United Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 117 (N.L.R.B. 1971)

UNITED FOODS, INC.
United Foods, Inc., Dulaney Foods Division and Inter-
national Brotherhood of Electrical Workers, AFL-
CIO. Cases 5-CA-4419 and 5-RC-6355
January 25, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On July 28, 1970, Trial Examiner Henry Jalette
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief. The General Counsel excepts only to the
Trial Examiner's failure to recommend that the Na-
tional Labor Relations Board vacate the Certification
of Representative previously issued to the Union in
the related representation proceeding.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
IT IS FURTHER ORDERED that the Certification of Rep-
resentative issued by the Regional Director for Re-
gion 5, on April 18, 1969, in Case 5-RC-6355 be, and
it hereby is, vacated.
i While agreeing with the Trial Examiner, for the reasons stated by him,
that the unit ultimately certified by the Board in this case was too limited in
scope, Member Fanning wishes to make it clear that, in his opinion, the
maintenance unit originally sought by the Union was appropriate for the
purposes of collective bargaining and, had he participated in the Board's
Decision on Review, he would have so concluded See his dissenting opinion
in American Cyanimid Company, 130 NLRB 1, 3
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
117
HENRY L. JALETTE, Trial Examiner: On March 21, 1968,
the above-captioned Union filed a petition in Case No.
5-RC-6355 seeking an election in a unit of maintenance
employees of the above-captioned employer at its Exmore,
Virginia, plant, including refrigeration and cold storage
maintenance personnel, mechanics, and electrical mainte-
nance employees, excluding all other employees, office and
clerical employees, professional employees, guards and su-
pervisors as defined in the Act. A hearing thereon was held
on May 2, 1968, and on May 22, 1968, the Regional Direc-
tor issued a Decision and Direction of Election in which he
found the unit described in the petition appropriate. The
Respondent filed a timely request for review which was
granted, and on January 10, 1969, the Board issued a Deci-
sion on Review and Direction of Election in which it found
that a maintenance unit was not appropriate. However, the
Board found the following production and maintenance
unit appropriate and directed an election: "All year-round
production, maintenance and cold storage employees em-
ployed by the Employer at its Exmore, Virginia plant and
cold storage facility, excluding busy season employees, tem-
porary employees, office clerical employees, professional
employees, agricultural employees, watchmen, guards and
supervisors as defined in the Act."United Foods, Inc., Dula-
ney Foods Division, 174 NLRB No. 18. Thereafter, the Em-
ployer filed a motion for reconsideration directed to the
Board's exclusion of "busy season" employees. The Board
denied the motion and on February 10, 1969, an election
was held in which 48 votes were cast for the Union, 15
against the Union, and in which 117 ballots were challenged
by the Union. Of the 117 challenged, 98 were based on the
contention that the voter was a "busy season" employee
explicitly excluded by the Board in its Decision on Review.
Of these 98 challenges, the Regional Director concluded
that 87 should be sustained on the ground that the chal-
lenged voters were "busy season" employees within the
meaning of the Board's Decision on Review. Since the re-
maining 30 challenged ballots were not determinative, the
challenges to them were not resolved and on April 18, 1969,
the Regional Director issued a certification of representa-
tives. On May 27, the Board denied the Respondent's re-
quest for review of the Regional Director's Supplemental
Decision and Certification of Representatives.
It is undisputed that on or about June 7, 1969, the Union
requested Respondent to bargain collectively with respect
to rates of pay, wages, hours of employment, and other
conditions o employment as exclusive representative of the
employees of Respondent in the certified unit and that Re-
spondent refused to bargain. On June 20, the Union filed
the charge herein and on June 24, complaint issued alleging
that the Respondent had violated Section 8(a)(1) and (5) of
the Act by refusing to bargain with the Union which had
been certified by the Board as the exclusive representative
of Respondent's employees in an appropriate unit. Respon-
dent duly filed its answer in which it denied that any labor
organization had ever been validly certified to represent
Respondent's employees.
On July 31, 1969, General Counsel filed a "motion to the
Board for Summary Judgment." On March 16, 1970, the
Board issued an order denying the motion and remanding
the proceeding for hearing stating as follows: "The Board,
having duly considered the matter, is of the opinion that
188 NLRB No. 19
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is merit to Respondent's argument regarding the insuf-
ficiency of the record in the underlying representation case,
Case No. 5-RC-6355, on the inclusion in the appropriate
unit or exclusion from the appropriate unit of seasonal em-
plo ees; and that the issue can best be resolved by a hearing
before a Trial Examiner, . . . " Accordingly, the Board
ordered that a hearing be held before a Trial Examiner for
the purpose of adducing evidence on the issue or issues
raised by the pleadings , and "particularly on the issues re-
lating to the unit placement of seasonal employees." Pur-
suant to such order , a hearin was held before me in East
Ville, Virginia , on April 21, 1970.
Upon the entire record,' including my observation of the
witness,2 and after due consideration of the briefs filed by
the Respondent and the Charging Party, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation with a place of busi-
ness at Exmore, Virginia, where it is engaged in the pro-
cessing of vegetable products. During the 12-month period
preceding the issuance of complaint, Respondent in the
course and conduct of its business operations received ma-
terials valued in excess of $50,000 at its Exmore, Virginia,
plant directly from outside the Commonwealth of Virginia
and during the same period it sold and shipped from said
plant to points outside the Commonwealth of Virginia prod-
ucts valued in excess of $50,000.
11. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-
CIO, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE "BUSY SEASON" EMPLOYEES
Respondent is engaged in the processin , packaging,
warehousing, and shipping of frozen vegetables. The cycle
of operations is as follows: around the end of March the
processing of spinach begins and lasts 3 to 4 weeks; with
perhaps a brief -break, the next vegetable to be processed is
turnip greens, then green peas, then snap beans, then corn,
then fall greens such as spinach and turnip greens again,
collards, and broccoli. Generally the seasons ends about the
middle of December.
Respondent employs both year-round and seasonal em-
ployees. In 1968, it employed about 65 year-round employ-
ees, of which 26 were production employees, 20 were
maintenance employees and the remainder performed stor-
age, receiving, and shipping functions. These year-round
employees were included in the Board's Decision on Review
and Direction of Election and there is no issue presented
herein regarding such inclusion.
Production Manager Whittington testified at the R case
hearing that Respondent may employ 400 or more employ-
1 General Counsel introduced into evidence portions of the record in Case
5-RC-6355. Without that, in light of Section 9(d) of the Act, I would never-
theless take official notice of the entire record in the representation case, as
the term "record" is defined in Section 102.68 and 107.69(f), Rules and
Regulations and Statements of Procedure , National Labor Relations Board,
Series 8 , as amended.
2 Only two witnesses testified , Respondent's personnel supervisor, Mallison
Finney and production manager, John Whittington. Their testimony is un-
disputed
ees at the peak of the season . How long this number is
employed, and how many of this number are employees
from previous seasons is not clear . Specific information
about the employment history of seasonal employees was
submitted only with regard to 97 of the 98 employees whose
ballots were challenged on the ground they were seasonal
employees. Of these 97, 67 have worked for 30 or more
weeks every year in the period from 1959 through 1968; 37
have worked for 20 or more years; 84 have worked 13 or
more weeks for the 3 years preceding the election 4 In 1968,
64 worked 1,000 or more hours.
All production employees are classified as either "A,"
"B," or "C. " In ggeneral, `A" employees are the most senior
and/or most skilled employees; only slightly less senior or
less skilled are "B" employees; and "C" employees are the
new employees.5 The ` A,' "B," and "C" classifications are
not indicative of the type of work performed by the employ-
ees. This is done by the use of suffixes or permutations of
the "A," "B," and `C" classifications. Thus, "A extra" em-
ployees are "almost as good as the `A,' but not quite" and,
in addition, the "extra' indicates that they are more adept
at some function such as packing . "B extra" employees are
more skilled at weighing and fillingg. A B-1 or B-2 classifica-
tion indicates an inspector. A C-I employee is better than
a "C" employee.
The record does not indicate what skills or period of
service are required for employees to advance from a "C"
classification to an "A" classification. It appears that there
is a fixed number of "A" employees, because Respondent's
personnel supervisor, Miss Finney, testified that when an
`A" employee resigns or dies his place will be filled by an
"A" extra employee.
When the season ends in mid-December, the "C" em-
ployees are laid off first and then the "B" em^loyees. It is
suggested by Miss Finney's testimony that "A' employees
are not laid off unless they request it, either because they are
social security annuitants or do not want to work during the
cold winter months.
In late March when the season is about to begin, Respon-
dent advises the laid-off employees to return to work by a
radio announcement over a 5 p.m. local broadcast to the
effect that "all A and A extra women please report to work
tomorrow morning at 8:00 o'clock. If the announcement is
for night-shift employees, it is made at 3 p.m. Laid off
employees know when the season is about to start and know
that the recall will be announced over the radio.
