Elsa Canning Co.

National Labor Relations Board - Board Decisions

Sep 29, 1965

154 N.L.R.B. 1810 (N.L.R.B. 1965)

1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT reduce the pay of any officer or crewmember because of union
activity or result of an election.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of their right to organize , perform , join, or assist a
labor organization , to bargain collectively through a bargaining agent chosen
by themselves , to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any such
activities.
WE WILL offer Henry Bartie , Roosevelt Fountain, David Lute , Joe Mayne,
James B. Moore , Roland Mouton , John B . Payton , J. C. Van Dyke , Desire
Bishop, and Matthew J. Hooper their former or substantially equivalent jobs,
preferably under Captain Fletcher Miller (without prejudice to seniority to
other employment rights and privileges ), and WE WILL pay them and Charles
Berry , Raymond Broussard , Gene Dozier , Whitney Pradia, Clarence West, and
Thirlen Lennett , with interest , for any loss suffered because of our discrimina-
tion against them.
All our employees are free to become or remain members of any labor organization.
PATTERSON MENHADEN CORPORATION , D/B/A GALLANT MAN, AND
FLETCHER MILLER , AGENT : SURPRISE , INC., D/B/A SURPRISE,
AND FLETCHER MILLER , AGENT,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, T6024
Federal Building ( Loyola ), 701 Loyola Avenue , New Orleans , Louisiana, Telephone
No. 529-2411 , Extension 63 96.
Elsa Canning Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, and General
Drivers Local Union No. 657 , affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America , Joint Petitioners. Case No. 23-RC-2458.
September 29, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
C. L. Stephens. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. Employer and
Petitioners have filed briefs which the National Labor Relations
Board has considered.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Fanning, Brown, and Zagoria].
154 NLRB No. 147.
ELSA CANNING COMPANY 1811
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question concerning representation exists concerning the rep-
resentation of employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find, in accordance with the agreement of the parties, that all
production and maintenance employees, warehouse employees, and
truckdrivers employed by the Employer at it Elsa, Texas, plant,
excluding all fieldmen, office clerical employees, guards, watchmen,
and supervisors as defined in the Act, constitute a unit appropriate
for collective bargaining within the meaning of Section 9(b) of the
Act.
5. The Employer contends that any election directed herein should
be conducted in May or June 1966 during the peak of its tomato-
packing season, on the ground that a representative number of em-
ployees will not be employed until that time. Petitioners assert that
an immediate election may be directed or, alternatively, an election
should be held during the Employer's September 1965 pea-packing
season. Petitioners contend that there is a sufficiently representative
body of employees employed by the Company in the proposed unit to
warrant an election at any time.
The Company is engaged in the processing and canning of several
varieties of seasonal vegetables, and the complement of employees
working at any given time is determined by the nature of the crop then
being processed. Briefly, the Employer's undisputed figures indicate
that the period of greatest employment occurs for approximately 3
weeks in June when it is engaged in processing tomatoes, its main pro-
duction item. During that period, employment in the unit rises to
some 200 persons engaged in production, warehousing, trucking, and
maintenance. However, at the time of the hearing the Employer
planned to curtail its production line upon completion of the 1965
tomato pack, and to reduce the unit to a force of 20 truckdrivers and
maintenance men.' This shutdown was expected to last through July
and August 1965, until peas would be received from West Texas and
employment would rise to a total of 41 employees. At the end of Sep-
tember the production line is expected to shut down again until Novem-
ber, when additional peas will be received and employment will
probably rise to some 47 employees. The Company plans to close the
i This and the other layoffs mentioned below do not appear in the Company's past em-
ployment figures . However, the Company's witnesses testified without contradiction that
the layoffs may be anticipated as a result of the Employer 's discontinuing certain pro-
duction lines such as beans , beets, and carrots.
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production line during December and the number of employees will
again drop to 20. The Employer indicates there is a possibility that
in January employment will rise to 100 if a successful tomato crop
should be available at that time. However, such tomato crops are rare
and the Employer testified that only one such crop was received in the
past 4 years. Sauerkraut will be processed from February through
April and usually requires from 35 employees in February and April
to 52 employees in March: Production is expected to decline in May
but to rise sharply in June when the tomato crop comes in to start the
cycle again. In sum, then, the Employer anticipated several peaks of
employment and planned to take on a complement of 100 employees in
January 1966, 200 employees in June 1966, and approximately 50
employees in September and November 1965, and February, March,
and April, 1966. In July, August, October, and December, 1965, and
May 1966, the production lines were expected to be shut down and
employment to drop to 20 men engaged as drivers and maintenance
men.
The Employer seeks to hire employees who have had experience
and, of the 212 employees employed during the June 1965 peak,
approximately 68 percent, or 144, had worked for the Employer in the
past. The employees who work the June peak normally provide the
source of labor for the subsidiary employment peaks that occur during
the balance of the year since the Employer recruits its work force by
submitting to the Texas Employment Commission (T.E.C.) a list of
people who were employed in the past peak season. The T.E.C. then
contacts as many of these people as the Employer requests and directs
that they report for work. No one is accepted for employment who
is not sent, by the T.E.C.
It is apparent from the above that the Employer maintains its oper-
ation on a year-round basis. Accordingly, we do not find it necessary
to postpone the elect ion to the annual peak of employment as is usually
done in sea.-tonal industries which operate only during a certain por-
tion of the year. Rather, in cases such as this which are characterized
by a series of several employment peaks, we must weigh the advantage
of an early election, the possibility that more employees may vote at
a higher peak of employment, and the relative interest of those
employed daring the various peaks as determined by their rate of
return.-
While, curler the circumstances of this case, we cannot say that
there is nog oilier appropriate time for the conduct of the election, we
find that the anticipated 41 employees who will be employed during
the. coining pei-packing season in September 1965 or, in the event
2Libby, 1rcAeill L Libby, 90 NLRB 279, 281.
KOLPIN BROS. CO., INC. 1813
this decision should issue too late for the conduct of an election at that
time, the 47 employees expected to be employed during the November
1965 pea-packing season, comprise a substantial portion of the comple-
ment of employees that are engaged in the Employer's year-round
operation. Under these circumstances, a postponement of the election
until the June 1966 peak would delay those who are employed in the
Employer's year-round operation in the exercise of their rights under
the Act.3 Accordingly, we shall direct that the election be held on a
date during the next representative season, at a time when the. Regional
Director determines that a representative number of employees are
employed in the designated unit during the payroll period immediately
preceding the date of the issuance of the notice of election .4
[Text of Direction of Election omitted from publication.]
a Cf. The Baugh Chemical Company, 150 NLRB 1034.
4 The Board denies the Petitioner's request that eligibility to participate in the election
be limited to those employees who were employed during the 1963 season. We see no
reason to depart from our customary eligibility date . Libby, McNeill d Libby , supra.
Kolpin Bros . Co., Inc. and Textile Workers Union of America,
AFL-CIO. Case No. 30-CA-36 (f ormerly 18-CA-1779). Sep-
tember 29,1965
SUPPLEMENTAL DECISION AND ORDER
On June 2, 1965, Trial Examiner Frederick U. Reel issued his Sup-
plemental Decision in the above-entitled proceeding, recommending
that employees Dora Jones and Leone Smoody be awarded backpay,
as set forth in the attached Trial Examiner's Supplemental Decision.'
The Respondent filed exceptions to the Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Decision and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
'The Board , by Decision and Order of December 7, 1964 , Kolpin Bros. Co., Inc., 149
NLRB 1378, directed Respondent to make whole certain employees for their losses result-
ing from the Respondent 's unfair labor practices.
154 NLRB No. 148.