Areana-Norton Co.

National Labor Relations Board - Board Decisions

Mar 12, 1945

60 N.L.R.B. 1166 (N.L.R.B. 1945)

In the Matter of AREANA-NORTON Co.; ARIZONA VEGETABLE DISTRIBU-
TORS; BODINE PRODUCE Co.; COMER PRODUCE Co.; H. D . CONNER; E. E.
DAVIS Co.; EATON FRUIT Co.; FRANK FERNANDEZ; S. A. GERRARD CO.;
W. M. HEYMAN ; FRED G . HILVERT Co.; HOLMES FARMS ; ISABELL
HARTNER CO.; JOHN JACOBS FARMS ; MBM FARMS Co.; L. T. MALONE
CO.; MILLER-JONES CO.; JOSEPH PALMISANO CO.; 0. R. RECKER CO.;
RICHMAN-JUSTMAN-FRANKENTHAL CO.; SALINAS VALLEY VEGETABLE
EXCHANGE; FLOYD N. SMITH Co.; SMITH VEGETABLE CO.; STANLEY &
MCDANIELS; W. L. THOMPSON Co.; BURREL COLLINS; and VALLEY
PRODUCE DISTRIBUTORS and FRESH FRUIT AND -VEGETABLE WORKERS
UNION, LOCAL 78, FTA-CIO
Cases Nos. 21-R-2595 to 01-R-2620, inclusive, and 21-R-2636.-
Decided March 12, 1945
Messrs. Jennings and Salmon, by Mr. Reney B. Salmon, of Phoenix,
Ariz., for all the Companies except Stanley & McDaniels.'
Mr. Dixie Tiller, of Los Angeles, Calif., Mr. Charles Law, of Phoenix,
Ariz., and Gladstein, Grossman, Sawyer and Edises, of San Francisco,
Calif., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon 27 separate petitions filed by Fresh Fruit and Vegetable Work-
ers Union, Local 78, FTA-CIO, herein called the Union, alleging that
questions affecting commerce had arisen concerning the representation
of employees of Areana-Norton Co., Phoenix, Arizona; Arizona Vege-
table. Distributors, Phoenix, Arizona; Bodine Produce Co., Phoenix,
Arizona; Comer Produce Co., Phoenix, Arizona; H. D. Conner,
Phoenix, Arizona; E. E. Davis Co., Phoenix, Arizona; Eaton Fruit
Co., Phoenix, Arizona; Frank Fernandez, Phoenix, Arizona; S. A.
Gerrard Co., Phoenix, Arizona; W. M. Heyman, Phoenix, Arizona;
Fred G. Hilvert Co., Phoenix, Arizona; Holmes Farms, Phoenix,
I Stanley & McDaniels was not represented by counsel at the hearing.
60 N. L. R. B., No. 198.
1166
AREANA-NORTON CO. 1167
Arizona; Isabell Hartner Co., Phoenix, Arizona; John Jacobs Farms,
Phoenix,. Arizona; MBM Farms Co., Phoenix, Arizona; L. T. Malone
Co., Phoenix, Arizona; Miller-Jones Co., Phoenix,- Arizona;F Joseph
Palmisano Co., Phoenix, Arizona; 0. R. Recker Co., Phoenix, Arizona;
Richman-Justman-Frankenthal Co., Phoenix, Arizona; Salinas Valley
Vegetable Exchange, Phoenix, Arizona; Floyd N. Smith Co., Phoenix,
Arizona; Smith Vegetable Co., Phoenix, Arizona; Stanley & McDan-
iels,2 Phoenix, Arizona; W. L. Thompson Co., Phoenix, Arizona; Burrel
Collins, Phoenix, Arizona; and Valley Produce Distributors, Phoenix,
Arizona, herein collectively called the Companies, the National Labor
Relations Board consolidated the cases by an order dated February 8,
1945, and provided for an appropriate hearing upon due notice before
Charles M. Ryan, Trial Examiner. Said hearing was held at Phoenix,
Arizona, on February 15, 1945. The Companies, with the exception of
Stanley & McDaniels,3 and the Union appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. During the
course of the hearing, the Union moved that it be certified on the record
as the collective bargaining representative of the employees of each of
the Companies in the units which it proposes as appropriate. Also
during the course of the hearing, the Companies moved for a dismissal
of the petitions herein, contending, in substance, that (1) the employ-
ees involved herein are agricultural employees within the meaning of
the National Labor Relations Act, and (2) there is no evidence that the
Union represents "all of the employees of any of the employers repre-
sented in this proceeding with respect to the handling of any coin-
modity other than lettuce." The Trial Examiner referred both motions
to the Board for ruling. The motions are hereby denied.4 The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Companies are engaged in the packing of lettuce, carrots, broc-
coli, chicory, and other vegetables, as well as melons, in the Salt River
Valley area of Arizona, and, during the various packing seasons, em-
Y The name of this Company has been corrected in accordance with an amendment made
at the hearing.
