H. W. Rickel and Co.

H. W. RICKEL AND COMPANY 679 Upon the basis of the foregoing and the entire record, we find that the existing contracts between the Employer and the Intervenor constitute a bar to a present determination of representatives . Accordingly , we shall grant the Intervenor's motion to dismiss the petition. [The Board dismissed the petition.] H. W. RICKEL AND COMPANY ; FROEDTERT GRAIN & MALT - ING COMPANY , INC. and DETROIT BREWERS AND MALT- STERS UNION , a unit of LOCAL 547 of the INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL, Petitioner. Case No. 7-RC-2025 . June 19, 1953 DECISION, ORDER, AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 ( c) of the National Labor Relations Act, a hearing was held before Emil C. Farkas, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby af- firmed. 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 [Members Houston, Murdock, and Styles]. The Board has omitted from the caption the name of the Detroit Malt and Grain Co. Although notice of hearing was served upon this company , it did not appear at the hearing. All parties stipulated that it was no longer in business. Although Froedtert Grain & Malting Company, Inc ., did not desire to enter an appearance or participate inthe proceeding, its representative was present . The representative , however, did enter into a stipulation with respect to the company's operation. The parties stipulated to the inclusion as part of the record in this case the testimony in Goebel Brewing Company , et al,' pertaining to the motion of Detroit Brewers and Maltsters Union, which filed the petition in this case , to amend its name to show its affiliation with Local 547, International Union of Operating Engineers, AFL, herein called Local 547, and the motion of the latter organization to intervene . For the reasons stated in our decision in the Goebel case, ' we grant the motion to amend , have amended the caption of this case accordingly, and consider Local 547 a proper intervenor inthis proceeding. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO , herein called the CIO, and its Local Union No. 3, were permitted to intervene on the basis of their contractual interest . We deny the CIO's 1105 NLRB 698. 2 Ibid. 105 NLRB No. 100. 291555 0 - 54 - 44 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion to dismiss this petition on the ground that the Peti- tioner ' s motion to amend its name and the motion of Local 547 to intervene are inconsistent.' Upon the entire record in this case , the Board finds: 1. The Employers , whose names appear in the caption, are severally referred to as Rickel and Froedtert . We find that they are engaged in commerce within the meaning of the Act. 2. For the reasons set forth fully in the Goebel decision, supra , we reject the CIO ' s contention that the Petitioner is not a labor organization because of the manner in which disaffilia- tion proceedings were conducted leading to the Petitioner's establishment , and its subsequent affiliation with Local 547. We find that the Petitioner , the CIO and its Local 3, and Local 547 are labor organizations within the meaning of Section 2 (5) of the Act. 3. Froedtert : The record discloses that Froedtert ' s Detroit, Michigan , plant , the only plant in question, closed down and suspended operations indefinitely inJuly 1951 . Atpresent, there are only two employees employed at the plant and they are solely engaged in the preservation and maintenance of the machinery. As no useful purpose will be served by proceeding with a determination of representatives of Froedtert's em- ployees at this time, we find no question of representation exists concerning the representation of employees of the Froedtert plant , within the meaning of Section 9 ( c) (1) and Section 2 ( 6) and ( 7) of the Act . We shall , therefore , dismiss the instant petition , insofar as the Froedtert plant is concerned, without prejudice to the filing of a new petition if operations are resumed.4 Rickel : The CIO and Rickel contend that no question exists concerning the representation of Rickel ' s employees because of their 2 -year contract entered into on December 2, 1952, and effective from September 2, 1952, to September 1, 1954. This contract was signed by Rickel and by the business repre- sentative of Local 3 on December 1, 1952 . The representative of the CIO, however , did not sign the contract until February 24, 1953 . The instant petition was filed by the Petitioner on January 14 , 1953, subsequent to a request for recognition on or about January 7, 1953. The Petitioner asserts that the contract did not become effective until it had been signed by the CIO , and that its petition was therefore timely filed. The preamble of the contract provides that it was entered into between Rickel, Local 3, and the CIO, although in the recognition clause Local 3 is recognized as the " sole and exclusive bargaining agents for all persons employed by the Employer in any position ." The record indicates that this contract was negotiated between the representatives of Local 3 and Rickel . Thereafter, the contract was sent to the CIO for its endorsement . By letter dated December 16, 1952, the CIO informed the secretary of Local 3 that the contract did 3Ibid. 4See Whiteford Plastics Co., Inc , 77 NLRB 698; cf. Waite Carpet Company, 85 NLRB 1130. H. W. RICKEL AND COMPANY 681 not bear the endorsement of the