Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1949

81 N.L.R.B. 1103 (N.L.R.B. 1949)

In the Matter of STOKELY FOODS, INC., EMPLOYER and GENERAL
DRIVERS AND HELPERS UNION, LOCAL #662, A. F. L., PETITIONER
Case No. 18-RC-169.Decided March 1, 1919
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing 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 error and are
hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named below claims to represent em-
ployees of the Employer.
I The Employer moves to dismiss the petition, alleging the following grounds : (a) the
record made at the hearing fails to show that the Petitioner has been designated by a sub-
stantial number of employees as their collective bargaining representative; (b) the unit
proposed by the Petitioner is not appropriate for bargaining purposes; (c) the Petitioner
is ineligible for certification because supervisory employees have been active in the organi-
zation of non-supervisory employees in the plant; and (d) there was no showing at the
time of the amended petition that the Employer had declined to recognize the Petitioner
as its collective bargaining representative. As to (a), the Employer excepted to the hear-
ing officer's ruling revoking a subpoena duces tecum issued by the Board, by means of which
the Employer sought to introduce into evidence the authorization cards of the Petitioner.
We have repeatedly held that the question of whether a petitioning labor organization has
made a prima facie showing is an administrative matter, not subject to direct or collateral
attack, and we therefore sustain the hearing officer's ruling Matter of Stokely Foods, Inc.,
78 N. L R. B. 842; Matter of Henderson Lumber Company, 80 N. L. R. B , No 217. As to
(b), we find the Employer's contention to be without merit, for reasons set forth in para-
graph 4, below. As to (c), no unfair labor practice charges have been filed and the issue
properly was not litigated in this proceeding. As to (d), we find the contention to be
without merit in view of the fact that a question concerning representation was shown to
exist at the hearing. Matter of Advance Pattern Company, 80 N. L. R. B. 29. We there-
fore deny the Employer's motion.
*Chairman Herzog and Members Houston and Gray.
81 N. L. R. B., No. 168.
1103
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Sections
9 (c) (1) and 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of production, maintenance, and ware-
house employees at the Employer's Cumberland, Wisconsin, food-
processing plant.z The Employer and the Petitioner agree to the in-
clusion in the appropriate unit of regular year-round production,
maintenance, and warehouse employees and to the exclusion from
the unit of divisional office employees; office and clerical employees,
sales employees, laboratory employees, agronomists, pack seasonal
employees, the plant manager, the plant superintendent, foremen, and
other supervisors. The parties are in disagreement over the unit
placement of the following employees, whom the Petitioner would
include and the Employer would exclude : make-ready and clean-up
employees, harvest helpers, viner foremen, hourly paid field men,
over-the-road truck drivers, and the labeling machine operator.
Should the Board find that over-the-road truck drivers may not
appropriately be included in the proposed unit, the Petitioner requests
that they be included in a separate unit.
The production, maintenance, and warehouse employees who the
parties agree should be in the appropriate unit are all year-round
employees, as distinguished from seasonal pack employees, whose
employment fluctuates with the processing of the seasonal crops.4
Make-ready and clean-up employees are employed for a 6i/2-month
period which starts on or about June 1, or a month before the com-
mencement of the packing season. During the first month of their
employment, they are engaged in readying the plant for the packing
season; during the packing season, they perform general labor around
the plant; and during the final month, they are engaged in cleaning
and laying away the machinery and in readying the plant for the
winter. There are approximately 10 to 15 of these employees, most
of whom have worked for the Employer for many years. We are
of the opinion that make-ready and clean-up employees have substan-
tial interests in common with regular year-round employees, are
clearly distinguishable from the seasonal pack employees, and should
be included in the unit.
2In the same building the Employer houses and maintains its divisional offices with
five to six employees Employees of the Employer 's divisional offices are not deemed
employees of the local processing plant , and are not included in the proposed unit
3 At the hearing the Employer took the position that the appropriate unit should be
limited to "hourly paid" employees in these categories As it appears that all in these
categories are currently paid by the hour, and the Employer has advanced no reason
for its position in proposing such limitation upon the unit description , we shall consider
the appropriateness of the proposed unit without reference to this qualification.
"See Matter of The St. Mary 's Packing Company, 72 N. L R B . 596, and cases cited
therein.
STOKELY FOODS, INC. 1105
Harvest helpers are hired by the Employer during the harvesting
season to assist farmers in expediting the harvesting of their crops
for processing in the Employer's plant. They drive tractors and other
farm equipment. They are essentially field and seasonal workers.
Their rates of pay and turn-over do not distinguish them from other
seasonal employees. Viner foremen oversee crews of 12 to 14 seasonal
employees who operate viner machines, separating peas from pods.
Viner foremen are clearly seasonal workers. We shall exclude har-
vest helpers, and viner foremen from the proposed unit on the ground
that they are seasonal workers.5
Hourly paid Meld men perform essentially the same duties as salaried
field men, whom the Petitioner does not seek to include in its unit.
