Ballantine Produce Co., Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1949

81 N.L.R.B. 629 (N.L.R.B. 1949)

In the Matter of BALLANTINE PRODUCE CO., INC., EMPLOYER and DRIED
FRUIT, NUT PACKER'S, DEh YDRATOR'S AND WAREHOUSEMEN'S UNION
LOCAL 616, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L.,
PETITIONER
Case No. 20-RC-361.-Decided February 11, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. 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-man panel consisting of the undersigned Board
Members.*
Upon the entire reord in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find, in accord with the apparent agreement of the parties,
that the following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : All employees engaged in production at the Employer's
1 At the hearing and in its brief, the Employer questioned the adequacy of the Petitioner's
showing of interest in the light of the high turnover among its employees. It contends that
any current showing of interest should be measured against the total number of employees
who have worked at any time during its June to November season. We find no merit in
this contention. Matter of Dickson-Jenkins Manufacturing Co , 76 N. L R B 449 In any
event, we have repeatedly held the question of a Petitioner's showing of interest to be
administrative matter not open to collateral attack Matter of 0 D Jennings Co, 68
N L It. B 516. Matter of Binn's Passaic Iron cf Brass Found? y, 77 N L R B 380.
*Chairman Herzog and Members Reynolds and Gray.
81 N. L. R B., No. 110. 629
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sangar , California, packing shed, including packers, stampers,
graders, tally girls, fruit truckers, and fruit rustlers , but excluding
truck drivers,2 the contract boxer, and any helpers he employs, the
contract shipper or loader and any helpers he employs,3 watchmen,
clerical employees, and all supervisors as defined in the act.
5. The Employer's season usually begins on the first of June with
the packing of plums and ends sometime in November at the close
of the grape pack, after which the Employer's shed is closed until
the following June. Peak employment ordinarily is reached either at
the height of the plum pack, about the third week in June, or some time
in July, during the peach pack. These are also the periods during
which the greatest number of those employees who customarily re-
turn from year to year are on the Employer's pay roll. We believe,
therefore, that to hold the election during the peak of the tree fruit
pack will result in making the franchise available not only to the
greatest number of employees, but to those who have the greatest in-
terest in the selection of a bargaining representative. We shall direct
that the election be held at or about the peak of the tree fruit season
in June or July, on a date to be determined by the Regional Director,
among the employees in the appropriate unit who are employed dur-
ing the pay-roll period immediately preceding the date of the issu-
ance of Notice of Election by the Regional Director.
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 on a date to be selected by the Regional
Director, subject to the instructions set forth in paragraph 5, above,
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 Regula-
tions-Series 5, as amended, among the employees in the unit found
appropriate in paragraph numbered 4, above, who are employed dur-
ing the pay-roll period immediately preceding the date of the issuance
of Notice of Election by the Regional Director, including employees
who do not work during said pay-roll period because they are ill or
on vacation or temporarily laid off, but excluding those employees who
2 Truck drivers , who are employed by the growers and haul produce to the Employer's
shed, are not to be confused with fruit truckers, who move the produce about the shed in
hand trucks and work for the Employer . The latter are included.
3 The Employer's manager testified , without contradiction , that the contract boxer and
the contract shipper are independent contractors The record is otherwise silent as to
these two persons , whom the parties agreed to exclude.
BALLANTINE PRODUCE CO., INC. 631
thereafter quit or are discharged for cause and are not rehired or
reinstated prior to the date of the election , and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collec-
tive bargaining , by Dried Fruit , Nut Packer 's, Dehydrator's and Ware-
housemen 's Union Local 616, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America , A. F. L.