CIO Joint Local executive board, as the previous contract had pursuant to the require- ments of the CIO's constitution , andthatcertainchanges should be made with respect to the arbitration and union - security clauses . Evidence concerning the relationship between Local 3 and the CIO was taken in the Goebel case and incorporated by reference in this proceeding . This evidence , set forth more fully in the Goebel decision , shows that the established practice in contract negotiations , in accordance with the CIO 's consti- tution, is for Local 3 to submit contract proposals to the Joint Local executive board and the CIO ' s executive board for their approval and endorsement . Although the record indicates that there was a previous contract signed between the parties, there is no evidence with respect to the manner in which it was executed . The CIO' s request concerning the current con- tract was ignored by Local 3, and Local 3 and Rickel continued to treat the contract as being in full force and effect . Notwith- standing the failure of Local 3 to abide by its request, the CIO executed the contract 2 days before the hearing. As the December 12 contract , urged as abar , was not signed by one of the named parties to the contract , at the time the petition was filed , the Board finds that it cannot bar considera- tion of the petition . That the contracting parties considered the CIO's execution of the contract to be necessary to its effec- tiveness is shown not only by the express language of the contract , but also by the CIO ' s action in finally signing the contract . Accordingly, we find that a question affecting com- merce exists concerning the representation of certain em- ployees of Rickel within the meaning of Section 9 (c) and Sec- tion 2 ( 6) and' ( 7) of the Act.' 4. The Petitioner , Local 547, and the CIO agree that a unit of all- the employees employed in the Detroit plants of Rickel and Froedtert , including the five yardmen, but excluding office clerical employees , plant clerical employees , professional employees , guards, and all supervisors as defined in the Act is appropriate . The Employer , however , takes no position. In view of our determination above , we only find it necessary to consider the Petitioner ' s alternate request for a unit whose composition is the same but which is restricted in scope to the Rickel plant. Rickel is engaged in the manufacture of malt. Its principal office and plant are located in Detroit , Michigan . The record reveals that , of a total of 49 production employees , all but the 5 yardmen have been represented by Local 3 in a single-em- ployer unit . It is clear from the record that the contracts with Rickel and Froedtert were separately negotiated . Although there is no evidence in the record with respect to the duties of the yardmen , it is clear from the record that Rickel considers them as part of the production force . Under these circum- stances, and as the Petitioner now seeks to represent these employees , we shall include them in the unit. SCf. Filtration Engineers, Incorporated, 98 NLRB 1210; C. Hager & Sons Hinge Manufac- turing Company, 80 NLRB 163. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, the Board finds that a unit of all employees employed at the H. W. Rickel and Company ' s Detroit, Michigan , plant, including the yardmen , but excluding office clerical employees , plant clerical employees , professional employees , guards, and all supervisors as defined in the Act, is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [The Board thereupon dismissed the petition , without preju- dice, with respect to the employees of Froedtert Grain & Malt- ing Company, Inc.] WORTH FOOD MARKET STORES, INC. d/b/a WORTH FOOD MARKETS and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO. 570, A. F. L., Petitioner . Case No . 16-RC-1142. June 19, 1953 SECOND SUPPLEMENTAL DECISION and SECOND DIRECTION OF ELECTION On March 3 , 1953, the Board issued aSupplemental Decision and Order ,' in the above -entitled proceeding , in which it ordered the election set aside , remanded this proceeding to the Regional Director of the Sixteenth Region for the purpose of reopening the record , and ordered that a further hearing be held for the sole purpose of receiving evidence concerning the supervisory status of the meat department managers. On April 27, 1953, all of the parties entered into a stipulation, hereby made a part of the record in this proceeding, which (1) waived a notice of further hearing, ( 2) waived a further hearing, and ( 3) stipulated that the record in Worth Food Markets , 16-RC - 1199,2, be made a part of the record herein. 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 [Members Houston, Murdock , and Styles]. In accordance with the stipulation of the parties , and on the basis of the entire record in this case, the Board makes the following findings. In its original decision in this proceeding the Board found, in accordance with the stipulation of the parties , that a unit of all meat market employees was appropriate . Thereafter, a question arose as to the supervisory status of the meat market managers, who were included in the unit as "head retail salesmen ." The Petitioner would now exclude as supervisors, whereas the Employer would include, the meat market man- agers. 1103 NLRB 259. 2Not reported in the printed volumes of Board Decisions. 105 NLRB No. 91.