Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

May 24, 1949

83 N.L.R.B. 795 (N.L.R.B. 1949)

In the Matter of STOKELY FOODS, INC.,' EMPLOYER and UNITED PACK-
INGHOUSE WORKERS OF AMERICA, CIO, PETITIONER
Case No. 10-RC-455.Decided May 24,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing in this case was held in Tampa,
Florida, on February 9 and 10, 1949, before T. Lowry Whittaker, hear-
ing 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 is engaged in commerce within the meaning of
the Act.
2. The Petitioner is a labor organization claiming to represent
employees of the Employer.
3. The question concerning representation :
The Employer made a motion at the hearing to dismiss the petition
on the ground that the Petitioner was not really seeking to represent
the employees involved herein in its own behalf, but was "fronting"
for the United Steelworkers of America, CIO, hereinafter referred
to as the Steelworkers. The Petitioner, but not the Steelworkers,
has complied'with the filing requirements of Section 9 (f), (g), and
(h) of the Act. The Employer, in an effort to prove the fronting
allegation, secured the issuance of subpenas daces tecum to officials of
the Steelworkers, the Petitioner, and the CIO Organizing Committee,
hereinafter referred to as the Committee, but the hearing officer sus-
tained petitions to revoke the subpenas. For reasons set forth below,
the hearing officer's rulings in this regard are affirmed.
The Committee conducted the organizational campaign among the
employees herein involved. Thereafter, the Petitioner took an active
interest in the representation of these employees, requested recognition
of the Employer for collective bargaining purposes, filed the petition
in this case, and appeared at the hearing. All membership application
1 The Employer 's name appears as amended at the hearing.
83 N. L. R. B., No. 123.
795
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards presented by the Petitioner to the Board to show that its interest
in this case was substantial were made out in the Petitioner's name 2
At the hearing, the Employer produced a copy of a letter, written in
January 1948, from the Committee's Florida State Director to his
executive superior. The latter is an official of the Steelworkers, and
his salary is paid by that union. In this letter the State Director
referred to the organizing activities at the Employer's plants in
Tampa, and suggested the possibility of having a complying CIO
union petition for an election and then turning any resulting contract
over to the Steelworkers.3 The Employer's manager of industrial
relations, to whom a copy of this letter was sent, testified at the hearing
that the Employer would have no part of this transaction.
While this letter is some evidence of an intention, a year before
the hearing in this case, by the Committee to evade the filing require-
ments.of the Act and to allow the Steelworkers to enjoy the benefits of
the Act, there is no evidence that the Petitioner was invglved in the
effort. Moreover, the Petitioner is a legitimate international union
and has shown a substantial interest in the representation of the em-
ployees here involved. There is insufficient evidence in the record,
or in the offer of proof in support of the subpenas, to indicate that
the Petitioner now is seeking benefits under the Act for a non-comply-
ing labor organization. The evidence sought to be discovered by the
subpenas was immaterial, as it would have shown, at most, possible
intention by the Petitioner to shift its certification or contract in the
future rather than a design to hold the certificate for the benefit of a
non-complying union.4 We find that the Petitioner is seeking certifi-
cation, in its own behalf, and that it is the real party in interest.
Accordingly, we hereby deny the Employer's motion to dismiss.5
We find that a question of representation exists concerning the rep-
resentation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner contends that the appropriate unit in this case
should consist of all production and maintenance employees of the
2 The Employer also moved to dismiss the petition on the ground that the Petitioner
had made an insufficient showing of interest . The Employer sought to prove that the cards
were originally executed in blank, that the Petitioner 's name was later filled in, and that,
therefore , the employees did not designate the Petitioner as their representative Since
the Petitioner 's name will appear on the ballot , the employees will have full opportunity to
express their desires in this regard . Matter of Sam peel Time Control , Inc., 80 N . L. R. B.
1250. Furthermore , the showing of interest is a matter for administrative determination
and is not subject to collateral attack at the hearing . Matter of Nobl,tt-Sparks Industries,
Inc., 76 N. L. R. B. 1230. The motion to dismiss on this ground is denied.
2 The Steelworkers hold a collective bargaining contract covering the Employer 's Indian-
apolis plant.
* The Employer will, of course , be under no obligation to bargain with any labor organi-
zation other than one that is certified in this proceeding.
5 See Matter of Morrison Turning Company, Inc., 83 N. L. R. B. 687.
STOKELY FOODS, INC. 797
Employer in Tampa, Florida," excluding office, clerical, sales, tem-
porary and professional employees, timekeepers, guards, and super-
visors as defined in the Act. The Employer agrees with the compo-
sition of this unit, but it would exclude the following employees :
Foreman: Since all foremen have the power effectively to recom-
mend the hire and discharge of employees, they will be excluded as
