Gerber Products Co.

National Labor Relations Board - Board Decisions

Apr 23, 1951

93 N.L.R.B. 1668 (N.L.R.B. 1951)

1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By causing and attempting to cause the Company to discriminate against
James P. Kenny, with respect to whom membership in the Respondent has been
denied on grounds other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining mem-
bership in said Union , and by restraining and coercing an employee of the Com-
pany in the exercise of rights guaranteed in Section 7, the Respondent has vio-
lated Section 8 (b) (1) (A) and (2) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
GERBER PRODUCTS COMPANY 1 and UNITED PACKINGHOUSE WORKERS OF-
AMERICA, CIO, PETITIONER. Case No. 3-RC-60o. April Z3,1951
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before John C.
McRee, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.2
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-member panel [Members Houston, Murdock, and
Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. Gerber and the Intervenor contend that their contract dated
December 15, 1950, precludes a present determination of representa-
tives. They assert, in this connection, that the Petitioner's representa-
tion claim made to Curtice Brothers Company, hereinafter called
Curtice,3 on December 13, 1950, followed by the filing of its original
petition on December 21, 1950, naming Curtice alone as the Employer,
did not render their contract ineffective as a bar.
The record shows that, for many years, Curtice alone was engaged
at the plant here involved, principally in the canning and shipping of
tomatoes and boned chicken. These canning operations required only
a few months activity each year, and the balance of the year was
i The amended petition herein designated the Employer as "Curtice Brothers Company
and its successor Gerber Products Company." As Gerber Products Company, hereinafter
called Gerber or the Employer , is now the sole employer at the plant , its motion to strike
"Curtice Brothers Company and its successor " from the petition is hereby granted.
2 Gerber and Federal Labor Union No. 23933, AFL, hereinafter called the Intervenor,
moved to dismiss the petition , in substance , on grounds relating to contract bar. For
the reasons set forth in paragraph numbered 3, infra, the motion is hereby denied.
8 Although served with notice , Curtice did not appear at the hearing.
93 NLRB No. 269.
GERBER PRODUCTS COMPANY 1669
devoted to maintenance and shipping functions. In 1948, Curtice
entered into an operating agreement with Gerber, a company engaged
in the canning. and sale of baby foods, for the production of Gerber
products at this plant. Except for about a 2-month slack, Gerber's
operations were year-round in nature.
Under this operating agreement, which was renewed in 1949 and
1950, Gerber paid Curtice a flat fee per case for the use of a portion
of the plant and certain machinery, and for Curtice's performance of
various administrative duties. Gerber supplied its own machinery in
more than one-half the plant, furnished its own raw materials, and
appointed a plant superintendent to direct the work on Gerber prod-
ucts. Curtice agreed to supply such workers, including supervisors,
as Gerber needed for its operations, all of whom were carried on Cur-
tice's payroll. Curtice paid the wages, submitted all withholding
tax and social security returns, and kept the payroll and timekeeping
records, of all these workers, while Gerber monthly reimbursed Cur-
tice for the wages paid for direct labor attributable to Gerber's pro-
duction operations 4 Gerber's superintendent determined the number
of workers to be assigned to Gerber operations and he could also take
such action as rejecting and returning to Curtice workers found
unsatisfactory, the latter usually being discharged by Curtice because
of the limited nature of its own production.-5
The Intervenor had represented Curtice's employees before the
operating agreement between Curtice and Gerber," and thereafter
continued to deal with Curtice concerning plant employees, whether
working on Curtice or Gerber operations. In this connection, the
1948 agreement between Curtice and the Intervenor, which was in
effect before the operating agreement with Gerber was executed, was
thereafter applied without distinction to substantially all. the em-
ployees in the plant. And in 1949, Curtice alone participated in
negotiations and signed the resulting agreement with the Intervenor
covering plant employees, although before signing the agreement,
Curtice secured Gerber's approval on matters relating to labor costs.
The contract did not differentiate between employees working on
Curtice or Gerber functions and the same conditions of employment
were applicable to both groups.
In January 1950, Gerber purchased the plant and machinery from
* During 1950 , factory maintenance employees performed work for both Curtice and
Gerber production , and their wages were paid by Gerber.
6 By the latter part of 1950, 80 percent of the employees were engaged in Gerber
production.
6 The Intervenor was certified as the bargaining representative of Curtice's employees in
1946, following an election pursuant to a stipulation for certification upon a consent
election The appropriate unit was all regular and semiregular employees engaged in
production and maintenance , including factory time clerks and factory timekeepers.
(3-R-1133.)
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtice, with-possession to be yielded by Curtice on December 29,1950.'
However, as previously noted, the operating agreement with Curtice
was renewed through 1950. And on April 1, 1950, following nego-
tiations between Curtice and the Intervenor, a collective bargaining
agreement covering plant employees was again executed by those
parties, to extend to April 1, 1951, and subject to a 30-day termination
clause if Curtice ceased operating the plant. Again Gerber took no
part in the negotiations, although it approved the contract, insofar
as it related to labor costs, before execution by Curtice.
On November 14, 1950, the Intervenor, which became aware-that
Gerber would take over the plant near the end of the year, requested
recognition by Gerber and a conference was arranged for December
13, 1950. On December 8, 1950, Curtice formally advised the Inter-
venor that it would cease operating the plant on December 29, 1950,
and that the existing contract would be terminated on January 8, 1951.
Following an oral agreement on December 13, 1950, Gerber and the
Intervenor's local executed an agreement on December 15, 1950, effec-
tive to December 15, 1952, providing for a continuation of the existing
