Aroostook Federation of Farmers, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1957

117 N.L.R.B. 31 (N.L.R.B. 1957)

AROOSTOOK FEDERATION OF FARMERS, INC. 31
also have the skills of a mechanic and may occasionally do mechanics'
work does not affect the basic dissimilarity in interests of the two
groups. Accordingly, we shall exclude the mechanics and servicemen
from the unit.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act:
All truckdrivers employed by Chemical Express and Cement Trans-
port, Inc., at their terminals in Maryneal, San Antonio, and El Paso,
Texas, excluding plant employees, office clerical employees, mechanics,
servicemen, other employees, guards, watchmen, and supervisors as
-defined in the Act.
5. If the Petitioners win the election, they will be certified jointly as
the - bargaining representative of the employees in the appropriate
unit. The Employer may then insist that the two unions in fact bar-
gain jointly for such employees as a single unit.'
[Text of Direction of Election omitted from publication.]
S Win. Cameron & Co., Inc., 98 NLRB 969, 973.
Aroostook Federation of Farmers , Inc. and Truck Drivers, Ware-
housemen and Helpers Union , Local #340, International Broth-
erhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, AFL-CIO, Petitioner. Case No. 1-RC-4039. Janu-
ary 9,1957
SECOND SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Board Decision and Direction of Election,' an election
by secret ballot was conducted on February 14, 1956, under the di-
-rection_ and supervision of the 'Regional Director for the First Region,
among the ' employees in the unit found appropriate for the purposes
of collective°bargaining. Thereafter a tally of ballots was furnished
the parties showing that, of 34 votes cast in the election, 8 were for
the Petitioner and 9 were for "no-union," with 17 votes being
challenged. On February 1-7, 1956, Petitioner filed timely objections
to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation of the challenges and objections,
and, on May 7, 1956, issued and duly served upon the parties his con-
solidated report on objections and challenged ballots, in which he
found that the objections failed to raise substantial and material issues
:1114 NLRB 538.
117' NLRB No. 12.
32 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD
with respect to conduct affecting the results of the, election, and recom-
mended that the Board overrule the objections. He further recom-
mended that the challenges to 16 of the 17 ballots be sustained and the
remaining ballot remain unopened inasmuch as it could not affect the
results of the election. In a-Supplemental Decision and Order dated
June 13, the Board adopted the Regional Director's recommenda-
tion that the objections to conduct affecting the results of the election
be overruled, but decided that Petitioner's exceptions with regard to
the challenged ballots raised substantial and material issues of fact
which could best be resolved by remanding the case for the taking of
testimony at a hearing.
On July 24 and 25, 1956, a hearing was held in Caribou, Maine,
before Louis Libbin, Trial Examiner. The Employer, the Petitioner,
and the General Counsel appeared and participated. Full opportunity
was afforded the parties to be heard, to examine and cross-examine
witnesses, to introduce evidence bearing on the issues, and to present
oral argument and briefs. Thereafter, on September 5, 1956, the
Trial Examiner issued and caused to be served upon the parties his
report and recommendations on challenged ballots, a copy of which
is attached hereto.3 The Trial Examiner found that four 4 of the
individuals involved had been discharged or had voluntarily quit their
employment prior to the eligibility date, and recommended that the
challenges to their ballots be sustained. He further found that seven 5
of the remaining challenged voters were laid-off employees, on the
eligibility date with a reasonable expectation of reemployment, and
recommended that the challenges to their ballots be overruled and
that their ballots be opened and counted. Thereafter, the Employer
filed timely exceptions to the Trial Examiner's report with a support-
ing brief 6 •
2115 NLRB 1538.
3 The Trial Examiner held that , as Petitioner put in issue only 11 of the challenged
ballots , Petitioner had, in effect , withdrawn its exceptions to the remaining 5 ballots on
which the Board had directed that hearing be held Accordingly , the Trial Examiner held
that these 5 challenged ballots were not before him for disposition. No exception was
-taken to this ruling and it is hereby affirmed.
4.James Lavine , Rene Moreau, Lawrence Morrow , and Ludger Nadeau.
6 Roland Gagnon , Charles E . Gould, Lewellyn Greiner,, William Leeman, Willie Moreau,
Thomas Ouellette , and Roy Sparks
6 Certain of , the Employer 's exceptions relate to inaccuracies in the Trial Examiner's
report. To the extent set forth below, we find merit in these exceptions. They do not,
however, materially affect the Trial Examiner 's findings and recommendations.
(1) In the second paragraph of the section of the report entitled "Introduction," the
finding that "The Employer contends that the challenged voters had been permanently
laid oft, -. . ." is amended to read "The Employer contends that the challenged voters
were discharged or voluntarily quit their employment, . . .
