Federal Yeast Corp.

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assuming the existence of an oral or unsigned agreement which may be enforceable at law.4 The UE's motion to dismiss the petition on the ground of contract bar is therefore denied. We find that a question affecting commerce exists concerning the representation of certain employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act 5 4. We find, in accordance with the agreement of the parties, that all production and maintenance employees at the Employer's Philadel- phia, Pennsylvania, plant including expediters, stockroom employees, truck drivers, and apprentices, but excluding office clerical employees, draftsmen, foremen, and all other supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 4 Groveton Papers Company, Inc, 96 NLRB 1369. We find no merit in the UE's con- tention that Section 8 (d) of the Act, which provides in part that to bargain collectively is (amone other things) "the execution of a written contract incorporating any agreement reached if requested by either party," compels the Board to discard the requirement that only a written signed contract may operate as a bar. The hearing officer properly rejected as immaterial the UE's offers of proof to show the existence of an enforceable agreement through evidence that the Employer has put into effect the terms reached by the negotia- tors and is checking off dues for the UE. The UE also contended that the Board's con- tract bar rule should not apply in this case because the Employer's signing of a new contract was "frustrated " by the transfer of allegiance of the UE 's negotiators to the IUE. Such explanation for the Employer's failure to sign a contract asserted as a bar is immaterial to the issue before us . The hearing officer therefore properly rejected the UE's offer to prove the defection of its negotiators. 5 The UE' s motion to dismiss the petition on the ground that a question affecting com- merce within the meaning of the Act does not exist is denied. FEDERAL YEAST CORPORATION and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS, CIO, PETITIONER. Case No. 5-RC-1111. August 27,1952 Decision and Direction of Elections Upon a petition duly filed, a hearing was held before Henry L. Segal, 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 Murdock and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 100 NLRB No. 124. FEDERAL YEAST CORPORATION 827 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 Petitioner seeks a unit of all production and maintenance employees, and drivers and helpers, including powerhouse employees at the Employer's Colgate Creek, Maryland, plant, but excluding sales- men, office clericals, watchmen, guards, and supervisors as defined in the Act. The Employer and the Intervenors contend that two units, one consisting of ayeast workers and drivers and helpers unit, pres- ently represented by Local 333, and the other a maintenance unit, pres- ently represented by the Operating Engineers, are appropriate. At the hearing the Petitioner stated that should the Board find these two units appropriate it desires to participate in any elections which are directed. In support of their position, the Employer and the Intervenors demonstrated at the hearing that for the past 12 to 15 years there have been two such units as contended for by them at the plant and that the Intervenors have had contractual relations with the Em- ployer on that basis for the past 6 years. On the other hand, the Petitioner seeks an over-all production and maintenance unit, in which the historic unit of production employees would be merged with the historic unit of maintenance employees. In accordance with our usual practice and in recognition of the normal community of interest between production and maintenance workers, absent the bargaining history at the Employer's plant, we would find the over-all unit appropriate 2 However, the Board is reluctant to disturb existing contract units established by collective bargaining, unless they are repugnant to Board policy or do not assure employees the fullest free- dom in exercising the rights guaranteed by the Act 3 In the circumstances of this case, therefore, we hold that the em- ployees at the Employer's Colgate Creek, Maryland, plant, in the following voting groups, excluding salesmen, office clericals, watch- men, guards, and supervisors as defined in the Act, may constitute either a single appropriate unit or separate appropriate units : (1) All ' Brewery Yeast Workers, Soft Drink Workers and Driver Salesmen , Local Union No. 333, a subordinate local union of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, hereinafter called Local 333, and International Union of Operating Engineers , Local No. 272-272A , AFL, hereinafter called the Operating Engineers, were allowed to intervene in this proceeding on the basis of their ,contractual relationships with the Employer I H A. Satin & Company, Inc., 97 NLRB 1001 ; Courtland Manufacturing Company, 95 NLRB 1292. 1 Illinois Cities Water Company, 87 NLRB 109. -828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD yeast workers and drivers and helpers; * (2) all maintenance em- ployees.5 We shall make no final unit determination at this time; but shall first ascertain the desires of the employees themselves. If a ma- jority in both voting groups vote for the Petitioner, they will be taken to have indicated a preference for one over-all production and main- tenance unit, and the Board, under the circumstances finds such a unit to be appropriate for the purposes of collective bargaining. In the event that a majority is established in voting group (1) alone, by either the Petitioner or the Intervenor Local 333, the Board finds the existing production unit to be separately appropriate. Finally, in the event the Petitioner or the Intervenor Operating Engineers estab- lishes a majority in voting group (2) alone, the Board finds the exist- ing maintenance unit to be separately appropriate. The Regional Director is instructed to issue a certification of representatives con- sistent herewith to the bargaining agent or agents selected for such unit or units. [Text of Direction of Elections omitted from publication in this volume.] This group includes the following employees : pressroom employees , drivers and helpers, yeast room packers , fermenting scrubbers , fermenting titrators , fermenting first men, separator first men, mixers , yeast room employees, yeast room first men, and packers. 5 This group includes the following employees : assistant engineers , maintenance men, machinists, and firemen. COLUMBIA MARKET CORP. and LOCAL 385, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, PETITIONER. Case No. 1-RC-13793. August 27, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leo J. Halloran, 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 Murdock and Peterson]. Upon the entire record in this case, the Board finds; 1. The Employer, which contests the jurisdiction of this Board, operates a supermarket in Lewiston, Maine, where it is engaged in the retail sale of meats, fish, fruits, and vegetables. The Employer leases a portion of its premises to Elm Farm Foods Company, an entirely separate corporation, which is engaged in the retail sale of groceries and dairy products. All employees in the store, however, are the employees of the Employer. 100 NLRB No. M.