Penick & Ford, Ltd., Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1949

86 N.L.R.B. 659 (N.L.R.B. 1949)

In the Matter Of PENICK & FORD, LTD., INC., EMPLOYER and UNITED
PACKINGHOUSE WORKERS OF AMERICA, CIO, PETITIONER
Case No. 15-RC-285.-Decided October 20, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Richard K.
Keenan, 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
Houston and Gray].
Upon the entire record in this case, the Board funds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certAin
employees of the Employer.
3. Food, Tobac,,o, Agricultural, and Allied Workers Union of
America, Local 3(9, CIO, the Intervenor herein, contends that its
collective bargaining agreement with the Employer, executed on
August 19, 1947, for a 2-year term, constitutes a bar to a present e1PC-
tion, because it was automatically renewed. upon failure to serve a
60-day notice in accordance with the terms of the contract. ThA
petition was filed on July 27, 1949.
The existing contract contains a maintenance of membership pro-
vision, although the Intervenors have not been certified as authorized
to make such provisions under the terms of Section 9 (e) of the Act.
The Intervenor contends that at the time of the execution of the
contract there was an oral agreement between the parties that the
union-security provision would not be enforced after 1 year. In ac-
cordance with the oral agreement, the Intervenor has not invoked
the union-security provision for approximately 1 year. We have held,
nevertheless, that the mere existence of such a provision acts as a
restraint upon those desiring to exercise their right to refrain from
86 N. L . R. B., No. 94. 659
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities guaranteed by Section 7 of the Act? Under these
circumstances, and without regard to any other considerations, we
find that the contract cannot serve as a bar to a present determination
of representatives.2
Accordingly, we find a question affecting commerce exists concern-
ing the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act: All production and maintenance employees at the Em-
ployer's corn and cane syrup processing plant at Harvey, Louisiana,
excluding all clerical employees, chemists, guards,3 and supervisors
of the grade of assistant foreman or higher, and all other supervisors
as defined by the Act.
DIRECTION OF ELECTION'
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer , an election by
secret ballot shall be conducted as early as possible , but not later than
30 days from the date of this Direction , under the direction and
supervision of the Regional Director for the Region in which this
case was heard , and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations , among the employees
I Matter of C. Hager d Sons Hinge Manufacturing Company, 80 N. L. R. B. 163 ; Lykens
Hosiery Mills, Inc., 82 N. L. R. B. 981. Hygrade Food Products Corporation, 85
N. L. R. B. 841.
2In its motion to dismiss, the Intervenor also challenges the showing of the Petitioner.
We have frequently held that the showing of interest is an administrative matter for
determination by the Board and is not subject to collateral attack. Matter of Stokely
Foods, Inc., 78 N. L. R. B. 842; Matter of O. D. Jennings & Company, 68 N. L. R. B. 516.
We therefore deny the Intervenor's motion to dismiss.
3 The Petitioner and Intervenor contend that the watchmen should be included in the
unit. The Employer takes no position on their unit placement.
Watchman A spends 84 percent of his time weighing, making out track reports, checking
cars, and directing switchmen as to the location of various cars in the plant. Only 16
percent of his time is spent in regular watchmen duties. Watchmen B, C, and D spend
65 percent of their time making regular rounds through the plant, and watch for fires
and leaks in storage tanks, and keep unauthorized persons out of the plant. The remain-
der of their time is spent doing the same work as other production and maintenance
employees. We find that Watchman A is not employed as a guard within the meaning of
the Act and he is deemed included in the unit of production and maintenance employees.
Inasmuch as Watchmen B, C, and D spend more than 50 percent of their time performing
regular watchman duties, we find that they are employed as guards and shall exclude them
from the unit. Matter of G. R. Ogletree, d/b/a Longhorn Sash and Door Company, 79
N. L. R. B. 1430; Matter of Marshall Manufacturing d Processing Company, 82 N. L. R. B.
959.
4 The name of the Intervenor is omitted from the ballot because of its failure to comply
with the requirements of Section 9 (f), (g), and (h) of the Act. In the event, however,
that it effects compliance within 2 weeks from the date of issuance of this Direction of
Election , the Regional Director is instructed to accord the Intervenor a place on the ballot
in the election directed herein.
PENICK & FORD, LTD., INC. 661
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been- discharged for cause and have not been rehired or re-
instated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by United Packinghouse Workers of America, CIO.
867351-50-vol, 86-43