Stokely Brothers & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1939

15 N.L.R.B. 872 (N.L.R.B. 1939)

In the Matter of STOKELY BROTHERS & COMPANY, INC. AND VAN
CAMP'S, INC. and FEDERAL LABOR UNION No. 21752, AFFILIATED WITH
A. F. of L.
In the Matter Of STOKELY BROTHERS & COMPANY, INC. AND VAN
CAMP'S, INC. and AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN
WORKERS OF AMERICA, LOCAL No. 1473, AFFILIATED WITH THE C. I. 0.
In the Matter of STOKELY BROTHERS & COMPANY, INC. AND VAN
CAMPS, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA, LOCAL UNION
135, AFFILIATED WITH A. F. OF L.
Cases Nos . R-1382, R-1383 , R-138/,, respectively.-Decided October
4, 1939
Food Canning Industry--Investigation of Representatives: controversy con-
cerning representation of employees: rival organizations; controversy as to
appropriate unit; contract executed between Company and one union after
both parties had notice of claims of rival unions held not to preclude determina-
tion of all issues raised-Units Appropriate for Collective Bargaining: (1) reg-
ular and junior employees at both plants and warehouse, including or exclud-
ing truck drivers depending upon results of election directed among them;
seasonal employees at Indianapolis excluded because no union involved seeks to-
bargain for them; (2) seasonal employees at Martinsville plant; (3) contro-
versy as to craft unit for truck drivers or combination with regular and junior-
employees at both plants and warehouse in industrial unit; desires of men to
determine-Elections Ordered
Mr. Lester M. Levin, for the Board.
Messrs. Kurt F. Pantzer, Gustav H. Dongus, and Paul Y. Davis,.
of Indianapolis, Ind., for the Companies.
Messrs. Pryor & Davidson, by Mr. Frank Pryor, of Frankfort, Ind.,,
and Mr. Hugh Gormley, of Indianapolis, Ind., for the Federal Union..
Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the Amalgamated.-
Weiss, Seligman & Born, by Mr. Ezra Weiss and Mr. Jacob Weiss,.
Indianapolis, Ind., for the Brotherhood.
Mr. Ben Law, of counsel to the Board.
15 N. L. R. B., No. 99.
872'
STOKELY BROTHERS & COMPANY, INC.
DECISION
AND
DIRECTION OF ELECTIONS
873
STATEMENT OF THE CASE '
On October 20, 1938, Federal Labor Union No. 21752, affiliated with
the American Federation of Labor, herein called the Federal Union,
filed with the Regional Director for the Eleventh Region (Indian-
apolis, Indiana) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of Van
Camp's, Inc., Indianapolis, Indiana, herein called Van Camp's, at its
Martinsville plant, Martinsville, Indiana, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.'
On March 1, 1939, Amalgamated Association of Iron, Steel & Tin
Workers of America, Local No. 1472, affiliated with the Congress of
Industrial Organizations, herein called the Amalgamated, filed with
the Regional Director for the Eleventh Region (Indianapolis, In-
diana) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Van Camp's at
its Indianapolis, Indiana, plant and warehouse and its plant at Mar-
tinsville, Indiana, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the Act.2
On March 31, 1939, International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America, Local 135, affiliated
with the American Federation of Labor, herein called the Brother-
hood, filed with the Regional Director for the Eleventh Region (In-
dianapolis, Indiana) a petition alleging that a question affecting
commerce had arisen, concerning the representation of employees of
Stokely Brothers & Company, Inc. and Van Camp's, herein called
the Companies when referred to together, at the Indianapolis, In-
diana, plant, and requesting an investigation and certification of rep-
resentatives pursuant to, Section 9 (c) of the Act.
On April 12, 1939, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Sections 3 and 10 (c) (2), of National Labor Relations
Board Rules and Regulations-Series 1, as amended, issued its order
consolidating the cases based upon the three petitions above men-
tioned for all purposes, and ordered an investigation and authorized
1,The petition was amended on March 27 , 1939, to name the employer as Stokely Brothers
& Company, Inc. and Van Camp's, Inc.
2 The petition was amended on March 31 , 1939, to name the employer as Stokely Brothers
& Company , Inc. and Van Camp's, Inc.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On April 19, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Companies, upon the.
Federal Union, upon the Amalgamated, and upon the Brotherhood..
A copy was also served upon Steel Workers Organizing Committee..
On April 25, 1939, the Regional Director issued a notice of postpone-
ment of hearing, copies of which were duly served upon all of the
above-mentioned parties. Pursuant to notice duly served upon all
the parties, a hearing was held May 15 to 20, 1939, at Indianapolis,
Indiana, before James C. Paradise, the Trial Examiner duly desig-
nated by the Board. The Federal Union, the Brotherhood, the
Amalgamated, and the Companies were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
During the hearing the Brotherhood and the Federal Union moved
for separate hearings in the cases raised by their petitions. Van.
