Minute Maid Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1957

117 N.L.R.B. 68 (N.L.R.B. 1957)

68 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining. We shall therefore direct that an
election be held among the employees in that department.
We find that the following employees of the Employer constitute;
an appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : All employees in the
Employer's ready-to-wear department at its retail store in Bedford,.
Ohio, excluding employees in the leased departments, guards, watch-
men, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Minute Maid Corporation and Cannery, Citrus Workers, Drivers,
Warehousemen and Allied Employees Local Union #444, In-
ternational Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO , Petitioner. Case No.
12-RC-14 (formerly 10-1?C-3596) . January 16,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Allen Sinsheimer,
Jr., 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 this case, the Board finds :
1. The Employer contends that the Board has no jurisdiction over
it and that, therefore, the instant petition should be dismissed. We
find no merit in this contention.
The Employer is a Florida corporation with its principal office
located at Orlando, Florida, and is engaged in the business of concen-
trating and processing citrus products. Its plant at Auburndale,
Florida, is the only one involved in this proceeding. As the Em-
1 The Employer moves that the petition be dismissed on the ground that it is not sup-
ported by 30 percent of the employees in the unit as required by the Board's Rules and
Regulations , and on the further ground that the Board 's application of the 30 percent
showing-of-interest rule to seasonal industries ( to the effect that the showing may be
limited to current employees , excluding peak season employees , at a time when peak sea-
son operations are not being carried on ) is an arbitrary and capricious rule, contrary
to the meaning and intent of the statute , and is not consistent with the Act or with the
Administrative Procedure Act.
These motions are hereby denied. The Board has repeatedly held that the showing of
interest is a matter for administrative determination and is not a subject which is litigable
by the parties to a representation proceeding . Furthermore , we are satisfied that Peti-
tioner's showing is adequate , even when measured against the number of employees
employed during the Employer 's peak season operations . Furthermore , we have fre-
quently held in the past that a representation proceeding is not subject to the provisions
of the Administrative Procedure Act. F. C. Russell Company, 116 NLRB 1015, and
eases cited therein. Accordingly , we find no merit in these contentions.
The Employer has advanced various additional grounds for dismissing the petition.
For reasons stated hereinafter in this Decision the motions to dismiss are here by denied
in toto.
117 NLRB No. 17.
MINUTE MAID CORPORATION 69
ployer has shipped goods from its Auburndale plant to points outside
the State valued in excess of $500,000 during the year preceding the
date of the hearing, we find that the Employer is engaged in com-
merce within the meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction in this case.2
2. The Employer refused to stipulate that any of the labor organ-
izations involved herein are labor organizations within the meaning
of Section 2 (5) of the Act. We take official notice of the fact that
one of the intervening unions, the International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, AFL-CIO, herein called the Brewery Workers, exists for
the purpose of dealing with employers concerning working condi-
tions and is therefore a labor organization within the meaning of the
Act. As pertains to the Petitioner and the other intervening union,
Citrus Workers Federal Labor Union #24218, AFL-CIO, herein
called the Federal Union,' uncontradicted testimony was received at
the hearing to the effect that both these unions exist for the purpose
of representing employees in dealing with employers with respect to
matters relating to grievances, labor disputes, rates of pay, hours of
employment, and other conditions of employment. We find, there-
fore, that the Petitioner and the Federal Union are both labor organ-
izations within the meaning of the Act.
3. The Employer contends that its contract with the Federal Union
is a bar to an election at this time. The Federal Union, the certified
bargaining agent, entered into a contract with the Employer on De-
cember 23, 1955, to run until October 31, 1956, and from year to year
thereafter, absent 60 days' written notice by either party of a desire
to modify or terminate the contract. The petition in this case was filed
on August 13, 1956, or approximately 21/2 weeks prior to the Mill B
date of the contract. Accordingly, as the present petition was timely
filed in relation to the automatic renewal date of the then current
contract between the Employer and the Federal Union, we find that
the contract does not bar an election.'
