Seneca Foods Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1980

248 N.L.R.B. 1119 (N.L.R.B. 1980)

SENECA FOODS CORPORATION 1119
Seneca Foods Corporation and International Union
of Operating Engineers, Local Union No. 280,
AFL-CIO, Petitioner. Case 19-RC-8821
April 14, 1980
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on October 18, 1979,1
and the Hearing Officer's report, pertinent parts of
which are attached hereto as an appendix [omitted
from publication], recommending disposition of
same. The Board has reviewed the record in light
of the exceptions and brief, and hereby adopts the
Hearing Officer's findings only to the extent consis-
tent herewith.
The Hearing Officer found that 13 of the 14
challenged voters were employees who worked for
the Employer for up to 2 months in 1979 and that
they were eligible voters. We disagree for the fol-
lowing reasons.
The Employer produces applesauce, as well as
juices from fresh plums and grapes. It produces ap-
plesauce during approximately 9 months of the
year; juices are processed from approximately the
middle of August to late October or early Novem-
ber. A number of employees are hired solely to
work all or part of the fresh fruit processing, or
peak, season.
In 1979 the Employer employed approximately
40 "regular" employees-those who had worked at
least 1,700 hours within a calendar year-and ap-
proximately 70 "seasonal" employees who had
worked at least 45 days and were retained beyond
the peak season. The Employer designates as "tem-
porary" those additional employees who are hired
for the peak season only. It hired approximately 72
such employees during the 1979 peak season. Thir-
teen of them are the challenged voters with whom
we deal here. The Employer contends that they
were ineligible to vote in the October 18, 1979,
election.
The principal guideline the Board uses in deter-
mining whether, in a seasonal industry of this type,
seasonal employees have a sufficient community of
i The election was conducted pursuant to a Decision, Order, and [)i-
rection of Second Election issued hby the Board on August 23, 1979, and
reported at 244 NLRB No 80. The tall) was 49 for, and 55 against, the
Petitioner; there were 14 challenged ballots.
248 NLRB No. 159
interest with permanent employees to warrant their
inclusion in the same bargaining unit is whether the
seasonal employees have a pattern of regular sea-
sonal employment with the employer that indicates
"a relatively stabilized demand for, and dependence
on such employees by the Employer and, likewise,
a reliance on such employment by a substantial
number of employees in the labor market who
return to the Employer's operation each year."
California Vegetable Concentrates, Inc., 137 NLRB
1779, 1781 (1962); Kelly Brothers Nurseries, Inc., 140
NLRB 82, 85 (1962).
Of the 72 employees hired for the 1979 fresh
fruit processing season, only 3 had worked for the
Employer the previous year, and of those 3, 1
worked only 2 weeks in 1978 and I week in 1979.2
Only 16 peak season employees worked beyond
October 18, 1979, the election date, and all had
been terminated by October 22. As the Hearing Of-
ficer found, the Employer makes no attempt to
recall former peak season employees and gives
them no preference when they apply for reemploy-
ment.
The Hearing Officer found that many of the em-
ployees hired during the 1978 peak season re-
mained as full-time "seasonal" employees. This
finding, while correct, is too broad to be useful for
the specific determination to be made here. The
employees hired in 1978 who were retained after
the peak season were not hired for the peak season.
They were hired for the applesauce canning de-
partment or for other functions which go on
beyond the end of the fresh fruit processing season.
No employees hired during the 1978 peak season
for temporary work attained either "regular" or
"seasonal" employee status thereafter.3
The Hearing Officer also found that when five
employees were hired they were told they had a
"chance" of being retained at the end of the
season. We do not disturb the Hearing Officer's
credibility finding with respect to the testimony of
these five employees. However, we are unable to
find in this credited testimony, considered in light
2 The Hearing Officer's finding that several additional peak season em-
ployees had worked for the Employer sometme in the past is of limited
probative value in determining whether these employers have a regular
pattern of seasonal employment
' Most f the 1978 employees who later became "seasonal" employees
were hired specifically for the canning department Another. Norma
Ortega, was hired on Januarv 24. 197S. after the 1977 peak season, and
became a "seasonal" employee sometime in 1978 or 1979 There was ap-
parentl a hiatus in her employment in 1978. but she was rehired on Sep-
tember 25, 1978, and continued until July 21 1979 Hilda Villareal was
hired after the 1978 peak season and worked for approximately 3 weeks.