(2) In section C of his "Findings of'Fact," the finding in the first paragraph thereof
that "Actually , it did not arrive until March 21, 1956, and was installed and put into
operation on March 29 , 1956 , . ." is amended to read "Actually, the final shipment of
components did not arrive until March 21, 1956, and the mechanized system was not put
into operation until March 29, 1956, . . .
(3) In the next to last paragraph of the same section , the finding that "there was an
exceptional amount of heavy hauling of bagged fertilizer in April. . .." is amended to
AROOSTOOK FEDERATION OF FARMERS, INC. 33
• The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's report, the exceptions and briefs, and, upon the basis
of the entire record in this case, hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the modi-
fications noted below.
1. The Employer excepts to the Trial Examiner's denial of its
motion made at the hearing to dismiss the Petitioner's exceptions to
the Regional Director's recommendations with respect to 9 of the
challenged voters 7 on the ground that these 9 individuals were named
as discriminatees in a charge alleging a violation by the Employer
of Section 8 (a) (3) of the Act, filed by Petitioner on February 16,
1956, and dismissed by the Regional Director on May 2, 1956.8 The
Employer contends that the eligibility of these persons was therefore
not properly before the Trial Examiner and cites the Dura Steel
case 9 where the Board held that, in view of the Regional Director's
dismissal of a charge alleging the discriminatory discharge of the
challenged voter before the eligibility date, the Board would pre-
sume that her employment was terminated for nondiscriminatory
reasons, and that she was therefore ineligibile to vote. However, the
controlling issue in the case at bar is whether, on the eligibility date,
the employees in question had a reasonable expectancy of reemploy-
ment. The Regional Director's dismissal of the charge clearly does
not imply a finding adverse to Petitioner on this issue. Accordingly,
we find no merit in this exception.
2. The Employer excepts to the Trial Examiner's action in credit-
ing-the testimony of the Employer's plant superintendent on certain
critical.' points rather than that of the Employer's general manager.
However, we find no basis in the record for disturbing the Trial
Examiner's credibility findings.10
3. As stated above, the Trial Examiner found that Ludger Nadeau
had been discharged for cause prior to the eligibility date and that
Lawrence Morrow, Rene Moreau, and James Lavine had voluntarily
quit their employment prior to that date, and recommended that the
challenges to their ballots be sustained. As no exceptions have been
read "there was an exceptional amount of heavy hauling of bagged fertilizer by farmers
in March. .. .
(4) In the same section, the date "Msy 23. .. in the last paragraph thereof is
amended to read "March 23. . . .
(5) Under the heading "Employment summaries of the challenged voters," the date in
the last line of the second paragraph of the discussion relating to Roland Gagnon is
amentlied td read ". . . March 21, 1956 . . .
7 L. Greiner, R. Sparks, W. Moreau, L. Morrow, W. Leeman, D. Chamberlain, C. Gould,
R. Gagnon , and L. Nadeau.
8 Petitioner did not appeal the Regional Director' s dismissal of these charges.
9 Dura Steel Products Company, 111 NLRB 590.
10 Kent Plastics Corp., 107 NLRB 157
423784-57-vol 117--4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed with respect to the findings and recommendations of the Trial
Examiner as to these individuals, we adopt them and hereby sustain
the challenges to these ballots.
4. The Employer excepts to the Trial Examiner's finding that
Roland Gagnon was eligible to vote and to his recommendation that
the challenge to Gagnon's ballot be overruled. We find merit in this
exception. The record shows that on January 13, 1956, Gagnon took
leave from work to keep a dental appointment, after obtaining per-
mission from the Employer. However, it is clear that Gagnon
promised to report for work on the day following and that he did
not do so. In fact, Gagnon did not report for work again until-after
the mixing phase of the Employer's operations was completed on
January 21, 1956, at which time there was no longer any work avail-
able for him. Furthermore, there is no evidence that his continued
absence after January 13 was due to sickness or was authorized by
the Employer. We find, therefore, that Gagnon voluntarily quit
his employment on January 14, 1956, and was ineligible to vote in the
election. Accordingly, we shall also sustain the challenge to his
ballot.
5. As already stated, the Trial Examiner found that Gould, Grenier,
Leeman, Willie Moreau, Ouellette, and Sparks were laid off during
the eligibility period but had reasonable prospects of reemployment
at that time, and were therefore eligible to vote. Accordingly, he rec-
ommended that the challenges to their ballots be overruled and that
their ballots be opened and counted.
