Florida Citrus Canners Cooperative, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1951

96 N.L.R.B. 1021 (N.L.R.B. 1951)

FLORIDA CITRUS CANNERS COOPERATIVE, INC. 1021
these employees are acting as guards as defined in the Act."' Approxi-
mately 80 percent of their time is spent in this manner, and the balance
of their time is spent tending the boilers and checking operating units
that are not tended by regular operators. As these watchmen spend
more than half their time performing the auties of guards, we find that
they are guards as defined in the Act,12 and shall exclude them from
the unit.
The working supervisors: These employees are in charge of a crew
of men and spend between 20 to 80 percent of their time in physical
work along with the crew. During the balance of this time, they ar-
range working schedules, consult with their own supervisors, and give
directions to the crew. They do not hire or discharge employees, nor
does it appear that they effectively recommend such action. However,
in accordance with the terms of the present contract between the Em-
ployer and the Intervenors, these working supervisors represent man-
agement in the first stage of processing grievances. Accordingly, we
find that these employees are supervisors as defined in Section 2 (11)
of the Act, 13 and we shall exclude them from the unit.
We find that all production and maintenance employees employed
at the Martinez, California, plant of the Employer, excluding office
personnel, engineers, laboratory chemists, truck drivers, guards, 14
and supervisors within the meaning of the Act, 15 constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.16
[Text of Direction of Election omitted from publication in this
volume.]
11 See Southland Manufacturing Company, 91 NLRB No. 38; Thomas A. Edison Co, Inc,
90 NLRB No 154, St Paul and Tacoma Lumber Company , 81 NLRB 434.
13 See Scott & Williams, Inc., 92 NLRB No. 153
12 See United States Gypsum Company, 85 NLRB 9; John F Jelke Company , 83 NLRB
442; Public Service Electric and Gas Company of New Jersey, 81 NLRB 1191.
14 Excluded under this classification are the part-time watchmen discussed above.
15 Excluded under this classification are the working supervisors discussed above
16 With the exception of the part-time watchmen and the working supervisors , the unit
Is in the same form as stipulated to by the parties.
FLORIDA CITRUS CANNERS COOPERATIVE, INC. and INTERNATIONAL
UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND
DISTILLERY WORKERS, CITRUS & ALLIED WORKERS, LOCAL 247, CIO,
PETITIONER. Case No. 10-RC-1492. October 23, 1951
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' Clarence D. Musser, hearing
96 NLRB No. 153.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
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 labor organizations involved claim to represent certain
employees of the Employer.
3. The Employer and the Intervenor, Citrus Workers Local Union
No. 24217, AFL, contend that a current contract between them is a bar
to this proceeding. The contract, as amended, is terminable upon
notice 60 days prior to January 9, 1952. The Petitioner contends that
a schism has occurred within the bargaining representative at the
Employer's plant and that the resulting confusion and uncertainty
renders the contract bar doctrine inapplicable.
We find it unnecessary in this case, however, to determine the schism
issue because the Mill B date of the contract is less than 30 days from
the date of issuance of this decision.2 Moreover, the parties are in
agreement that any election directed in this proceeding should be
conducted at a time when employment at the Employer's plant has
reached its approximate seasonal peak. As described more fully
'The Employer filed a motion to dismiss the petition upon the grounds that : (1) The
current contract between the Employer and the Intervenor is a bar to this proceeding:
(2) a consent election was held by the Board in a unit of truck drivers at the Employer's
plant on April 13, 1951 ; and (3 ) the Petitioner 's showing of interest , made during the
seasonal lull in the Employer 's activities, is inadequate to support the petition The
Intervenor also nroved that the petition be dismissed upon the ground that the current
contract is a bar to this proceeding The Petitioner moved that the Intervenor be denied
the opportunity to intervene in this proceeding upon the ground that the Intervenor has
not complied with the filing requirements of the Act . The hearing officer referred these
motions to the Board.
For the reasons stated in paragraph numbered 3,, herein, we find that the current
contract between the Employer and the Intervenor is not a bar to this proceeding. Any
issue as to whether Section 9 (c) (3) of the Act would operate to prevent an election
in a unit which included the truck drivers was eliminated before the close of the hearing
by the Petitioner 's motion, granted without objection , to amend the petition by excluding
truck drivers from the requested unit. As to the effect of the election held in the unit
of truck drivers upon an election among other employees , the Board has previously held
that a prior election does not operate under Section 9 (c) (3) to bar an election for
employees not sought in the prior election Tin Processing Corporation, 80 NLRB 1369.
The third ground advanced in support. of the Employer 's motion is without merit , because,
as the Board has frequently held, the adequacy of a petitioner's showing of interest is
a matter for administrative determinatiob. Liberty Cork Go, Inc., 96 NLRB 372;
O. D. Jennings d Company, 68 NLRB 516. Moreover, we have administratively deter-
mined that the Petitioner has made an adequate showing of interest . Accordingly, the
motions of the Employer and the Intervenor are denied.
