Arena-Norton Co.

National Labor Relations Board - Board Decisions

Jun 30, 1945

62 N.L.R.B. 1070 (N.L.R.B. 1945)

In the Matter of ARENA-NORTON Co.; ARIZONA VEGETABLE DISTRIBU-
TORS; BURREL COLLINS ; COMER PRODUCE Co.; EATON FRUIT CO
FRANK FERNANDEZ ; S. A. GERRARD Co.; GOLDSBY-EVANS PRODUCF
Co. ;* WM. N. HEYMAN; FRED G. HILVERT Co.; HOLMES FARMS,
ISABELL-HARTNER CO.; JOHNS & HAGIN; M. B. M. FARMS; L. T
MALONEY CO.; MCELROY-BRICKEY & GURREN ; H. B. NICKELL,*
JOSEPH PALMISANO Co.; RICHMAN-,JUSTMAN-FRANKENT'HAL CO
SALINAS VALLEY VEGETABLE EXCHANGE; FLOYD N. SMITH CO.. LEO
C. SMITH CO.; STANLEY & MCDANIELS, TOLBY BROTHERS; VALLEI
PRODUCE DISTRIBUTORS; ZIETMAN PRODUCE Co. and FRESH FRUIT
AND VEGETABLE WORKERS UNION, LOCAL 78, FTA-CIO
Cases Nos . 21-R-2859 to 21-R-2884, inclusive .-Decided June 30, 1945
Messrs. Jennings, Salomon & Trask, by Mr. Riney B. Salmon, of Phoe-
nix, Ariz., for the Companies.
Messrs. Gladstein, Grossman, Sawyer & Ed jses, by Mr. Robert E. Treu-
haft, of Oakland, Calif. ; and Mr. Charles Law, of Phoenix, Ariz., for the
Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon 21 separate petitions filed by Fresh Fruit and Vegetable Workers
Union, Local 78, FTA-CIO, herein called the Union, alleging that ques-
tions affecting commerce had arisen concerning the representation of
employees of Arena-Norton Co., Tolleson and Mesa. Arizona, Arizona
Vegetable Distributors, Tolleson, Arizona; Burrel Collins, Phoenix, Ari-
zona; Comer Produce Co., Tolleson and Mesa, Arizona; Eaton Fruit Co.,
Alhambra, Arizona ; Frank Fernandez, Alhambra, Arizona ; S. A. Gerrard
The names of these Companies have been corrected in accordance with evidence disclosed at
the hearing
62 N L R B, No. 133.
1070
ARENA-NORTON CO. 1071
Co., Tolleson and Mesa, Arizona; Goldsby-Evans Produce Co., Tolleson,
Arizona ; Wm. N. Heyman, Alhambra, Arizona ; Fred G. Hilvert Co.,
Campo and Tempe, Arizona ; Holmes Farms, Tolleson, Arizona ; Isabell-
Hartner Co., Mobest, Arizona; M. B. M. Farms, Tolleson, Arizona; L. T.
Maloney Co., Alhambra, Arizona; Joseph Palmisano Co., Tolleson, Ari-
zona ; R ichman-Dustman-Frankenthal Co., Tolleson, Arizona ; Salinas
Valley Vegetable Exchange, Tolleson, Arizona; Floyd N. Smith Co.,
Alhambra, Arizona ; Stanley & McDaniels, Tolleson, Arizona ; Tolby
Brothers, Tolleson, Arizona; and Valley Produce Distributors, Tolleson
and Tempe, Arizona, herein collectively called the Companies, the National
Labor Relations Board consolidated the cases by an order dated May 24,
1945,1 and provided for an appropriate hearing upon due notice before
George H. O'Brien, Trial Examiner. Said hearing was held at Phoenix,
Arizona, on June 6, 1945. The Companies and the Union appeared, partici-
pated, 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 Companies moved, on various occa-
sions, for a dismissal of the petitions. The Trial Examiner referred the
motions to dismiss to the Board for ruling. The motions are hereby denied.`
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 On June 15, 1945, a "motion" was filed with
the Board by the Companies urging, in effect, that the petitions be dis-
missed on the ground that the Board has no jurisdiction over the employees
involved herein. This motion, in effect, a repetition of the previous motions
to dismiss, is also denied.
