Bob Saunders Co.

National Labor Relations Board - Board Decisions

Jul 1, 1957

118 N.L.R.B. 415 (N.L.R.B. 1957)

BOB SAUNDERS COMPANY 415
agents' manual, the Employer reserves and exercises the right to con-
trol many aspects of their relationship with it and :with its policy-
holders, actual and prospective, we find that the full-time and part-
time agents 5 are not independent contractors but are employees within
the meaning of Section 2 (3) of the Act.' Accordingly, we find that
a question affecting commerce, exists concerning the representation
of 'employees of the Employer within the meaning of Section 9 (c)
(1) and'Section 2 (6) and (7) of the Act.
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaningof Section 9 (b) of the-Act:
All insurance agents, including full-time and, part-time agents in
the western area of: the railroad department of the Employer, exclud-
ing all other employees and supervisors as defined in the Act.
'[Text of Direction of Election omitted froip publication.]
6 We find no merit in the Employer 's secondary contention that, in any event, its part-'
time agents . are ;not ,emglgy es, but independent contractors. The record contains no ev
,dence thatt " part time agents are treated differently from full -time agents, except that weekly,
activity reports are not required from them,"they do not devote ali oftheir't'ime to selling
insurance , and, they are . ineligible for participation in the Elnployer,'s. group insurance.
plan . These circumstances are not sufficient , in our opinion ,. to require a different con-
elusion as to their status.
6 See ,9ueet-Orr and Co., .Inc., .117 NLRB 798. We do not believe that the•isolated in
stance of the sale of an agency 5 years prior to the hearing herein is a significant factor,
:standing by itself, pointing to the existence of independent contractor status.
Bob Saunders, d/b/a Bob Saunders Company, Petitioner and
United Packinghouse Workers of America, Local 78, AFL-CIO.
Case No. 2O-RM413. July 1,1957
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
On January 4,' 19'57, pursuant to it Board Decision and Direction
,of. Election dated 'December' 27; 106,' an election was conducted
herein, under the direction and supervision of the Regional Director
for the 'Twentieth Region, among employees. in the unit heretofore
found :appropriate. Upon. the conOlusion of the balloting; a tally of
ballots was issued and served upon the parties in accordance with. the
Board's Rules' and Regulations.
The tally of ballots shows that there were approximately 65 eligible
voters; that 3 votes'were`cast for,' and 10 votes were cast against, the
Uflion; and that '68 ballots were challenged.
On January 9, 1957, the Union filed objections to the conduct of the
election and to conduct affecting the results of the election. There
after the 'Regional Director investigated the issues raised by the
challenged ballots and. the Union's objections; and, on March 15;
1 Not reported in printed volumes of Board Decisions and Orders.
118 NLRB No. 51.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1957, issued and duly served on the parties a report on challenged
ballots and objections. The Union and the Employer have filed ex-
ceptions to the latter report.
The Union's Objections to the Election
In its objections (1), (2), and (3), the Union contended, in sub-
stance, that an election should not. have been conducted herein because
there existed no question concerning representation, because at the
time of thet election unresolved unfair labor practice charges were
pending against the Employer, and because an unfair labor practice
strike was in progress on the date.of the election. As pointed out in
the Regional Director's report, the substance of these objections was
raised by the Union in the course of the earlier representation hearing
herein, and the issues were decided adversely to the Union in the
Board's Decision and Direction of Election. Moreover, the Regional
Director's report also points out that although at the time of the
election there was pending an appeal to the General Counsel in Case
No. 20-CA-1235 from the Regional Director's dismissal of the Union's
unfair labor practice charges against the Employer, the General.
Counsel, thereafter, on January 11, 1957, denied the Union's appeal.
In agreement with the Regional Director, we therefore find that on
the date of the election herein the strikers in question were economic
strikers.
The Union's exceptions relative to its objections (1), (2), and (3)
are for the most part only a reiteration of points previously disposed
of by the Board in its Decision and Direction of Election. In addi-
tion, the Union now asserts that the Regional Director did not con-
duct a "complete investigation" of the Union's charges in Case No.
20-CA-1235.' We refuse, however, to consider this, latter allegation
in this, a representation, proceeding. Accordingly, in agreement with
the Regional Director's recommendation, we hereby overrule ob-
jections (1), (2), and (3).
In its objection (4), the Union alleged that the Employer had
"padded" its payroll. The Regional Director found no merit to this
allegation. No exception having been filed to the Regional Director's
finding in this respect, objection (4) is hereby overruled.
In its objection (5), the Union alleged that before the election
herein, on or about December 31, 1956, the Employer announced and
made effective a wage increase. The Regional Director found in his
report that no wage increase was granted to employees on or about the
alleged date, or upon any other date material herein. In addition,
the Regional Director noted that the Union had withdrawn this por-
_2 In its exceptions , the Union asserts that on March 27 , 1957 , it filed a new charge
against the Eniployer , "re-alleging the violation of 8 (a ) ( 5)." It "suggests" that a hear-
ing be ordered by the Board on both its new charges and its exceptions herein. We see
no reason to adopt the "suggested" procedure.