Camp's filed three different motions that the Trial Examiner issue a
subpena calling upon the Regional Director for the Eleventh Region
to appear and testify. The Trial Examiner denied the above mo-
tions. His rulings are hereby affirmed. Also during the hearing
Stokely Brothers & Company, Inc. and Van Camp's moved separately
that each of the three petitions be dismissed. The Companies to-
gether moved to quash the proceedings. Ruling on these motions
was reserved by the Trial Examiner for the Board. The motions
are hereby denied. During the course of the hearing the Trial Ex-
aminer made other rulings on motions and objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on June 23, 1939, for the purpose of oral argument.
The Brotherhood, the Amalgamated, and the Companies appeared
by counsel and the Federal Union by a representative; all four parti-
cipated in the argument. Briefs were filed at the oral argument by
the Companies and the Amalgamated.
8 On the last day of the hearing counsel for the Companies offered to introduce evidence
that striking Van Camp's truck drivers had allowed no trucks to enter or leave the plants
involved in this proceeding from March 4, 1939, to the time of the hearing ; that the
Brotherhood had a reputation in Indianapolis for the use of violence in connection with
strikes ; that the Brotherhood had plans to commit acts of violence to make the strike effec-
tive ; and that as a result of the strike Van Camp's had suffered substantial damage to its
business. The Trial Examiner asked counsel for the Companies if the purpose of these
offers was to prove that the striking truck drivers had lost their status as employees.
Counsel for the Companies refused to take a position on this question and accordingly the
Trial Examiner excluded the evidence offered on the grounds that it was not relevant. The
ruling of the Trial Examiner is hereby affirmed.
STOKELY BROTHERS & COMPANY, INC. 875
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Van Camp's is an Indiana corporation engaged in canning food
products. It operates a plant and warehouse in Indianapolis, In-
diana, and a plant at Martinsville, Indiana. The Indianapolis plant
is used throughout the year in the packing of non-seasonal items
including pork and beans, chile con carne, kidney beans, kraut,
spaghetti, hominy,. soups, and pureed foods. In season it also packs
such seasonal items as pumpkin, catsup, tomatoes, tomato juice, and
peas. The Martinsville plant is used solely for the packing of sea-
sonal items, principally peas, tomatoes, tomato products, and pump-
kins. At the Indianapolis warehouse many of the products of both
the Indianapolis and Martinsville plants are stored, labeled, and
prepared for shipping.
For the fiscal year beginning June 1, 1937, 15 per cent of the raw
materials used by Van Camp's came from outside Indiana and 94
per cent of the manufactured product was shipped to destinations
outside Indiana. Van Camp's gross sales for that year were ap-
proximately $5,500,000.
All of the stock of Van Camp's is owned by Stokely Brothers &
Company, Inc., an Indiana corporation. Stokely Brothers & Com-
pany, Inc. has two other wholly owned subsidiaries operating in
California and Washington. It also operates seven plants directly
in Indiana. For the fiscal year beginning June 1, 1937, 10 per cent
of the raw materials for these plants came from outside Indiana and
87 per cent of the manufactured product was sent to destinations out-
side of Indiana.. Gross sales for the same period approximated
$1,700,000.
Stokely Brothers & Company, Inc. and Van Camp's maintain joint
sales offices in many of the principal cities of the United States for
the supervision of brokers, through whom the major portion of their
respective sales are effected to jobbers and large chain stores. Cer-
tain sales are also made by the Companies separately through their
own salesmen. The Companies occupy office space in the same build-
ing in Indianapolis, Indiana, from which the affairs of the two
corporations are run by boards of directors, of which W. B. Stokely,
Jr., the president of both companies, is the only common member.
John B. Stokely and C. A. Nugents, the other two members of the
board of directors of Van Camp's are, however, executive vice presi-
dent and secretary, respectively, of Stokely Brothers & Company,
Inc.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This proceeding is concerned only with the representation of per-
sons employed at Van Camp's Indianapolis plant and warehouse and
its Martinsville plant.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 21752, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to its membership
non-supervisory employees at the Martinsville plant of Van Camp's.
Amalgamated Association of Iron, Steel & Tin Workers of
America, Local No. 1473, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to its membership
employees at the Indianapolis plant and warehouse and the Martins-
ville plant, exclusive of supervisory, clerical, and laboratory em-
ployees, field men, farm contractors, agricultural workers, and sales
force.
International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local Union 135, affiliated with the Amer-
ican Federation of Labor, is a labor organization admitting to mem-
bership employees at the Indianapolis plant engaged in driving
trucks.
