Western Farmers Association

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall place the names of the Pressmen and the Pulp Sulphite Workers on the ballot in the election among the employees in voting group 1, and the Lithographers, the Pulp Sulphite Workers,9 and the Pressmen on the ballot in the election among the employees in voting group 2. If a majority of the employees in voting group 2 select the Lithog- raphers, they will be taken to have indicated their desire to constitute a separate unit, and the Regional Director conducting the elections directed herein is hereby instructed to issue a certification of represen- tatives to the Lithographers for such unit, which the Board, in such circumstances, finds appropriate for purposes of collective bargaining. However, if a majority of the employees in voting group 2 does not vote for the Lithographers, those employees will appropriately be included with the employees in voting group 1 and their votes will be pooled with those in voting group 1.10 The aforesaid Regional Di- rector is instructed to issue a certification of representatives to the labor organization selected by the majority of the employees in voting group 1 or in the pooled group, as the case may be, which the Board, in such circumstances, finds to be a unit appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] work as the helpers, also spending some time cutting stock on a cutting machine. He has no authority to hire, discipline, or discharge , is hourly paid , and all significant decisions on personnel matters are made by the general foreman. We find that Ross is not a super- visor and include him in the unit. ° Although it does not wish to represent the lithographic production employees as a separate unit, it is clear that the Pulp Sulphite Workers wishes to represent these employees as part of its requested production and maintenance unit. We shall, therefore, place the Pulp Sulphite Workers on the ballot in voting group 2. In the event it does not wish its name to be placed on this ballot, it may, upon prompt notice to the Regional Director, request that its name be omitted from the ballot in voting group 2 101f the votes are pooled , they are to be tallied in the following manner : the votes for the labor organization seeking a separate unit in voting group 2 shall be counted as valid votes , but neither for nor against the labor organizations seeking to represent a production and maintenance unit. All other votes are to be accorded their face value, whether for representation by the unions seeking the more comprehensive group or for no union. Western Farmers Association and Cannery Warehousemen, Food Processors, Drivers and Helpers Local Union No. 809, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America and Miscellaneous Drivers. Local Union No. 223, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioners. Cases Nos. 36-RC-1497 and 36-RC-1502. July 26, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section,9 (c) of the National Labor Relations Act, a consolidated hearing was held before Arthur J. 128 NLRB No. 33. WESTERN FARMERS ASSOCIATION 339 Hedges, 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 proceeding to a three- member panel [Chairman Leedom and Members Rodgers and Bean]. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees 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.2 4. The Joint Petitioners seek a single unit of all employees at the Employer's farm supplies establishment at Hillsboro, Oregon, exclud- ing office employees, professional employees, guards, and supervisors. as defined in the Act. The Grain Millers, urging the bargaining his- tory, contends that the appropriate unit should include all feed and seed production employees, maintenance employees, and feed truck- drivers, but should exclude oil truckdrivers and other categories not, material here. The Meat Cutters and the Employer contend that two separate units are appropriate at the Hillsboro plant : (1) a unit of all employees, excluding all truckdrivers, and (2) a unit of all truck- drivers, excluding all other employees. However, it appears that all the labor organizations involved herein, except the Meat Cutters,, wish to participate in any election or elections directed by the Board. The Meat Cutters is willing to represent a comprehensive unit includ- ing truckdrivers, but does not wish to participate in an election for a separate unit of truckdrivers. The Employer, essentially a farmers' cooperative association, con- ducts its operations at many locations in the States of Oregon, `Vash- IAt the hearing, ( 1) Miscellaneous Drivers Local Union No 223, International Brother- hood of Teamsters, 'Chauffeurs , Warehousemen & Helpers of America, the Petitioner in Case No 36-RC-1502 moved, in effect, that it be permitted to withdraw its petition and to appear as a Joint Petitioner