Libby, McNeil & Libby

National Labor Relations Board - Board Decisions

Dec 11, 1945

64 N.L.R.B. 1329 (N.L.R.B. 1945)

In the Matter of LIBBY, MCNEIL & LIBBY and LOCAL 929 , PRODUCE,
POULTRY, FISH & OYSTERMEN DRIVERS & HELPERS, A . F. OF L.
Cash No. 5-R-1961.-Decided December 11, 1945
Mr. G. H. Lemmaon, of Chicago, Ill., for the Company.
Mr. H. Albert Young, of Wilmington, Del., and Messrs. Abraham
Goldberg, Charles Cooke, Jr., and Paul Reynolds , of Philadelphia, Pa.,
for the AFL.
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local 929, Produce, Poultry, Fish &
Oystermen Drivers & Helpers, A. F . of L., herein called the AFL,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Libby, McNeil & Libby, Houston, Dela-
ware, herein called the Company, the National Labor Relations Board,
provided for an appropriate hearing upon due notice before Herman
Goldberg, Trial Examiner. The hearing was held at, Baltimore,
Maryland, on August 2, 1945. The Company and the AFL appeared
and participated. All parties were afforded full opportunity to be
heard, to . examine and cross -examine witnesses , and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Libby, McNeil & Libby is a Maine corporation with its principal
office for the conduct of corporate affairs in Portland, Maine, and
its principal office for the conduct of industrial affairs in Chicago.
64N L.R B, No. 219.
670417-46-vol . 64-55 1329
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois. Among its operations, the Company operates a cannery 1
at Houston, Delaware, the sole operation of the Company involved
in the proceeding., At that plant the Company is engaged in the
processing, packing, and canning of lima beans, pickles, and tomato
products. During the year 1944, the Company purchased for that
cannery in excess of $100,000 worth of vegetables, approximately
25 percent of which were shipped to the cannery from outside the
State of Delaware. During that year the cannery -produced and
sold in excess of $250,000 worth of its products, approximately 75
percent of which was shipped outside the State of Delaware.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
II. THE ORGANIZATION INVOLVED
Local 929, Produce, Poultry, Fish & Oystermen Drivers & Help-
ers, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 10, 1945, the parties agreed to enter into a cross-check
and agreed that the unit to be covered would be "all men and women
employed by the Company in production and maintenance work
[including . . . firemen, truck drivers, and warehouse employees]
... excluding . . . supervisory employees . . ., plant and office clerical
workers, laboratory and cost control employees, watchmen and field-
men." Pursuant to that agreement, the cross-check was conducted
by a Field Examiner for the Board, using the Company's pay roll
of May 27, 1945. The cross-check showed that the AFL represented
32 of the 50 employees on the pay roll within the agreed unit.
Thereafter, a question arose as to whether or not the parties had
intended to include the Company's seasonal employees. The Com-
pany argued for their inclusion in the unit, and the AFL, for their
exclusion. The parties could not agree, and the AFL thereupon filed
its present petition.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the AFL represents a substantial number
of employees in the unit hereinafter found appropriate.2
1 As an adjunct of this cannefy , the Company operates , during the peak season , 13 field
stations where some of the early steps in preparing tomatoes and cucumbers for processing
are performed
2 The Field Examiner reported that the AFL submitted 47 membership and authoriza-
tion cards , that the names of 50 persons were listed on the Company's pay roll of May 27,
1945, in the appropriate unit ; and that all of the cards submitted were cards of "year -round"
employees
LIBBY, McNEIL & LIBBY 1331
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree that all "year-round" sorters, bottlers, canners,
warehousemen, shippers, labellers, packers, truck drivers, and fire-
men should be included in the unit. The parties also agree that
plant and office clerical employees, watchmen, laboratory and cost
control employees, fieldmen, manager, plant superintendent, office
manager, and foremen should be excluded from the unit. The prob-
lem before us, therefore, is the status of the seasonal production and
maintenance employees.
The Company's usual peak season runs from the middle of July
until the first week in October. The number of persons employed dur-
ing that season varies with the particular commodities to be processed.
Thus, the Company normally employs approximately 118 persons
during the tomato operations, 209 during the pickle operations, and
312 during the lima bean operations. During the off-season from Octo-
ber to the following July, the Company employs 80 persons who are
its "year-round" employees, working on the processing of pickles and
vegetarian-style beans and on shipping and repairs during the off
season, and joining the seasonal employees in processing pickles, to-
matoes, and lima beans during the peak season. During the peak
season, the "year-round" employees and the seasonal employees per-
form the same jobs, such as sorting, bottling, canning, labelling, pack-