The Employer contends that these six employees were not laid off,
but were discharged before the eligibility date and that their reemploy-
ment was conditioned upon their applying for work as new employees
when work became available and upon their being selected from other
applicants on the basis of qualifications other than their previous
employment by the Employer.
We find no merit in these exceptions, as the record considered in
its entirety supports the findings and recommendations of the trial
Examiner with respect to the six individuals named above. We find,
in agreement with the Trial Examiner that, while the Employer gen-
erally did not seek out its former employees in filling vacancies, but
required them to apply for work, the Employer did give preference
to former employees as shown by the testimony of the Employer's
plant superintendent, by the employment histories of all the challenged
voters,ll and by the fact that the six last named employees were in
" Petitioner introduced the employment records of 16 challenged voters at the hearing.
.These records show that these employees have worked for the Employer from 3 to 18 years,
consecutively from 2 to 13 years. The employment histories of the 6 employees herein
found eligible to vote are as follows . Gould-4 years ' total employment , 2 consecutively ;
Greiner-5 years' total employment , 3 consecutively ; Leeman-14 years' total employ-
AROOSTOOK FEDERATION OF FARMERS, INC. 35
fact rehired shortly after the election during the Employer's next busy
,season. Under these circumstances, we find that these six employees,
on the basis of their past experience and the experience of other em-
ployees, had a reasonable expectancy of being rehired, if they so de-
sired, to fill any future vacancies during the approaching seasonal
recruiting period. Accordingly, we find, like the Trial Examiner and
for the reasons stated by him, that, although the foregoing six em-
ployees were laid off prior to the eligibility date and were not re-
-employed until after the election, these individuals had, during the
period of their layoff, a reasonable expectancy of reemployment and
were therefore eligible to vote in the election. We shall, therefore,
adopt the Trial Examiner's findings and recommendations as pertains
to these six employees, and we shall direct that their ballots be opened
and counted.
6. In our Supplemental Decision and Order, noted supra, we
adopted the Regional Director's recommendation that the challenge to
the ballot of Thomas E. Wright be overruled, but we refrained from
directing that this ballot be opened and counted until such time as we
could ascertain, as a result of the hearing in the present proceeding,
whether it could in fact affect the results of the election. As it now
appears that Wright's ballot may affect the results of this election, we
shall order that it be opened and counted with the other ballots.
[The, Board directed that the Regional Director for the First Re-
gion shall, pursuant to the Rules ,and Regulations of the Board, within
ten (10) days from the date of this direction, open and count the ballots
of Charles E. Gould, Lewellyn Grenier, William Leeman, Willie
Moreau, Thomas Ouellette, Roy Sparks, and Thomas E. Wright, and
thereafter prepare and cause to be served upon the parties a supple-
mental tally of ballots, and take such further steps as may be necessary
in accordance with the Board's Rules and Regulations.]
ment, 6 consecutively ; Willie Moreau-12 years' total employment , 10 consecutively ;
Thomas Ouellette-3 years' total employment , 2 consecutively ; Sparks-5 years' total em-
ployment, 5 consecutively.
,HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON
CHALLENGED BALLOTS
STATEMENT OF THE CASE
On February 14, 1956 , pursuant to the Decision and Direction of Election issued
by the National Labor Relations Board , herein - called the Board , an election by
secret ballot was conducted in the above -entitled matter under the direction and
supervision of the Regional Director for the First Region ( Boston , Massachusetts).
The tally of ballots, issued and served upon the parties, showed that of 34 votes
cast in -the election , 8 were for the Petitioner and 9 were for no union , with 17
votes being challenged.
As the challenged ballots were sufficient in number to affect the results of the
election , the Regional Director caused an investigation to be made and , on May 7,
1956, issued his report on challenged ballots, in which he recommended that the
Board sustain 16 of the 17 challenges , that the Board overrule the remaining
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenge to the ballot of Thomas E. Wright, that it was not necessary for a
determination of the election results to open and count this ballot, and that a
certification of results of election be issued. On May 18, 1956, Petitioner, filed
timely exceptions to the Regional Director's report insofar as it recommended that
the Board sustain 16 of the 17 challenges.