8 The record indicates that this Company was duly served with Notice of Hearing
I With respect to (1), supra, we have previously held that packing employees such as
those involved in the instant consolidated proceeding are not agricultural laborers as
defined in Section 2 (3) of the Act See, e g, flatter of Allen and Sandilands Packing
Company, et al, 59 N L R B 724, and cases cited therein See also, Idaho Potato
Growers V. N. L R B, 144 F (2d) 295 (C C A 9), cert den 323 U S 769
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ploy persons for the purpose of handling, sorting, and packing. Be-
tween December 1, 1944, and January 20, 1945, each of the Companies
shipped vegetables ranging in amounts from 25 to 205 cars. More
than 85 percent of all shipments made by each Company was,con-
signed to points outside the State of Arizona.
We find that each of the Companies is engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Fresh Fruit and Vegetable Workers Union, Local 78, Food, To-
bacco and Agriculture and Allied Workers Union of America, is a
labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the Companies.
III. THE QUESTIONS CONCERNING REPRESENTATION
Each of the Companies refuses to recognize the Union as the col-
lective bargaining representative of certain of its employees in the
absence of certification by the Board.
The Union adduced testimony concerning the extent of its mem-
bership among the persons who work in the vegetable and fruit pack-
ing industry in the Salt River Valley area in which each of the Com-
panies conducts packing operations. This testimony indicates that
the Union represents a substantial number of those persons who are
or who will be employed by the Companies.5
We find that questions affecting commerce have arisen concerning
the representation of employees of the Companies within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TIIE APPROPRIATE UNITS; THE DETERMINATION OF REPRESENTATIVES
(a) Contentions of the parties
By virtue of separate collective bargaining agreements the Union
is currently recognized by each of the Companies, except MBM
Farms Co., as the representative of its lettuce packing employees. In
these proceedings, the Union seeks to represent in 27 separate units
all vegetable packing employees of MBM Farms Co., including watch-
5 The Companies , as hereinbefore noted, contend that the petitions should be dismissed
because the Union made no showing that it represented "all of the employees " of any of
the Companies involved herein,other than those engaged in the handling of lettuce The
Board ordinarily requires that a labor organization petitioning for a determination of
representatives present specific evidence of substantial , not entire , designation among the
employees nhom it seeks to represent , thus indicating that it is likely to be selected by such
employees as their representative The requirement of such preliminary evidence is solely
for the benefit of the Board in carrying out the purposes of the Act, and the absence of
such specific evidence does not constitute grounds for objection on the part of the employer
to an election held among the employees . See Matter of Allen and Sandilands Packing
Company, et al., supra.
AREANA-NORTON CO. 1169
men, and all vegetable packing employees of each of the remaining
Companies, including watchmen, but excluding lettuce packing em-
ployees. In addition, the Union would exclude from each unit sought
office and supervisory employees. MBM Farms Co. takes no position
with respect to the unit of its employees which is sought by the Union.
Each of the remaining Companies represented at the hearing 6 objects
to the proposed unit of its employees only insofar as the inclusion
of watchmen is concerned.
(b) The appropriate units of employees of each Company, except
MBM Farms Co.
The record indicates that watchmen are not engaged in packing
operations, and that their duties are confined to safeguarding the
packing shed in which each is employed. Inasmuch as they are not
packing employees, we shall exclude them.
In view of the foregoing, we find that all vegetable packing em-
ployees of each of the Companies, except MBM Farms Co., excluding
those engaged in packing lettuce, watchmen, and all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute 26 separate units appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act.'