III. THE QUESTION CONCERNING REPRESENTATION
The Amalgamated first started to organize among the employees
at the Indianapolis plant and warehouse and the Martinsville plant
in February 1937, and was chartered on March 31, 1937. In May
1937, after a series of conferences between Van Camp's officials and
Amalgamated representatives, a contract was executed. It was effec-
tive from June 1, 1937, until May 1, 1938, and under it Van Camp's
recognized the Amalgamated as exclusive bargaining agency for em-
ployees whose services were paid for on an hourly or piece-work
basis, but not including superintendents, foremen, field men, farmer-
contractors, agricultural workers, clerical, laboratory, and sales force,
engaged at the Indianapolis plant and warehouse and the Martins-
ville plant. Shortly thereafter Van Camp's submitted its May 29,
1937, pay roll, and the Amalgamated its membership cards, to the
Board's Regional Office. The Board's Field Examiner checking the
cards against the pay roll reported as follows : Of 431 employees
listed for the Indianapolis plant and warehouse 320 had signed
Amalgamated cards. Of 24 employees listed for the Martinsville
plant, 19 had signed Amalgamated cards.
Upon the expiration of the June 1, 1937, contract, a second..con-
tract was executed, dated May 1, 1938, effective until March 31, 1939,
and containing the same recognition clause as that stated above.
STOKELY BROTHERS & COMPANY, INC. 877
In August 1938, the Federal Union started to organize among em-
ployees at the Martinsville plant. On October 14 and 18, 1938, a
Federal Union representative made calls upon Van Camp's officials
in Indianapolis, claimed that his union represented a majority of
the Martinsville employees, and presented a proposed contract form.
The Van Camp's officials informed him that the company was already
bound by the contract it had with the Amalgamated, which specifi-
cally covered Martinsville employees, and that there was nothing
further that they could do. The Federal Union accordingly filed its
petition on October 20, 1938.
In late January 1939, the Brotherhood started to organize among
Van Camp's truck drivers. During February 1939, at a series of
conferences held with the Companies' officials, Brotherhood repre-
sentatives claimed that they represented a majority of the truck
drivers and requested a collective bargaining contract. The Com-
panies referred to the May 1, 1938, contract between the Amalga-
mated and Van Camp's, stated that it covered truck drivers, and
refused the request for a contract. Thereafter, on February 27, 1939,
most of the truck drivers went on strike for several hours. They
returned to work the following day, but on March 4, 1939, nine truck
drivers again struck and were still out at the time of oral argument
in this case. No other truck drivers were hired by Van Camp's to
take the place of those on strike.
On March 1, 1939, the Amalgamated filed its petition and on March
31, 1939, its amended petition. Both petition and amended petition
stated that the Federal Union and the Brotherhood also claimed to
represent employees within the appropriate unit for which the Amal-
gamated requested that it be certified as bargaining agency.
On March 30, 1939, a third contract between Van Camp's and the
Amalgamated was executed by which Van Camp's recognized the
Amalgamated as exclusive bargaining agency for "till people em-
ployed or paid by the Company at its plant at 2002 South East Street,
its warehouses 4 in the City of Indianapolis, Indiana, and its plant in
Martinsville, Indiana, * * *, but not including superintendents,
foremen, field men, farmer-contractors, agricultural workers, clerical,
laboratory or sales force." This contract, though executed on March
30, 1939, was dated April 1, 1939. It set March 31, 1941, as its date
of termination.
On March 31, 1939, the Brotherhood filed its petition.
4 During the proceedings the Indianapolis warehouse was referred to as both the Indian-
apolis warehouse and the Indianapolis warehouses . At the oral argument counsel for the
Companies explained that during the period involved , Van Camp' s warehousing accommo-
dations in Indianapolis had been shifted from what is known as the Dilling warehouse to
the Marmon warehouse, two miles from the Indianapolis plant. Hence the occasional use
of the plural form.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing and oral argument the Companies argued in sub-
stance that because of the April 1, 1939, contract between the Amal-
gamated and Van Camp's, no question concerning representation is
'raised by the Amalgamated's petition. We do not feel that the case
can be disposed of on that ground. At the time the contract was
entered into, Van Camp's had full notice of the representation claims
of both the Federal Union and the Brotherhood and of the fact that
,those claims conflicted with claims of the Amalgamated. The Fed-
eral Union had filed its petition some 5 months before execution of
the contract and Van Camp's had been so notified. The Brotherhood
had informed Van Camp's of its claims at least a month before and
had effectively brought them to the Companies' attention by a pro-
longed strike.
In other cases we have held that a contract entered into under
,such circumstances does not preclude a determination of all the issues
Taised.5
As indicated by its petition, the Amalgamated does not seek to
rely upon its contract with Van Camp's but requests certification by
the Board as exclusive bargaining agent for all employees within
what it alleges is the appropriate unit covered by the contract.
We find that a question has arisen concerning representation of
-employees of Van Camp's.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
-arisen, occurring in connection with the operations of the Companies
-described in Section I above, has a close, intimate, and substantial
:relation to trade, traffic, and commerce among the several States, and
-tends to lead to labor disputes burdening and obstructing commerce
.and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Amalgamated contends that an appropriate unit consists of
all people employed or paid by the Company at its plant at 2002
South East Street, Indianapolis, Indiana, its warehouse in Indian-
apolis, Indiana, and its plant in Martinsville, Indiana, but not includ-
ing superintendents, foremen, field men, farmer-contractors, agricul-
tural workers, clerical, laboratory, or sales force, or seasonal workers.
