Penick & Ford, Ltd., Inc.

In the Matter Of PENICK & FORD, LTD., INC., EMPLOYER and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO, PETITIONER Case No. 15-RC-285.-Decided October 20, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Richard K. Keenan, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Gray]. Upon the entire record in this case, the Board funds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certAin employees of the Employer. 3. Food, Tobac,,o, Agricultural, and Allied Workers Union of America, Local 3(9, CIO, the Intervenor herein, contends that its collective bargaining agreement with the Employer, executed on August 19, 1947, for a 2-year term, constitutes a bar to a present e1PC- tion, because it was automatically renewed. upon failure to serve a 60-day notice in accordance with the terms of the contract. ThA petition was filed on July 27, 1949. The existing contract contains a maintenance of membership pro- vision, although the Intervenors have not been certified as authorized to make such provisions under the terms of Section 9 (e) of the Act. The Intervenor contends that at the time of the execution of the contract there was an oral agreement between the parties that the union-security provision would not be enforced after 1 year. In ac- cordance with the oral agreement, the Intervenor has not invoked the union-security provision for approximately 1 year. We have held, nevertheless, that the mere existence of such a provision acts as a restraint upon those desiring to exercise their right to refrain from 86 N. L. R. B., No. 94. 659 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities guaranteed by Section 7 of the Act? Under these circumstances, and without regard to any other considerations, we find that the contract cannot serve as a bar to a present determination of representatives.2 Accordingly, we find a question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees 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 at the Em- ployer's corn and cane syrup processing plant at Harvey, Louisiana, excluding all clerical employees, chemists, guards,3 and supervisors of the grade of assistant foreman or higher, and all other supervisors as defined by the Act. DIRECTION OF ELECTION' As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer , an election by secret ballot shall be conducted as early as possible , but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations , among the employees I Matter of C. Hager d Sons Hinge Manufacturing Company, 80 N. L. R. B. 163 ; Lykens Hosiery Mills, Inc., 82 N. L. R. B. 981. Hygrade Food Products Corporation, 85 N. L. R. B. 841. 2In its motion to dismiss, the Intervenor also challenges the showing of the Petitioner. We have frequently held that the showing of interest is an administrative matter for determination by the Board and is not subject to collateral attack. Matter of Stokely Foods, Inc., 78 N. L. R. B. 842; Matter of O. D. Jennings & Company, 68 N. L. R. B. 516. We therefore deny the Intervenor's motion to dismiss. 3 The Petitioner and Intervenor contend that the watchmen should be included in the unit. The Employer takes no position on their unit placement. Watchman A spends 84 percent of his time weighing, making out track reports, checking cars, and directing switchmen as to the location of various cars in the plant. Only 16 percent of his time is spent in regular watchmen duties. Watchmen B, C, and D spend 65 percent of their time making regular rounds through the plant, and watch for fires and leaks in storage tanks, and keep unauthorized persons out of the plant. The remain- der of their time is spent doing the same work as other production and maintenance employees. We find that Watchman A is not employed as a guard within the meaning of the Act and he is deemed included in the unit of production and maintenance employees. Inasmuch as Watchmen B, C, and D spend more than 50 percent of their time performing regular watchman duties, we find that they are employed as guards and shall exclude them from the unit. Matter of G. R. Ogletree, d/b/a Longhorn Sash and Door Company, 79 N. L. R. B. 1430; Matter of Marshall Manufacturing d Processing Company, 82 N. L. R. B. 959. 4 The name of the Intervenor is omitted from the ballot because of its failure to comply with the requirements of Section 9 (f), (g), and (h) of the Act. In the event, however, that it effects compliance within 2 weeks from the date of issuance of this Direction of Election , the Regional Director is instructed to accord the Intervenor a place on the ballot in the election directed herein. PENICK & FORD, LTD., INC. 661 in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been- discharged for cause and have not been rehired or re- instated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bar- gaining, by United Packinghouse Workers of America, CIO. 867351-50-vol, 86-43