The Borden Co.

National Labor Relations Board - Board Decisions

May 15, 1953

104 N.L.R.B. 1031 (N.L.R.B. 1953)

DIXIE DAIRIES DIVISION OF THE BORDEN COMPANY 1031
Accordingly, we find that the following employees of the
Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of
the Act:
All production and maintenance employees 14 at the Em-
ployer's commercial printing plant, including the truckdriver,
but excluding all office clerical employees, the bicycle mes-
senger, professional employees, watchmen, guards, and all
supervisors" as defined in the Act.
5. At the hearing the Petitioner alleged that Pickett, a
production and maintenance employee of the Employer, should
be allowed to vote in any election directed by the Board. On
February 25, 1953, in Case No. 21-CA-1619, the Petitioner
filed a charge against the Employer alleging the discriminatory
discharge-of Pickett." In view of the pendency of this charge,
we will hold in abeyance the eligibility of Pickett and permit
him to vote a challenged ballot in the election hereinafter
directed, 17 impounding the ballot.
[Text of Direction of Election omitted from publication,]
14 included as such are Lois Hazeltine, Garrett DeKorte, John Bain, Otto Werler, and Alfred
Berry.
15 Excluded as supervisors are Frederick Bailey , Herbert Stephens , Henry Schubert, and
William Scott.
16 The pending charge is still under investigation. On March 6, 1953. the date of filing the
instant petition, the Petitioner filed a "Request to Proceed" with the Regional Director
IT CE The Ocala Star Banner , 95 NLRB 569.
DIXIE DAIRIES DIVISION OF THE BORDEN COMPANY and IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION
NO. 859, AFL, Petitioner. Case No. 10-RC-2075. May 15, 1953.
SUPPLEMENTAL DECISION, ORDER , AND CERTIFICATION
On January 21, 1953, the Board issued its Decision and
Direction of Election herein' in a unit composed of all
wholesale and retail milk route men, relief milk route men,
milk route helpers, and ice cream route men. Subsequently,
on February 18, 1953, an election by secret ballot was con-
ducted under the direction and supervision of the Regional
Director for the Tenth Region among the eligible employees
of the Employer in the unit found appropriate by the Board in
its decision.
Upon completion of the election, a tally of ballots was
furnished to each of the parties. The tally of ballots revealed
that of approximately 36 eligible voters, 34 cast ballots, of
which 18 were for the Petitioner, 15 were against the Peti-
tioner, and 1 was challenged. The single challenged ballot was
insufficient to affect the results of the election.
1102 NLRB 460.
104 NLRB No. 119.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 24, 1953, the Employer filed timely objections
to the election. In accordance with the Board's Rules and
Regulations , the Regional Director conducted an investigation
and issued a report on objections in which he found that there
was no merit in any of the objections and recommended that
the Board overrule the objections in their entirety, and certify
the Petitioner as the exclusive bargaining representative of
the employees of the Employer in the unit found appropriate
by the Board in its decision. The Employer filed timely
exceptions to the Regional Director's report.
Upon the basis of the Employer's objections to the election,
the Regional Director's report on objections, the Employer's
exceptions thereto , and the entire record in this case, the
Board = finds:
In its fourth objection to the election,3 the Employer contends
that the use of different colored ballots for voting by mail and
for voting at the Employer's Macon, Georgia, plant destroyed
the secrecy of the ballot. As the voters did not sign the ballots,
and as more than one ballot was cast pursuant to each method
of voting, we cannot agree that the secrecy of the ballot was in
any manner impaired, as no individual voter could be identified
by use of the different coloredballots. ' We therefore overrule
this objection.
In its fifth objection to the election and in its exception
No. 1 to the Regional Director's report, the Employer contends
that the election is invalid because the Decision and Direction
of Election, the notice of election, the ballots, and the tally
of ballots bore the name of the Petitioner as International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 895, AFL, whereas the Petitioner
filed its petition as Local Union No . 859. It further contends
that the Board does not have the authority to certify the
petitioning Local Union No. 859 because the name of that
local did not appear on the ballots and, therefore , the Petitioner
did not receive a single vote . We consider this objection friv-
olous , for the Employer admits in its exceptions that the
transposition of the number " 859" to "895" first appeared in
the stenographer ' s transcript of the minutes of the hearing
herein, and that this oversight was apparently carried through
the remaining formal papers that followed, including the
Decision and Direction of Election . Moreover, following the
election , the Employer stipulated in writing that through a
2Pursuant 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
Murdock and Peterson].
9In objections 1. 2. and 3 the Employer contends that the elections were improper because
the wholesale and retail milk route drivers, who the Employer contends are supervisors,
were included in the unit, permitted to vote, and to campaign for the Petitioner . By objection
six the Employer raises the question of the eligibility of the milk route helpers to whom
the Board, in its decision , refused permission to vote. As these objections are directed
