American Suppliers, Inc.

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his union activity or sympathy, but given the quite adequate basis presented by the Respondent that it had decided to discharge Gallo for a reason I believe to be credible and before the Respondent had reason to believe or suspect that Gallo was active on behalf of the Union or sympathetic to unions generally, is there a sufficient basis, based upon the record as a whole , upon which a dispas- sionate mind can ripen this possibility into a finding? I believe not. , Or put another way-if the state of the record is such that it permits nothing better than a suspicion of discrimination , the General Counsel has not sustained his burden of proof-there is not substantial evidence sufficient to sustain a finding of discrimination. I therefore find, on the basis of the entire record , that the General Counsel has not persuaded me by a preponderance of the substantial evidence that the Respondent discharged Gallo for his union activity or sympathy. On the remaining issue of whether the Respondent violated Section 8 (a) (1) of the Act by Personnel Manager Willis ' interrogation of Pecora which I find to be that type of inquiry normally found by the Board to be per se violative of the Act, I do not think it would effectuate the policies of the Act to recom- mend that a cease and desist order issue against the Respondent for a single, isolated incident of the kind described. I will therefore recommend that the complaint be dismissed in its entirety. Upon the basis of the above findings of fact and upon the entire record of the case, I make the following : CONCLUSIONS OF LAw 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Association of Machinists , A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in any of the unfair labor practices al- leged in the complaint. [Recommendations omitted from publication in this volume.] AMERICAN SUPPLIERS, INCORPORATED and TRUCK DRIVERS UNION LOCAL No. 89, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, PETITIONER. Case No. 9-RC-1424. March 17, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Lloyd R. Fraker, 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 [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 98 NLRB No. 108. I AMERICAN SUPPLIERS, INCORPORATED 693 2: The labor organizations involved claim to represent employees of the Employer.' 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer, a Delaware corporation, is a wholly owned sub- sidiary of the American- Tobacco Company. The operations of the Employer, which consist of purchasing, storing, and processing to- bacco, are performed at four locations in Louisville, Kentucky : 9th & Magnolia Streets, 7th & Arcade Streets, 17th Street & Broadway, and 908 South Eighth Street. The 908 South Eighth Street location is a storage plant and the work there is performed by employees from two of the other plants assigned on a temporary basis for short periods of time. No regular complement of regular or seasonal em- ployees is employed for this storage plant. The instant petition, requesting a unit of all employees at the 9th & Magnolia and 7th & Arcade plants, was filed on November 7, 1951, and was amended on December 17, 1951, to include all truck drivers, fork lift operators, redrying employees, warehouse employees, me- chanics, and maintenance employees, at the two plants named. Prior to the December 17 amendment, on November 16, 1951, the Employer and the Intervenor entered into a contract covering all employees at the Employer's Louisville plants, effective for 1 year beginning Janu- ary 1, 1952. The same day, November 16, 1951, the Employer and the Intervenor signed an "Understanding" in which they agreed that the contract effective January 1, 1952, would not apply to employees covered-by.the Petitioner's November 7, 1951, petition, i. e., those em- ployees engaged 'at the 9th & Magnolia and 7th & Arcade locations, with the further provision that the January 1, 1952, contract would apply to such employees in the event the Board should rule adversely on the November 7 petition. The record shows that, beginning in January 1947, and each year thereafter, the Employer and the Intervenor, as the recognized bar- gaining agent, have negotiated contracts covering all employees of the Employer.2 The contract for the year 1951 provided that it was to be in effect from year to year unless either party gave notice 60' days prior to the January 1, 1952, anniversary date. As the parties Local Union #287-#2J7c of Tobacco Workers' International Union , AFL, intervened' on the basis of its current contract covering all employees of the Employer. 2 Local #287 was the signatory of the 1947, 1948, and 1949 contracts . Sometime during the period from January 18, 1949, to March 14, 1950, Local # 247 was organized by some members of Local #287. Beginning with the 1950 contract, Local #287-# 247 became' the recognized bargaining agency. 998666-vol . 