5 See Matter of American -West African Line, Inc. and National Marine Engineers Benefi-
cial Association, 4 N. L. R . B. 1086 ; Matter of Wilmington Transportation Company and
.Inland Boatmen 's Union of the Pacific, San Pedro Division, 4 N. L. R. B. 750 ; Matter of
California Wool Scouring Company and Textile Workers Organizing Committee , 5 N. L. R.
B. 782. See also Matter of Southern Chemical Cotton Company and Textile Workers
Organizing Committee, 3 N. L. R . B. 869.
STOKELY BROTHERS & COMPANY, INC. 879
. The Brotherhood contends that an appropriate unit consists of
employees at the Indianapolis plant engaged-in driving trucks, exclu-
sive of production, maintenance, supervisory, and clerical employees.
The Federal Union contends that an appropriate unit consists of
production and maintenance employees at the Martinsville plant,
excluding supervisory and clerical employees, field men, farmer-con-
tractors, agricultural workers, and sales force, but including seasonal
employees at that plant.
Truck drivers
The issues raised by conflicting claims of the Amalgamated and
the Brotherhood concerning employees working as truck drivers will
be considered first. The Brotherhood contends that truck drivers
should constitute a separate unit, alleging as grounds that their work-
ing conditions and interests differ from those of production em-
ployees, that under the terms of the contracts between Van Camp's
and the Amalgamated truck drivers have been excluded from the
unit therein declared to be appropriate , and that the Amalgamated
has not only failed to bargain for them in the past but has recognized
the appropriateness of a separate unit for truck drivers by requesting
the Brotherhood to organize them and assisting it in doing so. The
Amalgamated and Van Camp 's contend that truck drivers do not
constitute a separate appropriate unit.
Under the terms of the June 1, 1937, and the May 1, 1938, contracts
Van Camp's recognized the Amalgamated as bargaining agent for
employees "whose services are paid for on an hourly or piece-work
basis." Under the April 1, 1939, contract the language quoted above
was dropped and Van Camp's recognized the Amalgamated as bar-
gaining agent for "all people employed or paid by the company,"
with stated exceptions . Truck drivers were not specifically referred
to in any of the contracts.
At the hearing and oral argument the Amalgamated and Van
Camp's contended that under the contracts truck drivers were in-
cluded within the unit therein declared to be appropriate. The
Brotherhood, on the other hand , contended that the contracts ex-
cluded truck drivers from the unit, alleging that they are paid a
weekly wage rather than on an hourly or piece-work basis and that
they had not been bargained for pursuant to the contracts.
With regard to the method by which truck drivers have been paid,
the traffic manager for Van Camp's testified that before execution of
the first contract , Van Camp's had discovered that because drivers on
occasion were away from the plant for several days at a time there
was a special problem in keeping a current record of their working
hours. Van Camp's accordingly developed the system of paying its
880 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
truck drivers so much an hour on the basis of a 48-hour week.
Thereafter, when the weekly reports were totaled, if it should appear
that a driver had worked more than 48 hours during the week, the
extra amount due would be computed according to the number of
hours worked over 48 and that amount would be added to the driver's
pay check for the following week. If it should appear that the
driver had worked less than 48 hours, the amount he had been over-
paid would be computed and deducted from his pay check for the
subsequent week. This system was then modified further in that the
number of hours worked was computed in part according to the
number of miles run.
Soon after the June 1, 1937, contract between Van Camp's and the
Amalgamated was signed the four drivers then employed had a con-
ference with Van Camp's. officials to arrive at an understanding as to
how the contract affected the system by which they were paid. They
agreed that the method as outlined above should be continued.
It is possible that this method of determining truck drivers' com-
pensation, considered as a combination of an hourly wage and a
piece-work system, brought them within the unit covered by the June
1., 1937, and May 1, 1938, contracts. An indication to the contrary
lies in the fact that truck drivers did not receive a 71/2 cent per hour
wage increase provided for employees within the unit under the June
1, 1937, contract. Furthermore, in January of 1939 the president of
the Amalgamated accompanied and actively supported a Brother-
hood representative while the latter urged several of the truck drivers
to join the Brotherhood.
All of the evidence as to whether truck drivers have in the past
been included within the unit urged by the Amalgamated is, there-
fore, highly contradictory. In so far as the function and working
conditions of truck drivers are concerned, suffice it to say that the
evidence is such that they could either constitute a separate unit
or be combined with production and maintenance employees in a
single unit. In accordance with our previous rulings in this type of
case, we hold that the determining factor is the desire of the em-
ployees themselves."
On this point the record is inconclusive. An election will there-
fore be ordered among the truck drivers to determine whether they
desire to be represented by the Brotherhood, by the Amalgamated,
or by neither. If the Brotherhood is accorded a majority, the truck
drivers will be considered as constituting a separate unit. If the
Amalgamated is accorded a majority, the truck drivers will be con-
sidered as combined with the unit of regular and junior employees
° See Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. R. B.. 159.
STOKELY BROTHERS & COMPANY, INC. 881
at Van Camp 's Indianapolis plant and warehouse and Martinsville
plant, discussed below, in a single unit.
Van Camp's March 4, 1939, pay roll was the last regular pay roll
before 9 of the 12 truck drivers listed thereon went out on strike.
We shall , therefore , direct that employees eligible to vote in the
election shall be truck drivers listed on the March 4, 1939, pay roll,
including truck drivers who , did not work during such pay-roll
period because they were ill or on vacation , and truck drivers who
were then or have since been temporarily laid off , but excluding
those who have since quit or been discharged for cause.
The two plants and the warehouse
Van Camp' s Martinsville plant is 30 miles distant from the In-
dianapolis plant . The Indianapolis warehouse , where much of the
product of both plants is labeled and stored , is 2 miles from the
Indianapolis plant. As has been stated , the Indianapolis plant and
warehouse are engaged throughout the year in the canning of non-
seasonal food products and from about the last of May to the last of
November of each year in the canning of seasonal food products.
The Martinsville plant packs only seasonal products from May to
November.
The operation of both plants and warehouse is directed from Van
Camp's central offices in Indianapolis. Vegetables used are received
from farms located in a rough circle or ellipse around both plants.
Either plant may receive its vegetables from any part of the entire
area depending on weather conditions , the size of the crop from day
to day, and conditions at the plants . From time to time the entire
pack of a particular crop may be processed at one plant for reasons
of economy , size of the crop, or to prepare the other plant for a
succeeding crop. In general it is Van Camp's policy to use the
Indianapolis plant as much as possible because costs are ordinarily
lower there. In this connection one Van Camp 's official said at the
hearing, `-Even though located 30 miles away we still look on Mar-
tinsville as the 8th floor of the Indianapolis plant. We carry the
supplies of stock for them. We take their raw materials ; they take
ours. We used to freely interchange workmen. We prefer at every
instance where we can to run the product at Indianapolis for eco-
nomic reasons." Manufacturing operations at the two plants are
substantially the same. Questions of labor policy affecting both
plants and the warehouse are determined from Van Camp's central
offices in Indianapolis.
Pursuant to the contracts between Van Camp's and the Amalga-
mated, collective bargaining has been on the basis that employees.at
the Indianapolis plant and warehouse and the Martinsville plant
882 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
together constitute a single appropriate unit. This course of bar-
gaining must be considered as qualified, however, by the fact that it.
was almost entirely on behalf of regular and junior employees to the
exclusion of seasonal employees, as will be discussed below.
Under the June 1, 1937, contract between the Amalgamated and
Van Camp's, three classifications of employees were recognized by
the parties. These were regular employees, junior employees, and
seasonal employees. These same classifications, which are founded
on real distinctions among the employees, were retained under the
May 1, 1938, and the April 1, 1939, contracts. As indicated by specific
provisions of the contracts quoted in the footnote below ,7 regular
employees are those who have worked for 60 or more days out of 90,
consecutive days on non-perishable products. Junior employees are
all others who work on non-perishable products. Regular and junior
employees include maintenance as well as production workers. Sea-
sonal employees are those who work on perishable products alone-
The term is used hereafter in this sense. Regular and junior em-
ployees, of course, may work on perishable as well as non-perishable
products. The Amalgamated, the Federal Union and Van Camp's all
referred to the three types of employees in the same manner as they
are defined by the contracts.
The status of seasonal employees we will consider fully below..
Here sire note that self-organization among the vast majority of regu-
lar and junior employees at the Indianapolis plant and warehouse-
and the Martinsville plant has been in one union, the Amalgamated,:
and on the basis that regular and junior employees at both plants and
7 Section 1 (B), clause 1 , of the April 1, 1939, contract provides, "Regular Employees are-
those who on April 1, 1939, were entitled to be classified as Regular Employees under the
Collective Bargaining Agreement dated May 1, 1938. Others may become Regular Em-
ployees under operation of the last sentence of clause ( 2) of this section ." The May 1,
1938 , agreement referred to above, refers back in like manner to the June 1, 1937 , contract
which defines regular employees as "Employees who were in the employ of the Employer
for 90 working days in the period beginning November 1st, 1936, and ending June 1, 1937,"
and in addition provides that persons employed for 60 days out of any 90-day period in
preparing and preserving non-perishable products shall be classed as regular employees if
they continue in van Camp's employment.
Section 1 (F) of the April 1, 1939, contract also provides in part, "labeling, warehousing
and shipping of canned perishable products performed at times other than the canning-
periods of perishable products shall be considered as work on non-perishable products."
Section 1 ( B), clause 2 , of the April 1, 1939, contract provides , "Junior Employees are
those employed by the Company , other than Regular Employees mentioned above, in any
work on non -perishable products . When any Junior Employees , after April 1, 1939, works
on non -perishable products for the Company for sixty days out of any ninety consecutive
days, said Employee , if he continues to work for the Company , shall be classed as a Regular
Employee."
Section 1 ( B), clause 3 , of the April 1, 1939, contract provides , "Seasonal Employees are
those other than Regular or Junior Employees who are employed by the Company in addi-
tion to Regular and Junior Employees to work during the pack of perishable products.
When the Company has occasion to employ Seasonal Employees , the Company will give
preference in hiring, so far as practicable , to Seasonal Employees who have worked during
the, pack of perishable products in previous seasons. Seasonal Employees can become Junior
Employees by being employed on the production of non-perishable products."
STOKELY BROTHERS & CODIPANY, INC. 883"
the warehouse constitute a single unit. Both the Amalgamated and.
Van Camp's request the single unit. The Federal Union, however,.
while making no claims concerning employees at the Indianapolis.
plant and warehouse, asks that non-supervisory regular and junior-
employees at the Martinsville plant be included with seasonal em-
ployees at the Martinsville plant in a separate unit. Of the 21 regu-
lar or junior employees listed on the May 6, 1939, pay roll of thee
Martinsville plant, none have joined the Federal Union. All 21. are
members of the Amalgamated. The preference of these employees;
for inclusion with regular and junior employees at the Indianapolis,
plant and warehouse in a single unit seems clear.
None of the parties desired inclusion of superintendents, foremen,.
field men, farmer-contractors, agricultural workers, clerical workers,
laboratory workers, or the sales force within the appropriate unit.
Since the interests and conditions of employees so classified are sub-
stantially different from those of production and maintenance
workers, we shall exclude them.
We conclude that regular and junior employees of Van Camp's
Indianapolis plant and warehouse and its Martinsville plant, includ-
ing or excluding truck drivers depending upon the results of the
election to be directed among them, but excluding superintendents,
foremen, field men, farmer-contractors, agricultural workers, clerical
workers, laboratory workers, and sales force, constitute a unit appro-
priate for the purposes of collective bargaining. The propriety of
inclusion of seasonal workers in such a unit remains to be considered..
Seasonal employees
At the hearing and oral argument the Amalgamated took the posi-
tion` that seasonal employees should be excluded from the unit of
regular and junior employees at the Indianapolis plant and warehouse
and the Martinsville plant, and that they have not been covered by its.
contracts with Van Camp's . The Federal Union contends that sea-
sonal employees should be included within the separate unit of pro-
duction and maintenance employees it seeks to have established at
the Martinsville plant. We have already rejected. the Federal Union's
contention for including the regular and junior Martinsville em-
ployees in a separate unit with Martinsville seasonal employees.
However, the status of seasonal employees remains for our determina-
tion.
Van Camp's contends that seasonal employees should be, and that
under the terms of its contracts with the Amalgamated they have
been and still are, within a single unit of production and maintenance
employees at the Indianapolis plant and warehouse and the Martins-
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ville plant. Van Camp's and the Amalgamated thus take opposite
positions upon the question of proper interpretation of their con-
tracts in so far as the inclusion of seasonal employees within the unit
therein adopted is concerned.
Evidence adduced at the hearing showed that seasonal employees,
unlike regular and junior employees, are hired for work during the
"run" or "pack" of one or more perishable products. At the end of
the pack, they are discharged and before being hired again the fol-
lowing year, or during a later pack the same year, they must reapply
at the plant gates for a job. As stated in the contracts, those who
have worked for Van Camp's before are given preference in hiring so
far as practicable. It appears that about 50 per cent of the seasonal
employees are transients. Some others are housewives, college stu-
dents and teachers on vacation, and laborers otherwise temporarily
unemployed. Some return year after year to work on perishable
products, though the extent of this practice is not made clear. The
record indicates that most seasonal employees may work for be-
tween 2 and 8 weeks during a season. Some work as little as 2 days
during a season."
The number of seasonal employees as compared with regular and
junior employees is high. This is especially so at the Martinsville
plant where from 18 to 25 persons, largely engaged in maintenance
work except during the packing season, are employed throughout the
year. During the packing season, from May to November when sea-
sonal products are canned, as many as 200 seasonal workers may be
added to the pay roll. At the Indianapolis plant and warehouse be-
tween 300 and 400 employees are engaged throughout the year in
canning non-seasonal products and in maintenance work. Between
May and November, when seasonal as well as non-seasonal products
are canned, as many as 1,600 seasonal workers may be added to the
pay roll.