Thereafter, the Board considered the Regional Director's report and the Peti-
tioner's exceptions In its Supplemental Decision and Order of June 13, 1956,
the Board found that "the exceptions raise substantial and material issues of fact
with respect to the challenges to the ballots of all 16 employees . . which may
be best resolved by remanding this case for hearing." In its order directing a
hearing, the Board directed that the hearing be conducted by a Trial Examiner to be
designated by the Chief Trial Examiner and further directed that the Trial Examiner
so designated "shall prepare and cause to be served upon the parties a report
containing resolutions of the credibility of the witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of the 16 challenged ballots.",
Pursuant to notice, and in conformity with the aforesaid order, a hearing was
held at Caribou, Maine, on July 24 and 25, 1956, before me, a Trial Examiner duly
designated by the Chief Trial Examiner as the Hearing Officer to conduct the
hearing on the issues raised by the challenged ballots. All parties to this proceeding
,appeared, were represented by counsel, and were afforded opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. After the close of the hearing, counsel for the Petitioner and the Employer
filed briefs, which I have fully considered. Upon the entire record in the case,
and from my observation of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
A. Introduction
The appropriate unit in which the Board directed the election ' consists of all
production and maintenance employees , including shippers , laborers, and truck-
drivers, with ' the usual exclusions , at the Employer 's plants located in Caribou,iFort
Kent, and Sherman Station, Maine. The eligibility date was February 3, 1956, and
the election was held on February 14,.1956. The voters, whose challenged ballots
are involved in this proceeding, were all employed at the plant in Caribou,' Maine.
All of them had been separated from the Employer 's payroll prior to the eligibility
date. Eleven were reemployed on various dates within 2 months after the election.
Although the Petitioner had excepted to the Regional Director's report, sustaining
the challenges to all 16 ballots , and the Board had directed a hearing on the issues
raised by' Petitioner 's exceptions to the report with respect to the challenges to the
ballots of all 16 employees , in its brief submitted after the close of the hearing,
Petitioner directs itself only to the challenged ballots of 11 employees ' and requests
the Trial Examiner to find that the ballots of these 11 employees be opened and
counted . Under these circumstances , I construe the Petitioner's brief as tantamount
to a withdrawal of its exceptions to the Regional Director 's report sustaining the
challenges to the ballots of the remaining 5 employees , and find that only the
disposition of the challenges to the ballots of the 11 voters listed in footnote 2 are
before me.
At the hearing in this proceeding , the Petitioner introduced summaries of the
employment histories' of all challenged voters and rested its case. The Employer
called 2 witnesses , Patrick J. Sullivan, the Employer's general manager, and Albert
Hewitt, the superintendent of the Employer 's plant in Caribou , Maine. The Em-
ployer contends that the challenged voters had been permanently laid off , that as
of the eligibility and election dates they had no reasonable expectation of further
employment in the near future, that they therefore were not eligible to vote, and
that the challenges to their ballots should be sustained. The Petitioner contends
that on the material dates, all the 11 persons named in its brief and in footnote 2,
supra, had reasonable prospects for further employment with the Employer after
1 114 NLRB 538.
2 Roy Sparks, William Moreau, Lawrence Morrow (sometimes referred to as Moreau),
Charles E Gould, William Leeman, Rene Moreau, Lewellyn Grenier, Roland Gagnon, James
Lavine, Thomas Ouellette, and Ludger Nadeau.
3 The Petitioner and the Employer stipulated that these are accurate summaries of the
Employer's employment records and payroll accounts.
AROOSTOOK FEDERATION OF FARMERS, INC. 37
the election, that they therefore were eligible to vote, that the challenges to their
ballots should be overruled, and that their ballots should be opened and counted.
B. The Employer's operations generally
The Employer is a Maine cooperative corporation, engaged in the manufacture of
fertilizer and pesticides, and in the sale of these products to shareholder-farmers
and other farmers in the potato growing industry in Aroostook and Penobscot Coun-
ties, Maine. Its factory at Caribou, Maine, is devoted to the unloading of raw ma-
terials, mixing of fertilizes, curing of mixed fertilizer, bagging of cured fertilizer, and
delivery of bagged fertilizer to customers at the plant. The plant consists of a wooden
structure about 590 x 60 feet, divided into sections or buildings as follows: building
A, constructed during the period from August to December 1955, where the fertilizer
which has been mixed is stored for a period of from 8 to 10 weeks for curing (this
building has a capacity of about 2,000 tons); building #1 where the fertilizer is
bagged and which also has a storage capacity of from 1,200-1,300 tons for curing;
building #2 where the fertilizer is mixed and where the raw materials are stored;
building #3 which is identical with building #1; building #4 where miscellaneous
material and some pesticides are stored; and building #5 which is devoted to the
handling of pesticides.
In its fertilizer operations, the Employer employs, in the appropriate unit, laborers,
weighers, trimmers, sewers, baggers, and handymen who do general maintenance
work. The Employer's payroll fluctuates primarily because of the seasonal nature
of its business? Peak employment is normally attained in the latter part of May and
early part of June, the period during which the rate of hauling by customer farmers is at
its highest. The rate of hauling picks up in March and reaches its peak in the last
2 weeks in May and first or second week of June. The lowest payroll period is
during the potato digging season, from the middle of September to about the middle
of October, when the potatoes are harvested and the employees leave to pick potatoes.