then attained "seasonal" status in 1979 Two employees hired during the
1978 peak season later attained "seasonal" status. hut apparently were
hired to be long-term processing department employees Fsen assuming
that the) were hired as "temporary" employees, however, their attain-
merit f "seasonal" status would represent the exceptlon rather than the
rule fr such employees
SENECA FOODS CORPORATION I
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the whole record, any indication that, when
hired, the peak season employees were given to be-
lieve they had a significant opportunity for regular
employment. Approximately half of the challenged
voters who testified stated that at their employ-
ment interviews they were told they had a chance
of being retained beyond the peak season. 4 Em-
ployee Moreno, one of those cited by the Hearing
Officer, testified that the Employer's personnel
manager told him he would try to keep him on, but
"they'd probably lay people off," and Moreno did
not think he would have a permanent position.
Two other challenged voters, Hernandez and
Rawson, testified only that sometime after they
were hired someone told them they might be re-
called from the general layoff. Hernandez' asserted
opportunity for recall was vague, and Rawson's
was based on a special commendation from a
friendly leadman. Another challenged "temporary"
employee, Mike Persinger, testified that he was
told he was just hired for the grape season. What
emerges from all of this is that when a vacancy
occurs for a "seasonal" employee, "temporary"
employees from the immediate past peak season are
considered. As discussed above, the chances for a
particular "temporary" employee to fill such a spot
are less than impressive. Nothing these employees
were told contradicts this negative impression.
Finally, the fact that, during the peak season, the
"temporary" employees performed the same work
as eligible voters, under similar conditions of em-
ployment, is of little significance here. Most of the
Employer's employees are engaged in fresh fruit
processing, e.g., squeezing juice out of grapes,
during the peak season because that is the Employ-
er's principal operation during that season. During
other times of the year the longer-term employees
have different functions.5 Thus, the peak season
employees do not necessarily share with the others
4 Richard Meyer, one of the employees on whose testimony the Hear-
ing Officer relied, was not an employee whose ballot was challenged. He
was hired toward the end of the 1978 peak season and, according to the
Employer's records, for the canning department, although Meyer disput-
ed this. He testified, nevertheless, that he was "hired for the rest of the
grape packing season and maybe more." Meyer became a "seasonal" em-
ployee in 1979.
s Longer-term processing department employees, after the peak season,
prepare juice concentrates for cans as well as whole juice for bottles.
the type of work and the work environment that
gives the longer-term employees their distinct com-
munity of interest.
In short, it appears that the only real claim the
challenged peak season employees have to eligibil-
ity is the happenstance that the second election,
unlike the first election herein, was scheduled and
conducted while they were on the payroll. But in
fact these 13 employees have no greater communi-
ty of interest with the longer-range employees than
did the majority of their fellow peak season em-
ployees, who had left the payroll before the elec-
tion. Even though these 13 met the technical pay-
roll date requirements, the history as to regular sea-
sonal reemployment or permanent employment
among peak season employees shows an insufficient
probability of such employment to make them eli-
gible voters. Maine Sugar Industries, Inc., 169
NLRB 186 (1968), reversed on other grounds 425
F.2d 942 (Ist Cir. 1970); Lilliston Implement Compa-
ny, 121 NLRB 868 (1958); cf. Case-Swayne Co., 209
NLRB 1069 (1974).
As we hereby sustain the challenges to the bal-
lots of David Bardessono, Jerry Bjork, Miguel
Campos, Albert Hernandez, Joseph Knowles, Joe
Konishi, Arthur Moreno, Johnny Pankoke, Mike
Persinger, Steve Rawson, Rick Salmonson, Bud
Schmidt, and Connie Schnert, and as the ballot of
Iola Kinkade, the remaining challenged voter,
cannot affect the outcome of the election, we do
not reach the issue of her eligibility and do not
adopt the Hearing Officer's recommendation to
open and count the challenged ballots.
Since the Petitioner had not received a majority
of the valid votes cast, we shall issue the following:
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union
of Operating Engineers, Local Union No. 280,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act,
as amended.