herein with Cannery Warehousemen , Food Processors, Drivers and Helpers Local Union No. 809 , International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America , the Petitioner in Case No 36-RC-1497; (2) American Federation of Grain Millers , Local No. 61, AFL-CIO, hereinafter called the Grain Millers , moved to intervene on the basis of its contract ; and (3 ) Amalgamated Meat Cutters and Butcher Workmen of North America , Local 231 , AFL-CIO, hereinafter called the Meat Cutters , moved to intervene on the basis of its showing of interest. There was no opposition as to any of the foregoing motions The hearing officer granted the motions, and we affirm his rulings We shall dismiss the petition in Case No. 36-RC-1502. The Petitioners shall hereinafter be referred to as the Joint Petitioners i A contract between the Employer's predecessor , Tualatin Valley Cooperative, Inc, hereinafter called Tualatin , and the Grain Millers , covering employees sought herein, is effective from November 1, 1957, to at least June 30, 1960 The contract therefore con- stituted a bar to an election only for a period of 2 years from the earlier date, and for this reason , apart from other considerations , we reject the Grain Millers' contention that the contract 'constitutes a bar at this time. Pacific Coast Association of Pulp and Paper - Manufacturers, 121 NLRB 990, 992. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ington, and Idaho. At its Hillsboro, Oregon, plant, the only plant immediately involved herein, the Employer is engaged in distributing farm supplies, such as petroleun7, seed, and mechanical equipment to its members, and in marketing their eggs, poultry, seed, and grain. The work force of approximately 40 employees at the Hillsboro plant comprises office clerical employees, seed and feed mill operators, retail store employees, and truckdrivers, including petroleum distribution drivers, a bulk-feed driver, a dry-freight driver, and a tanker driver. The office clerical employees, the seed and feed mill operators, and the retail store employees perform the usual duties of their classifications. The petroleum distribution drivers and the bulk-feed driver deliver petroleum products and bulk feed, respectively, to the Employer's customers. The dry-freight driver picks up items such as eggs and feed from sellers and delivers such merchandise to buyers. The tanker driver delivers petroleum from the Employer's supplier to the Em- ployer's storage facility. Plant employees would be assigned to truck- driving in emergencies, but there is no evidence in the record that such assignments have, in fact, ever occurred. The bulk-feed, dry-freight, and tanker drivers "could" be assigned to work at the plant to com- plete their 8-hour shifts. The petroleum distribution drivers are not subject to such assignment. All employees work lender the supervision of the plant or branch manager and the general foreman ; although the Employer employs ``working foremen" in certain nondriver areas of its operations, it does not appear that they are supervisors within the meaning of the Act. All employees are paid weekly by checks issued from the Employer's general office at Seattle, Washington, and all work an 8-hour day and a 40-hour week. The Hillsboro plant here involved was formerly operated by Tual- atni, and the Employer acquired it by purchase on or about September 1, 1959. A "Plan of Unification" provided, among other things, that unification would be effected by dissolving Tualatin and transferring its "assets, liabilities and membership" to the Employer, but did not specifically provide for the transfer or assumption of any labor contract. The Employer took over the Hillsboro operation as a going business, making certain changes in operating procedures but retain- ing all or most of its personnel, including its manager, who became the Employer's branch manager at this location. At this time, the Grain Millers was the bargaining agent under the contract noted above 3 for a unit of all feed and seed production and maintenance employees at the Hillsboro operation; and the Employer told the Hillsboro manager to continue to operate under the contract until the Employer advised him to the contrary. However, the record is 3 See footnote 2 As stated, this contract is effective from November 1, 1937, to at least June 30, 1960 WESTERN FARMERS ASSOCIATION 341 not clear as to whether the Employer and the Grain Millers ever had any dealings under the contract. The Grain Millers' contract, covering employees at Hillsboro, does not by its terms provide for the unit placement of drivers. Moreover, the record fails to establish that the Grain Millers bargained with the Employer or Tualatin with respect to truckdrivers at this location. We therefore find, contrary to the Grain Millers' contention, that the bargaining history does not require a