to the Board 's original unit and eligibility findings, which have already been fully considered
and litigated , we overrule them as being without merit. William R . Whittaker Co., Ltd.,
94 NLRB 1151.
4Consolidated Vultee Aircraft Corporation , 79 NLRB 590.
DIXIE DAIRIES DIVISION OF THE BORDEN COMPANY 1033
typographical error in the record the petitioning Union was
designated as "Local Union 895" instead of "Local Union 859";
that it agreed that wherever "895" appeared in the record, it
would be considered as referring to "859"; and that such con-
sent was given without necessity of any amendment being filed.
Under these circumstances, the Employer cannot claim that
it was in any way prejudiced by this typographical error.
Furthermore, no facts appear in the Regional Director's report,
or anywhere else in the record, to the effect that the employees
who cast ballots in the election were confused as to the true
identity of the union named on the ballots. For this reason they
could not have been prejudiced by the error. We conclude,
therefore, that the petitioning Local Union No. 859 did, in fact,
receive the majority of votes cast at the election and find no
valid reason, with regard to this objection, to withhold certi-
fication. Accordingly, the objection is overruled.'
By reason of the foregoing, and in order to correct the
record and our Decision and Direction of Election, heretofore
made herein, we shall order that wherever "Local Union No.
895" appears therein, it shall be amended to read "Local
Union No. 859." Furthermore, as the tally of ballots shows
that a majority of the valid ballots were cast for the Petitioner,
we shall certify it as the exclusive bargaining representative
of all of the employees in the appropriate unit.
ORDER
IT IS HEREBY ORDERED that the Decision and Direction of
Election herein, heretofore issued by this Board on the 21st
day of January 1953, be, and the same hereby is, amended and
corrected by striking from the caption the number "895"
and substituting therefor the number "859"; and by striking
from the Direction of Election the number "895" and sub-
stituting therefor the number "859."
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers, Local
Union No. 859, AFL, has been designated and selected by a
majority of the employees of the Dixie Dairies Division of The
Borden Company, Macon and Albany, Georgia, in the unit here-
tofore found by the Board to be appropriate, as their representa-
5In connection with this objection, the Employer also contends that the American Feder-
ation of Labor, with whom the International Teamsters and Local Union No. 859 are affiliated,
was not in full compliance during this proceeding and that by reason thereof the Board had
no authority to process the petition herein. We agree with the Regional Director's dis-
missal of this contention on the ground that the fact of compliance is not litigable. More-
over, we are administratively advised that from the date of filing of the petition herein, to
date, the American Federation of Labor was out of compliance only on Friday, October 10,
1952, and on the 2 days following. As the petitioning Local Union, No. 859, the International
Teamsters , and the AFL were in full compliance on all dates germane to this proceeding,
we find that the Employer's contention that the Board had no authority to act herein is with-
out merit.
1 034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive for purposes of collective bargaining , with respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
KIND AND KNOX GELATINE COMPANY and INTERNATIONAL
BROTHERHOOD OF FIREMEN, OILERS, POWERHOUSE
OPERATORS, ICE PLANT EMPLOYEES, AND MAINTE-
NANCE MECHANICS, LOCAL NO. 473, AFL, Petitioner.
Cases Nos. 4-RC-1857, 4-RC-1858, 4-RC-1859, 4-RC-
1860, 4-RC-1861, 4-RC-1862, and 4-RC-1863. May 18, 1953
DECISIONS ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of
the National Labor Relations Act, a consolidated hearing was
held before Julius Topol, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.
3. The Intervenor, Local 80A, United Packinghouse Workers
of America, CIO, raises a contract-bar contention.
On October 17, 1950, the Employer and Local Industrial
Union No. 80, Food and Tobacco Workers Union, CIO, herein
referred to as FTW, executed a 2-year contract. FTW was
certified by the Board as the collective-bargaining repre-
sentative of the Employer's employees on February 2, 1951.
On June 18, 1952, the Intervenor, which had succeeded FTW as
the bargaining representative of the Employer's employees,
received a compliance letter from the Board. On November 6,
1952, the Employer and the Intervenor executed an agreement
extending the 1950 contract until October 17, 1953, with
certain amendments. Among the clauses in the 1950 contract
with FTW which were continued in the 1952 agreement was a
union-security clause providing that "all employees shall
join the Union after thirty (30) days in the employ of the Com-
pany as a condition of continued employment. . ." 1
Subsequent to the conviction of Anthony Valentino, an officer
in the FTW, for having made false statements in an affidavit
filed under Section 9 (h), 2 the Board, on November 21, 1952,
by document designated "Notice," revoked the Intervenor's
compliance letter of June 18, 1952. On December 16, 1952,
oral argument was heard before the Board on a motion to
1 In view of the continuing contractual requirement of union membership, we find this
provision valid, contrary to the contention of the Petitioner. See Josten Engraving Company
d/b/a American Yearbook Company, 98 NLRB 49; and Charles A. Krause Milling Co., 97
NLRB 536.
2United States District Court at Camden, New Jersey (October 1952).
104 NLRB No. 134.