All employees who are given work at the start of the
season are laid-off employees recalled in the manner de-
scribed above, except that when small numbers of employ-
ees are recalled they are notified by telephone. "C"
employees, the last to be recalled, are generally notified by
telephone. No new seasonal employees are employed until
all laid-off employees have been recalled and none is gener-
all y hired until October for the processing of broccoli.
The record does not indicate the rate of pay for the vari-
ous classifications. All new production employees are em-
ployed at the Federal minimum wage of $1.60 per hour,
receive a 10-cent-per-hour increase after 30 days if their
work is satisfactory, and an additional 10 cents per hour
3 Resp . Exh 2 purported to contain employment data on all 98 challenged
voters; it appears that the name of Lois Cromwell was inadvertently omitted.
4 These figures have been culled from Resp Exh . 2. The periods described
(e.g., 30 or more weeks , 13 or more weeks , 20 or more years) have been
adopted by me as one method of describing the regularity and length of
service of some of the "busy season" employees to aid in analysis. Undoubt-
edl other methods could be used to convey the same message.
Some "C" employees may have worked several years , but they have not
developed skills to permit their advancement to C-1 or one of the other
classifications.
UNITED FOODS, INC.
after another 30 days . According to Miss Finney , thereafter
they will get increases to bring them into line for the rate of
the job ; however, Miss Finney did not explain what that
meant and the record does not indicate whether or not
year-round production employees receive the same, more,
or less than the "busy season" employees . All that appears
is that "A" and "B ' female employees were all making
exactly the same rate.
It is not clear from the record in the hearing on the
complaint whether or not the year-round production em-
ployees do the same type of work as the seasonal employees.
It appears that the 26 year -round production employees do
vanous types of work during the slack season . During the
season Respondent packs some vegetables in large 1,000
pound containers , and during the slack period the year-
round production employees may work at repacking the
product . Otherwise , they will be employed at various main-
tenance or housekeeping functions . During the busy season
they are line pushers , or-line operators , or freezer operators.
Some employees qualified to function as line or freezer
operators . Some employees qualified to function as line or
freezer operators are laid off at the end of the season, but
the record does not show how many . Of the 26 year-round
production employees, all but 6 are male.
All employees are eligible for Respondent's vacation and
sick benefits according to the same formula , that is, they
must have worked 46 weeks and 1,840 hours in the preced-
ing year to be entitled to vacation and sick benefits. Of the
9Tchallenged voters , none received vacations in 1969 based
on 1968 employment, and at most 9 received vacations, in
1968 based on 1967 employment.7
IV. ANALYSIS AND CONCLUSIONS
In excluding the seasonal employees in its Decision on
Review, the Board stated its reasons as follows : "The busy
season employees are less skilled than the year-round em-
ployees, and perform only routine production assignments
under production supervision . The busy season employees
receive lower wages , and few, if any, are entitled to a paid
vacation . Further, it does not appear that any of the busy
season employees have the opportunity to become year-
round employees . Because the record establishes that the
busy season employees do not share the same community
of interest as the year-round employees , and since Petitioner
does not seek to represent them, we exclude the busy season
employees."
Both in its motion for reconsideration of the Board's
Decision on Review and in its brief in opposition to General
Counsel's Motion for Summary Judgment , Respondent has
contended that the facts were not as found by the Board.
At the instant hearing , however, Respondent did not avail
itself of the opportunity afforded it by the Board's Order
directing hearing to establish with appropriate books and
records that the Board had erred factually in its Decision on
Review . For example , although it challenged the Board's
statement that "the busy season employees receive lower
wages" than the year-round employees , Respondent did not
produce its records to show the wages paid year -round em-
ployees and the wages paid seasonal employees , and its
6 The formula does not apply to Thanksgiving when all employees receive
a holiday or holiday pay.
7 Miss Finney testified that Vernon Mears, Woodrow Mears , Henry Bun-
dick , and Ernest Spady received vacations in 1%9 According to Resp. Exh.
2, none of the four had worked the required 46 weeks in 1%8, and were not
entitled to a vacation . Miss Finney , based her testimony on Resp Exh. 2 and
may have read from the wrong column ( 10 instead of 11, 1967 instead of
1%8) in her perusal of the exhibit.
