Libby, McNeill & Libby

National Labor Relations Board - Board Decisions

Jun 9, 1950

90 N.L.R.B. 279 (N.L.R.B. 1950)

In the Matter of LIBBY, MCNEILL & LIBBY, EMPLOYER and UNITED
,PACKINGHOUSE WORKERS OF AbIERICA, CIO, PETITIONER
Case No. 18-RC-571.-Decided June 9, 1950
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 Erwin A. Peterson, 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 of 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 em-
ploy ees of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.3
4. The appropriate unit :
The Petitioner and Intervenor agree that the unit bargained for
-under past contracts is appropriate. In substance, this unit is com-
posed of all seasonal and nonseasonal employees, excluding office em-
ployees, salesmen, field workers, the chief engineer, superintendents,
'After the hearing , the Petitioner filed a motion requesting the Board to make an
affidavit , attached thereto, part of the record, or in the alternative, to reopen the record
to permit the taking of additional testimony as to a prospective increase in the number of
employees to be employed in this year's pea pack. The Petitioner offers this testimony
in support of its contention that the election should be held during the peak of the pea
season . In view of our decision , as set out in paragraph a, below, to direct the holding
of the election at that time, for reasons other than those offered by Petitioner' s motion,
we fiffd it unnecessary to consider the material sought to be adduced. The motion is
therefore denied. .
2 Food, Tobacco, Agricultural and Allied Workers Union of America was permitted to
intervene on the basis of its contractual interest.
3 The Intervenor and Employer assert that their contract was automatically renewed
and is a bar to this proceeding. Without determining whether the contract was in fact
renewed, we find that in any event it is not a bar because the petition in this case was
filed before the contract's automatic renewal (late.
90 NLRB No. 42.
279
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other supervisors. The Employer urges separate units for sea-
sonal and nonseasonal. employees, but does not disagree with the spe-
cific exclusions provided for in the last contract.
The Employer and its predecessor have bargained with the Inter-
venor for a number of years on the basis of a single unit of all em-
ployees.4 The Employer bases its present contention that only sepa-
rate units are appropriate, on the differences in skills and working con-
ditions between the seasonal and nonseasonal employees, and on the
assumption that the seasonal employees, by their great number, can
overwhelm the nonseasonal group and deprive them of an opportunity
to express their real desires. It is true that the nonseasonal employees,
who generally do maintenance work during the off-season, are more
skilled than the seasonal .group; but there are no significant differences
between the two groups during the canning season. Furthermore,
seasonal employees may acquire seniority by continuous employment
during a number of seasons, and may thereby, if otherwise qualified,
be employed as year-round employees as vacancies occur. As to per-
mitting seasonal employees to vote in an election together with a.
smaller number of nonseasonal employees, it is sufficient to point -out
that we have frequently found seasonal and nonseasonal employees
to possess such common interests that they may appropriately be joined
in a single unit. We find that a unit of all the Employer's employees,
both seasonal and nonseasonal, is here appropriate.' -
There are 30 to 35 year-round employees who are engaged in main-
tenance work at the plant during the off-season. Most of these em-
ployees do supervisory work during the canning season. This begins
each year about June 20, with the pea pack, and, with some break
between the various crops, lasts in most years until the middle of
September, when the corn pack is finished. In those years when car-
rots are packed, there is an additional 4-week period following the
close of the corn pack. During the pack periods, and fora short time
just before and after, the part. time supervisors may diskipline and
recommend the discharge of their crew members in the same planner as
full-time supervisors. Regardless of any present agreement or under-
standing between the parties as to the status of these employees for
bargaining purposes, it is clear that we may not include them in
our described unit for those periods in which they are acting as
supervisors. However, to the extent that they are engaged in non-
4 Reid Murdoeh and Co. was the Employer at this cannery when the Intervenor was
certified, after a consent election, as the bargaining representative for such a unit in 1945.
5 'dgar F. Hurff Company, 77 NLRB 762: The J. M. Smucker Company, 75 NLRB 202.
Cf. Bear Creek Orchards, 87 NLRB 1.348. and The St. Mary's Packing Company, 72
NLRB 596, in which we found units of nonseasonal employees only, to be appropriate
where no labor organization sought to represent both groups in the same unit.
LIBBY, McNLILL & LIBBY 281
supervisory work, they are properly a part of the unit found appro-
priate herein, and we shall include them for those periods."
We find, substantially in accord with the agreement of the parties,