supervisors.
Labeling machine operators: These employees direct the work of
some eight employees, and can effectively recommend their hiring
and discharge. They will be excluded as supervisors.
Carloader: This employee calibrates boxcars for loading purposes,
and spends about 20 percent of his time doing actual loading work.
Two or three employees work under his direction. There is uncon-
tradicted evidence in the record that the carloader has authority
to recommend hiring, discharge, and disciplinary action. We shall,
therefore, exclude the carloader as a supervisor.
Truck and bus drivers: The truck drivers do both local and over-
the-road hauling. The bus driver spends half his time operating
a bus which carries employees to and from work; the rest of the
time he drives a truck. The Petitioner seeks to include these driv-
ers in the unit. Since the drivers perform the usual functions of
such employees, and since no other labor organization seeks to rep-
resent them in a separate unit, we shall include them.7
Laboratory assistants: These employees work under the chief chem-
ist and the laboratory technician, and their job is to make routine tests
of the Employer's products. No special training is needed for this
work, which can be learned in a week's time. We find that the duties
of the laboratory assistants are not substantially different from those
of the ordinary production employees. We shall include the lab-
oratory assistants in the unit.8
Weig7.masters: The weighmasters are plant clerical employees who
weigh fruit on arrival and make up the necessary weight records.
They work under a regular production foreman. In accordance
with usual Board practice regarding plant clericals, we shall include
the weighmasters in the unit .9
6 The Employer 's Tampa operation includes plants on West Columbus Drive and Fig
Street, and four warehouses.
4 Matter of General Plywood Corporation , 79 N. L. R. B. 1458; Matter of Acme Lumber
f Supply Company, 79 N L. It. B 429; and Matter of Greenville Cotton Oil Company, 78
N. L It. B. 1175. Cf. Matter of Stokely Foods, Inc., 81 N. L. It. B. 1103, in which the
Cumberland , Wisconsin , plant of the Employer was involved . The petitioning union
requested the inclusion of truck drivers in a production and maintenance unit, but was
willing to represent them in a separate unit. As the Employer objected to the inclusion
of the drivers in the production and maintenance unit, the Board found a separate unit
of drivers appropriate.
8 Matter of Commercial Solvents Corporation, 80 N. L. R. B. 277.
9 Matter of Northwest Engineering Company , 73 N. L. R. B. 40.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seasonal employees: The Employer's operation is seasonal in char-
acter and extends, usually, from November to June. Employment
is on a seasonal basis, and reaches a peak of nearly 500. The regular,
year-round force is but a small fraction, of this number. Approxi-
mately 50 percent of the seasonal employees return to work for the
Employer each year, and the Employer has an established policy of
giving preference in hiring to former workers. The Petitioner re-
quests that the seasonal employees be included in the unit. In accord-
ance with standard Board practice in cases such as this, we shall in-
clude seasonal employees in the unit hereinafter found appropriate 10
We find that all the production and maintenance employees in the
Employer's plants and warehouses at Tampa, Florida, including
truck and bus drivers, laboratory assistants, weighmasters, and sea-
sonal employees, but excluding office, clerical, sales and temporary
employees, foremen, labeling machine operators, carloaders, labora-
tory technicians, timekeepers, guards, and professional employees
and supervisors as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
5. The determination of representatives :
Since this case involves the selection of representatives in a sea-
sonal industry, the election should be held at or near the peak of
employment in order that the franchise be made available to the
employees most interested in the selection of a bargaining representa-
tive.- As the evidence in the record indicates that a representative
group of workers will not be employed at the time our decision is
issued, we shall direct that the election be held at or near the peak
of employment of the next season on a date to be determined by the
-Regional Director, among the employees in the appropriate unit Who
are employed during the pay-roll period immediately preceding the
date of issuance of the notice of election.
DIRECTION OF ELECTION
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 on a date to be selected by the Regional
Director for the Tenth Region subject to the instructions set forth in
paragraph numbered 5, above, under the direction and supervision
.of said Regional Director, and subject to Sections 203.61 and 203.62
10 Matter of S. Marttinelli & Co., 81 N. L R. B. 383 ; Matter of Cain Canning Company.
81 N. L R. B 213; and Matter of American Agricultural .Chemical Company, 73 N. L. It. B.
105.
11 Matter of Edgar F . Hurf Company, 77 N. L. R B. 762.
STOKELY FOODS, INC. 799
of National Labor Relations Board Rules and Regulations-Series
5, as amended, among the employees in the unit found appropriate
in paragraph numbered 4, above, who were employed during the
pay-roll period immediately preceding the date of issuance of the
notice of election, including employees who did not work during
said pay-roll period because they were ill; or on vacation or tempo-
rarily 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 United Packinghouse Workers of America, CIO.