finding that the appropriate unit for employees at Hillsboro includes, in addition to other employees, feed truckdrivers, but excludes oil truckdrivers. Furthermore, apart from any considerations relating to the bargaining history, we see no reason why the appropriate unit at Hillsboro should include one type of driver, exclude another type, and make no disposition of the one or two remaining types. We therefore reject the Grain Millers' unit request. There remains for consideration the question whether there should be a single overall unit, as requested by the Joint Petitioners, or a unit of truckdrivers and a unit of other employees, as requested by the Employer and the Meat Cutters. A single overall unit is on its face appropriate at Hillsboro because it is coextensive with the Em- ployer's entire operations at that plant .4 However, the truckdrivers at the Hillsboro plant constitute a clearly identifiable and homoge- neous group of employees such as the Board has frequently found may constitute a separate appropriate unit, if they so desire.' Ac- cordingly, we shall direct that separate elections be conducted among the following voting groups at the Employer's Hillsboro, Oregon, farm supplies establishment, excluding from each group all office clerical employees, professional employees, guards, and supervisors as defined in the Act : (1) All employees, excluding truckdrivers. (2) All truckdrivers, including petroleum distribution drivers, the bulk-feed driver, the dry-freight driver, and the tanker driver, but excluding all other employees. If, in the elections hereinafter directed, a majority of the employees in each of the above voting groups vote for the same labor organiza- tion, both groups will be merged into a single overall unit, which, under the circumstances, we find to be appropriate. In the event that a majority in voting group (1) votes for one of the labor organiza- tions involved herein, and a majority in voting group (2) does not select any of these organizations, the employees in group (1) shall constitute an appropriate unit and may be represented by that labor organization, and those in group (2) shall remain unrepresented. However, if a majority of the employees in voting group (1) does 4 Lock Joint Pipe Co., 120 NLRB 1238. 5 National Fireworks Ordnance Corporation, 104 NLRB 792, 796. 577684-61--vol. 128-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not select any of the labor organizations involved herein, and a majority in voting group (2) votes for the Joint Petitioners or the Grain Millers,6 the latter group shall constitute an appropriate unit, and may be represented by that labor organization. The Regional Director is instructed to issue the appropriate certification or certi- fications in accordance with the outcome of the elections.7 [The Board dismissed the petition in Case No. 36-RC-1502.] [Text of Direction of Elections omitted from publication.] °As indicated above, the Meat Cutters does not wish to represent a separate unit of truckdrivers 'For the reasons indicated by the majority in Waikiki Baltmore, Inc, d/b/a The Waikiki Baltmore Hotel, 127 NLRB 82 , we have not provided for pooling of the votes in the elections directed herein. The Great Atlantic and Pacific Tea Company , Inc. and Local No. 442, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No. 10-RC-4610. July 27, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Lovic A. Brooks, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error 1 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 Leedom and Members' Bean and Fanning]. Upon the entire record in this case,2 the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. ' We believe it would have been better practice for a different hearing officer to have been assigned to this case, as the hearing officer had also acted as counsel for the General Counsel in a related case However, the failure of the hearing officer to disqualify him- sebf, in response to a motion by the Petitioner , did not in itself constitute prejudicial error, and there is no showing that the Petitioner was in fact prejudiced by the conduct of the hearing officer See International Longshoremen's and Warehousemen's Unwn, Local 8, et at ( General Ore, Inc ), 124 NLRB 626. 8 The Employer's motion that the Board take official notice of Case No 10-CAl254, a related case now before a Trial Examiner pending issuance of his Intermediate Report, is denied Although the Board may take official notice of its own proceedings , there is no showing that the record in that case contains anything relevant to the issues herein which is not in the instant record The Employer's posthearing motion to reopen the record is denied because it lacks sufficient specificity to establish that a further hearing is required with respect to the changes which have assertedly taken place since the hearing 128 NLRB No. 22.