J. R. Simplot Food Processing Division, Etc.

National Labor Relations Board - Board Decisions

Aug 29, 1960

128 N.L.R.B. 1391 (N.L.R.B. 1960)

J. R. SIMPLOT FOOD PROCESSING DIVISION, ETC. 1391
both Riverton and Jeffrey City. The Petitioner stated at the hearing
that it did not wish to represent the employees at Rock Springs. The
Intervenors contends that the only appropriate unit consists of all the
Employer's employees at three locations-Riverton, Jeffrey City, and
Rock Springs.
Riverton is about 142 miles distant from Rock Springs and 80 miles
from Jeffrey City, while the latter is 162 miles from Rock Springs.
The Intervenor has represented the employees at Rock Springs since
1941 and at the other two locations since 1958. The collective-
bargaining contract between them covers the employees on an overall
basis. The service rendered by the Employer at each location is the
same, and the employees have similar duties and working conditions.
They also have the same wage rates, except that Riverton drivers
receive $1 extra for a dirt road trip in that area. There has been
some interchange of the employees among the three locations and
more is anticipated. We find that the Petitioner's unit request is too
narrow in scope and therefore, in view of the Petitioner's disclaimer
as to the employees at Rock Springs, shall dismiss the petition.
[The Board dismissed the petition.]
r The Intervenor moved to dismiss the petition on the ground that an existing
collective-bargaining contract with the Employer operates as a bar to this proceeding.
The contract , dated November 1, 1959, recites that it is to be effective through October
31, 1064, and is automatically renewable from year to year. The petition was filed
March 15, 1960.
Article 1, section 1 of the contract contains the following provision ;
. . . All employees now employed and all new employees hereinafter employed, shall
become members of the Union within thirty ( 30) days after date of employment,
and shall remain members of the Union in good standing as a condition of continued
employment.
This union-security provision fails to grant the 30-day statutory grace period within
which nonmember incumbent employees are not required to join the Intervenor . It there-
by fails to conform to Section 8 ( a) (3) of the Act and is not a bar. Sanford Plastics
Corporation , 123 NLRB 1499, 1500 . See also Red and White Airway Cab Company, 123
NLRB 83, 84 . In view of our disposition of this issue , we find it unnecessary to rule
on other contract-bar contentions raised by the Intervenor.
J. R. Simplot Food Processing Division at Caldwell , Idaho and
American Federation of Grain Millers , Petitioner. Case No.
19-RC-2584. August 09, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing' was held before Thomas K. Cassidy, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
'At the hearing the formal papers were amended to show the correct name of the
Employer.
128 NLRB No. 113.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
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 em-
ployees 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. The Employer processes potatoes and corn at its Caldwell, Idaho,
plant. The Petitioner seeks an all-employee unit, excluding office
clerical employees . Since 1944 General Teamsters , Warehousemen
and Helpers, Local Union 483, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, which was allowed to intervene based upon its contract
interest, has represented a production and maintenance unit excluding
"laboratory and technical" employees. It contends, as does the Em-
ployer, that the existing unit is appropriate. The Rocky Mountain
District Council of the Carpenters was also permitted to intervene,
seeking a separate unit of temporary construction employees, plus
maintenance millwright and maintenance carpenter. The Employer
testified that it had no employees in the latter classifications at the
time of hearing. For the reasons stated in footnote 3, we shall not
direct a separate election for these employees.
Testimony indicates that the laboratory staff which the Petitioner
would include in the unit sought constitutes the quality control de-
partment and varies from 10 to 45 employees. The Employer also
testified that formal training is not needed for this work, which in-
cludes research. The employees make various tests on food products
after brief on-job training and with a manual as a guide. They are
paid on an hourly basis and receive no pay differential from produc-
tion and maintenance employees. Some have been production em-
ployees; some do that work in slack seasons. In nonpeak seasons part
of the laboratory staff works on new products and methods in a
separate pilot plant close to the main plant. This is done mostly with
miniature production line equipment under five or six supervisors who
are admittedly professional employees.
On this record which fails to establish that they are technical em-
ployees, we find that the employees in the quality control department
have substantially the same interests as production and maintenance
employees and, in view of their exclusion from the overall unit up to