ing, and shipping.3 In these various jobs, the "year-round" and the
seasonal employees are paid on the same wage bases cnd carried on the
Same pay roll. A large number of the seasonal workers are students,
housewives, and migrants. The record indicates that there is less
than a 5-percent turnover among "year-round" employees each year,
whereas there is about a 40-percent turnover among seasonal em-
ployees from season to season. Although the Company maintains a
hiring preference during the peak seasons, and recruits seasonal em-
ployees from those who have worked in past peak seasons, the Com-
pany employs no seniority system as to them. Neither does the Com-
pany apply its vacation plan to its seasonal employees, regardless of
the number of seasons worked. Seasonal employees have little ex-
pectation of becoming "year-round" employees, and it is generally un-
derstood by them that they are hired only for the peak season. At the
3 The record reveals that certain seasonal employees , classified as graders and truck
drivers, are hired somewhat before the other seasonal employees , in order to prepare for
the peak-season operations Thus , the names of Viola Jones and James Turner appear
on the pay roll of âIay 27 , 1945 They are, nevertheless , clearly seasonal emplo3 ees.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of the hearing, the Company had only 2 "year-round" job va-
cancies which could have been filled from the ranks of seasonal
workers.
As indicated above, the AFL does not seek to represent the seasonal
employees. It has confined its organizational activities to the "year-
round" employees; none of the seasonal employees has sought to join
that organization or has given any indication of desire to be repre-
sented by it. Under the circumstances, we are of the opinion that the
``year-round" production and maintenance employees may constitute
an appropriate unit without the inclusion of the seasonal employees,
nd we shall exclude them from the unit hereinafter found appro-
priate.'
We find that all the Company's "year-round" production and main-
tenance employees, including sorters, bottlers, canners, warehousemen,
shippers, labellers, packers, truck drivers, and firemen, but excluding
the seasonal employees, plant and office clerical employees, watchmen,
laboratory and cost control employees, fieldmen, manager, plant super-
intendent, office manager, foremen, and any other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the parties agreed that "in the event the Board
should find that the May 27, 1945, payroll . . . constitutes an appro-
priate payroll for the purposes of determining the eligibility of em-
ployees within an appropriate unit, . . . the Board should accept the
count made by its Field Examiner for the purpose of certifying the
petitioner as bargaining agent." The agreement, however, was made
during the peak season when, we may fairly assume, the parties
realized that the direction of an election by the Board would have
called for the use of a May or June pay r011 5 which would have been
the latest pay roll confined to "year-round" employees prior to the
peak season. Six months have elapsed since that agreement was made.
The peak season has passed, and a current pay roll will again com-
prise "year-round" employees. We are of the opinion, therefore, that
the best method of determining the existing question concerning rep-
4 See Matter of California Packing Company , 59 N. L It. B . 941 ; Matter of Libby, McNeill
and Libby , 59 N. L. It. B. 864 ; Matter of Stokely Foods, Inc , 58 N. L It . B 130 ; Matter
of Reid, Murdock & Co ., 56 N. L. It. B. 284; Matter of Stokely Brothers & Company, Inc.,
15 N L R B 872 : Matter of Seymour Packing Company, 12 N. L. R. B. 1098.
G The May 27 , 1945, pay roll used in the cross -check contained, except for two seasonal
employees , the names of "year-round" employees only.
ABBY, McNEIL & LIBBY 1333
resentation is by means of a present election and the use of a. current
pay roll. We shall , therefore , direct that the question concerning rep-
resentation which has arisen be resolved by an election by secret ballot
among the employees in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of the
Direction of Election herein, subject to the limitations and additions
set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act , and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
D1IRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Libby, McNeil &
Libby, Houston , Delaware , an election by secret ballot shall be con-
ducted as early as possible , but not later than sixty (60) days from the
date of this Direction , under the direction and supervision of the Re-
gional Director for the Fifth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed during the pay-roll period immediately preceding the date of
this Direction , including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding any who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether or
not they desire to be represented by Local 929, Produce , Poultry, Fish
& Oystermen Drivers and Helpers, A. F. of L ., for the purposes of
collective bargaining.
MR. JoiiN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.