Nor do we find merit in the Employer's contention that the petition
should be dismissed on the ground that Petitioner claims to be a
successor union to the Federal Union. Whether Petitioner is a suc-
cessor or not is immaterial as the Employer refused to recognize the
claim of the Petitioner or to bargain with it, thereby raising a question
concerning representation.
The Employer also contends that the petition should be dismissed
because (1) the Federal Union's affiliation with various other unions
is illegal or otherwise defective, and (2) the petition violates the no-
2 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
'Federal Union and the Brewery workers were permitted to intervene in this proceed-
ing on the basis of card showings of interest.
4 F C Russell Company, soopra.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raiding provisions of the AFL-CIO constitution. As to (1), the
status of the Federal Union, which is merely an intervenor herein,
cannot, in any event, affect the validity of the petition. As to (2), the
Board has heretofore held that the fact that a petition violates the
no-raiding clause of the AFL-CIO constitution is no ground for the
dismissal of a petition.5
Accordingly, we find that a question affecting commerce exists con-
cerning 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 parties are in basic agreement as to the composition of the
unit sought, as amended at the hearing. I However, the Employer
would exclude, while the Petitioner and the Intervenors would include,
cafeteria employees and leadmen.
Cafeteria employees: The Employer operates a nonpublic cafeteria
for the use of its employees, although truckdrivers of other employers
who bring material to the plant and haul finished goods away from,
the plant may also use it. In addition to the working supervisor, who,
the parties agree should be excluded from the unit, there are 4 cafe-
teria employees during the busy season and 2 during the slack season-
The cafeteria employees are hourly paid, receive the same benefits as
other production and maintenance employees, were expressly included
in the unit found appropriate in the prior proceeding, and have been
included in the contract unit. In accordance with our usual custom
of including such employees in plantwide units, particularly where,
as here, their separate representation is not sought by any other labor
organization, we shall include the cafeteria employees in the unit
hereinafter found to be appropriate.'
Leadmen: In the Employer's juice extraction department, there is
a foreman in charge of each shift who is directly responsible to the
plant superintendent. Each shift foreman has two assistant or sub-
foremen under him in charge of separate departments. They in
turn, each have a leadman directly under them. In the warehouse
operation, there is a warehouse foreman and two leadmen on each
shift, one of whom works with cold storage and the other with dry
storage. The record indicates that there may be other leadmen, but
is not clear as to their placement or number. However, it is clear that
all leadmen have the same degree of authority over their subordinates,
and that all department leadmen work under shift foremen or sub-
foremen. Leadmen direct the work of from 3 to 15 employees,
depending upon the specific department and the time of the year. In
B Adams Packing Association , Inc., 116 NLRB 1645, F. C Russell Company, supra;
Minneapolis Star and Tribune Company, 115 NLRB 1300, and cases cited therein.
9 Foley Manufacturing Company, 115 NLRB 1205; Eastman Kodak Company, 115 NLRB
591; Channel Master Corporation , 114 NLRB 1486 ; Ozburn-Abston and Co., Inc., 112
NLRB 936. Cf. Geneva Forge, Inc, 114 NLRB 1295; LeTourneau-Westinghouse Com-
pany, 113 NLRB 684
MINUTE MAID CORPORATION 71
contrast to the foremen and subforemen, leadmen are paid on an
hourly basis, receive overtime pay, are carried on seniority lists, and
are not covered by the retirement program for supervisors. In addi-
tion, although the Board's unit finding in a previous case involving
the same employees' contains no reference to leadmen, they voted in
the election directed therein and have been included in the unit bar-
gained for under the certification resulting from that election.
The record shows that these leadmen work under department heads
or foremen who are admittedly supervisors as defined in the Act, and
act as conduits for relaying work directions to the rank-and-file em-
ployees. They do not have authority to hire, discharge, or discipline
employees and, although they may make recommendations to their
immediate superior as to transfers and discharges, any reports or
recommendations made by the leadmen are subject to independent
investigation by their supervisors. We find that these employees
cannot effectively recommend changes in personnel status, and that
the control exercised over other employees is more the type of direc-
tion which experienced employees customarily exercise over those who
are less experienced and is of a routine nature not involving the use
of independent judgment. We find, therefore, that the leadmen are
not supervisory employees within the meaning of Section 2 (11) of
the Act, and we shall include them in the unit.'
