Fruitvale Canning Co.

National Labor Relations Board - Board Decisions

Aug 12, 1949

85 N.L.R.B. 684 (N.L.R.B. 1949)

0
In the Matter of FRUITVALE CANNING COMPANY, EMPLOYER and CAN-,
NERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS
UNION, LOCAL 750, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L.,
PETITIONER
Case No. 00-RC-586.-Decided August 12, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Nathan R.
Berke, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner, and Food, Tobacco, Agricultural and Allied
Workers of America, C. I. 0., herein called the Intervenor, claim to
represent certain employees of -the Employer.
3. The Intervenor moves to dismiss the petition on the grounds (1)
that no timely demand for recognition was made by the Petitioner
upon the Employer, (2) that the Board, in its discretion, should decide
not to hold an election this year because in the past 3 years, there have
been three elections in which the Petitioner failed to secure a majority
vote, and to hold another election this year would unduly harass the
Intervenor in functioning as statutory representative of the employees,
and (3) the 12-month limitation provision in Section 9 (c) (3)
precludes the Board from holding an election in this case until Decem-
ber 30, 1949, the anniversary date of the final determination of the
results in the last conclusive election.
We find no merit in the Intervenor's first ground for dismissal. It
is sufficient to raise a question concerning representation that the Em-
85 N. L. R. B., No.122.
684
FRUITVALE CANNING. COMPANY 685
ployer. at the hearing has refused to recognize the Petitioner." The,
second ground of the motion is likewise without merit. Under the
facts herein, the employees are entitled to an election each year. The
third ground of the motion concerns the effect upon this case of the fol-
lowing provision in Section 9 (c) (3)
No election shall be directed in any bargaining unit or any sub-
division within which, in the preceding twelve-month period, a
valid election shall have been held.
On September 3, 1948, a valid election was conducted, pursuant to
our Direction of Election,2 among the employees in the bargaining unit
here involved. The election was lost by the sole union on the ballot,3
the present Petitioner. The final results of the election were certified
by the Board on December 30, 1948. As we have previously held,''
contrary to the position of the Intervenor, the 12-month limitation
provision in Section 9 (c) (3) begins to run from the date of the ballot-
ing in the preceding election, September 3, 1948, in the present case,
and not from the date of final determination of results. The Inter-'
venor's motion to dismiss is hereby denied in its entirety.
The question now arises as to whether Section 9 (c) (3) precludes
the Board from issuing a direction of election herein before September
3, 1949, or within 12 months from the date of the last valid election,
even though the election is not held until after the required year from
the date of the preceding election. The Intervenor contends that the
Board is so precluded r,
The employees involved are engaged in seasonal fruit canning oper-
ations. In accordance with our policy as to seasonal industries,e the
election on September 3, 1948, was conducted during the peak employ-
ment period. It was testified that this year, because of early crop
deliveries, the employment peak would be reached 2 weeks in advance
of the date of last year's peak, or during the third week in August.
After reaching this peak, it is anticipated that the high level of
' See Matter of Advance Pattern Co., 80 N. L. It. B. 29; Matter of General Boa Company,
82 N. L . It. B. 678.
2 Matter of Fruitvale Canning Company , 78 N. L. It. B. 152.
B The Intervenor was dropped from the ballot in the 1948 election because of non-
compliance with the filing requirements in Section 9 (f) and (h) of the Act.
' Matter of Mallinckrodt Chemical Works, 84 N. L. It. B. 291.
5 This contention was included among the Intervenor 's grounds in its motion to dismiss.
However, it would not in any case furnish a basis for dismissal.
See, e. g ., Matter of Hunt Foods, Inc., 85 N. L. It. B ., No. 51; Matter of Delta Canning
Company, Inc., 84 N. L. It. B. 839; Matter of Edgar F. Hurff Company, 77 N. L. It. B. 762.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment will be substantially maintained for about 2 weeks,.
following which employment will be sharply reduced?
It becomes apparent from these facts that the election should be-
held at the earliest possible time after the anniversary date of the
last valid election, if it is to take place substantially during peak.
employment this year. Consequently, it is desirable that the Direction
of Election in this case be issued before September 3, 1949, to permit
the election to be set up and held at the most appropriate time, if such
a procedure is not barred by the 12-month limitation provision in.
Section 9 (c) (3).
A careful examination of the legislative history of the amended
Act reveals nothing from which it may be inferred that Congress
intended to preclude the Board from issuing a direction of election
within the 1-year limitation period. On the contrary, it appears.
that Congress was interested only in limiting the holding of such
elections within the yearly period." Moreover, to construe Section
9 (c) (3) so as to preclude the Board from issuing a direction of
election before the close of the year, would lead to an unreasonable
and absurd result. No ascertainable purpose would be served by
requiring the Board to wait the exact year before issuing its direction.
° The chart below indicates the weekly employment fluctuation during the 1948 season :.