At that time the payroll gets down to 2 to 4 men, who do cleanup and repair and
maintenance work. The Employer usually begins mixing fertilizer in July and mixes
to fill curing storage capacity, although sometimes it mixes in August and Sep-
tember. The mixing usually begins again at the end of the potato harvesting season as
soon as enough men can be hired to commence operations. Mixing continues from
then until December to fill up the available storage room with fertilizer for curing.
During that period the Employer also bags any previously mixed fertilizer which
had already been cured.
C. The Employer's 1955-56 operations
On July 18, 1955, Manager Sullivan was authorized to purchase a mechanized
batching system which would considerably reduce the number of employees required
in the fertilizer operations .5 This mechanized system was ordered in August 1955
and was expected to arrive in September and to be put in operation shortly thereafter.
Actually, it did not arrive until March 21, 1956, and was installed and put into
operation on March 29, 1956.
As previously stated, the Employer usually begins mixing fertilizer in July and
August. However, when no mixing is done in July and August, the Employer
starts mixing as soon as it has enough men available after the potato digging season.
In 1955, no mixing was done from July until December 16. This was due to the fol-
lowing factors: (1) The delay in the arrival of the new mechanized batching system;
(2) construction of building A, with a capacity for storing 2,000 tons of fertilizer
for curing, was begun in August and was not completed until December; (3) in
digging .the foundations for the new building' in September, there was a collapse
of the wall, together with the head of the conveyor and motor needed for curing
fertilizer, in building #1 where the bagging operations were performed and where
from 1,200-1,300 tons of fertilizer were stored for curing, with the result that no
mixing could be performed until the completion of the new wall; and (4) alterations
' Contributing factors to the payroll fluctuation are employee absenteeism and the fact
that sometimes mixing and bagging or shipping and bagging are performed at the same
time.
s Nor ,example, under the old system, about 26 men constituted an average mixing crew,
about 6 men constituted a crew for the unloading of a boxcar, and about 6 men constituted
an average crew of weighers , trimmers , and sewers . Under the new mechanized system,
it was estimated that the mixing crew would be reduced to about 6; the unloading to 1 ;
and the weighing , bagging, and sewing to 2.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the new mechanized system also had to be performed from August to December
in building #2, where the fertilizer is mixed.
The Employer began mixing fertilizer on December 16, 1955, and continued until
January 21, 1956. During that period the Employer mixed 7,700 tons, which filled
all storage capacity for the 8-10 week curing period. The Employer's payroll for
the week ending December 9, 1955, contained 11 production and maintenance em-
ployees. This number increased with the commencement of mixing operations
until a peak of 51 was reached for the week ending January 13, 1956. Beginning
with the middle of January the Employer laid off a large number of production
and maintenance employees, including practically all of the challenged voters, because
the mixing operations ceased on January 21. By the week ending February 3, 1956,
the eligibility date, the payroll was reduced to 10 and remained at that figure through
the week ending February 24, 1956. The election was held on February 14, 1956.
The Employer expected to start mixing again in April. Manager Sullivan testified
that at the time of the election, he estimated that only about 6 additional production
and maintenance employees, making a total of 16, would be needed for the Em-
ployer's operations through the ensuing season, that is, through the end of May or
the first part of June. His estimate was based upon an expectation of having the
new mechanized batching system installed soon. However, Plant Superintendent
Hewitt testified that at the time of the election he estimated that under the new
hatching system a total of 21 production and maintenance employees would be needed,
thus leaving an additional 11 to be employed. He testified that he arrived at this
figure on the basis of his estimate that under the mechanization system, a crew of 6
could do the mixing, 1 man could do the unloading, and about 14 men could do the
bagging and shipping. As general manager, Sullivan's duties were to contract for the
raw materials, make up the formulas for the different mixtures of fertilizer, manage
the sale force, set the price of the fertilizer, design any changes in equipment, and to
decide what the changes or new equipment should be. He had nothing to do with the
plant personnel or the actual operations of the factory. On the other hand, Hewitt,
who had been plant superintendent for 9 years, did all the hiring and firing, without
consulting Sullivan, and was in charge of supervising the entire plant operations, in-
cluding the mixing, bagging, unloading, and shipping. He was therefore in a much
better position to arrive at a more accurate estimate of the number of men needed
to carry on the operations through the next season . He also impressed me as an
honest and sincere witness, with a willingness to testify to the true facts regardless of
whether they might be regarded as favorable to the Employer's position.° Sullivan,
on the other hand, impressed me as tending to exaggerate and color his testimony a
little in favor of the Employer's position. Under all the circumstances, I credit and
accept Hewitt's testimony as to the Employer's true estimate, on the date of the
election, of the number of employees it anticipated hiring through the season ending
the following May or June. I find that as of the eligibility and election dates, the
Employer expected to hire 11 production and maintenance employees, in addition to
the 10 already on its payroll, for the operation to be performed during the ensuing
season.
