Gerber Products Co.

National Labor Relations Board - Board Decisions

Jan 1, 1945

59 N.L.R.B. 1362 (N.L.R.B. 1945)

In the Matter of GERBER PRODUCTS COMPANY awl LOCAL 30, UNITED
CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMERICA,
C.I.O.
Case No. 7-R-1846.-Decided January 1, 1945
Mr. Edwin F. Steffen, of Lansing, Mich., and Mr. Frank Gerber, of
Fremont, Mich., for the Company.
Mr. C. K. Armstrong, of Traverse City, Mich., and Mr. Charles
Bowers, of Muskegon, Mich., for the Union.
Mr. Julius Kirle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local 30, United Cannery, Agricul-
tural, Packing and Allied Workers of Anmerica, C. 1. 0., herein called
the Union, alleging, that a question affecting commerce had arisen
concerning the representation of employees of Gerber Products Com-
pany, Fremont, Michigan, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Cecil Pearl, Trial Examiner . Said hearing was held
at Muskegon , Michigan, on November 1, 1944. The Company and the
Union appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. At the hearing, the Com-
pany moved to dismiss the petition on the ground that its presently
existing contract.with the Unionlis a bar to any change in the appro-
priate unit. Rnling on the motion was reserved for the Board. For
reasons hereinafter set forth, the motion is hereby denied. The T rial
Examiner's rulings made at the hearing are free from prejudicial error
and R.re hereby affirmed. All parties were afforded an opportunity
to-file-briefs with the Board.
59 N L R B., No 251. -
1362
GERBER PRODUCTS COMPANY 1363
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gerber Products Company, a Michigan corporation having its plant
at Fremont, Michigan, is engaged in the manufacture of canned and
packaged baby foods and dry cereals. The Company purchases an-
nually raw materials valued in excess of $1,000,000, of which 73 per-
cent is obtained from sources outside the State of Michigan. The
Company produces annually finished products valued in excess of
$1,000,000, of which 72 percent is sold to sources outside that State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local 30, United Cannery, Agricultural, Packing and Allied
Workers of America, affiliated with the Congress of Industrial Organ-
izations; is a labor organization admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION -
On May 10, 1943, the parties entered into a collective bargaining
agreement which provided that it was to remain in effect for 1 year and
thereafter until either party should desire to terminate, modify, or
amend the contract upon 30 days prior notice in writing. Neither party
has given such written notice. In June 1944, and subsequent thereto,
the Union sought to enlarge its present unit and requested recognition
as the exclusive bargaining representative of certain additional em-
ployees of the Company. The Company refused to grant recognition to
the Union as to these employees, contending that its presently existing
contract with the Union was a bar to any such enlargement of the unit.
We do not agree with this contention. Inasmuch as the original term
of the contract has expired and the contract is now terminable at any
time upon 30 days prior notice, the contract is one of indefinite duration
and, therefore, can not be said to constitute a bar to the instant
proceeding.'
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.2
1 See Matter of American Type Founders , Inc., 52 N. L R. B 410.
2 The Field Examiner reported that the Union submitted 209 cards ; that the names of
210 persons appearing on the cards were listed on the Company ' s pay roll , which contained
the u'ames of 024 employees in the claimed appropriate unit ; and that the cards were
dated June 1943 , through September 1944.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Union seeks a unit of all the Company's production and mainte-
nance employees, including seasonal employees and cafeteria workers,
but excluding office employees, clerical workers in the warehouse and
in the factory, truck drivers, demonstrators, salesmen, farm laborers,3
laboratory technicians, foremen, and all other supervisory employees.
The Company, while in general agreement with the unit sought by the
Union, would exclude seasonal employees and cafeteria workers, and
limit eligibility in the unit, as delineated by the Union's contract, to
male employees who have worked 1,800 hours in 46 weeks and female
employees who worked 1,600 hours in 43 weeks, out of the preceding 52
weeks.4
The Company is engaged in the manufacture of canned and pack-
aged baby foods and dry cereals. In its operations, the Company
uses vegetables and fruits harvested and packed in season, starting
with the asparagus crop in May and continuing through various other
crops to December. Due to the labor shortage, the season now ex-
tends to January and, February. Products received and stored by
the Company during the summer months are processed during the
remainder of the year. The Company hires additional employees to
work during these seasonal or "pack'-' periods, included among whom
are high school and college students, farmers, housewives, and others.
The seasonal employees, with the exception of the high school and
college students, hereinafter discussed, perform the same work, have