In support of its contention that seasonal employees should be ex-
cluded from the appropriate unit, the Amalgamated insisted that col-
lective bargaining for them is a practical impossibility because of the
short and variable term of their employment and their constantly
shifting identity. Upon the question of whether seasonal employees
are included in the unit with regular and junior employees pursuant
to the contracts, the evidence is inconclusive. It is clear, however,
that the Amalgamated does not want to bargain for seasonal em-
ployees and that their problems and working conditions are substan-.
tially different from those of regular and junior employees. We con-
8 The Amalgamated stated in its brief that seasonal employees worked an average of 32
days, and regular . employes worked an average of 190 days in 1938.
STOKELY BROTHERS & CODIPANY, INC. 885
elude that seasonal employees should be excluded from the unit c"din
posed of regular and junior employees at Van Camp's Indianapolis
plant and warehouse and Martinsville plant."
Seasonal employees at the Martinsville plant
We have determined that seasonal employees should be excluded
from the unit of regular and junior employees employed at Van
Camp's Indianapolis plant and warehouse and its Martinsville plant.
No union here involved seeks to represent seasonal employees at the
Indianapolis plant or warehouse. The Federal Union, however, de-
sires to represent seasonal employees, exclusive of those in a super-
visory capacity, at the Martinsville plant. It has organized a sub-
stantial number of those employed during the 1938 season and has
shown that a number of them return from year to year to work on
the pack of perishable products at Van Camp's. We see no reason
why seasonal employees at the Martinsville plant should not be per-
mitted to engage as a unit in collective bargaining. We conclude,
accordingly, that. seasonal employees at Van Camp's Martinsville
plant constitute a unit appropriate for the purposes of collective
bargaining. -
We find that all persons employed by Van Camp's at its plant at
2002 South East Street, Indianapolis, Indiana, its warehouse in
Indianapolis, Indiana, and its plant in Martinsville, Indiana, exclud-
ing seasonal employees, superintendents, foremen, field men, farmer-
contractors, agricultural workers, clerical workers, laboratory work-
ers, and sales force, and including or excluding truck drivers depend-
ing upon the results of the election to, be directed among them, con-
stitute a unit appropriate for the purposes of collective bargaining
and that such unit will insure to employees of Van Camp's the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
We find that seasonal employees at Van Camp's Martinsville, In-
diana, plant, exclusive of those in a supervisory capacity, constitute
a unit appropriate for the purposes of collective bargaining and that
such unit will insure to employees of Van Camp's the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
9 See Matter of Seymour Packing Company and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 176, 12 N . L. R. B. 1098; Matter of Bishop A
Company, Inc . and United Cracker, Bakery, and Confectionery Workers, Local Interna-
tional Union No. 212, 4 N. L. R. B. 514.
199549-39-vol. 15--57
886
a
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
Regular and junior employees at the Indianapolis plant and ware-
house and Martinsville plant
The Van Camp's pay roll for May 6, 1939, covering the Indian-
apolis plant and warehouse and the Martinsville plant, was intro-
duced in evidence. It shows 378 employees. No seasonal employees
are listed nor do the names of the nine truck drivers then out. on
strike appear. The Amalgamated introduced application or mem=
bership cards signed by every one of the 378 employees listed on the
pay roll and also introduced check-off cards signed by all but 13.
No evidence tending to discredit the Amalgamated cards was offered
by any of the parties. It is thus apparent, and none of the parties
dispute, that the Amalgamated represents an overwhelming majority
of employees within this unit, regardless of the inclusion or exclu-
sion of the truck drivers. We will, however, withhold certification
of the Amalgamated as the bargaining agency for regular and junior.
employees at Van Camp's Indianapolis plant and warehouse and
Martinsville plant until the status of the truck drivers is determined
by the results of the election to be held among them.
.Seasonal employees at the Martinsville- plant
The September 10, 1938, pay roll for the Martinsville plant lists
210 employees. Only 21 of these were regular or junior employees
and 189 were seasonal employees. The Federal Union introduced
membership cards for 98 of the seasonal employees listed and 9 addi-
tional cards for persons it claims were working, but whose names do
not appear on the pay roll. None of the persons for whom the Fed-
eral Union introduced membership cards were working at the time
of the hearing. Although. there is evidence that many seasonal em-
ployees return from year to year to work on the canning of seasonal
products, it cannot be determined from the record to what extent
those who have joined the Federal Union will be employed by Van
Camp's during the current season. It is obvious, therefore, that the
question concerning representation here raised can best be resolved by
means of an election by secret-ballot.
We will not place the Amalgamated on the ballot because that
union has definitely declared its wish not to bargain for seasonal
employees. The canning season at the Martinsville plant extends or-
dinarily from about the last of May to the last of October of ,each.
year. Accordingly, we shall determine eligibility to, vote in. the elec-
tion on the basis of a current pay roll. We shall direct that seasonal
employees eligible to vote in the election shall be those in the appro-
priate unit who were on Van Camp's Martinsville plant pay roll
STOKELY BROTHERS & COMPANY, INC. 887
next preceding this Direction, including seasonal employees who did
not work during such pay-roll period because they were ill, and
seasonal employees who were then or have since been temporarily laid
off, but excluding those who have since quit or been discharged for
cause.
