Bob Tankersley Produce Co.

National Labor Relations Board - Board Decisions

May 3, 1950

89 N.L.R.B. 974 (N.L.R.B. 1950)

In the Matter. of BOB TANI'ERSLEY D/B/A BOB TANKERSLEY PRODUCE
COMPANY,' EMPLOYER .and CITRUS , CANNERY WORKERS AND FOOD
PROCESSORS LOCAL UNION 24473 , AFL, PETITIONER
Case No. 39-RC-173.-Decided May 3, 1950
DECISION
AND
DIRECTION OF ELECTION
-Upon a petition duly filed, a hearing was held before Benjamin E.
Cook, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.2
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-member panel [Chairman Herzog and Members
Houston and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is an individual proprietorship with his principal
office and a plant in Edcouch, Texas, where he is engaged in the fresh
produce packing and shipping business. During the 12 months prior
to April 4, 1950, the Employer processed and shipped merchandise
valued in excess of $2,000,000, approximately 90 percent of which
was shipped to points outside the State of Texas.
We find that the Employer is engaged in commerce within the mean-
ing of the Act.
2. The Petitioner is a labor organization which claims to represent
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion 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 all employees at the Edcouch, Texas, plant, exclud-
ing office and clerical employees, professional employees, guards,
' The name of the Employer appears as amended at the hearing.
2 We reject the Employer's contention that the Petitioner, at the time of hearing, did not
represent enough of the employees to justify an election. We have repeatedly held that
the substantiality of the showing of interest is a matter for administrative determination
and is not subject to direct or collateral attack. California Consumers Corporation, 82
NLRB 484.
89 NLRB No. 130.
974
BOB TANKERSLEY PRODUCE COMPANY 975
watchmen,3 and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5. The Employer is engaged in a seasonal business. The season
extends from the last of October to May of each year. Peak employ-
ment numbers about 140 employees, but during the off-season only
the office manager remains at work in the plant.
We believe that an election in seasonal industries should ordinarily
be held at or near the peak of employment in order that the franchise
be made available to the employees most interested in the selection of
a bargaining representative.4 If the Regional Director finds that a
representative number of employees will not be employed at any period
in the near future during which an election can be held, he may
properly defer the election.until at or about the peak of employment
during the next season. We shall therefore direct that the election
be held on a date to be determined by the Regional Director among
the employees in the appropriate unit who are employed during the
payroll period immediately preceding the date of issuance of the
Notice of Election.
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 for the Region in which ']its case arose, subject to the in-
structions set forth in paragraph 5, above, under the direction and
supervision of said Regional Director, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regulations,
among the employees in the unit found appropriate in paragraph 4,
above, who were employed during the payroll period immediately
preceding the date of issuance of the Notice of Election, including em-
ployees who did not work during said payroll period because they
A,,-ere ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented, for
purposes of collective bargaining, by Citrus, Cannery Workers and
Food Processors Local Union 24473, AFL.
,.' The record is not clear as to the duties of the two employees classified as watchmen,
Jim Tankersley and Ira Smyrl. However, the former is a brother and the latter a brother-
in-law of the Employer: we shall exclude them from the bargaining unit on the basis of
this relationship. Epp Furniture Co. et. al., 88 NLRB 125.
4 Texsun Citrus Exchange. 82 NLRB 540 ; Edgar F. Hurl' Company, 77 NLRE 7G2.