the same starting rate of pay, are entitled to the same increases, and
accumulate the same seniority as the so-called regular employees.
Many of them have been bargained for by the Union after they have
worked a sufficient number of hours under the Union's contract to be
designated as regular employees. The Company has a planned policy
of recruiting the same seasonal employees from year to year. Since
1943, no employee has had his employment terminated due to the
lack of work between the seasonal periods or "packs," the Company's
production having expanded and the production requirements having
exceeded the labor supply. With the exception of the high school
and college students, none of the seasonal employees hired by the
U Farm laborers are employees on the factory pay roll who are engaged in agricultural
pursuits about the Company's plant and are not to be confused with farmers who obtain
seasonal or regular employment in the factory.
4 At the hearing, the Company also indicated that it is agreeable to the inclusion in the
unit of all employees , male and female , who have worked more than 1,300 hours (28
weeks ) in any 1 year.
GERBER PRODUCTS COMPANY 1365
Company during the year 1944, were hired on the assumption that
they were part-time or seasonal employees and would be laid off at
the end of any seasonal period or "pack." The average length of
employment of the seasonal workers per year is unknown.5 In view
of -the foregoing; we are of the opinion that the seasonal employees
have a sufficient community of interest with the so-called regular
employees that would warrant their inclusion in the same unit .6
Cafeteria workers. The Company employs approximately 18 to 20
cafeteria workers whose duties are those normally associated with
cafeteria workers. When necessary, they, are transferred from pro-
duction to cafeteria work, and vice versa, at the same basic rate of
pay as the other production employees, and have been bargained
for by the Union after they have worked a sufficient length of time
to attain the status of so-called regular employees under the Union's
contract. We are of the opinion that their interests are closely allied
to those of the production and maintenance employees and, accord-
ingly, we shall include them in the appropriate unit.
We find that all of the Company's production and maintenance
employees, including cafeteria workers, but excluding office employ-
ees, clerical workers in the warehouse and in the factory, truck
drivers, demonstrators, salesmen, farm laborers, laboratory techni-
cians, foremen, and all other 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
The Union seeks, over the objection of the Company-, to include
high school and college students who work during slimmer vacations.
Unlike so-called seasonal employees, the high school and college stu-
dents are, expressly hired for the vacation period beginning with
the closing of school in June and ending with the reopening of school
in the fall. Some of the students, due to their age, are required to
obtain working permits before they are permitted to work for the
Company, are under strict regulations as to hours and types of em-
ployment, and receive specially colored badges to identify them. We
are of the opinion that they lack that community of interest with
the so-called regular employees which would entitle them to vote.
5In 1943, the Company employed a total of , 2,513 employees of whom 1 , 709 had worked
from 1 to 20 weeks, 1 , 885 from 1 to 30 weeks , 2,010 from 1 to 40 weeks , and 503 from 41 to
52 weeks. In 1944, for the 9 months ending September 24, 1944, the Company had em-
ployed a total of 1,657 employees of whom 979 had worked from 1 to 20 weeks , 1,161 from
1 to 30 weeks , and 496 from 31 to 39 weeks.
6 See Matter of Richard Wilcox Manufacturing Company, 21 N. L. R. B. 97; Matter of
Reid -Murdoch & Company , 56 N. L . R. B. 57.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find the high school and college students ineligible
to participate in the election. We also find, pursuant to the request
of the Union, that production and maintenance employees who have
been employed less than 30 days during the year immediately preced-
ing the date of this Direction, do not possess a sufficient interest in
the result of the election to justify their participation therein; ac-
cordingly such employees shall be ineligible to vote.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
,pay-roll period immediately 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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Gerber Products
Company, Fremont, Michigan, an election by secret ballot shall be
conducted 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
Article 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 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 high school and college students who work during sum-
mer vacations, employees who have been employed less than 30 days
during the year immediately preceding the date of this Direction, and
those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether or not they desire to be represented by
Local 30, United Cannery, Agricultural, Packing and Allied Workers
of America, C. I. 0., for the purposes of collective bargaining.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.