98-53-45 694 DECISIONS -OF NATIONAL LABOR''RELATIONS'BOARD entered into negotiations culminating in the execution of the, No- vember 16, 1951, agreement,' such notice apparently was given. - At the' hearing in this case, held January 14, 1952, the Petitioner amended its December 17 unit request to include all employees at the Employer's 17th & Broadway stemming plant-and made a current showing of interest among the stemmery employees. At the same. time, however, the Petitioner reasserted its original claim that a two- plant unit was appropriate. The Employer contends that the two-plant unit originally requested by the Petitioner is inappropriate. Moreover, argues the Employer, the 1952 contract is now effective with respect to the stemmery and is a bar to any present election in that plant. The Intervenor takes the position that the collective bargaining history of the Louisville plants bars a determination of representatives in a unit less than all the plants.4 In support of its contention that a unit of the employees at the 9th & Magnolia and the 7th & Arcade plants is appropriate, the Petitioner asserts (1) that the operations at these plants are 'sim- ilar, but different from the operations at the stemmery, and (2) that' there is no interchange of employees between the two plants and the stemmery. Examining the record, we find that at the 7th & Arcade location, known as the sheds, the operations `consist of receiving, handling, and storing both the incoming newly, purchased, tobacco and the tobacco processed at the other plants. The 9th & Magnolia. plant also has receiving and storage facilities but in addition, operates tobacco redrying machines .5 However, the stemmery at 17th & Broad- way, though performing- stemming work, also carries on extensive redrying operations e ; Because a substantial number of stemmery workers perform operations similar to employees at 9th & Magnolia, ° We find no merit in the' Employer's contention that the terms of the 1952 contract became effective on October 22, 1951 , at which time a pay increase was put into effect In accordance with the terms of said contract , thus, constituting a bar to the Teamsters', petitions . Without deciding whether, If the Employer's contention were accepted, a pre- mature extension of a contract would result, we note that the 1952 agreement was signed on November 16, 1951, 9 days after the filing of the petition herein . The Board has consistently held that, for an agreement to be considered a bar, it must have been reduced to 'writing and signed prior to the filing of the petition sought to be barred. Standard' Brands, Incorporated, 81 NLRB 1311. 4 We deem it unnecessary to consider the contention of the Intervenor that the Petitioner resorted to coercive tactics in order to obtain employees ' authorization cards, in view of the Board's established practice of excluding ,evidence of unfair labor practices from representation hearings. Liberty Cork Co., Inc., 96 NLRB 372. 5 The work force of the Employer is tripled 'during the peak,season which runs approxi- mately from the beginning of December to the end of February, most of the seasonal workers being employed in connection with the iedrying work . In the redrying operation the tobacco is arranged on sticks (9th & Magnolia ) or on a belt ( 17th & Broadway) for passage through the redrying machines. ° The stemmery has a second peak season during July , August, and September, In' addi- tion to its winter peak. - J :AMERICAN SUPPLIERS, INCORPORATED 695 we find no merit in the Petitioner's primary argument in support of is two-plant unit request' The absence of interchange of employees is not, in our opinion, a persuasive factor in this case. In view of the 5-year bargaining history on an employer-wide basis and because of the similarity of work performed by the work forces of the Louisville plants, we do not believe that a unit restricted to the employees of the 7th & Arcade and 9th & Magnolia plants is appropriate. We. find, therefore, that the November 7 petition, as amended on December 17, was for an inappropriate unit. In signing the 1952 contract on November 16, 1951, the Employer and Intervenor intended to follow the usual pattern of bargaining, lout, taking notice of the fact that a representation petition had been filed with respect to two plants, and to avoid the possible commission of an unfair labor practice under the Midwest Piping doctrine," they suspended the operation of the contract as to the two plants, pending the Board's disposition of the petition. To hold now that the 1952 contract is defective because two plants were exempted from its opera- tion, would be to penalize the contracting parties for being aware of, and following, the letter and the spirit of the Act. With respect to the amendment of the petition to coincide • with the historical unit, the amendment at the hearing clearly claimed a unit much larger and substantially different from that sought in the original petition. Having found that the original petition herein was for an inappropriate unit, we do not believe that the effort of the Petitioner to perfect its petition is timely with respect to the 1952 contract which clearly was made with the intent that it would apply to all employees of the Employer in the event the original- petition herein claimed an inappropriate unit. The amendment at the hearing clearly is a new claim or petition as against the 1952 contract." Accordingly, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. I I The record indicates that a substantial number of seasonal workers return year after year and that seasonal workers perform the same work under the same working conditions; and have the same supervision, as regular employees. Because- of these factors, we do not make any distinction between the regular and seasonal workers in our consideration herein. BMidwest Piping and !Supply Co., Inc., 63 NLRB 1060 ; William Penn Broadcasting Company, 93 NLRB 1104. 9 Hyster Company, 72 NLRB 937 ; Dunbar Glass Corporation, 77 NLRB 742.