agreement, with Gerber's name replacing that of Curtice, and for
changes in such matters as wages and seniority, and for a reopening
of the wage clause at the end of 1 year .8 The wage rates in this con-
tract became effective on December 15, 1950, and the other provisions
of the contract went into effect on December 29, 1950. Gerber, never-
theless, did not actually take over full possession until December 29,
1950, Curtice continuing after December 15 to perform its various
administrative functions and also maintaining its own production."
Meanwhile, on December 13, 1950, the Petitioner notified Curtice
of its demand, for recognition as the representative of all the plant
employees,10 and on December 21, 1950, filed its original petition herein,
naming Curtice as the Employer" In our opinion, this notice and
the timely filing of the petition preclude the existing agreement from
operating as a bar. -
It is clear that Curtice was at all times the sole Employer of the
employees engaged in its own operations. As to the balance of the
employees who worked partially or entirely on Gerber operations,
we are of the opinion that Curtice and Gerber, by virtue of the operat-
ing agreement and the other circumstances detailed above, constituted
a single Employer within the meaning of Section 2 (2) of the Act,
7 This agreement was apparently publicized in the plant and in trade journals
6 With Curtice ' s consent , the prior termination of the existing agreement was withdrawn
and Curtice was released from liability under its contract after December 15, 1950.
0 Actually , production on Curtice products did not cease until January 8, 1951.
10 Gerber ' s representative learned of this demand on December 15, 1950, a few hours
after he and the Intervenor 's local representative executed the agreement, but 1 day
before the Intervenor's International representative approved the contract.
it On January 8, 1951, the Petitioner also notified Gerber of its claim and on January
18, 1951, amended its petition to name Gerber as the successor Employer.
GERBER PRODUCTS COMPANY 1671
until December 29, 1950.12 Therefore, the Petitioner's notice to
Curtice before the execution of the existing agreement, and its filing
of the original petition herein within less than 10 days thereafter,
naming Curtice as the Employer, were effective not only as to Curtice,
but also as to Gerber 13 And as Gerber has now assumed full control
of the plant and contemplates no changes in the essential attributes
of employment, it manifestly continues to be bound by the Petitioner's
timely action.14
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9, (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree generally, and we find, that all production and
maintenance employees of the Employer at its Rochester, New York,
plant, excluding factory clerical employees, office employees, engineers,
laboratory employees, chauffeurs, salesmen, guards, professional em-
ployees, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.'-'
5. The determination of representatives :
The Petitioner would include among those eligible to vote, and the
Intervenor would exclude, employees who are expected to become
regular employees, but who have not completed a 50-day probationary
period. The Employer takes no position on this issue. As such em-
ployees apparently perform work similar to that of the regular em-
ployees and have a reasonable expectation of permanent employment,
we find that they are entitled to vote.16
The Petitioner would also include within the voting group, and the
Intervenor and the Employer would exclude, workers designated as
seasonal employees.17 These employees are hired for periods of 3 to 4
weeks to handle the canning of particular fruits and vegetables. Al-
though they work in close contact with the regular employees, they re-
ceive less pay and do not have other benefits accorded the regular
employees. The Employer does not attempt to recall laid-off seasonal
11 Cf. Atlas Imperial Diesel Engine Co., Hunt Foods, Inc., 89 NLRB 372, and Manhattan
Shirt Company, et al ., 84 NLRB 100.
11 See Smith Rice Mill, Inc. , 83 NLRB 380.
14 Cf. Stonewall Cotton Mills , 80 NLRB 325 , Allan W. Fleming, Inc., 91 NLRB 612, and
Pacific Tankers , Inc., 84 NLRB 965.
15 The parties are in disagreement as to whether certain employees who have not
completed a 50-day probation period, and seasonal employees should be included in the
unit. However , our unit finding is based upon functionally related occupational categories,
and all employees working at jobs within the unit are necessarily included and entitled
to representation , irrespective of the tenure of their employment . The separate issue of
the voting eligibility of such employees will be discussed in paragraph numbered 5, infra.
Cf. Harms Hosiery Co., Inc., 91 NLRB 330.
16 See, e . g., National Torch Tip Company, 93 NLRB No. 61, and Cherry and Webb
Company, 93 NLRB 9.
14 In the past , there have been approximately 120 regular employees and, during a
rush period , about 100 seasonal employees.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, although preference would be given an applicant who had
worked in the plant during previous seasons . In our opinion, the
seasonal employees lack a sufficiently regular and substantial tenure of
employment to entitle them to participate in the election, and accord-
ingly, we find that they are ineligible to vote 18
At the time of the hearing, the Employer had temporarily discon-
tinued operations for purposes of construction and expansion of the
plant, but expects to resume operations within a few months. We
shall, therefore, direct that an election be held at such time as the
Regional Director shall determine that production operations have
been resumed and that a representative and substantial number of the
working force has been employed, among the employees in the appro-
priate unit who are employed during the payroll period immediately
preceding the date of the issuance of a notice of election by the Regional
Director.19
[Text of Direction of Election omitted from publication in this
volume.]
18 The Heekin Can Company , 88 NLRB 726.
19 Rathy Shoes, Inc., 88 NLRB 1035..
L. J. WILLIAMS, D/B/A L. J. WILLIAMS LUMBER COMPANY AND ADA W.
WILLIAMS, D/B/A VARNVILLE WOOD PRODUCTS COMPANY and PLYWOOD
AND VENEER WORKERS LOCAL UNIONS No. 3130 AND 3135, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L.
Case No. 10-CA-993. April 24, 1951
Decision and Order
On December 19, 1950, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions,
exceptions, and modifications.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this proceeding
to a three -member panel [ Members Houston , Reynolds , and Styles].
93 NLRB No. 271.