Upon the entire record in the case, the Board makes the following
1 In addition , petitions affecting employees of Johns & Hagin, Phoenix, Arizona ( Case No. 21-R-
2871 ); McElroy-Brickey & Gurren, Tolleson , Arizona ( Case No 21-R-2874); H. B. Nickell, Tolle-
son, Arizona ( Case No. 21-R-2875 ); Leo C Smith Co., Alhambra , Arizona ( Case No. 21 -R-2880);
and Zietman Produce Co , Phoenix, Arizona ( Case No. 21-R-2884 ), were filed by the Union, and
these cases were covered by the order of consolidation . These cases are hereby severed from this
consolidated proceeding and continued before the Board
z In support of these motions , the Companies contended that ( a) no employer -employee relationship
existed either at the time of the filing of the petitions or at any subsequent time up to and including
the date of the hearing ; (b) the Union submitted no documentary evidence that it represented any
of the Companies ' melon packing employees , nor could it, since none had been employed either at the
time of the filing of the petitions or at the date of the hearing , and (c ) the employees whom the
Union seeks to represent are agricultural workers, and , therefore , not subject to the Board's juris-
diction. We are of the opinion that these contentions are without merit See Matter of George G
-lvi i ill, et at , 13 N L R Il 411, Matter of Alaska Salmon Indash y, Inc , 61 N L R B 1508,
Matter of Areana-Arorton Company, ct al, 60 N L R B 1166 and cases cited therein
s The Companies specifically objected to the admission into evidence of the petitions affecting
Areana-Norton Co and Burrell Collins on the ground that these Companies were not served with
proper copies thereof. Howevei, the Trial Examiner correctly overruled the objection , since all
petitions contained virtually the same allegations , the other 19 Companies weie served with correct
copies , all Companies were represented by the same counsel , and the difference between the copies
served upon these 2 Companies and the originals filed with the Board was relatively insignificant. It
is clear that these 2 Companies were in no way prejudiced.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANIES
In a prior proceeding, the Board found that all the Companies, except
for Tolby and Goldsby-Evans Produce Co., which were not parties thereto,
are engaged in commerce within the meaning of the Act.'
Tolby Brothers expects to engage between 30 to 40 workers during its
melon packing season, and to pack between 60 and 85 carloads of melons,
"probably every car loaded [to be] shipped outside the State of Arizona."
Goldsby-Evans Produce Co. expects to employ approximately 40 work-
ers and to "ship" between 200 and 300 carloads of melon's, 90 percent of
which "will be shipped out of the State of Arizona."
The record indicates that the melon packing season in the Salt River
Valley area, in which the Companies are - located, takes place between
June 20 and August 20 and that, during the 1944 melon season, ship-
ments of melons from this area consisted of 4,008 carloads of cantalopes,
62 carloads of mixed melons, and 1,188 carloads of honeydews, approxi-
mately 90 percent of which was shipped outside the State of Arizona.
In view of the foregoing, 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 Food and Vegetable Workers Uttiuri, Local 78, Food, Tobacco,
and Agriculture and Allied Workers Union of America, is a labor organ-
ization affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the Companies.
III. THE QUESTIONS CONCERNING REPRESENTATION
On April 30, 1945, the Union requested recognition from each of the
Companies involved herein as the representative of certain of its employees.
On May 11, 1945, counsel for all Companies refused this request in their
behalf. -
No documentary evidence of substantial interest among the employees
4 Matter of Areana -Norton Company , supra. There , the Board found that these Companies "are
engaged in the packing of lettuce , carrots, broccoli , chicory, and other vegetables , as well as melons,
in the Salt River Valley area of Arizona , and, during the various packing seasons , employ persons
for the purpose of handling , sorting, and packing," and that "more than 85 percent of all shipments
[of mixed vegetables] made by each Company was consigned to points outside the State of Arizona
The present record specifically indicated that ( a) Salinas Valley Vegetable Exchange , one of the
Companies involved in the prior proceeding , will employ approximately 50 workers , and anticipates
packing about 75 carloads of melons , all of which will be shipped outside the State of Arizona; (b)
Holmes Farms , also a party to the last proceeding , "will probably" employ about 15 workers, and
expects to ship between 50 and 75 carloads of melons "nearly or all of which will be shipped " outside
the State of Arizona ; and (c ) Fred G. Hilvert Co , which was also a party to the last proceeding,
expects to employ 80 workers to pack approximately 76,000 cantalopes , and a like number to pack
approximately 144,000 honeydews , all of which will be shipped outside the State of Arizona.