The reason for the different bases of pay among these employees is
an historical one. There is apparently no other difference in their
employment. Field men negotiate the Employer's contracts with
farmers for the purchase of farm products, supervise the farmers'
growing and harvesting operations, and sell them silage. They are
year-round employees. They spend nearly all of their time in the
field, and their conditions of employment are entirely different from
those of the plant employees, who comprise the unit. We shall, there-
fore, exclude field men from the appropriate unit.
Over-the-road truck drivers 6 deliver raw materials to the Employ-
er's Cumberland plant and transport canned goods between this plant
and other plants of the Employer and to customers. Approximately
95 percent of their time is spent away from the plant; the remainder
is spent in production and maintenance work around the plant. They
are under the direct supervision of the plant manager and the divi-
sional office manager. It is our customary practice not to include over-
the-road truck drivers in a unit of production and maintenance
employees where the parties disagree as to such unit placement.'
Over-the-road truck drivers constitute a homogenous and functionally
coherent group which may be represented as a separate unit for the pur-
poses of collective bargaining, and we have so held on numerous occa-
sions.' We shall, therefore, exclude these employees from the pro-
posed plant unit. However, as the Petitioner, in the alternative, seeks
a separate unit of drivers, we shall place the Employer's over-the-road
6 No contention has been raised that harvest helpers are agricultural laborers . Inasmuch
as we exclude harvest helpers and the viner foremen from the unit as seasonal workers, we
are not passing upon their status as employees of the Employer at this time.
6 At the time of the hearing there were two employees in this category A third driver
was employed to transport produce to the plant from neighboring farms . This last employee
is a seasonal employee, and we, therefore, exclude him from the proposed unit.
' Matter of Stokely Foods, Inc., 73 N. L R. B 1503
8 Matter of Colonial Stores, Inc, 78 N L R B 1254, and cases cited therein.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck drivers in a separate unit for the purposes of collective bar-
gaining.'
The labeling machine operator works in the warehouse and directs
the work of a crew of 8 to 10 employees in the operation of a can-
labeling machine located about 300 feet from the foreman' s office.
Cans of produce are generally stored without labels, and labels are
affixed when orders for shipment of goods are received. The labeling
machine operator plans the labeling work under these shipping orders.
The labeling machine operates 10 to 12 months each year, and, at times
when it is not in operation, the operator is assigned to other work.
The labeling machine operator is under the general supervision of the
warehouse foreman. In the absence of the foreman from the ware-
house for periods of 10 minutes to 3 hours a day, or for a longer period
due to illness, the labeling machine operator is in charge of the
warehouse.
The labeling machine operator does not hire or discharge employ-
ees on his crew. He may recommend the discharge, discipline, or
transfer of members of his crew to the warehouse foreman who may
act directly or may make an independent investigation of the matter.
The labeling machine operator organizes his crew and allocates them
for work on the labeling machine. The crew consists of warehouse
and packing employees, and is variously experienced in labeling
machine work.
The record does not disclose the wages paid to the labeling machine
crew or to the operator or to personnel whom the parties agree are
supervisors. In an earlier proceeding,1° wherein the status of a
labeling machine operator at another plant of the Employer was in
dispute, we found that, whereas the usual differential between the
wages of the labeling machine operator and the wages of his crew was
21/2 cents per hour, the operators in dispute received a differential of
15 cents per hour, a rate comparable to that paid to admittedly super-
visory personnel at that plant and which the Employer urged was
indicative of similar supervisory status.
Wages were thus made the determining factor in finding the label-
ing operator to be a supervisor in this earlier case. The record in
the instant case is silent on the matter of the relative wages of the
employees concerned. Under these circumstances, we will make no
decision respecting the status of the labeling machine foreman at the
Cumberland plant at this time. He may vote under challenge at
the election. If his vote is necessary to determine the results of the
election, we shall resolve the issue of his status at a later time.
9 Cf Matter of Stokely Foods, Inc., 78 N. L R. B 842, supra.
10 Matter of Stokely Foods, Inc. 66 N L. R. B. 749; 69 N. L. R. B. 801, 802-803.
STOKELY FOODS, INC. 1107
We find that the following units of employees at the Employer's
Cumberland, Wisconsin, plant are appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
Act :
(a) All year-round production, maintenance, and warehouse em-
ployees, including make-ready and clean-up employees, but exclud-
ing divisional office employees, office and clerical employees, sales
employees, laboratory employees, agronomists, pack seasonal em-
ployees, harvest helpers, field men, viner foremen, over-the-road
truck drivers, the plant manager, the plant superintendent, foremen,
and supervisors.
(b) All over-the-road truck drivers, excluding the seasonal truck
driver, other employees, and supervisors.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions 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 supervision 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,
among the employees in the separate units found appropriate in
paragraph numbered 4 , above , who were employed during the pay-
roll period immediately preceding the date of this Direction of Elec-
tions, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily 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 elections, 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 bargaining , by General
Drivers and Helpers Union, Local #662, A. F. L.
829595-50-vol 81-71