American Feed Co.

AMERICAN FEED COMPANY 321 Accordingly, we affirm the action of the Trial Examiner and sha111. dismiss the complaint. [The Board dismissed the complaint.] MEMBERS FANNING and KIMBALL took no part in the consideration. of the above Decision and Order. American Feed Company and Local 22, American Federation of Grain Millers, AFL-CIO, Petitioner. Case No. 2-RC-10857., October 10, 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 Haywood E. Banks, 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 Leedom and Members Rodgers and Jenkins]. Upon the entire record in this case, 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. The Petitioner contends that a contract between the Intervenor,, Local 210, International Brotherhood of Teamsters, Chauffeurs,. Drivers, Warehousemen and Helpers of America, and the Employer, executed on June 3, 1960 and due to expire on June 8, 1962, cannot bar an election because it contains a "hot cargo" clause proscribed by Sec- tion 8 (e) of the Act. The Intervenor asserts that the contract is a bar because (1) the inclusion of such clauses does not destroy the. effectiveness of contracts as bars to elections; (2) if the clause is, deemed an illegal "hot cargo" clause, the contract contains a savings. clause which cures the defect for contract-bar purposes; and (3) the clause is not a "hot cargo" clause. The clause in question provides in., pertinent part that : "There is hereby excluded from the job duties, course of employment or work of employees covered by this agreement, any work whatsoever in connection with the handling or performing. any service whatsoever on goods, products or materials coming from or going to the premises of an Employer where there is any contro- versy with a Union." A majority of the Board recently held that a contract which contains, a "hot cargo" clause violative of Section 8(e), like contracts which 129 NLRB No. 35. 586439- 61--vol. 129----'22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contain clauses in violation of Section 8(a) (3), is not a bar, and further held that it would not recognize a savings clause of the type here involved as curing the contract-bar defect.' Moreover, the Board has also ruled that clauses such as the one herein constitute "hot cargo" clauses 2 As the "hot cargo" clause in the contract asserted as a bar is violative of Section 8 (e), we find that the contract does not bar an election. Accordingly, we conclude that a question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. We find, in agreement with the parties, that the following unit is appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All production and maintenance employees at the Employer's plant in the Bronx, New York, excluding office clerical employees, guards, watchmen, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] i See Pilgrim Furniture Company, Inc., 128 NLRB 910 (Chairman Leedom and Member Fanning dissenting). Although Chairman Leedom dissented in Pilgrim and would have found the contract a bar because the "hot cargo" clause therein was executed at a time when Section 8(e) was not in effect, he reserved decision on the issue here presented, i e., whether "hot cargo" clauses executed after the effective date of the section destroy the effectiveness of contracts as bars. Chairman Leedom now joins the majority in Pilgrim on this issue. 2 See The Humko Co., Inc, 121 NLRB 1414. Hugh Major, d/b/a Hugh Major Truck Service and Floyd David Catterson, Elfred Alson Elledge, and Elwood M. Goble. Cases Nos. 14-CA-2230-1, 14-GA-2230-f2, and 14-CA-2230-4. October 10, 1960 DECISION AND ORDER On April 20, 1960, Trial Examiner Arnold Ordman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and brief, and the entire record in i 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 Leedom and Members Jenkins and Fanning]. 129 NLRB No. 40.