(c) The determination of representatives of employees of all the
Companies, except MBM Farms Co.
As hereinbefore indicated, each of the Companies is engaged in
the packing of lettuce and other vegetables at various seasons of the
year. The fall lettuce season in the Salt River Valley area commences,
for. some of the Companies, in November, and for others, in December,
and lasts until January. The cauliflower, cabbage, and fall carrot
seasons appear, occasionally to overlap the lettuce season, but usually
start shortly after the lettuce season's conclusion, and run for several
weeks. The spring lettuce season commences in March and lasts ap-
proximately a month and a half. The spring carrot season starts to-
ward the latter part of the spring lettuce season and lasts through May
and perhaps part of June. Also toward the latter part of the spring
lettuce season, the chicory season commences, and, through June, July,
6 As hereinbefore noted, Stanley & McDaniels did not appear by counsel at the hearing.
Its position, therefore, is not indicated in the record.
7 Our finding in this respect is without prejudice to the entertainment of motions by the
Union, if successful in any of the elections hereinafter directed among employees of each
of the Companies except MBM Farms Co, to bargain collectively for the employees in the
units herein found to be appropriate4together with those employees of the Companies whom
it presently represents.
628563-45-vol 60-75
1170 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
and August, some of the Companies are engaged in packing melons
'of various types. Thus, it appears that there is frequent overlapping
of the various packing seasons in the Salt River Valley area, and, in
these instances, the record indicates that the Companies run more
than one commodity through their packing sheds.
However, the lettuce packing employees are by far the most numer-
ous of all packing workers.8 The ordinary lettuce worker spends
March and April in the Salt River Valley area during the spring lettuce
season, moving thereafter to the Salinas, California, area, until Novem-
ber when he returns to the Salt River Valley for the fall lettuce season.
Upon completion of this season, he travels to the Imperial Valley area
of California for February and March, and returns to the Salt River
Valley for the spring lettuce season. The record indicates that only
a relatively minor proportion of the lettuce packing workers in the
Salt River Valley area stays on for the mixed vegetable "deals," and
that the remainder of the packing workers employed for these "deals"
is recruited from among local residents.
The Union contends that elections should be conducted between
March 25 and April 10, 1945, on the ground that, during this period,
the packing sheds will be at peak employment. The Companies oppose
the holding of elections during this period, contending that'such elec-
tions would occur during the spring lettuce packing season, and,
therefore, would not be indicative of the desires of employees other
than lettuce workers. We find merit in the Companies' contention.
Accordingly, since the mixed vegetable season appears to occur be-
tween the end of March and the beginning of June, we shall direct that
the questions concerning representation which have arisen be resolved
by 26 separate elections by secret ballot to be held between May 1, 1945,
and June 20, 1945, among the employees in the appropriate units set
forth in Section IV (b), supra,.who are employed within an appro-
priate unit on the day such unit is voted, subject to the limitations. and
additions set forth in the Direction.9 _
(d) The appropriate unit of employees of MBM Farms Co.; the
determination of representatives
As hereinbefore noted, the Union seeks to represent all packing
employees of this Company, -excluding office and supervisory em-
ployees. In effect, the Union desires to represent two groups of
8 The record indicates that during the lettuce packing seasons there are between 2,200
and 2 , 500 employees engaged in packing operations in the Salt River Valley area, whereas
during the mixed vegetable packing seasons there are between 400 and 600 employees, and,
during the melon packing season, there are from 1 , 200 to 1,500 workers.
9 Employees who are engaged both in packing lettuce and mixed vegetables shall be
eligible to participate in these elections. '
AREANA-NORTON CO.
workers, the lettuce packers and the other vegetable packing em-
ployees, which may form separate units, or, with propriety, constitute
a single unit. We shall, therefore, make no final determination at this
time with respect to the appropriate unit or units, but shall reserve
such determination pending the outcome of elections hereinafter
directed. We shall direct that the question concerning representation
of employees of MBM Farms Co. be resolved by separate elections by
secret ballot to be held among the employees in each of the voting,
groups set forth below : Io
(1) All lettuce packing employees, excluding watchmen, oflice
employees, and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action; and
(2) All vegetable packing employees, excluding those engaged in
packing lettuce, watchmen, office employees, and all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect change in the status of employees, or effectively recom-
mend such action.