BOB SAUNDERS COMPANY 417
tion of its objections. In its exceptions, the Union asserts that despite
the withdrawal of its objection, the Regional Director should have
found that a wage increase was granted employees "immediately
after" the period October 1 to 4, 1956, which allegedly interfered
with the employees' freedom of choice in the election. We find this
exception without merit. The Union having withdrawn its objection
in; the course of the Regional Director's investigation may not now
reassert the substance of this objection before the Board at this stage
of the proceeding. Moreover, the Board does not consider election
objections based upon alleged interference which occurs prior to the
issuance of a Decision and Direction of Election.' Accordingly, the
Union's objection (5) is hereby overruled.
The Challenged Ballots
The Union challenged the ballots of 39 voters on the ground that
these voters were hired during a strike and were temporary replace-
ments for striking employees. According to the Regional Director,
9 of these 39 voters were in fact hired before October 1956, the date on
which the strike began, and the parties agree that these 9 voters are
permanent employees. Neither party has excepted to the Regional
Director's recommendation that the ballots of these nine voters, whose
names appear on Appendix A attached hereto, be opened and counted.
Accordingly, we hereby overrule the challenges to their ballots.
As to the other 30 ballots challenged by the Union, the Regional
Director found that they were the ballots of employees hired between
October 3 and December 18, 1956, and that these employees were laid
off on January 10, 1957, when the Employer's packing season ended and
all its employees were laid off. The Regional Director further found
that the Employer had stated that the 30 employees in question will
be recalled when the Employer's 1957-58 season begins, and that, al-
though requested so to do, the Union had furnished no evidence to
indicate that these employees had been hired on a temporary basis.
Accordingly, the Regional Director recommended that the challenges
to their ballots be overruled.
In its exceptions, the Union criticizes the manner in which the Re-
gional Director conducted his investigation, repeats its contention
that the 30 employees hired during the October 3 to December 18
period are temporary employees; attacks the Employer's credibility
generally, and makes certain broad factual allegations which, accord-
ing to the Union, supports its contentions. However, the Union admits
that it does not have available "specific information with respect to
each of the alleged temporary replacements," and submits no substan-
tiating evidence, by affidavits or otherwise, to support its broad factual
3 F. W. Wooltoorth Co., 109 NLRB 1446, 1449.
450553-58--vol. 118-2.8
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations. Accordingly, we adopt the Regional Director's recom-
mendations, and find that the 30 employees whose names appear on
Appendix B attached hereto are permanent employees. The chal-
lenges to these ballots are hereby overruled.
The Employer challenged the ballots of 22 voters, whose names
appear on Appendix C attached hereto, on the ground that they were
economic strikers who had been permanently replaced. The Regional
Director noted the number of persons employed in the plant during
the course of the 1956-57 packing season, noted further that the "Em-
ployer has not taken the position that any strikers would be refused
employment during the 1957-58 season," and concluded that "under
the circumstances present in this case, including the seasonal nature
of the operations, the strikers may reasonably be viewed as occupy-
ing a status similar to temporarily laid off employees with a right to
reinstatement, whom the Board ordinarily permits to vote." Ac-
cordingly, the Regional Director recommended that the challenges
to the ballots of these employees be overruled.
We do not adopt the Regional Director's recommendation in this
respect. Section 9 (c) (3) of the Act states explicitly that "Employees
on strike who are not entitled to reinstatement shall not be eligible to
vote."' Under well-established principles, economic strikers lose their
right to reinstatement upon being replaced.4 The Regional Director
here appears to have superimposed upon this rule a distinction be-
tween economic strikers in a seasonal industry and economic strikers
in a nonseasonal industry. We, however, perceive nothing in the lan-
guage or intent of the Act to warrant the distinction. It is an irrele-
vant consideration, we think, that economic strikers in a seasonal in-
dustry who have actually been replaced by other employees may
conceivably be rehired during the next, or a subsequent, season.' For
whether the industry be seasonal or nonseasonal in nature, the narrow
issue that is presented in a case. of this sort is whether or not the
economic strikers have in fact been replaced.
Proceeding, as he did, upon an erroneous interpretation of the law,
the Regional Director did not squarely pass upon the narrow issue of
whether or not the economic strikers here involved had in fact been
permanently replaced. He cited no fact, however, which is incon-
sistent with the Employer's assertion that they had been replaced.'
4 N. L. R. B. Y. Mackay Radio & Telegraph Co., 304 U. S. 333; Kansas Milling Company v.
N. L. R. B., 185 F. 2d 413 (C. A. 10) ; The Pipe Machinery Company, 79 NLRB 1322; Mid-
west Screw Products Company , 86 NLRB 643.