As it turned out, 22, instead of 11, additional employees were hired by the time
operations reached its peak during the week ending May 13, 1956, making a peak
total of 32. The reason why the Employer employed more men than had been
anticipated was because there was an exceptional amount of heavy hauling of bagged
fertilizer by farmers in April, a factor which had not been anticipated at the time
of the election, and because the new batching system was not delivered until March 21
and not put into operations until March 29. As a result of the unprecedented heavy
hauling in March, the Employer realized that it was much behind in mixing for cured
storage space. The Employer began mixing in April and continued to June 4; it
also had to mix and ship simultaneously during April and the first week in May.
Thus, the payroll reached 28 by the week ending April 1 and, with minor fluctuations,
attained a peak of 32 in the week ending May 13. Thereafter, the payroll began to
decline and dropped to 6 during the first part of June when the mixing ended.
6 For example, although Hewitt heard Sullivan testify that in hiring employees no spe-
cial consideration is given to applicants with previous experience with the Employer, and
that a former employee would not have any more experience than a new applicant, Hewitt
subsequenly testified that the fact that an applicant had previously worked for the Em-
ployer would help him in being reemployed ; that, all things being equal , he would give
preference to an applicant who was a former employee; that the longer a man worked for
the Employer , the more skilled he was likely to be ; and that skill was a factor considered
by him in hiring an applicant.
AROOSTOOK FEDERATION OF FARMERS, INC. 39
Of the 11 challenged voters in issue, 5 7 were reemployed on March 9 ; 2 8 on March
16; 1,9 on March 21; 1 10 on May 23; 1 11 on April 6 ; and 1 12 on May 4.
D. The Employer 's employment practices
There has been no general practice of recalling former employees when manpower
is needed . The work force is staffed from applicants who apply and are hired as
needed . Employees who are laid off at the end of a seasonal phase are rehired at
the next seasonal phase if they apply when workers are needed . Sullivan admitted
that the Employer had never formulated any policy of insisting that men would be
hired only if they applied or any policy against going out and asking men to return
to work if the Employer needed them . Caribou is a small community and word gets
around from the men already at work that the Employer is about to hire. Moreover,
former employees are aware of the seasonal periods and know from previous ex-
perience when to apply for work . As a result, the Employer has generally had an
adequate labor force applying for work so that there was no need to resort to recalling
former employees . On occasions , applicants who were not needed when they applied
would be informed that they would be notified when needed , and the Employer
would send word out to them when the time came that they were needed. This
happened after the election with respect to two of the challenged voters, Charles
Gould and Lewellyn Grenier.
Although no seniority or former-employee lists are maintained , Hewitt, who was
in sole charge of the hiring and firing at Caribou , admitted that the fact that an
applicant had previously worked for the Employer "does help" the applicant in getting
hired , and that , all things being equal between 2 applicants , preference would be
accorded to the former employee, if only 1 were needed. In hiring applicants,
Hewitt , considered three factors-dependability, competency , and skill . He further
admitted that the longer an applicant had previously worked for the Employer, the
more skilled he was likely to be. The sewers , trimmers, weighers , and handymen
receive a higher rate of pay because their work is regarded as more skilled. If
Hewitt needed a sewer , trimmer, weigher, or handyman, he would hire an applicant
who had previously performed that work . Even in hiring a laborer, he would give
preference to an applicant who also had experience in trimming , sewing, weighing,
or work of a handyman.
Hewitt himself makes the selection of employees for layoff when work declines.
In arriving at his selection , he considers their willingness to cooperate , competency,
dependability , and, in some cases, also whether the employee had worked for the
Employer in previous years. Sewers, trimmers, weighers , and handymen would be
the last to be laid off if their skills were still required . When an employee stays out
of work because of illness and has notified the Employer of that fact , he is neverthe-
less listed on the Employer 's records as having quit voluntarily . However, when
that man recovers and reports for work , he is reemployed if work is available for him
at that time.
E. Employment summaries of the challenged voters
Ludger Nadeau : He had been employed by the Employer every year since 1936,
except in 1939 . He worked as a laborer , trimmer, and weigher . His last hiring
prior to the election was in the week ending November 4, 1955 . He then worked
steadily until January 20, 1956.
