H. A. Rider & Sons

National Labor Relations Board - Board Decisions

Mar 1, 1957

117 N.L.R.B. 517 (N.L.R.B. 1957)

H. A. RIDER & SONS
V. THE REMEDY
517
Having found that the Respondent has engaged in unfair labor practices ,, it will be
recommended that it cease and desist therefrom , and take certain affirmative and
remedial action designed to effectuate the policies of the Act.
It will be recommended that _the Respondent offer Theodore Pavlue and Louis
Hoxie immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges, and
make them whole for any wage losses incurred as a result of the discrimination against
them , in accordance with the Board's usual policies.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
-I make the following:
CONCLUSIONS OF LAW
1. International Chemical Workers Union , AFL-CIO, is a labor organization
-within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of rights
.guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within ' the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Theodore
Pavlue and Louis Hoxie, thereby discouraging membership in a labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
-meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
mIerce, within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
H. A. Rider & Sons, Petitioner and Local No. 912, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO. Case No. 2O-RM-$1 f . March 1,
1957
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 Shirley N. Bingham,
hearing 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 -labor organization involved claims to represent certain
employees of the Employer.
- 3. The Employer seeks a determination of representatives among
the production and maintenance Amployees at its processing plant in
Watsonville, California. The Union contends that no question con-
cerning representation exists because of its alleged disclaimer.
For a period of 2 years, beginning in the summer of 1954, the Union
has made a series of demands- on the Employer to sign a contract rec-
ognizing the Union as the representative of the Employer's employees.
On September 10, 1956, at about 10 a. m., two of the Union's repre-
sentatives called on the Employer and presented it with a contract and
117 NLRB No. 76.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested the Employer to sign it. When the Employer declined and
suggested to the Union that they first get the employees to join the
Union, the union representatives stated in effect that this required
"too much work." The Employer then indicated that it would re-
quest an election. The union representative thereupon said that
"One way is to put up a picket line and see how many of your men
will cross it." The meeting ended with the union agent stating that
if the Employer wanted to do it "the hard way" the Union would
establish a picket line. At about 4 p. m. that same afternoon the
Union sent a letter to the Employer, received by the latter the follow-
ing morning, in which the Union stated in substance that it was con-
templating the commencement of an organizational drive among the
employees, and that it would not ask the Employer to sign a contract
until a majority of its employees had indicated a desire to be affiliated
with it. On the very morning the Employer received this letter, two
union pickets appeared at the Employer's premises with a sign "TO
THE EMPLOYEES OF H. A. RIDER AND SONS JOIN THE
TEAMSTERS LOCAL 912." The Employer filed the instant peti-
tion on September 12, 1956. The picketing was still in progress at
the time of the hearing in this proceeding.
Although the Union concedes that it demanded a contract on the
morning of September 10, 1956, nonetheless it asserts that its letter of
the same day constituted an unequivocal disclaimer, and that its pick-
eting on the morning of September 11, 1956, was not inconsistent
therewith. It contends therefore that no question concerning repre-
sentation exists. We do not agree. It is clear from the record that
for a period of more than 2 years the Union repeatedly made demands
for recognition on the Employer, and that within less than 24 hours
before the picket line in question appeared at the Employer's premises,
it not only reiterated its demand for a contract but threatened to
establish a picket line in order to force the Employer to grant it a
contract. It is equally significant that the picket line was established
precisely as threatened. Moreover, we note that on the very day that
the Union wrote its letter which it asserts as a disclaimer, it told the
Employer, in response to its suggestion that it organize the employees'
first before demanding recognition,. that this was "too much work."
From the record as a whole, and from these facts in particular, we are
convinced that the picketing was inconsistent with an unequivocal
disclaimer, and that the Union's manifest purpose was to induce the'
Employer to execute a contract although it had no representative
status among the employees in question.'
We find, therefore, that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
i See Jerome E. Mundy Co., Inc., 116 NLRB 1487 ; Casey-Metcalf Machinery Co., et al.,
114 NLRB 1520.
