Reid, Murdoch & Co.

National Labor Relations Board - Board Decisions

May 5, 1944

56 N.L.R.B. 284 (N.L.R.B. 1944)

In the Matter of REID , MURDOCH & Co. and UNITED CANNERY,
-AGRICUL-TURAL, PACKING AND ALLIED WORKERS OF AMERICA, CIO
Case No. 7-R-1689.-Decided May 5, 19.44
Mr. Edwin-F . Steffen, of Lansing, Mich. ; and Mr. E. H. Rood, and
Mr. H. E . Ruis , of Ellsworth , Mich ., for the Company.
Mr. C. K. Armstrong , of Traverse City, Mich ., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Cannery, Agricultural,'Pack-
ing and Allied Workers of America, CIO, herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Reid, Murdoch & Co., Ellsworth, Mich-
igan , herein called the Company," the National Labor Relations Board
provided for an appropriate hearing upon due notice before Frederick
P. Mett, Trial Examiner. Said hearing was held at Charlevoix, Mich-
igan, on March 3 and 10, 1944. The Company and the Union appeared,
participated, and were afforded full-opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
aff orded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Reid, Murdoch & Co. is engaged in operating a branch canning
plant at Ellsworth, Michigan, the only plant of the Company involved
in this proceeding. During 1943, the Company purchased for use at
'The petition and other formal papers were amended at the hearing to show the correct
name of the Company.
56 N. L . R. B., No. 57.
284
REID, MURDOCH CO. 285
this plant raw materials valued at approximately $400,000, approxi-
mately,36 percent of which was shipped from points outside Michigan.
During the same period; the Company processed at this plant products
valued at approximately $800,000, approximately all of which was
shipped from the plant to points outside Michigan.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Cannery, Agricultural, Packing and Allied Workers of
America is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership employees of the.
'Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union began organizing the Company's employees in January.
1944. On or about January 15, the Union asked the Company for a
bargaining conference, alleging that it represented a majority of the
Company's employees. After a discussion, the Company specified.
that it would prefer that the matter be referred to the Board. There-
upon, the Union filed the. petition in this proceeding.
A statement prepared by the Regional Director and introduced into
evidence at the hearing indicates that the Union represents a substan-
tial number of employees of the Company in the unit herein found ap-
propriate for bargaining.2
We find that a question affecting commerce has arisen concerning'
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company operates a branch cannery at Ellsworth, Michigan.
The Company and the Union agree, and we find, that employees at
the Ellsworth cannery constitute an appropriate bargaining unit
apart from employees at the Company's other plants. They further
agree, and we find, that salesmen, field workers, office clerical employ-
ees, and supervisory employees should be, excluded from the bargain-
ing unit. The Union would describe employees to be included in the
bargaining unit in general terms, neither excluding nor including, spe-
cifically, seasonal employees whom it,wishes to cover in a bargaining
2 In support of its claim to represent the Company 's employees , the Union submitted 36
cards, 35 of which bear apparently genuine signatures of.employees listed on the Company's
pay roll of January 22, 1944. Eight of these cards are undated, 26 are dated in January,
and 1 in February 1944.
There are approximately 30 employees in the appropriate unit.
286 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract , but exclude from participation in the election which it de-
sires that the Board conduct among the Company 's employee's. The
Company would specifically include seasonal employees in the plaint
unit and permit them to vote in the selection of their bargaining repre-
sentative . The parties further disagree with respect to the status of 12
certain employees , characterized by the Union as "gang leaders" and
by the Company as "supervisory " employees. The Union would in'
elude , and the Company exclude , these employees.
Seasonal employees : The Company is engaged in canning fruits and
vegetables in their respective seasons, beginning in July with cher-
ries and ending in December with carrots . When the canning season
begins in July, the Company lists upon its pay roll 150 to 200 em-
ployees. As the canning season progresses , the pay .roll increases to
approximately 300 employees in Octoberand November . After No-
vember the pay roll decreases until the close of the canning season in
December. On its peak pay roll in 1941 the Company listed 340 em-
ployees; in 1912, 318 employees ; and in 1943 , 408 employees. -In
1943 the packing season lasted 19 weeks, from July 19 to December 6.
For 14 weeks there were 300 or more employees listed on the pay roll.
Approximately 86 percent of the employees who began to work at the
cannery in July remained at work during the 'peak season. A very
substantial number of the Company 's seasonal emplbyees reside'in the
vicinity and return to work at the cannery season after season. In
February 4944 the Company sent postcards to its seasonal employees
asking them to indicate their intention to return to work for the
1944 season . At the time of the hearing, 203 employees had already
indicated their desire for such employment.