With regard to the Petitioner 's motion to deny intervention to the Intervenor, the
fact of compliance by a labor organization which is required to comply is a matter for
administrative determination and is not litigable by the parties . Moreover , the Board
Is administratively satisfied that the Intervenor is in compliance . Accordingly, the
Petitioner 's motion is denied. See Sunbeam Corporation, 94 NLRB 844; swift & Com-
pany, 94 NLRB 917; cf. Highland Park Manufacturing Company, 71 S. Ct. 489.
2 Dictaphone Corporation, 90 NLRB 962.
FLORIDA CITRUS CANNERS COOPERATIVE, INC. 1023
below, the Employer's complement of employees usually reaches its
seasonal peak during the month of January, at which time the contract
will either have expired or will be due to expire shortly. Accord-
ingly, we find that the contract between the Employer and the
Intervenor is not a bar to this proceeding.3
4. The parties are in general agreement as to the appropriateness of
a production and maintenance unit. They disagree, however, as to
the unit placement of six electricians whom the Petitioner would in-
clude and the Employer would exclude from the unit. The Inter-
venor supports the Employer's position, but, in the alternative, the
Intervenor would agree to the inclusion of the electricians as the result
of a self-determination election. No union seeks to represent the
electricians separately.
The electricians were excluded from the coverage of the present
contract between the Employer and the Intervenor because, at the time
the contract was made, they were engaged in new construction and
installation work in the Employer's building program... At the pres-
ent time, however, they are employed on a year-round basis and ap-
proximately 90 percent of their time is devoted to'general electrical
maintenance and repair work at the Employer's plants. The Em-
ployer has advanced no reason for their continued exclusion from the
over-all unit. Nor is there any cogent reason for conducting a self-
determination election for electricians where, as here, no union seeks
to represent them separately and the petitioning union has requested
that the election be conducted in the over-all production and main-
tenance unit.4 In accordance with established Board policy, and in
recognition of the normal community of interest between production
and maintenance employees, we shall include the electricians in the
unit .5
We find that all production and maintenance employees, including
electricians, warehousemen, sectionizers, and' feed mill employees' at
the Employer's two Lake Wales, Florida, plants,, but excluding oice
and clerical employees, truck drivers, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. The Employer's operations are seasonal in nature, the period of
seasonal activity extending from December to May. Usually the
Employer's working force reaches its seasonal peak during the month
of January. The parties agree that the election should be conducted
at a time when employment has reached its seasonal peak. In accord-
8 Westinghouse Electric Corporation , 89 NLRB 8; National Lead Company-Titanium
Division, 77 NLRB 1055.
4 Waterous Company, 92 NLRB 76; Bronx County News Corporation , 89 NLRB 1567.
5 San Joaquin Compress and Warehouse Company, 95 NLRB 279; Florence Manufac-
turing Company, Inc., 92 NLRB 185; Spick Shoe Company, 86 NLRB 701; Mutual Rough
Hat Company, 86 NLRB 440.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ante with the agreement of the parties and in conformance with the
Board's usual practice in the holding of an election in a seasonal in-
dustry, we shall direct that the election be held at or about the ap-
proximate seasonal peak, on a date to be determined by the Regional
Director for the Tenth Region, amoi g the employees in the appro-
priate unit who are employed during the payroll period immediately
preceding the date of the issuance of the notice of election by the
Regional Director 6
[Text of Direction of Election omitted from publication in this
volume.]
6 San Joaquin Compress and Warehouse Company, supra; Arena-Norton , Inc., et at.,
93 NLRB 375; Choctaw Cotton Oil Company, 84 NLRB 660.
BLACK BROLLIER, INC., AND DIXIE CONCRETE PRODUCTS COMPANY, INC.
and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA,
CIO, PETITIONER. Case No. 39-RC-310. October 23, 1951
Decision and Direction of Election
Upon an amended petition duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing was held before Clifford W.
Potter, hearing officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Styles].
Upon the entire record in this case, the Board finds :
1. Black Brollier, Inc., herein called Brollier, is engaged in the
manufacture and sale of concrete pipe, ready-mix mortar, and other
building supplies. It operates 2 plants at Houston, Texas, with
approximately 80 employees. Dixie Concrete Products Company,
Inc., hereinafter called Dixie, is engaged in the manufacture and sale
of concrete pipe, building blocks, septic tanks, and precast manholes.
It operates 1 plant at Houston, Texas, with approximately 65
employees.
During the past year, Dixie made purchases of supplies amounting
to approximately $107,000 from Texas outlets of concerns doing
business on a national scale.2 Dixie sells all its products to Brollier.
I At the hearing, the hearing officer properly overruled the Employers ' motion to dis-
miss this proceeding on the ground that the Petitioner had not made an adequate showing
of interest . The Board has repeatedly held that a showing of interest is an administra-
tive matter, not litigable by the parties. Camp Concrete Rock Company, 94 NLRB 296.
2 These concerns include Humble Oil and Refining Company, the Texas Company, Mag.
nolia Petroleum Company, Tennessee Coal, Iron and Railroad Company , Sheffield Steel
Corporation , Lone Star Cement Corporation , Halliburton Portland Cement Company, and
Ideal Cement Company.
96 NLRB No. 156.