5 See John TV. Thomas Co ., 111 NLRB 226 , 228-229; and Dura Steel Products Com-
pany, 111 NLRB 590, 592.
"The Regional Director cited certain statistics pertaining to the number of persons
employed by the Employer at various periods of its operations , and also bearing upon
the rate of employee turnover. The cited statistics, in our opinion , are susceptible of con-
flicting interpretations , and, therefore , lack probative value in resolving the instant factual
issue.
BOB SAUNDERS COMPANY 419
Moreover, a finding, which the Regional Director implicitly made,
that the 30 employees who were hired after the strike began were
permanent employees, is itself inconsistent with any notion that those
who remained on strike were not replaced. Accordingly, upon all the
facts before us, we find that the voters whose names appear on Appen-
-dix C attached hereto were in fact economic strikers who had been
permanently replaced, and the challenges to their ballots are hereby
sustained.
The Employer challenged the ballots of four voters on the ground
that they quit prior to the strike. As to these challenges, the Union has
not excepted to the Regional Director's recommendation that the chal-
lenges to the ballots of two of such voters, Connie Larez and Lucy
Melendrez, be sustained; and these challenges are accordingly hereby
sustained. In accordance with the Regional Director's recommenda-
tion, we shall not at this time resolve the issues pertaining to the ballots
of the other two of such voters, Bebe Larez and Lois Matasci.
The Employer challenged the ballot of Philip Torres on the ground
that he did not work in the packingshed during the 1956-57 season, and
hence was not within the unit. The Regional Director found that
Torres was an agricultural employee during the 1956-57 season, and
was actually offered employment in the Employer's shed, but refused
the transfer. The Union does not dispute the Regional Director's
factual finding, but contends that in the circumstances Torres, al-
though he refused the Employer's offer of transfer, became a striking
,employee. We find no merit in this contention, and the challenge to
Torres' ballot is hereby sustained.
The Employer also challenged the ballots of two striking persons,
Leonard Correa and Juana V. Ortega, on the ground that the jobs
they perform had been eliminated. As a conclusive election may
result from the opening of the ballots hereinafter directed, we shall
not at this time pass upon the issues raised by the challenges to the
ballots of Correa and Ortega.
We shall direct that in the event that the ballots of the voters whose
names appear on Appendix A and Appendix B give the Union a
majority of the valid votes cast, the Union be certified as the collective-
bargaining representative of the employees in the unit heretofore
found appropriate; we shall also direct that if the Union does not
receive a majority of the valid votes cast, the results of the election
be certified. If the election is not concluded in either such way, the
Board will, upon being so advised by the Regional Director, give
further consideration to the disposition of the challenged ballots not
ruled upon herein.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board directed that the Regional Director for the Twentieth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of the employees whose names appear on
Appendix A and Appendix B attached hereto, and serve upon the
parties a revised tally of ballots. If the Union receives a majority
of the valid votes cast in this election, the Regional Director shall
issue a certification of representatives; if the Union does not receive
a majority of the valid votes, the Regional Director shall issue a
certification of results of election. If the revised tally shows an
inconclusive result, the Regional Director is hereby directed to so
advise the Board, in order that the Board may proceed further in the
matter.
. [The Board ordered the above-entitled matter referred to the
Regional Director for the Twentieth Region for disposition.]
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con-
sideration of the above Supplemental Decision, Direction, and Order.
APPENDIX A
Berti, Margaret Godina, Salome Saunders, Floyd
Fellows, Fred Negroni, Dorothy Villalobos, Joe
Flores, Elfredo Sandez, Loreto Villalobos, Julia
APPENDIX B
Aquino, Benigno Caraccioli, Louie O'Connor, Bob
Arthurs, Cora May Ellis, Arzula . Rianda, Jim
Arvizu, Jose Fernandez, Gregorio Robledo, Lupe
Baldwin, Effie Fernandez, Kathalina Robledo, Mercy
Barlogi, Aurelia Garcia, Mary Rowe, Dick
Bassetti, John Garcia, Rubin Silastre. Margaret
Bendelle, Nora Handley, Jemiie Silastre, Rustice
Berti, Letitia McDowell, Henry Souza, Mary
Bianchi, Joe Muniz, Connie Teues, Connie
Bianchi, Ruby Ochinaug, Aurora Torres, Manuel
APPENDIX C
Abina, Aimeda Melendrez, Isabel Rodriguez, Enedina C.
Correa, Mary M. Melendrez, Maximo R. Rodriquez, Mercedes O.
Correa, Mike C. Mena, Alexia Rodriguez, Mike P.
Luna, Dolores Mena, Vincente Rodriguez, Robert P.
Luna, Mary Ortega, Fermina V. Torres, Maria P.
Macias, Eloisa V. Ramirez, Evangelina Villalobos, Frank
Marks, Cecilia Renteria, Jesus D. Villalobos, Petra
Marks, Eva