Nadeau was discharged on January 20, 1956 , because of continued embarrassment
which he had caused the Employer by his pay being garnisheed and by creditors
coming to the plant to see him . When his pay was garnisheed on January 13, Hewitt
told Nadeau to see if he could not avoid all the unpleasantness he was causing
management . Nadeau promised to do so and took time out to clear up his affairs.
However, when his pay was garnisheed again on January 20, he was discharged.
Nadeau persistently applied for work after the election . Hewitt told him that
he could not be considered because of his past conduct . Nadeau persisted in his
efforts to obtain reemployment and was finally rehired on May 4 , 1956 , after assur-
ing Hewitt that he had cleared up his financial affairs. Hewitt testified that at the
time he needed a trimmer and hired Nadeau because he had also had experience
as a weigher.
4 William Moreau, Roy Sparks , Charles E . Gould, Rene Moreau, and James Lavine.
8 Lewellyn Grenier and Lawrence Morrow.
6 Roland Gagnon.
10 Thomas Ouellette.
William Leeman.
32 Ludger Nadeau.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawrence Morrow: He had worked for the Employer every year since 1944.
Prior to that time, he had worked in the years 1936-37 and 1941-42. He was em-
ployed as a handyman and weigher.
His last hiring prior to the election was in the week ending January 13, 1956,
from which time he worked until January 20 when he quit voluntarily. After the
election he was reemployed on March 16, 1956.
Rene Moreau: He worked for the Employer every year since 1950. Prior to
that time, he worked'in the years 1944-46. He was employed as a weigher.
His last hiring prior to the election was in the week ending August 26, 1955, from
which time he worked until September 2, 1955, when he voluntarily quit. After
the election, he was rehired when he applied on March 9, 1956.
Roland Gagnon: He worked for the Employer every year since 1939, except in
1946 and 1948. His last hiring prior to the election was in the week ending No-
vember 11, 1955, from which time he worked steadily until January 13, 1956.
On January 12, 1956, Gagnon had received permission to stay out the next day
because he had to take care of his teeth. As previously noted, an employee who
stays out of work, after notifying the Employer of his illness, is nevertheless carried
on the Employer's records as a voluntary quit and is reemployed when he recovers
if work is available for him. Gagnon was thus listed on the Employer's records as
having voluntarily quit on January 13. Gagnon did not return until about a week
later, at which time no work was available because the mixing phase had come to
an end. Gagnon applied for work after the election and was reemployed on January
21, 1956.
Willie Moreau: He worked for the Employer every year since 1944 and was
employed as a laborer. In 1956 he was laid off on January 12 when work was de-
clining because the mixing phase was coming to an end. After the election, he was
reemployed on March 9, 1956.
Roy Sparks: He worked for the Employer every year since 1952 and was em-
ployed as a laborer. In 1956 he was laid off on January 12 when work was declining
because the mixing phase was coming to an end. After the election he applied for
work on March 9, 1956, when he was reemployed.
Lewellyn Grenier: He worked for the Employer every year since 1954 and in the
years 1947 and 1950, and was employed as a laborer. Prior to the election, his last
hiring was on November 11, 1955, from which time he worked steadily until January
12, 1956, when he was laid off for lack of work because the mixing phase was
coming to an end. No work was available for him at the time when he applied after
the election but Hewitt told him he would be considered when there was need for
him. He was reemployed on March 16, 1956, after Hewitt had seen Grenier at the
latter's home and hold him to come in to work.
William Leeman: He worked for the Employer every year since 1940, with the
exception of 1944, and was employed as a weigher in the bagging unit. In 1956 he
was laid off on January 20 when work was no longer available because the mixing
phase had ended. After the election, he applied for work on April 6, 1956, when
he was reemployed.
Charles E. Gould: He worked for the Employer every year since 1952, with the
exception of 1954, and was employed as a laborer. In 1956 he was laid off on
January 21 when the mixing phase ended. No work was availaible for him at the time
when he applied after the election but Hewitt promised to get word to him through
his landlord; who was working for the Employer, when he would be needed. Hewitt
later informed the landlord to tell Gould that he would be needed beginning with
March 9, 1956, when he was reemployed.
Thomas Ouellette: He worked for the Employer in the years 1948, 1955, and
1956, and was employed as a laborer. His last hiring prior to the election was in
the week ending November 18, 1955, after which he worked steadily until January
21, 1956, when he was laid off for lack of work because the mixing phase had ended.
After the election, he applied for work and was reemployed on March 23.
