Millbrook, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1973

204 N.L.R.B. 1148 (N.L.R.B. 1973)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millbrook, Inc. and Bakery and Confectionery Work-
ers International Union of America, Local 251,
AFL-CIO, Petitioner . Case 1-RC-12459
July 20, 1973
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On February 15, 1973, the Regional Director for
Region I issued a Decision and Direction of Election
in the above-entitled proceeding in which he directed
an immediate election in a requested unit of seasonal
employees. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations the Employer filed a timely request
for review of the above Decision on the grounds, inter
alia, that substantial questions of law and policy are
raised with respect to the Regional Director's determi-
nations that: (1) the Petitioner's requested unit of all
seasonal employees constitutes an appropriate unit;
(2) an immediate election should be held; (3) two
floorladies are not supervisors within the meaning of
the Act.'
On May 1, 1973, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending decision on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the entire record in this
case with respect to the issues under review and makes
the following findings:
The Employer contends, inter alia, that the only
appropriate unit for its seasonal employees would be
one including them in the already existing unit of
year-round employees; and furthermore that if an
election is to be held, the only appropriate time for the
election would be at peak seasonal employment2
The Employer is engaged in the business of the
leasing of storage space to others, public warehousing,
and the processing of fruits and vegetables at its Wor-
i In support of its request for review , the Employer also submitted its
postheanng memorandum filed with the Regional Director
2 In its request for review the Employer argues that a contract bar exists
as to the only appropriate unit for the requested seasonal employees . Howev-
er, as the Petitioner's seasonal employees have not been covered by the
contract , we find no contract bar exists . Appalachian Shale Products Compa-
ny, 121 NLRB 1160
The Employer also argues that the Petitioner failed to establish its exis-
tence as a labor organization It appears , however, that the Employer itself
has dealt with the Petitioner in a collective-bargaining relationship and on
this basis alone we find no merit in the Employer's contention.
cester, Massachusetts, plant. The Employer's opera-
tions are carried on in a complex of five adjacent
buildings. The instant petition is concerned solely
with the Employer's employees in building No. 3 of
the complex who are engaged primarily in the pro-
cessing of apples, rhubarb, and pineapple. The build-
ing contains an upper level with dry storage and fruit
processing areas and a lower level with cold storage
and canning areas.
The work force in this building is made up of a
year-round complement of 22 employees and a sea-
sonal complement of 45 employees employed during
the apple season (September to early February) and
the rhubarb season (4 weeks in late May and June).
In 1969 the Petitioner was certified as representative
of a unit of the Employer's year-round employees.
The unit specifically excluded the seasonals .3 At the
present time there is a 2-year contract with a March
31, 1974, expiration date, covering the year-round em-
ployees. During seasonal operations the seasonal em-
ployees work alongside and under the same
supervision as year-round employees augmenting the
year-round complement on the processing lines. Ini-
tially warehousemen (year-round employees) receive
the shipments of fresh apples or rhubarb and bring
them to the processing line. The next step involves
seasonals operating the equipment which performs
sorting, peeling, and slicing operations. Upon comple-
tion of the slicing operation, a portion of the produc-
tion is siphoned off for fresh order shipments, and the
remaining portion prepared for deep freezing and
canning by seasonal and year-round employees.
Cleaning and sanitation operations are also conduct-
ed by seasonal and year-round employees working
together. During off-season periods, the year-round
employees are engaged in maintenance and ware-
housing activities and the processing of pineapple."
The seasonal employees are principally women and
students living within a 10-mile radius of the
Employer's facility. At the end of the rhubarb and
apple processing seasons, the seasonals, are laid off.
Although the Employer does not maintain a recall list
of seasonals , it admitted giving some consideration to
an applicant's longevity when hiring for a new season.
Of the approximately 45 seasonals employed during
1972, 9 worked both the apple and rhubarb seasons,
37 worked only the apple season, and 19 worked only
the rhubarb season . Furthermore, 26 of these employ-
ees had worked at least 1 previous apple season, 21
had worked 5 or more apple seasons , and 9 had
worked at least 1 previous rhubarb season . The Re-
a The unit also specifically excluded truckdrivers . However , the record
does not indicate whether or not any truckdrivers are now employed.
4 Pineapple is processed at the plant throughout the year, however, pineap-
ple differs from apple and rhubarb processing in that the pineapple arrives
packed in tins containing additives.
204 NLRB No. 160
MILLBROOK, INC.
gional Director found, and we agree, that the seasonal
employees have a reasonable expectation of substan-
tial seasonal employment from year to year.
The Regional Director found that despite the close
community of interest which seasonals share with
year-round employees, their historic exclusion from
the unit of year-round employees justified their estab-
lishment as a separate appropriate unit. We disagree.
In the circumstances of this case, particularly since
the seasonals are drawn from the same labor market
each year, longevity is given some consideration in
their hire, a substantial number of them return each
year, and they work alongside and under the same
supervision as year-round employees, we find that the
seasonals share such a close community of interest
with the year-round employees that they may be rep-
resented by the Petitioner only as part of its existing
unit and are therefore entitled to a self-determination
election with regard to the question of their inclusion
in that unit . Further, in view of the fact that there are
no seasonal employees working at the present time,
we shall defer such election until a time deemed ap-
propriate by the Regional Director, at or near the
peak of the next apple processing season.
We find, therefore, that the following employees
constitute an appropriate voting group:
All full-time and regular part-time seasonal pro-
duction and maintenance employees employed
by the Employer at its Worcester, Massachusetts,
plant, including floorladies,s but excluding all
5 The Employer 's request for review also argues that the Regional Director
erred in finding two floorladies are not supervisors within the meaning of the
Act. We find no merit in this contention . The Regional Director found that
the two floorladies do not have the authority effectively to recommend action
1149
other employees, office clerical employees,
guards, and supervisors as defined in the Act.
If a majority of the employees in this voting group
vote for the Petitioner, they will be taken tq have
indicated their desires to be included in the existing
production and maintenance unit of year-round em-
ployees currently represented by the Petitioner;6 if not
they will have indicated their desires to remain unre-
presented. The Regional Director will then issue the
appropriate certification.
Accordingly, we shall remand the case to the Re-
gional Director for the purpose of conducting an elec-
tion pursuant to his Decision and Direction of
Election, as modified herein, except that the eligibility
date for the election shall be the payroll period imme-
diately preceding the date of issuance by the Regional
Director of his notice of election.7
affecting the employment status of other employees. The record indicates
that the Employer's plant manager testified that the floorladies have recom-
mended the discharge of employees ; however, when asked if he abided by
their recommendations , he stated - "After observing I have at times." Upon
further questioning the plant manager indicated that the most recent recom-
mendations occurred 3-4 years ago Accordingly , we find the record substan-
tially supports the Regional Director 's finding that the two floorladies are not
supervisors within the meaning of the Act.
A certification for such a unit shall not be construed as the recertification
of the Petitioner as majority representative of employees in the existing unit
of 'ear-round production and maintenance employees.
In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them. Excelsior Underwear Inc, 156
NLRB 1236, N L R B v Wyman-Gordon Co, 394 U.S. 759, Accordingly, it
is hereby directed that a corrected election eligibility list, containing the
names and addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region I within 7 days of the Notice of
Election to be issued by the Regional Director . The Regional Director shall
make the list available to all parties to the election. No extension of time to
file this list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed