Case-Swayne Co., Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1974

209 N.L.R.B. 1069 (N.L.R.B. 1974)

CASE-SWAYNE CO., INC.
Case-Swayne Co., Inc. and Sales Drivers, Food
Processers, Warehousemen and Helpers Local 952,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case 21-RC-13170
April 4, 1974
DECISION AND DIRECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Regional Director on May 16, 1973,
an election by secret ballot was conducted on June
15, 1973, under the direction and supervision of the
Regional Director for Region 21 among the employ-
ees in the unit described below. At the conclusion of
the election, the parties were furnished a tally of
ballots which showed that of approximately 177
eligible voters, 165 cast ballots, of which 53 were for
and 45 against the Petitioner. There were 66
challenged ballots and 1 void ballot. The challenged
ballots are sufficient in number to affect the results
of the election. On June 21, 1973, the Petitioner filed
timely objections to the election.
The Acting Regional Director conducted an
investigation of the objections and challenged ballots
and thereafter, on January 2, 1974, issued and served
on the parties his Report on Challenged Ballots and
Objections. In his report, the Acting Regional
Director recommended that Petitioner's objections
be overruled in their entirety, that certain of the
challenges be sustained, that certain others be
overruled, and that the challenges to three ballots
presented substantial issues of fact which could best
be resolved in a hearing. Accordingly, he recom-
mended that such hearing be held if, after the
remaining ballots were counted, the three challenged
ballots would be sufficient to affect the results of the
election. Thereafter, the Employer filed timely
exceptions and a supporting brief. During the course
of the investigation the parties stipulated that the
challenges to eight employees be sustained because
they were first hired by the Employer after the
payroll eligibility date of May 20, 1973, and were not
eligible voters. L The parties also stipulated that
challenged voter Daniel C. Cordova is a supervisor.
Accordingly, the Acting Regional Director recom-
1 The names of those challenged voters are Yolanda Diaz, Carmen Fnas,
Josefina Garibay, Ramona Guardado, Alicia Ruiz, Concha Ulloa, Isodora
Velazquez, and Mana Villa.
2 In the absence of exceptions , we adopt proforma the recommendations
to overrule the objections. sustain the challenges to nine ballots based on the
1069
mended that the challenges to those ballots be
sustained.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees, warehousemen
and truckdrivers employed by the Employer at its
facilities located at 1661 East Palm Street and
1041 East Edinger Street, Santa Ana, California;
excluding all office clerical employees, timekeep-
ers, technical employees, professional employees,
guards, watchmen, and supervisors as defined in
the Act.
.
5. The Board has considered the objections, the
challenges, the Acting Regional Director's report,
and the Employer's exceptions and brief, and hereby
adopts the Hearing Officer's findings, conclusions,
and recommendations except as modified herein.2
The Employer operates a vegetable canning plant
in Santa Ana, California, at which white potatoes,
sweet potatoes, beans, and other products are
processed. A canning peak for sweet potatoes occurs
from mid-September through November and a
canning peak for white potatoes occurs from May
through June or into July. A large number of
employees work part time at the plant during these
two significant seasonal peak periods, and some also
work at other irregular times when the Employer
augments its production "on a less regular basis."
The Employer keeps a list of those individuals willing
to perform part-time work, which it uses during
periods referred to by the Acting Regional Director
as "augmented employment periods." Some persons
parties' stipulation, and to overrule the challenge to the ballot of Manuel
Aguilar We sustain the challenges to the ballots of Maria de Mane,
Mercedes Gonzalez, E Magdaleno, and Manuel Sanchez as, in our view,
the Employer's exceptions raise no material issues of fact or law
209 NLRB No. 160
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first employed during peak periods have subsequent-
ly been retained on a full-time year-round basis.
Apparently the year-round complement, including
maintenance employees, is approximately 50. Others
have worked on a part-time basis during the seasonal
peaks over a period of many years.
The Acting Regional Director viewed the problem
of resolving 49 of the challenges as requiring an
eligibility formula. He thought it necessary to
distinguish between regular part-time employees who
work with sufficient regularity to be considered
regular part-time employees and those who work so
irregularly as to be considered casuals, citing, for
example, See's Candy Shops, Inc., 202 NLRB 538.
There, peak employment periods in the year-round
operation were created by increased sales at Thanks-
giving, Christmas, Valentines Day, Easter, and
Mother's Day. The Board, in its Decision and
Direction of Election, devised a formula excluding as
casuals the part-time employees who worked only
during those holiday periods. That was not a
seasonal industry, and the Board did not direct that
the election be held at a peak period. Here, however,
the industry is canning of fresh produce which the
Board has long regarded as seasonal and in which it
has customarily directed that the election be held at
or near the peak, so that those to whom an employer
turns season after season for rank-and-file personnel
may have an opportunity to vote.3 Consistent with
that practice, the parties here themselves stipulated
to an election which coincided with the first of the
two potato crop peaks, and in general the Employer
contends that all employees working on the payroll
eligibility date should have their votes counted.