James Lavine: He worked for the Employer in every year since 1947 and also,
in 1938. He was employed as a weigher and laborer. Prior to the election, he
last worked for the Employer from the week ending March 18, to June 10, 1955,
when he was laid off because the shipping season came to an end. He did not work
for the Employer during the mixing period of December 16, 1955, to January 21,
1956. After the election he applied for work and was reemployed on March 9, 1956.
F. Conclusions
At the hearing, Petitioner contended that the Employer refrained from mixing
fertilizer during the period from July to December 1955, as a subterfuge, and then
began mixing from December 16, 1955, to January 21, 1956, all for the deliberate
AROOSTOOK FEDERATION OF FARMERS, INC. 41
purpose of having the lowest possible employee complement at the anticipated
time-of the election and with full knowledge that they would be reemployed shortly
after the election. In other words, Petitioner contended that this was a deliberate
maneuver by the Employer to render ineligible to vote as many men as possible
who might be sympathetic to the Petitioner. This contention is no longer urged
by the Petitioner in its brief and presumably has been abandoned. In any event,
I reject the contention as lacking in merit and as being unsupported by the record.
As set forth in section C, supra, the Employer was motivated by legitimate considera-
tions in refraining from mixing fertilizer during the period from July to December
16, 1955.
It is well settled, as the Employer concedes in its brief, that the essential element
in determining eligibility to vote, is the status of the individual on the eligibility
date and the date of the election.13 If the individual has retained .his employee status
as of the election date, he is eligible to vote.
As previously found, Ludger Nadeau was discharged on January 20, 1956;
Lawrence Morrow and Rene Moreau voluntarily quit their employment on January
20, 1956, and August 25, 1955, respectively. Under these circumstances, I find
that as of February 14, 1956, the election date, Ludger Nadeau, Lawrence Morrow,
and Rene Moreau had not retained their employee status and hence were not
eligible to vote.
James Lavine was laid off at the end of the shipping season on June 10, 1955.
He did not work for the Employer during the next mixing period of December
16, 1955, to January 21, 1956. Assuming that Lavine retained his employee status
at the time of his layoff on June 10, 1955, I find that, by reason of his failure to
work during the next mixing period preceding the election he no longer retained
his employee status as of the election date, February 14, 1956, and hence was not
eligible to vote.
Willie Moreau, Roy Sparks, Lewellyn Grenier, William Leeman, Charles E.
Gould, and Thomas Ouellette were laid off in January 1956 when work was
declining because the mixing phase was coming to an end. Roland Gagnon had
been given permission to be off on January 13, 1956, because he had to take care
of his teeth. When he returned a week later, no more work was available because
the mixing phase had come to an end. I find that he thereupon became a laid-off
employee and acquired the same status as the six individuals named in this paragraph.
In resolving the question of whether a laid-off employee has lost or retained
his employee status as of the date of the election, the Board applies the "reasonable
expectation of further employment" standard. 14 In other words, if the seven indi-
viduals named in the preceding paragraph had a reasonable expectation, as of the
election date, of further employment in the near future, they were eligible to vote.
As previously found, .the Employer admitted that as of the election date it expected
to hire 11 additional employees through the ensuing season ending in May or
June.15 In view of this factor, and in the light of the Employer's employment
practices rand the employment histories of the 7 individuals involved, all as previ-
ously found in considerable detail, I am convinced and find on the basis of the
entire record that these 7 individuals did have a reasonable expectation of further
employment in the near future as of the election date. That they were in fact
reemployed in March and April after the election, tends to verify the correctness
of my finding in that regard. It accordingly follows, and I find, that Willie Moreau,
Roy Sparks, Lewellyn Grenier, William Leeman, Charles E. Gould, Thomas
Ouellette, and Roland Gagnon had retained their employee status as of the election
date and hence, were eligible to vote.
G. Recommendations
I recommend that the challenges to the ballots of Willie Moreau, Roy Sparks,
Lewellyn - Grenier, William Leeman, Charles E. Gould, Thomas Ouellette, and
Roland Gagnon be overruled and that their ballots be opened and counted. I
further recommend that the challenges to the ballots of Ludger Nadeau, Lawrence
Morrow, Rene Moreau, and James Lavine be sustained.1e
'- See , e. g., Whiting Corporation , 99 NLRB 117, 122-123 ; Shaw-Randall Company, Inc.,
116 NLRB 444.
'* See, e . g. Whiting Corporation, supra; Personal Products Corporation, 116 NLRB 393;
Sangamo Electric Company, 110 NLRB 1.
'L That the Employer actually hired more than that number, because of changed circum-
stances not foreseen at the time of the election, is not a relevant consideration.
16 In Its Supplemental Decision and Order, the Board reserved decision on whether
Wright's ballot should be opened and counted until it could ascertain , as a result of the
hearing herein , whether this ballot can affect the results of the election.