that the following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : All seasonal and nonseasonal employees of the Employer
at its cannery at Rochester, Minnesota, including vinery operators,
but excluding field men, office employees, salesmen, the chief engineer,
superintendents, and all other supervisors as defined by the Act.
5. Determination of representatives:
Although we have held that the year-round employees who act as
supervisors during the season may be represented for the periods
when they are in a nonsupervisory status, Ave believe that such em-
ployees must have a substantial interest in the election to be permitted
to vote therein. Accordingly, only those part-time supervisors who
were rank-and-file employees in at least half the number of weeks in
which they worked in 1949 shall be eligible to vote.7
It is our normal practice to direct the holding of an election in
which seasonal employees are to vote, at or near the peak of the season,
thereby ensuring the opportunity of casting ballots to as many em-
ployees as possible. When there are two or more employment peaks
during the season, as in this case, it is necessary to take other factors
into consideration, such as the advantages of an early election, the
possibility 'hat a larger number of employees may vote during a later
seasonal. peal:, and the relative interest in their employment of those
employed during the various peaks, as measured by their return from
year to year.
In a normal year the Employer's cannery employs frond 400 to 450
seasonal workers during the busiest period of the pea pack, beginning
the last week in June, and usually lasting about 3 weeks. In past
years there have been about 650 seasonal workers employed during
the peak of the corn pack. This year the Employer expects to operate
a double, instead of a single, shift for the corn pack, and will use about
1,000 employees during that peak period.
The Employer maintains a separate seniority list for its seasonal
workers, and gives preference in employment to its regular seasonal
workers in accordance with their positions on the register. To be
posted on the register, one must work for at least 10 clays, and not
G Bear Creek Orchards, supra: Hunt Foods, Inc., 68 NLRB 800.
7 Bear Creek Orchards, supra; Hunt Foods, Inc., supra. These decisions allowed em-
ployees who spent more than 50 percent of their time as nonsupervisors to vote. We have
adopted a more explicit formula based on the number of weeks worked. The number of
hours worked as it supervisor is an inaccurate measure of the extent of supervisory
duties, in view of the fact that overtime work occurs more frequently during the season
than at other times of the year.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have quit without good cause before the end of the season. Thus,
everyone on this year's seniority register had to satisfy these condi-
tions during the previous season. Even when employment during the
pea and corn packs was more nearly equal than it may be this season,
it is admitted that a larger percentage of seasonal employees with
seniority-rights worked during the pea pack than during the corn
pack. We are satisfied that a substantial and representative number
of employees will work during this year's pea pack, and that it, will
be these employees who will have the greatest interest in the selection
of a bargaining representative. We shall therefore direct the holding
of the election at or near the peak of the earlier, or pea, season,8 on a
date to be determined by the Regional Director, among the employees
in the appropriate unit who are employed during the payroll period
immediately preceding the date of the election.
DIRECTION OF ELECTION 9
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted on a date to be selected by the Regional
Director, subject to the instructions set forth in paragraph numbered
5, above, 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 Reg-
ulations, among the employees in the unit found appropriate in para-
graph numbered 4, above, who were employed during the payroll
period immediately preceding the date of the election, including em-
ployees who did not work during said payroll 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 election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether they desire to be represented, for purposes
of collective bargaining, by United Packinghouse Workers of America,
CIO, or by Food, Tobacco, Agricultural and Allied Workers Union
of America, or by neither.
8 Edgar F. Hurff Company, supra.
9 We take cognizance of the possibility, partially revealed by the record, that the
Petitioner and Intervenor may each have it local representing employees at this cannery.
We have no information as to the compliance of these locals with Section 9 (f), (g),
and (h ). The Regional Director is authorized to omit either labor organization from
the ballot if he determines that it has a functioning local which claims to represent
employees of the Employer at this cannery , and which is not in compliance , unless such
local or locals effect compliance with the filing requirements of the Act within 2 weeks
of the date of this Direction . Any participant in this election may, upon its prompt
request to the Regional Director , have Its name removed from the ballot.