Fruitvale Canning Co.

National Labor Relations Board - Board Decisions

Jul 8, 1948

78 N.L.R.B. 152 (N.L.R.B. 1948)

In the Matter of FRUITVALE CANNING COMPANY, EMPLOYER and CAN-
NERY WAREHOUSEMEN , FOOD PROCESSORS, DRIVERS & HELPERS UNION,
LOCAL No. 750, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL, PETITIONER
Case No. 20-RC-16.-Decided July 8, 1948
Hadsell, Sweet and Ingalls, by Mr. Dan Hadsell, of San Francisco,
Calif., for the Employer.
Tobriner and Lazarus, by Air. Mathew 0. Tobriner, of San Fran-
Cisco, Calif., for the Petitioner.
Edises, Treuh a f t and Condon, by Mr. Bertram Edises, of Oakland,
Calif., for the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, bearing in this case was held at San
Francisco, California, on March 19, 1948, before Louis S. Penfield,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Fruitvale Canning Company is a California corporation with its
principal office at Oakland, California, where it is engaged in the busi-
ness of canning fruits and vegetables. During 1947, its sales of finished
products were valued in excess of $1,000,000, approximately 90 percent
of which was shipped to points outside the State of California.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers In connection with this case to a
three-man panel consisting of the undersigned Board Members [ Houston, Murdock, and
Gray]
78 N L. R. B., No. 26.
152
FRUITVALE CANNING COMPANY
II. THE ORGANIZATIONS INVOLVED
153
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
Food, Tobacco, Agricultural and Allied Workers Union of Amer-
ica, herein called the Intervenor, is a labor organization affiliated
with the Congress of Industrial Organizations, claiming to represent
employees of the Employer 2
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Intervenor does not contend that its contract with the Employer
covering the period from March 1, 1948, to March 1, 1949, is a bar
to this proceeding, but urges that the Board, as a matter of discretion,
should not direct an election during the coming season. The Inter-
venor points out that following a Board Decision,3 it won an election
in October 1945, which was set aside in February 1946; 4 that fol-
lowing a Second Direction of Election,6 it won a second election and,
on October 9, 1946, was certified as the representative of the Employer's
employees. It contends that following certification, it should have
had a year, or at least one packing season," free of harassment by a
rival organization; but that before it had negotiated a contract cover-
ing the 1947 season, the Petitioner, on April 8, 1947, filed a petition
for certification, which was not dismissed finally by the Board until
August 14, 1947. Therefore, it contends that the current contract
is the first one covering an entire packing season; and should not be
interrupted by an election. -
The Board has held that a collective bargaining agreement for a
reasonable term, entered into within the year following certification of
the contracting union, is a bar during its term to a petition filed by
a rival union.' Such a contract, covering the peak of the 1947 season,
was executed by the Employer and the Intervenor on July,28, 1947,
to terminate on February 29, 1948. The Intervenor asks, in effect,
'The Intervenor , although not in compliance with Section 9 (f), (g), and (]n) of the
Act, was allowed to intervene because of its current contract with the Employer. The
Intervenor appeared also in behalf of Cannery and Food Processing Workers Union, Local
50, which is a party to the contract.
3 Matter of Bercut Richards Packing Company , et al., 64 N . L It. B. 133.
4 Id, 65 N L. R B. 1052
5 Id , 70 N L. R B 84
The packing season extends tiom the latter part of May through the latter part of
October.
7 Matter of Texas Paper Box Mfg. Co., 75 N. L. R. B. 799 ; Matte, of The Quaker Maid
Co , Inc., 71 N. L. R. B. 915
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board give protected status to a second contract executed on
March 1, 1948, several months after the post-certification year. Under
the circumstances, we feel that this would be an unreasonable restraint
upon the rights of these employees to select a bargaining representative
if they so desire.
The Intervenor further contends that the Petitioner's showing of
interest is too small to warrant directing an election. We have re-
peatedly held that the showing of interest is an administrative matter
not subject to collateral attack." In the instant case, the season covers
a period of approximately 5 months. At the peak of the season, when
it was agreed that the elcctlon should be held, there will be more than
1,300 employees on the Employer's pay roll. During the off season,
employment falls to less than 80 employees. As of the time of the
hearing, there were approximately 70 production employees and the
Petitioner's showing 9f 22 authorization cards was adequate .9 Accord-
ingly, we shall direct that an election be held.
