S. Martinelli & Co.

National Labor Relations Board - Board Decisions

Jan 28, 1949

81 N.L.R.B. 383 (N.L.R.B. 1949)

In the Matter of S. MARTINELLI & Co. and CANNERY WAREHOUSEMEN,
FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679
Case No. 20-RC-373.-Decided January 28, 1919
I
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held before a
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial er4or
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labof
Relations Act, the Board has delegated its powers in connection witl3
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case, the Board makes the following':
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
S. Martinelli & Co. is a partnership which operates a plant iIi
Watsonville, California, and a vineyard in Santa Cruz, California:
This proceeding is concerned only with the Employer's operations ill
Watsonville where it is engaged in the business' of producing and
bottling apple cider, grape juice, coca-cola, and other soft drinks. ' Id
addition, it serves as the local distributor of Acme beer. During the
fiscal year ending February 28, 1948, the Employer purchased
$505,600.45 worth of supplies for its Watsonville operations of which
$2,026.00 were obtained from points outside the State of California.
During the same period, the Employer's sales at the Watsonville ^lanL
amounted to $885,904.20, of which $98,232.90 represents sales to pur-
chasers outside the State of California. ` '
We find, contrary to its contention, that the Employer is engaged
in commerce within the meaning of the National Labor Relations Act.
*Houston , Reynolds , and Murdock
81 N. L. R. B., No. 65.
383
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
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.
IV. THE APPROPRIATE UNIT
The parties generally agree that the appropriate unit should be
composed of all the Employer's production and maintenance em-
ployees, including the route supervisor and the warehouseman, but
excluding office workers and the plant superintendent. They further
agree that truck drivers, as such, should be excluded, but since the
Employer's truck drivers devote a portion of their time to production
work, they would have the Board decide whether these employees
should be included insofar as they are production workers. The par-
ties would also have the Board determine whether the coca-cola bottlers
should be included.
There has been a bargaining history at the Employer's plant dating
back to 1935. In that year, the Employer and Local 287, Interna-
tional Brotherhood of Teamsters of Santa Cruz and Monterey Coun-
ties, herein called Local 287, entered into a bargaining agreement which
covered the Employer's truck drivers. By its terms, this contract was
to remain in force until January 1, 1936, and thereafter until either
party notified the other of a desire to change its provisions. At various
times during the ensuing years, the parties orally amended the con-
tract, by, inter alia, increasing the wage rates of truck drivers and
expanding the contract's coverage to include a few other employees of
the Employer who had joined Local 287. Although the employees
in the contract unit were represented by Local 287 until January 1947
no written agreements were executed after the 1935 agreement. In
January 1947, Local 296 of the International Brotherhood of Team-
sters, herein called Local 296, succeeded Local 287 and from that
time until the date of the hearing, it has acted as the bargaining rep-
resentative of the afore-mentioned employees, negotiating oral agree-
S. MARTINELLI & CO. 385
ments only with the Employer.' A representative of Local 296 ap-
peared at the hearing and stated that the only employees of the Em-
ployer whom Local 296 desired to represent were the truck drivers.
He apparently withdrew from the hearing when the Petitioner and
the Employer agreed to exclude truck drivers from the proposed bar-
gaining unit.
The truck drivers: There are three truck drivers in the Employer's
employ whose principal functions are to drive trucks and deliver the
Employer's products to customers. During the seasons when deliv-
eries are slack, the truck drivers complete their assignments early in
the afternoon and spend the balance of their time in the plant per-
forming production operations. They also do production work after
their regular hours during the plant's busy season. Since these em-
ployees are primarily employed as truck drivers and they spend the
major portion of their time performing the duties required of such
employees, we shall exclude them.
The special delivery driver: This employee divides his time be-
tween delivering special orders for the Employer and performing
production work. As more than 50 percent of his time is devoted to
plant work, we regard him as a production worker and shall include
him.
The coca-cola bottlers: These employees, as their title indicates,
bottle coca-cola. Like the bottlers in the cider and grape juice opera-
tions with whom they are frequently interchanged, they are unskilled
workers. We are of the opinion that the interests of the coca-cola
bottlers are closely allied to those of the other production workers and,
therefore, we shall include them.
We find that all the production and maintenance employees em-
ployed at the Employer's Watsonville, California, plant, including the
route supervisor,' the warehouseman, the special delivery driver, and
the coca-cola bottlers, but excluding the truck drivers, office workers,
the plant superintendent, and all supervisors, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The record shows that the Employer maintains a force of approxi-
mately 20 production and maintenance employees on a year-round
' No claim is made , as indeed it cannot be made , that there is an outstanding agreement
between the Employer and Local 296 which constitutes a bar to this proceeding.
2 Despite his title , this employee exercises no supervisory authority . He sets up displays
and signs advertising the Employer ' s products for customers and devotes the balance
of his time to production work.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis. During its production season which begins about the first of
September and lasts for from 4 to 6 months, the employee comple-
ment is increased by approximately 60 employees. It does not appear
that the Employer makes any distinction between the year-round and
seasonal employees, either in the work they perform or the records
it keeps. At the beginning of each season, the Employer notifies the
seasonal workers when to return to work and a large proportion of
them return to the plant year after year. The Petitioner and the
Employer agree that the seasonal employees have a sufficient com-
munity of interest with the other employees to be eligible to vote in
the election. Accordingly, and on the basis of the entire record, we
shall permit seasonal employees to vote in the election hereinafter
directed.3
At the time of the hearing the Employer was having its busy season
and there was a full complement of employees at the plant. Under
these circumstances, we find that an election in the immediate future
is appropriate.
DIRECTION OF ELECTION 4
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional 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 Regulations-Series 5, as amended, and
to our determination in Section V, supra, among the employees in
the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said pay-roll period because they were ill or on vacation or tem-
porarily 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 reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by Cannery Warehousemen, Food Processors, Drivers and
Helpers, Local Union No. 679.
3 Matter of American Agricultural Chemical Company , 73 N. L. R. B. 105.
4 [See Order Amending Direction of Election , page 1179 , infra.]