Bear Creek Orchards

National Labor Relations Board - Board Decisions

Oct 6, 1950

91 N.L.R.B. 713 (N.L.R.B. 1950)

In the Matter of BEAR CREEK ORCHARDS, EMPLOYER and TEAMSTERS,
CANNERY AND FRUIT PACKING WORKERS ' LOCAL 962-A, INTERNA-
TIONAL BROTHERHOOD OF' TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, PETITIONER
Case No. 36-RC-286
SECOND SUPPLEMENTAL DECISION AND DIRECTION
October 6, 1950
Pursuant to a Supplemental Decision and Direction of Election 1
issued herein on June 9, 1950, a second election by secret ballot among
employees of Bear Creek Orchards was conducted under the direc-
tion and supervision of the Regional Director for the Nineteenth
Region. At the conclusion of the balloting, a tally of ballots was
issued and served upon the parties hereto, in accordance with the
Rules and Regulations of the Board.
The tally shows that of the 69 ballots cast, 13 were cast for the
Petitioner, 26 were against the Petitioner, and 30 were challenged.
On July 12, 1950, the Petitioner protested the conduct of the election.
After an investigation the Regional Director issued a consolidated
report on objections and challenges. Thereafter, the Petitioner filed
objections to his report.
The Objections to the Conduct of the Election
The Petitioner objected to the conduct of the election and moved
that it be set aside on the grounds that it was improperly denied
the opportunity to challenge voters after they marked their ballots,
and that ineligible, seasonal, and part-time employees were allowed
to vote. We find no merit in either of these objections.
In Board elections it is customary to require that challenges be
made before voters receive and mark their ballots. We have hereto-
fore considered and rejected the Petitioner's argument that this pro-
cedure antagonizes challenged voters and thus interferes with em-
ployees' free selection of bargaining representatives.2 Experience
190 NLRB 286.
2 Burrows & Sanborn, Inc ., 84 NLRB 304.
91 NLRB No. 134. 713
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has proved that it is more practical in Board elections to require that
challenges be made before rather than after ballots are marked.
The Petitioner further contends that the Board agent who con-
ducted the election improperly disallowed a number of challenges
made after the voters had marked their ballots, and that as a con-
sequence ineligible employees were permitted to vote. In his report
the Regional Director does not indicate that any challenges were dis-
allowed. The Petitioner has set forth no specific instance of the
disallowance of such a challenge, and has offered no reason, other than
that set forth above, why it was not proper in this election to follow
the Board's customary practices and procedures. Under all the cir-
cumstances, we are satisfied that sufficient opportunity was afforded
the Petitioner to enter challenges to the ballots of voters in the election.
We find, therefore, that the Petitioner's objections do not raise sub-
stantial and material issues with respect to the conduct of the elec-
tion. Accordingly, the objections are overruled.
The Challenged Ballots
The Petitioner at the election challenged 30 ballots. The Peti-
tioner challenged the ballots of J. T. Allen, Edith Cline, Myrtle
Johnson, Charles Nelson, Robert Rudy, and Ollen Showwalter on
the grounds that these employees are supervisors. The Regional
Director recommended that the challenges to all of these ballots, ex-
cept those of Cline and Showwalter, be overruled, and that as to
these 2 the challenges be sustained. Because no exceptions have been
filed to the Regional Director's findings with respect to these 6
employees, we shall adopt his recommendation.
The Petitioner challenged the ballots of the following 24 employees
on the ground that none of them are nonseasonal employees within
the meaning of that term as used in the original Decision and Direc-
tion of Election herein : Mildred Bailey, Mae Beagle, Leda Bishop,
Viola Burton, Gladys Campbell, Donald L. Coffman, Lillian Ethel
Crook, Louella Fawcett, Laura Golsbuy, Norma Hagebusch, Mary
Hoffman, Gertie Hutton, Eppie Killingsworth, Jenette King, Elsie
Mowbray, Ina Myers, Myrtle Nelson, Esther Newton, Buma Nicks,
Alma Polk, Marcella Rice, Ruth Sheperd, Juanita Silvers, and Helen
Wetterer. in our original Decision and Direction of Election we
found that the Employer normally had 4 packing periods each
year, with the longer periods occurring in the last half of the year.
In his report on the challenges to the first election, the Regional Di-
rector concluded that "the season" consisted primarily of a period
of from 4 to 41/.2 months running from August to December. Accord-
BEAR CREEK ORCHARDS 715
ingly, in that report he generally considered working time during the
first half of the year 1949 as nonseasonal employment. The Union
took no exception to this finding concerning the nonseasonal period.
In his report on objections and challenges covering the second elec-
tion, the Regional Director concluded that a similar period in 1950
constituted the nonseasonal operations in that year. For the first
time, in its exceptions to his second report, the Petitioner apparently
contends that the first 6 months of the year contain the peak season of
the Employer's operations. As the Petitioner has not produced any
evidence in support of this contention, and as it is contrary to all the
evidence in the record, we must reject it.
We further conclude that the Regional Director, in determining
the eligibility of these challenged employees, did not act arbitrarily
in basing his findings upon the number of pay periods each employee
worked during the first 6 months of 1950 and the total number of
hours worked during that time. In our opinion it is clear that all
nonsupervisory employees who worked in more than half of the 26
pay periods in the first 6 months of 1950 are nonseasonal employees
within the meaning of our original Decision and Direction of Elec-
tion. Accordingly, we shall adopt the Regional Director's recom-
mendations, and order that the ballots of the following 19 named
employees be opened and counted : Mildred Bailey, Mae Beagle, Leda
Bishop, Viola Burton, Gladys Campbell, Lillian Ethel Crook, Lonella
Fawcett, Laura Golsbuy, Mary Hoffman, Gertie Hutton, Eppie Kill-
ingsworth, Jennette King, Elsie Mowbray, Myrtle Nelson, Esther
Newton, Buma Nicks, Alma Polk, Ruth Sheperd, and Helen Wetterer..
We shall make no determination at this time regarding the validity
of the ballots of the following named employees who worked in 13 or
less of the 26 pay periods in the first 6 months of 1950: Donald L.
Coffman, Norma Hagebusch, Ina Myers, Marcella Rice, and Juanita
Silvers. If, after a new tally of ballots is prepared, it is found that
the ballots of the last 5 named employees can effect the outcome of
the election, we shall then take further appropriate action with re-
spect to these challenges.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Bear Creek Orchards, Med-
ford, Oregon, the Regional Director for the Nineteenth Region shall,
pursuant to the National Labor Relations Board Rules and Regula-
tion, within ten (10) days from the date of this direction, open and
count the ballots of J. T. Allen, Myrtle Johnson, Charles Nelson,
Robert Rudy, Mildred Bailey, Mae Beagle, Ledo Bishop, Viola Burton,
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gladys Campbell, Lillian Ethel Crook, Louella Fawcett, Laura Gols-
buy, Mary Hoffman, Gertie Hutton, Eppie Killingsworth, Jennette
King, Elsie Mowbray, Myrtle Nelson, Esther Newton, Buma Nicks,
Alma Polk, Ruth Sheperd , and Helen Wetterer, and thereafter cause
to be served upon the parties a supplemental tally of ballots, in-
cluding therein the count of such challenged ballots.