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.
IV. THE APPROPRIATE UNIT
I
We find in substantial agreement with the parties that all produc-
tion and maintenance employees at the Employer's Oakland plant,
excluding watchmen,i° clerical employees, foremen, foreladies,il and
other supervisors, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESEN TATIVES
Several hundred seasonal workers are hired by the Employer when
the packing season opens in the latter part of May. Employment
increases through June and July, reaching a peak of approximately
1,300 employees about the first week in August. This level of employ-
ment is maintained, with only minor fluctuations, through September.
8 Matter of Norfolk Southern Bus Corp , 76 N L It. B 488
° See Matter of McKeon Canning Co ., 77 N L R. B. 1365
'"The Petitioner contends that watchmen should be included in the unit The record
shows that the Employer ' s watchmen are not armed , but are deputized , and though they
do perform some janitorial and other non-monitorial work their primary functions are to
guard the Employer ' s property and enforce plant r ules Therefore we shall exclude them
from the unit . See Matter of C V Hill & Company , rite, 76 N L . It. B 158
"The parties agreed that assistant foremen and foreladies , subforemen , and leaders
should be included in the unit These employees are production workers during the first
and last part of the season , and assistant foremen and forewomen only during the height
of the season. They report infractions of rules to their foreman or forewoman, but they
have no authority to discipline or discharge , and their directive duties do not require the
use of independent judgment We find , on the basis of all the evidence , that these indi-
viduals are not supervisors within the meaning of the Act.
FRUITVALE CANNING COMPANY 155
In October the number of employees is reduced by about 60 percent,
and the season closes in the first part of November.
The parties are in agreement that the election should be held about
the first of September, when employment is at a peak. The Petitioner
contends, and the Employer agrees, that only those employees who
have already obtained seniority, either in the current season or in a
previous season, should be eligible to vote. Seniority, under the exist-
ing contract between the Employer and the Intervenor, is obtained
by working at least 20 percent of the total number of packing days
in the season. The Petitioner suggested that, since 20 percent of the
1947 season was approximately 18 days, the eligibility list should be
made up from a pay-roll period 18 days prior to the election. The
Intervenor submits that such a requirement would exclude many em-
ployees who had not obtained seniority as of the time of the election,
but would subsequently acquire seniority by working the remainder
of the season. We believe that the most representative vote can be
obtained by declaring as eligible to vote those employed in the pay-roll
period immediately preceding the election.
The Employer requests that the Petitioner, if it wins the election,
not be certified until March 1, 1949, the date which marks the termina-
tion of the present contract. To postpone certification in this manner
would leave the incumbent union as the representative of the employees
after they had selected a different organization. Furthermore, in
view of the possibility that the period of negotiation may cover several
months, it is imperative that certification be made well in advance of
the packing season. Therefore, the Petitioner, if it wins the election,
will be certified in accordance with our usual procedure.
DIRECTION OF ELECTION 12
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Fruitvale Canning Company, Oak-
land, California , an election by secret ballot shall be conducted during
the week ending September 4,1948, under the direction and supervision
of the Regional Director for the Twentieth Region , and subject to Sec-
tions 203.61 and 203 .62 of National Labor Relations Board Rules and
Regulations-Series 5, among the employees in the unit found appro-
priate in Section IV, above, who were employed during a pay -roll pe-
riod immediately preceding the date of the election , including em-
ployees who did not work during the said pay -roll period because they
were ill or on vacation or temporarily laid off , but excluding those em-
12 The Intervenor ' s name may not be placed on the ballot inasmuch as it has not com-
plied with Section 9 ( f) and ( h) of the Act as amended . Matter of Rite-Form Corset Co.,
75 N L R B 174.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees 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 reinstatement,
to determine whether or not they desire to be represented by Cannery
Warehousemen , Food Processors , Drivers & Helpers Union, Local No.
750, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, AFL , for the purposes of collective
bargaining.