Petitioner would count none of the unresolved
challenges viewing them as cast by employees who
are casuals or not within the unit .4 As we view the
Employer's operation as a seasonal industry, an
election conducted at one of the two major peaks has
the effect of enfranchising those who, at the peak,
were working in the unit found appropriate. It
appears that those whose challenged ballots are in
issue were doing regular plant work when the
election occurred and had been employed during the
agreed-upon payroll period. Apparently less than
3 See Alaska Salmon Industry, Inc., 98 NLRB 1213; Tarke Warehouse
Company, 95 NLRB 1133, Comer Produce Co, 95 NLRB 542; J J Crosetti
Co, 98 NLRB 268, Imperial Garden Growers, 91 NLRB 1034. See also
Knapp-Sherrill Company, 196 NLRB 1072, fn. 2 and 1075, where a majority
of the Board overruled challenges to the ballots of I I employees designated
by the parties as "temporary seasonals" as contrasted with "regular
seasonals" who worked 9 months a year, because of their reasonable
expectancy of recurring employment based on their work records. Though
the Employer's operation of canning cit rus fruits and certain vegetables was
described as highly seasonal , it is not clear whether the April 29 election was
timed as a peak election . The I1 employees in question were not working at
the time
4 None was found not to be within the unit by the Acting Regional
Director
one-third of this group was newly hired in 1973; at
least two-thirds show 1972 and 1973 employment. It
is evident that these employees have a recurrent
pattern of, seasonal employment. Under established
Board policy this entitled them to vote in the peak
election held here. Accordingly, we shall direct that
the 49 ballots on Attachments C and D be opened
and counted. In the event the challenges to ballots
cast in the names of E. Espinoza, Estella Espinoza,
and Rosa Perez are determinative after the remaining
ballots have been opened and counted, we shall
direct that a hearing be held as to the identity and
eligibility of those voters.
DIRECTION
It is hereby directed that the Regional Director for
Region 21 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this
Decision and Direction, open and count the ballots
of employees Mary Alvarez, Norberta Araujo, Otila
Barajas, Maria Casas, Josefina Castro, Virginia
Cisneros, Norma Diaz, Maria Enriquez, Margarita
Gonzalez, Clemencia Hernandez, Eva Herrera,
Celestina Martinez, Teresa Montanez, Genoveva
Perez, Nettie Ramirez, Dolores Ramos, Dela Vargas,
and Teresa Vega, appearing on the Acting Regional
Director's Attachment C, and the ballots of Christina
Aguayo, Anita Archuleta, Sara Arias, Antonia
Bernaudo, Francisca Buenrostro, Rosario Burgos,
Amelia Caro, Angelina Castro, Elvira Chairez,
Emma Cordova, Emilia Franco, Maria Galindo,
Minerva Guerrero, Susana Guerrero, Carmen Her-
nandez, Ma Antonio Insauste, Hortensia Llanas,
Anita Macias, Stella Miramontes, Margaret Moralez,
Elodia Nava, Lupe Ochoa, Petra Paulin, Rosario
Ramirez, Sabina Ramirez, Agnes Soto, Lugarda
Tapia, Nascia Torres, Anna Velazquez, Eva Ve-
lazquez, and Maria Velazquez, appearing on the
Acting Regional Director's Attachment D, as well as
the ballot of Manuel Aguilar, and, thereafter, prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballots,
on the basis of which he shall issue the appropriate
certification if the vote is determinative. In the event
5 Two of the challenges included by the Acting Regional Director on
Attachment D of his report (Margaret Moralez and Elodia Nava) were
challenged not by Petitioner but by the Board agent as not on the eligibility
list The Acting Regional Director made no finding as to why their names
did not appear on the list but excluded them under his eligibility formula. It
appears that Moralez , although not working at the time of the election,
worked some 400 hours in the preelection "year" beginning 7/2/72, and has
worked for the Employer since 1954 . Elodia Nava was first hired by the
Employer in October 1972, and worked in the unit during the quarter
preceding the election and some 536 hours in the 6 months after the
election . We conclude that both had a reasonable expectation of recurring
employment . Accordingly, both ballots will be counted . See Knapp-Sherri/4
supra, fn 3.
CASE-SWAYNE CO., INC 1071
the revised tally shows the challenged ballots of
Estella Espinoza, E. Espinoza, and Rosa V. Perez to
be sufficient to affect the results of the election, the
Regional Director is directed to issue a notice of
hearing to be held before a duly designated hearing
officer of the National Labor Relations Board for the
purpose of receiving evidence to resolve the issues
with respect to the eligibility of Estella Espinoza, E.
Espinoza. and Rosa V. Perez.