119
failure to do so warrants the inference that such records, if
produced , would not have supported its assertion . Respon-
dent elicited from Miss Finney the statement that all "A"
and all "B" female employees make exactly the same rate,
but since all but six of the year-round employees in 1968
were male, that testimony was of little value.
It is implicit from the record as a whole that in general,
the seasonal employees receive lower wages than the year-
round employees. Production Manager Whittington admit-
ted at the R case hearing that maintenance employees re-
ceive higher wages than the female production employees,
and some of the year-round male production workers re-
ceive wages higher than the maintenance employees. The
year-round, male production employees are "line pushers";
they are strategic men located throughout the freezer opera-
tions . As to the six female production employees , at least
two are floorladies, and it appears the other four may be
quality control inspectors. It is inconceivable that seasonal
female production employees would receive wages equal to
that paid such key emploges. It appears that Respondent's
challenge to the Board's fYmding on this issue is based on the
fact that there are several seasonal employees who elect not
to work year round who receive wages comparable to those
who do work year round. Such exceptions would not invali-
date the Board's finding.
The foregoing also supports the Board's finding that the
"busy season employees are less skilled than the year-round
employees." While there is testimony that seasonal employ-
ees run various kinds of machines , and that a line operator
or a freezer operator may be included in the seasonal layoff,
these are again the exceptional cases, and the sense of the
record is that the vast majority of all seasonal employees
work on production lines performing a variety of unskilled
production tasks such as inspecting vegetables, wei ghing
vegetables , or packing vegetables into containers. While
Respondent undoubtedly values their prior experience and
training, it would be hyperbole to describe the seasonal
employees as highly skilled. In contrast , as noted earlier,
generally speaking, the year-round employees normally act
as line operators at various equipment and are the key em-
ployees.
The Board's conclusion that seasonal employees should
be excluded was also based on the assertion that few, if any,
of the seasonal employees are entitled to a paid vacation,
and on the assertion "it does not appear that any of the busy
season employees have the opportunity to become year-
round employees." Based on Respondent's formula for a
paid vacation, it is evident from Respondent's Exhibit 2 that
the Board's assertion respecting vacations is essentially ac-
curate. The assertion respecting the opportunity to become
a year-round employee is accurate, in a practical sense, but
not in a theoretical sense , Respondent does classify all em-
ployees as either "A," "B," or `C" and, theoretically, as the
years roll by, an employee can progress from a "C" classifi-
cation to an "A" classification . However, advancement to
a year-round position occurs only when a year -round em-
ployee dies or resigns . Since the complement of seasonal
employees numbers well over 200, and, an the year-round
production force is only 26, as a practical matter, few, if any,
seasonal employees have the opportunity to become year-
round employees.
In short , viewing the seasonal employees as a class and
mindful of exceptions, the finding is warranted that season-
al employees are less skilled than the year-round employees
and perform only routine production assignments; that they
8 At the R case hearing , counsel for Respondent objected to a question by
the Union's representative about the rate of pay of the female production
employees.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receive lower wages and few are entitled to a paid vacation;
and that they do not have a meaningful opportunity to
become year-round employees. The difficulty with such a
finding is that it really says too much. It ignores exceptions
and speaks of seasonal employees as a single uniform group
to be included in toto or excluded in toto from a unit of
year-round employees. The fact of the matter is that there
are two classes of seasonal empplo ees ; one class consists of
employees who are employed by Respondent for a substan-
tial number of weeks from year to year, but less than year-
round; the other class consists of employees employed for
short periods of time on an irregular basis.'
The first class would include such employees as the 67
challenged voters who have worked for Respondent for 30
or more weeks every year in the period from 1959 through
1968; the 37 who worked for 20 or more years; and the 84
who worked 13 or more weeks for the 3 years preceding the
election.
The second class could include the seven challenged vot-
ers who worked for 10 or less weeks; the 13 who worked
more than 10 but less than 20 weeks; and the 250 or so other
employees who did not vote about whom we have no em-
ployment histories. As to this last number, it is reasonable
to assume that they do not have histories of such substantial
employment as shown for so many of the challenged voters;
if they had, I am certain Respondent would have adduced
proof thereof. 10 The muteness of the record is eloquent testi-
e "temporary or irregular seasonalmony that the are th
employees" referred to in respondent's Motion for Recon-
sideration.