this time, may vote whether they wish to be included in it. See The
Seymour Manufacturing Company, 118 NLRB 33. In the event they
J. R. SIMPLOT FOOD PROCESSING DIVISION, ETC. 1393
vote for the Petitioner and the existing unit votes for representation
by the Intervenor, the employees in the quality control department
may also constitute a separate residual unit .2 Accordingly, we shall
direct separate elections in the two voting groups of employees at
the Employer's Caldwell, Idaho, plant, as described below, excluding
from each voting group professional, office clerical, and temporary
construction employees,' and guards and supervisors as defined in
the Act :
Voting group (1) -existing unit: All production and maintenance
employees, excluding employees in the quality control department.
Voting group (2)-unrepresented group : All employees in the qual-
ity control department, excluding all employees in voting group (1).
If a majority of employees in each voting group vote for Petitioner,
both groups shall be merged into a single overall unit, which unit we
find appropriate in the circumstances. If a majority of the employees
in the existing unit vote either for Intervenor or Petitioner and a
majority in the unrepresented group reject the Petitioner, we find
that the employees in the existing unit constitute an appropriate unit.
If, however, a majority in the existing unit vote for Intervenor and
a majority in the unrepresented group vote for Petitioner, we find that
each group is a separate appropriate unit. If a majority of the em-
ployees in the existing unit vote for no union, the employees in both
voting groups shall remain unrepresented regardless of the vote in
the currently unrepresented group. The Regional Director is in-
structed to issue a certification or certifications as decided by the
results of the elections. See Waikiki Biltmore, Inc., d/b/a Waikiki
Biltmore Hotel, 127 NLRB 82; Cook Paint and Varnish Company,
127 NLRB 1098.
5. The Employer's Caldwell operation is characterized by peak
periods, with 600 to 700 employed during September and a peak of
1250 "generally in the spring months." The record indicates that the
fall crew is made up largely of those who also work in the spring,
and that it takes fewer employees to handle the fresh product if proc-
essed in the fall before it has been stored. The amount of product
processed or stored is dependent upon inventory. None of the parties
has requested a postponement of the election until the highest em-
ployment peak. Accordingly we shall direct that the election be held
at or about the time of the employment peak of the approaching
fall season, on a date to be determined by the Regional Director, among
the employees in the voting groups who are employed during the
2 If the Petitioner is unwilling to represent these employees separately in a residual
unit , it should so notify the Regional Director within 10 days from the issuance of this
Decision and Direction of Election.
3 At the time of hearing Employer had five temporary construction employees on its
payroll, all of whom were carpenters . As it appears that these employees have no
substantial expectancy of continued employment, we find that they are temporary or
casual employees and exclude them from the unit. See Sealate, Inc., 125 NLRB 619, 620.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll period immediately preceding the date of issuance of the
notice of election. See Stokely-Van Camp, Inc., 107 NLRB 1137;
see also Gail TV. Glass d/b/a Richard A. Glass Company, 120 NLRB
914, 917; Musgrave Manufacturing Company, et al., 124 NLRB 258.
[Text of Direction of Elections omitted from publication.]
Hooker Chemical Corporation successor to Shea Chemical Cor-
poration and District 50, United Mine Workers of America
and Local Union No . 13871, District 50, United Mine Workers
of America , Parties to the Contract and David Gardner and
Charles D. Peyton
District 50, United Mine Workers of America and Local Union
No. 13871, District 50, United Mine Workers of America and
Hooker Chemical Corporation successor to Shea Chemical
Corporation , Party to the Contract and David Gardner and
Charles D. Peyton . Cases Nos. 9-CA-1296, 9-CA-1298, and
9-CB-368. August 30, 1960
DECISION AND ORDER
On December 22, 1959, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached thereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,' and recommen-
dations of the Trial Examiner except to the extent inconsistent
herewith.
1. The Trial Examiner concluded that the Respondent Company
and Unions had violated Section 8(a) (1) (2) and (3) and Section
8(b) (1) (A) and (2) of the Act, respectively, by requiring employees
to join the Respondent Local Union and execute checkoff authori-
zations pursuant to an oral agreement, understanding, or practice
although the Union was not in compliance with Section 9(f), (g),
1 At one point in the Intermediate Report , the Trial Examiner inadvertently stated
that "the Respondent Unions violated Section 8 ( b) (4) (A) and ( 2) of the Act." This
is corrected to read "8 ( b) (1) (A) and ( 2) of the Act."
128 NLRB No. 133.