In addition to the seasonal employees thus described ; whose work
is chiefly concerned with the handling and processing of raw fruit
and vegetables and the disposition of the finished products in ship-
ment or storage at the Company 's warehouse over a 5 to 6. months'
period, the Company employs -on a 12-month basis ' approximately 35
regular employees , of whom approximately 30 are production and
maintenance workers, not expressly excluded by the, agreement of
the parties from the bargaining unit. During the canning season these
employees occupy key positions in,the processing work involved in the
Company's canning operations , or maintain its machines . During 'the ^
off-season from December to July, when the Company's processing
operations are stopped , these 'employees serve on labeling and loading
crews, repair machinery, and recondition the plant for effective use
during the next canning season. -
The Union began organizing the Company 's regular or year-around
employees in January , after the close of the regular canning season and
the lay-off of the seasonal employees. It does not claim to represent
REID, MURDOCH & CO. 287.
any seasonal employees listed on the canning season pay rolls. As
their employment records clearly indicate, the Company's seasonal
employees, as well as its regular employees, have a substantial em-'
ployment'interest at the cannery. The year-round employees, however,
have 'a common interest in their continuous employment at the cannery,
not shared by the seasonal employees who come to ,work for the Com-
pany for approximately 5 months in the year and who, for the larger
part of the year, look elsewhere than to the Company for their'liveli-
hood. While a single unit including the regular and' seasonal em-
ployees at th&Ellsworth cannery would not be inappropriate for bar-
gaining, no labor organization has presently organized them on an
-all-plant basis. ' For the reasons noted,- and upon the entire record
herein, we find' that the regular employees at the cannery presently
constitute an appropriate bargaining unit apart from the employees
who work on a seasonal basis only.
Supervisory employees: The Company and the Union agree, and we-
find, that the superintendent, assistant superintendent, and foremen are
supervisory employees within the Board's definition of that term and
should be excluded from the bargaining unit. As noted above, the
Company and the Union disagree with respect, to 12 employees whom
the Union calls "gang leaders," and would include in the unit, and
the Company "supervisory employees," and would exclude from the
unit., , I '
Lyle Danforth,; Earl Denny,' Max Kamradt, Maynard- Alward,
Miller Young, Leo.LaCroix, William Potter, John Buis, and Raymond
Sexton during the "off" or closed season are engaged in ordinary pro-
duction or maintenance work about the Company's cannery. They
overhaul machines or work as members of a labeling and loading crew.
They have no employees under their direction. During the process-
ing season they are variously engaged. Each one has a small group
of helpers or new employees' working with him who look to him for
direction, assistance, or information. Danforth operates a closing ma-
chine. He is a skilled operator and he instructs new helpers and oper-
ators in the work with which he is familiar. His,duty includes the
oversight of temperatures on exhaust boxes. Denny and Kamradt,
also closing machine operators, work on day and night shifts, respec-
tively. Each has two or three helpers whose work he supervises and'
whom he instructs, noting that cans are properly sealed and that code
marks are correct. Alward and Young work on day and night crews,
respectively, in the warehouse under the direction of the warehouse
foreman. They instruct new employees unfamiliar with the code
marks and the warehouse operations. Under direction, they assign
work to helpers sent to them. They particularly watch for damaged
cans. LaCroix also works with-a crew *in the warehouse. He directs
.288 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
the piling of cases and keeps records. Potter, Ruis, and Sexton'
serve as receiving clerks with approximately six helpers. They weigh
and sample fresh produce. They instruct news employees in its han-
dling` With respect to the nine employees listed, it is admitted that
none of them has any supervisory authority during the off-season.
During the canning season, it does not clearly appear that any of them
is more than, a skilled and experienced employee, subject himself to
immediate supervision while directing a few helpers whom he assists
and instructs and whose inefficiency he may be expected to report to his
superior for investigation. On the Company's pay roll, they have no
special designation indicating supervisory authority. They receive
60 to 65 cents per hour. Employees working in their crews receive-
from 50 to 60 cents per hour, depending' upon their, experience and
skills. It does not appear that the Company has delegated to these
disputed employees any substantial supervisory authority over their
helpers or that they have exercised such authority. The Union has
included keymen of,similar work status in its bargaining contracts
with the Company's competitors. We distinguish between supervisory
employees upon whose decisions and judgments the employer' relies for
his employment policies and- skilled and experienced employees to
whom certain work is assigned to be performed with the assistance of
less trained helpers.4 , We shall include the above-named employees
within the bargaining unit as ordinary 'production and maintenance`
employees of the Company.