Weekly pay rolls, 1948
Pay-roll date
Total
employ- Pay-roll date
Total
employ-
ment ment
June 12------------------------------ 300 Sept . 25------------------------------- 947.
June 19-------- ------------ 304 Oct. 2--------------------------------- 896-
June 26----------- ------------------ 309 Oct. 9--------------------------------- 841
July 3------------------------------- 302 Oct. 16-------------------------------- 415•
July 10------------------------ ------ 247 Oct. 23------------------- ------------ 383
July 17------------------ ------------ 677 Oct. 30-------------------------------- 400
July 24----------------------------- 746 Nov. 6-------------------------------- 405
July 31------------------------------ 753 Nov.13------------------------------- 358
Aug. 7--------------------------------
------
Nov. 20------------------------------- 142
Aug. 14- ---------------------------
Aug. 21------------------------------
751
1, 539
Nov.27-------------------------------
Dec. 4--------------------------------
222'
113
Aug. 28----------------- ----------- 1,608 Dec. 11-------------------------------- 103
Sept . --------------------------
------
1, 610 Dec. 18-------------------------------- 105
Sept. 11---------------------------- - 1, 554 Dec. 25------------------------------- 102
Sept. 18 ------------------------------ 1,312
8 The agreement of the conference committee of the two Houses of Congress adopts the
Senate amendment as to this provision in Section 9 (c) (3). House Conference Report
No. 510 on H. R. 3020, p. 49. The Senate committee report on the provision in question,
which was ultimately approved by action of the Senate in adopting the amendment as
recommended by the committee, reads :
In order to impress upon employees the solemnity of their choice, when the Govern-
ment goes to the expense of conducting a secret ballot, the bill also provides that
elections in any given unit may not be held more frequently than once a year,
(Emphasis added.)
This amendment prevents the Board from holding elections more often than once
a year . . . (Emphasis added.)
Senate Report No. 105 on S. 1126, pp. 12, 25.
FRUITVALE CANNING COMPANY 687
,of election. Furthermore, any construction of Section 9 (c) (3)
which so limits the Board from issuing its direction of election would
necessarily fix the limitation period between the holding of elections
.at more than 12 months. This, Congress did not intend or provide
in the statute. Accordingly, we construe Section 9 (c) (3) as intend-
ing to preclude only the holding of an election within 1 year after
the last valid election, and not to affect the Board's discretion with
respect to the time of issuance of its direction of election.
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. The following employees constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act:
All production and maintenance employees at the Employer's Oak-
land, California, plant, excluding watchmen, clerical employees, fore-
seen, foreladies, and supervisors. -°
5. The Employer and the Intervenor contend that eligibility to
vote in this election should be limited to those employees whose names
.appear on the Employer's seniority lists. Seniority status is ac-
•quired.by any employee who works at least 20 percent of the total
number of packing days in the season . We have considered and re-
jected an identical contention in connection with the previous election
at the plant." We perceive no reason to alter this finding with respect
to the forthcoming election.
For the reasons stated above, we shall direct that an election be held
as soon as possible, at or about the peak of the current canning season,
on a date to be determined by the Regional Director, but in no event
before September 3, 1949, among the employees in the appropriate
unit who are employed during the pay-roll period immediately pre-
ceding the date of the issuance of notice of election by the Regional
Director.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
The position of the Intervenor is not clear in the record as to whether it asserts the
'existence of its alleged current contract with the Employer as a bar to this proceeding.
In any event , there is no dispute that a contract between these parties expired on February
28, 2949, but was extended upon an exchange of letters , until such time as a new contract
is negotiated and executed . We hold in such circumstances that the contract is of
indefinite duration and hence no bar.
' This is the same bargaining unit used in the previous Board election , and agreed upon
&y the parties herein.
21 Matter of Fruitvale Canning Company, supra.
688 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
,'ballot shall be conducted on a date to be selected by the Regional Di-
rector, subject to the instructions set forth in paragraph numbered 5,
above, under the direction and supervision of the Director for the
'Region in which this case was heard, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regula-
tions-Series 5, as amended, among the employees in the unit found
appropriate in paragraph numbered 4, above, who were employed dur-
ing the pay-roll period immediately preceding the date of the issu-
ance of notice of election by the Regional Director, including em-
ployees who did not work during said pay-roll period because they
were 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 Cannery Warehousemen, Food
Processors, Drivers and Helpers Union, Local 750, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. L., or by Food, Tobacco, Agricultural and Allied
Workers of America, C. 1. 0., or by neither.
MEMBER GRAY took no part in the consideration of the above Deci-
sion and Direction of Election.