H. A. RIDER & SONS 519
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer seeks an election among the production and main-
tenance employees at its processing plant located at Watsonville,
California. It is engaged in the production of apply cider as its prin-
cipal product. The record shows that the Employer employs between
15 and 18 employees at its processing plant, and that their duties
consist of dumping apples in a wash machine, sorting and grading,
pressing the fruit, and bottling by machine. Adjacent to, and about
7 miles from, this plant, the Employer also engages in farming opera-
tions. Approximately 5 percent of the apples used in the processing
plant is grown by the Employer; the remaining 95 percent is obtained
from other sources. Of the 15 to 18 employees in the Employer's
employ, approximately 8 are laid off at the conclusion of the season.
The others are retained, doing minor maintenance work at the plant,
closing it down and preparing for the resumption of operations, and
engaging in some work on the farm. The employees, about 10 in
number, who divide their time between the processing plant and the
farming operations, spend more than 70 percent of their time each year
working at the processing plant.
From the foregoing facts it is clear that the processing plant is a
nonagricultural operation, and that the employees thus employed con-
stitute an appropriate unit for purposes of collective bargaining.' The
only question for our determination concerns the employees who
divide their time between the processing plant and the farm.
Although prior to the Clinton Foods 3 decision no problem would
have arisen with respect to the employees in this case who divide their
time between agricultural and nonagricultural employment as it is
clear from the record herein that they spend approximately 70 percent
of their time each year in nonagricultural work, the Board in Clinton
Foods held that "employees who divide their time between agricultural
and nonagricultural employment must, to the extent that they spend a
substantial part of their time in an agricultural function, be deemed
agricultural laborers within the meaning of the Act and are, there-
fore , to be excluded from the unit." Applying a conflict of interest
rationale analogous to that used in the case of guards and supervisors,
the Board overruled all prior decisions inconsistent with this holding
and decided that even where employees spent, as they did in that case,
only one-third of their time in agricultural employment, they would
have to be excluded from the unit found appropriate.
We have reevaluated the holding in the Clinton Foods decision, and,
on careful reconsideration and after a thorough review of the basic
considerations, are convinced that the analogy predicated on a conflict
of interest rationale is inapplicable to employees who divide their time
2 H F Byrd, Inc, 103 NLRB 1278 ; Imperial Garden Growers, 91 NLRB 1034.
8 Clinton Foods, Inc, 108 NLRB 85.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between agricultural and nonagricultural pursuits. -Accordingly, we
find that since the employees in this case spend upwards of 70 percent
of their time during the year in nonagricultural employment, they are
properly included in the unit found appropriate .4 •
Accordingly, we find that the following employees at the Employer's
Watsonville, California, processing plant constitute an appropriate
unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act: All production and maintenance employees,.
excluding office clerical employees, guards, and. supervisors as defined
in the Act.
[Text of_ Direction of Election omitted from publication.]
4 To the extent that Clinton Foods, Inc., supra , and subsequent cases are inconsistent
with this decision , they are hereby overruled we find it unnecessary to lay down a general,
rule in this case as to what proportion of time spent in nonagricultural work is necessary
for inclusion in the unit
Westinghouse Electric Corporation and Local 68, International-
Union of Operating Engineers , AFL-CIO, Petitioner. Case No.
2-RC-8403. March X,1957
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 Julian J. Hoffman,
hearing 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 labor organizations named below claim to represent certain
employees of the Employer.' -
3. A question affecting commerce exists concerning the represen-,
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
The Intervenor moved to dismiss contending that its current con-
tract with- the Employer is a bar to the petition for the unit of power-
house employees sought by the Petitioner. The Employer • takes no
position on this issue. •
The Intervenor has been the bargaining representative of the Em=
ployer's -production and maintenance employees including the em-
ployees sought herein for a number of years. The last contract,
effective. through October 14, 1956, -and -containing a provision- for,
1 Local 410, International Union of Electrical , Radio & Machine Workers, AFL-CIO,
herein called Intervenor , was permitted to intervene on the basis of its contract with the
Employer covering the employees herein involved ' -
117 NLRB No. 71.