Emery Wilson: During the 1943 canning season,, Wilson was ac-
corded the- title of assistant production superintendent., He gave
particular attention to machine breakdowns. On one day each week,
when the production superintendent was away from the plant, Wilson
took his place. After the close of the packing season, with the lay-off
of the seasonal employees over whose work he was specifically in
charge, Wilson was assigned to ordinary maintenance work about the
cannery. In January 1944 he expressly requested that the Company
temporarily relieve him of his title as assistant production superin-
tendent, alleging,that he found this designation inconsistent with
his new position as president of the Union. He retained 'however,
his wage rate of 70 cents per hour, which is 5 cents per hour more than
that of any ordinary production or maintenance employee.' It is un-
derstood that when the processing season reopens in June 1944, Wilson
will resume his supervisory title and with it supervisory authority
8 At the time of the bearing Potter and Ruis were listed on current pay rolls. Sexton,
who was transferred by the Company at the close of the 1943 season to another plant, was
subsequently laid off. He will be reemployed at the Ellsworth- cannery when work is avail-
able for him.
° Matter of Duval Texas Sulphur Company, 53 N L . R B. 1387; Matter of The New, fork
Association of Wholesalers of Ladies' and Children's Hats, Inc, 53 N. L. R. B 38.
REID, MURDOCH & CO. 289
over production employees under the general direction of the produc-
tion superintendent . Although Wilson denies that he , has been
formally invested with express authority either to hire or to discharge
employees , or make recommendations to such effect , it is clear that
Wilson is by title and function a supervisory employee within our
definition of that term, and we shall exclude him from the bargaining
unit.5
Joseph Tornga and Peter J. Drenth : Tornga is in charge of a
labeling and loading crew throughout the year, having direct super-
vision of a crew of six to eight men . When the Company needs two,
such crews , Drenth occupies by night the position which Tornga holds
by day. Tornga receives 65 cents per hour throughout the year and
Drenth 60 cents. Some employees on the labeling crews earn as high
as 65 cents per hour. Although Tornga and Drenth have not been
specifically instructed by the Company that they are invested' with
power to hire or discharge employees working ' on their gangs, or make•
effective recommendations , it appears significant that the Company
has singled out these two men from the keymen discussed above and
has given them leading authority extending beyond its strictly sea-
sonal operations . For this reason , we shall exclude Tornga and
Drenth from the bargaining unit as supervisory employees.
We find that all regular employees 6 at the Company's Ellsworth.
cannery, excluding seasonal employees , salesmen, field workers, office
clerical employees , and all supervisory employees' with authority to,
hire, promote, discharge, discipline , or otherwise effect changes in the
status of employees , or effectively recommend such action , constitute
a unit appropriate for the purposes of collective bargaining , within
the meaning" of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the Company's employees may best be resolved by an
election by secret ballot.
The Union requests that eligibility be determined by the Company's
pay roll of January 15, the day when it made its demand for recog-
nition. At the hearing the Company opposed the Union's contention
and particularly desired that eligibility be determined by means which
would insure that a substantial number of its seasonal employees
would be given an opportunity to vote. Since we have expressly ex-
" The Maryland Drydock Company , 49 N. L. R B. 733.
6 we deem included within this term, and as such included in the unit , Danforth , Alward,
Young, LaCroix , Denny, Kamradt, Potter, Ruis, and Sexton.
7 We deem included in this term , and as such excluded from the unit, the superintendent,
foremen, Wilson , Tornga, and Drenth.
587784-45-vol. 56-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluded seasonal employees from the bargaining.unit, and the Union
will receive no sanction to represent the seasonal employees for the
purposes of collective bargaining by virtue of any certification re-
sulting from our investigation herein, we find it unnecessary to con-
sider the various suggestions made, by the Company to. secure their
adequate representation at the polls. The Union has presented no
evidence to indicate that our'usual method for determining eligibility
is not appropriate herein. Raymond Sexton, a regular employee, not
presently working at the plant, will be employed as soon as work is
available for him. As provided in our Direction of Election, Sexton
will be eligible to vote as a regular employee, laid off.
Those eligible to vote in the election shall be all employees in the
appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the ,Direction of Election herein,
subject to the limitations and additions set forth -in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the,power vested in the National
Labor Relations Board by Section 9 (c)'of the National Labor Rela-
tions Act, and pursuant to Article III,• Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Reid, 'Murdoch
R Co., Ellsworth,'Michigan, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the' date of this Direction, under the direction and supervision of-
the Regional Director for the Seventh Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Ar-
ticle III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during the said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
-of the United States, who present themselves in person at the polls,
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, to determine whether or not they desire to be represented
by United Cannery, Agricultural, Packing and Allied Workers of
America, CIO, for the purposes of collective bargaining.