Upon the results of these elections will depend, in part, our deter-
mination of the appropriate unit or units of MBM Farm Co.'s
employees. However, since, as previously indicated, the employees
in each group work for the most part at different seasons in the year,
we shall direct that the election among the employees in group (1) be
held within 30 days from the date of the Direction of Elections herein,
among those employees in the group who were employed during the
pay-roll period immediately preceding the date of the Direction herein,
subject to the limitations and additions set forth therein; and we shall
further direct that the election among the employees in group (2) be
held between May 1, 1945, and June 20, 1945, among the employees in
this group who are employed on the day this group is voted, subject
to the limitations and additions set forth in the Direction."
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purpose of collecive bargaining with Areana -Norton Co.,
11 In conformance with our prior determination with respect to watchmen , we shall
exclude such employees.
11 Employees who are engaged both in packing lettuce and mixed vegetables shall be
eligible to participate in the election conducted among the employees in group (2).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phoenix, Arizona ; Arizona Vegetable Distributors , Phoenix , Arizona;
Bodine Produce Co., Phoenix ; Arizona; Comer Produce Co ., Phoenix,
Arizona; H. D. Conner , Phoenix, Arizona ; E. E. Davis Co ., Phoenix,
Arizona; Eaton Fruit Company , Phoenix, Arizona; Frank Fernandez,
Phoenix, Arizona ; S. A. Gerrard Co., Phoenix , Arizona; W. M.
Heyman, Phoenix, Arizona; Fred G. Hilvert Co., Phoenix , Arizona;
Holmes Farms , Phoenix, Arizona ; Isabell Hartner. Co., Phoenix,
Arizona; John Jacobs Farms , Phoenix, Arizona; MBM Farms Co.,
Phoenix, Arizona ; L. T. Malone Co., Phoenix , Arizona; Miller-Johns
Co., Phoenix , Arizona; Joseph Palmisano Co., Phoenix , Arizona; O. R.
Becker Co ., Phoenix , Arizona; Riclunan-Justman -Frankenthal Co.,
Phoenix, Arizona; Salinas Valley Vegetable Exhange, Phoenix, Ari-
zona; Floyd N. Smith Co., Phoenix, Arizona; Smith Vegetable Co.,
Phoenix, Arizona; Stanley & McDaniels, Phoenix, Arizona; W. L.
Thompson Co., Phoenix, Arizona; Burrel Collins , Phoenix, Arizona;
and Valley Produce Distributors , Phoenix, Arizona; 27 separate elec-
tions by secret ballot shall be conducted as early as possible between
May 1, 1945 , and June 20 , 1945, under the direction and supervision
of the Regional Director for the Twenty -first Region , acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among all vegetable packing employees of the afore -mentioned Com-
panies, excluding those engaged in packing lettuce, watchmen, office
employees , and all supervisory employees with authority to hire, pro-
mote, discharge , discipline , or otherwise effect changes in the status of
employees , or effectively recommend such action , who are employed
within an appropriate unit or voting group on the day such unit or
voting group is voted, including employees who are not working
because they are ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who
present themselves in person at the polls , to determine whether or not
they desire to be represented by Fresh Fruit and Vegetable Work-
ers Union , Local 78, FTA-CIO , affiliated with the Congress of Indus-
trial Organizations , for the purposes of collective bargaining; and
IT IS FURTHER DIRECTED that as part of the investigation to ascertain
representatives for the purposes of collective bargaining with MBM
Farms Co., Phoenix , Arizona, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction , under the direction and supervision of
the Regional Director for the Twenty-first Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
all` lettuce packing employees of the aforesaid Company, excluding
watchmen , office employees , and supervisory employees -with authority
to hire, promote , discharge , discipline , or otherwise effect changes in
AREANA-NORTON CO. 1173
the status of employees, or effectively recommend such action, who were
employed by this Company during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid "off, .and including employees -in the armed forces
of the United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause, and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by Fresh
Fruit and Vegetable Workers Union, Local 78, FTA-CIO, affiliated
with the Congress of Industrial Organizations, for the purposes of
collective, bargaining.