Accordingly, we find that the following employees of the Employer
at its plant located in Auburndale, Florida, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All production and maintenance employees, including warehouse-
men, checkers, cafeteria employees, leadmen, and the peel oil operator,
but excluding office and office clerical employees, printshop employees,
truckdrivers, gauge employees, fruit scale men, all new construction
and installation employees, agricultural employees, first-aid per-
sonnel, laboratory technicians, professional employees, night watch-
men, guards, inspectors, subforemen and foremen, the cafeteria super-
visor, and all supervisors as defined in the Act.
5. The Employer's operations are seasonal in nature, with peak
employment occurring during the period from January to March.
Because of this seasonal nature of the Employer's business, we shall
7In that case , the Federal Union petitioned for a unit of employees of the Employer's
predecessor . Wm. P McDonald Corporation , 83 NLRB 427 . The Board there found
appropriate a unit consisting of all production and maintenance employees , subject to
certain exclusions Thereafter , on January 19, 1950, the Federal Union was certified
as exclusive bargaining representative for the above unit of employees.
8 The Gas Service Company, 115 NLRB 944 ; Sidney Blumenthal & Co., Inc., 113 NLRB
791; Eagle Iron and Brass Company, 110 NLRB 747; Gerber Plastic Company, 108 NLRB
403, and cases cited therein
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct that the election directed herein be held during the Employer's
peak season, on a date to be determined by the Regional Director.'
[Text of Direction of Election 10 omitted from publication.]
9 The Employer contends , inter alia, that the petition is premature because filed before
the peak season However , there is no requirement that petitions for seasonal employees
be filed during the peak season . It suffices that, as here, the election is not held until
the peak season
]U As a Federal labor union, the Federal Union is affiliated directly with the AFL-CIO
in contrast to a union which is affiliated with an international union However , the Fed-
eral Union and the Brewery Workers request that their names appear jointly on the ballot
in any election directed herein on the ground that the Federal Union has applied for a
charter from the Brewery Workers and that their affiliation with the Brewery Workers
will be completed in the near future The Petitioner acquiesced in this request Accord-
ingly, we shall place the names of these two unions on the ballot jointly in the election
herein directed . See Adams Packing Association , Inc., supra.
Good-All Electric Mfg. Co. and International Brotherhood of
Electrical Workers, Local 1525, AFL-CIO, Petitioner . Case No.
17-RC-.228. January 17, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued on June 5,
1956,1 an election was conducted on July 18, 1956, under the direction
and supervision of the Regional Director for the Seventeenth Region,
among the employees in the unit heretofore found appropriate. At the
close of the election a tally of ballots was furnished each of the parties
in accordance with the Board's Rules and Regulations. The tally
shows that 127 valid ballots were cast for the Petitioner, 382 valid bal-
lots were cast against the Petitioner, 42 ballots were challenged, and
4 ballots were declared void.
On July 20, 1956, the Petitioner filed timely objections to conduct
affecting the results of the election, and requested the right to with-
draw its petition. On October 1, 1956, the Regional Director, after
investigation, issued his report on the objections, recommending that
the election be set aside, and that the Petitioner's request to withdraw
its petition be approved. On October 18, 1956, the Employer filed
exceptions to the Regional Director's report.
The Board has considered the objections, the Regional Director's
report, the exceptions, and the entire record in the case, and finds merit
in the Employer's exceptions.
In June 1955, the Employer announced to its employees that it had
established a profit-sharing trust fund for them, and that it was
making an initial payment to that fund based on the employees' earn-
' Not reported in printed volumes of Board Decisions and Orders.
117 NLRB No. 21.