As to the first class of employees, who I will refer to as
"regular seasonal employees," it appears that while many
are less skilled than the year-round employees, a number are
equally skilled (e.g., one is a floorlady, one is a line operator,
18 are male employees presumably performing production,
shippingg, or warehousing functions similar to those per-
formedby year-round employees); moreover, Respondent's
operations do not call for any high degree of skill from any
of the employees, year-roundyor seasonal . In addition, while
few are entitled to a paid vacation, nine received vacations
in 1968, and several just fell short of qualifying for 1969. In
short, the difference between the year-round employees and
"regular seasonal employees" are not as great as they first
appear, and when one considers the regularity of the em-
ployment of this class of seasonal employees it is evident
and I find that they share a community of interest with the
year-round employees and should be included in the unit
Pound apppproppriate by the Board. Kelly Brothers Nurseries,
Inc., 140 NLRB 82; California Vegetable Concentrates, Inc.,
137 NLRB 1779; S. Martinelli & Company, 99 NLRB 43.
My finding that "busy season" employees should be in-
cluded in the production and maintenance unit found to be
appropriate by the Board posses certain questions. It is
predicated on the evidence that one group of seasonal em-
ployees are "regular seasonal employees who have been
employed by Respondent for a number of years and who
9 Respondent's Motion for Reconsideration of Board 's Decision on Re-
view and Direction (Resp 's Exh . 4) supports this view in that Respondent
moved that the Board include "regular seasonal employees" in the unit, or,
alternatively, that it reopen the record to receive testimony to permit exclu-
sion of Respondent 's "temporary or irregular seasonal employees."
10 Miss Finney testified that in addition to the 98 challenged voters there
are about 100 to 125 other seasonal employees who did not cast ballots with
employment histories not different from that of the 98 who cast challenged
ballots Since there is a wide range of difference in the employment histories
of the 98 challenged voters , I consider the statement meaningless and attach
no weight to it
annually work for a substantial period of time . But this
group is not homogeneous . A variety of employment histo-
ries appears in Respondent 's Exhibit 2; while 67 of the
employees shown thereon have worked for 30 or more
weeks for the decade preceding the election , 7 worked for
10 or less weeks. This diversity of employment experience
suggests the possibility of a need to refine any unit finding
to describe more precisely who is meant by "regular season-
al employees ? For example , "regular seasonal employees"
could be defined as those who have worked 13 or more
weeks for Respondent for 3 or more years consecutively.
In my judgment , it is unnecessary to make a determina-
tion along these lines in this posture of the case , just as it
is unnecessary to make a determination whether ` irregar
seasonal employees" should be included in the unit. Con-
ceivably, despite the greater differences between this group
and the year-round and "regular seasonal employees," since
all seasonal employees are eligible for recall from year to
year in the manner described by Miss Finney , the Board
might well conclude that all seasonal employees are eligible
and that any election should be held at the peak of the
season . (The election in this case was held during the slack
season.) However , this is not a representation case . It is an
unfair labor practice proceeding to determine whether Re-
spondent violated Section 8 (a)(5) and ( 1) of the Act b2 ref-
using to bargain with a union certified for a unit of
employees excluding seasonal employees . No evidence was
offered respecting the "irregular seasonal employees" and
no formulas have been suggested respecting a definition of
the "regular seasonal employees ." In these circumstances,
definitive findings respecting such matters can best be made
on a better record and after o portunit to state positions.
It is sufficient to this case thatpI find that seasonal employ-
ees belong in the unit . As they were excluded from the
certified unit, I conclude that the unit is inappropriate and
I shall, accordingly , recommend that the complaint be dis-
missed.
Respondent has urged, should I find that seasonal em-
ployees belong in the unit, that I recommend that the chal-
lenges to the ballots of the voters challenged as "busy
season" employees be overruled and that they be opened
and counted . Apart from the fact that the considerations
referred to above militate against such a disposition of the
case , there is the fact that the Direction of Election expressly
excluded "busy season" employees , and there is an un-
known number of seasonal emplyees who did not vote who
may have been eligible to do so . In the circumstances, it
would not be Mots. to count the votes of those who cast
challenged ballots.
CONCLUSIONS OF LAW
1. Respondent, United Foods, Inc., Dulaney Foods Divi-
sion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. A unit of Respondent's year-round production and
maintenance employees excluding "busy season" employ-
ees is not an appropriate unit.
3. By refusing to recognize and bargain with a certified
unit excluding busy season" employees, Respondent did
not engage in any unfair labor practice within the meaning
of Section 8(a)(5) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and con-
clusions of law, it is recommended that the complaint be
dismissed in its entirety.