5 The cantalope packing season ends approximately July 20, and the honeydew and mixed melon
packing season terminates about August 20.
ARENA-NORTON CO. 1073
herein sought by the Union was introduced at the hearing. However, the
requirement of such evidence is an administrative matter, resting solely in
the Board's discretion. We are aware that, because of the nature of this
particular industry, it would have been difficult to adduce such evidence at
the customary time. We shall, however, as indicated in Section V, infra,
require that such evidence be submitted prior to the holding of the elections
hereinafter directed.
We find that questions affecting commerce have arisen concerning the
.representation of employees-of the Companies within the meaning of Sec-
tion,9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
Substantially in accordance with the agreement of the parties, we find
that all employees handling melons at each of the packing sheds of the
Companies, excluding clerical employees, watchmen, employees on a
monthly or yearly salary, officials, and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, constitute
units appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The melon packing employees sought by the Union are seasonal workers,
the majority of whom are similarly engaged in other areas, but who cus-
tomarily migrate to the Salt River Valley area when its melon packing
season commences, and the remainder of whom are persons presently
engaged in that area packing other commodities. As noted above, the
melon packing season in the Salt River Valley area takes place between
June 20 and August 20. Inasmuch as the season is of limited duration, it
is virtually impossible, during its short span, for a labor organization to
file petitions, submit documentary proof of representation at or before a
hearing, have the petitions fully processed in sufficient time for the holding
of representative elections, and, if certified, bargain collectively. Conse-
quently, we entertained the petitions herein and conducted the hearing prior
to the commencement of the melon packing season. Since, at that time,
the Companies' melon packers were not employed, the evidence of interest
among such future employees which was adduced was, at best, speculative.
Yet, we deem it essential that documentary evidence of substantial repre-
sentation be presented before we conduct elections, and, accordingly, we
shall direct that the questions concerning representation which have arisen
be resolved by separate elections by secret ballot to be held between June
20 and August 20, 1945, among the employees in the appropriate units set
forth in Section IV, supra, who are employed within an appropriate unit
on the day such unit is voted, subject to the limitations and additions set
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the Direction, provided, however, that, prior thereto, the Union
presents to the Regional Director or his duly authorized agent, documentary
proof of substantial representation among the employees in such unit.'
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 representatives
for the purposes of collective bargaining with Arena-Norton Co., Tolleson
and Mesa, Arizona ; Arizona Vegetable Distributors, Tolleson, Arizona,
Burrel Collins, Phoenix, Arizona; Coiner Produce Co., Tolleson and
Mesa, Arizona, Eaton Fruit Co., Alhambra, Arizona; Frank Fernandez,
Alhambra, Arizona; S. A. Gerrard Co, Tolleson and Mesa, Arizona,
Goldsby-Evans Produce Co., Tolleson, Arizona , Wm N. Heyman, Alham-
bra, Arizona; Fred'G. Hilvert Co, Campo and Tempe, Arizona, Holmes
Farms, Tolleson, Arizona; Isabell-Hartner Co., Mobest, Arizona; M. B. M.
Farms, Tolleson, Arizona ; L. T. Maloney Co , Alhambra, Arizona, Joseph
Palmisano Co., Tolleson, Arizona; Richman-Justman Frankenthal Co.,
Tolleson, Arizona; Salinas Valley Vegetable Exchange, Tolleson, Arizona,
Floyd N. Smith Co., Alhambra, Arizona, Stanley & McDaniels, Tolleson,
Arizona; Tolby Brothers, Tolleson, Arizona; and Valley Produce Dis-
tributors, Tolleson and Tempe, Arizona, separate elections by secret ballot
shall be held as early as possible between June 20 and August 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 the employees in the units found appropriate
in Section IV, above, who are employed within an appropriate unit on
the day such unit is voted, including employees who are not working
because they are 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, to determine whether or not they desire to be repre-
sented by Fresh,Fruit and Vegetable Workers Union, Local 78, FTA-CIO,
for the purposes of collective bargaining, provided, however, that, prior
to such election, documentary proof of substantial representation among
the employees in said unit is. presented by the above organization to the
Regional Director or his duly authorized agent.
CHAIRMAN MILLIS took no part in the consideration of the above Deci-
sion and Direction of Elections.
6 At the hearing evidence was adduced indicating that several of the Companies might not be
engaged in packing melons during the 1945 season If, of course , any Company is not so engaged,
no election affecting it will be held