engineers , seven maintenance mechan-
ics, one oiler and general cleanup man , and one working foreman in
the engineering department, all under the supervision of the chief
engineer , who supervises no other employees . These employees do not
interchange with employees in other departments although they do
interchange among themselves . The engineering department is
treated separately for purposes of time records and payroll. These
employees receive about 10 cents an hour more than the highest paid
employees elsewhere in the plant . They are assigned to a separate
area; however , the maintenance mechanics engage in general mainte-
nance work wherever required throughout the plant . About 3 years
of training are required to qualify as either a maintenance engineer or
a maintenance mechanic . Insofar as appears from the record, there
are no other maintenance employees in the plant.
While we have previously found that a plant-wide unit was appro-
priate at the plantj and an election was held as result of which the
Dallas General Drivers , Warehousemen and Helpers , Local Union 745,
AFL, was certified as bargaining representative for that unit,8 no
contract was subsequently executed , and the certified representative
did not intervene or appear in this case. The group of maintenance
employees presently sought by the Operating Engineers is identifiable,
homogeneous, and functionally distinct, with interests apart from
those of other employees at the plant . Absent any conclusive bar-
gaining on a plant-wide basis,9 we are not precluded from finding, and
we do find , that the engineering department unit may constitute a
separate appropriate unit 10 or may be included in the production and
maintenance unit sought by the Packinghouse Workers, which we also
find to be appropriate . However , we shall make no unit determina-
tion pending the outcome of the elections hereinafter directed.
Accordingly we shall direct that separate elections be conducted
among the following groups of employees at the Employer 's plant
located at 1801 Leonard Street, Dallas, Texas :
1. All production employees , including those in the ice cream de-
partment and garage , but excluding all office clerical employees , whole-
Footnote 4, supra.
* Ibid.
s Certification of representatives on July 25, 1951.
Mascot Stove Co., 75 NLRB 427.
10 Armstrong Cork Company, 80 NLRB 1328.
DOFFLEMYER BROS. 205
sale and retail truck drivers, all employees in the engineering
department, guards, and supervisors as defined in the Act.
2. All employees in the engineering department, including the
working foreman,u but excluding the chief engineer,- guards, and
supervisors as defined in the Act.
If a majority of the employees in each of the voting groups 1 and 2
select the Packinghouse Workers, they will be taken to have indicated
their desire to constitute a single unit. If a majority of the employees
in voting group 2 select a labor organization which is not selected by
the employees in voting group 1, the employees in voting group 2 will
be taken to have indicated their desire to constitute a separate unit.
If a majority of the employees in voting group 1 alone vote for Pack-
inghouse Workers, that Union will be certified for such unit. The Re-
gional Director is instructed to issue a certification of representatives
consistent herewith to the bargaining agent or agents selected for such
unit or units, which the Board, under the circumstances, find to be
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
11 The parties agree that this employee is not a supervisor , and we so find.
v The parties agree that this employee is a supervisor , and we so find.
W. TODD DOFFLEMYER, LEwis L. DOFFLEMYER , AND ROBERT T. DOFFLE-
MYER , INDIVIDUALLY AND AS CO-PARTNERS D/B/A DooPLEMYER BROS.
and FLOSSIE M. BATY. Cage No. 20-CA-650. November 5, 1952
Decision and Order
On April 8, 1952, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the en-
1 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 Herzog and
:Members Styles and Peterson].
101 NLRB No 63.