Upon the basis of the above findings of fact' and upon the entire
record. in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Van Camp's, Inc., Indianapolis, Indiana,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All persons employed by Van Camp's at its plant at 2002 South
East Street, Indianapolis, Indiana, its warehouse in Indianapolis, In-
diana, and its plant in Martinsville, Indiana, excluding seasonal em-
ployees, superintendents, foremen, field men, farmer-contractors, agri-
cultural workers, clerical workers, laboratory workers, and sales force,
and including or excluding truck drivers depending upon the results of
the election to be directed among them, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of Sec
tion 9 (b) of the National Labor Relations Act.
3. Seasonal employees at Van Camp's Martinsville, Indiana, plant,
exclusive of those in a, supervisory capacity, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
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, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, it
is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Van
Camp's, Inc., Indianapolis, Indiana, elections by secret ballot shall
be conducted within fifteen (15) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Eleventh Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among those employees of Van Camp's, Inc.,
who fall within the groups described below :
1. All truck drivers whose' names appear on Van' Camp's March
4, 1939, pay roll, including those who did not work during such pay-
888 DECISIONS OF NA I;.IONAL LA13OR RELATIONS BOARD
roll period because they were ill or on vacation, and those who were
then or have since been temporarily laid off, but excluding those who
have since quit or been discharged for cause, to determine whether
they desire to be represented by International Brotherhood of Team-
sters, Chauffeurs, Stablemen and Helpers of America, Local 135,
affiliated with the American Federation of Labor, or by Amalga-
mated Association of Iron, Steel & Tin Workers of North America,
Local No. 1473, affiliated with the Congress of Industrial Organiza-
tions, for the purposes of collective bargaining, or by neither.
2. All seasonal employees at Van Camp's Martinsville, Indiana,
plant, exclusive of those in a supervisory capacity, whose names
appear on Van Camp's last regular pay roll next preceding the date
of this Direction, including seasonal employees who did not work
during such pay-roll period because they were ill, and seasonal em-
ployees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause, to
determine whether or not they desire to be represented for purposes
of collective bargaining by Federal Labor Union No. 21752, affiliated
with the American Federation of Labor.
MR. WILLIAM M. LEISPRSON, concurring:
In view of the facts regarding the truck drivers, as set forth in
Chairman Madden's opinion, I do not think it has been established
that they were included within the unit covered by the contracts
between the Amalgamated and the Company. I accordingly concur
in the direction of a separate election among the truck drivers. How-
ever, I do not think it is necessary to postpone final determination of
the appropriate unit pending the outcome of the election. I would
find now that the truck drivers constitute a separate appropriate
unit.
I would not certify the Amalgamated as representative of the
employees in the unit of regular and junior employees at Indianapolis
and Martinsville. The Amalgamated is already the recognized repre-
sentative of such employees under the existing contract, and since no
one disputes its status as such, I would find that no question concern-
ing representation has arisen in that regard. I concur in the
remainder of the Decision.
MR. EDWIN S. SMITH, dissenting in part :
I dissent from that portion of the Decision permitting the truck
drivers to establish a separate bargaining unit. Here there has
been no history of separate bargaining by truck drivers, and the
substantial history of contractual relationships between the Amal-
gamated and Van Camp's points clearly to the appropriateness of
STOKELY BROTHERS & COMPANY, INC. 889
the industrial unit. I see no warrant for allowing this craft group
to split itself off from the main body of employees under the circum-
stances. However, since the majority of the Board have decided that
the truck drivers may be separate, I agree with Chairman Madden's
opinion that final determination of the unit should await the results
of an election among the truck drivers. I also agree with Chairman
Madden's opinion that after such final determination is made, the
Amalgamated should be certified as representative of the employees in
the industrial unit as finally delineated.
I concur in the remainder of the Decision.
[SAME TITLE
AMENDMENT TO DIRECTION OF ELECTIONS
October 11, 1939
On October 4, 1939, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Elections in
the above-entitled case. The Direction of Elections directed, among
other things, that an election by secret ballot be conducted within
fifteen (15) clays from the date of the Direction among all seasonal
employees at Van Camp's, Inc. Martinsville, Indiana, plant, ex-
clusive of those in a supervisory capacity, whose names appear on
Van Camp's, Inc. last regular pay roll next preceding the date of
said Direction, including seasonal employees who did not work dur-
ing such pay-roll period because they were ill, and seasonal em-
ployees who were then or have since been temporarily laid off, but
excluding those who Bade since quit or been discharged for cause,
to determine whether or not they desire to be represented. for pur-
poses of collective bargaining by Federal Labor Union No. 21752,
affiliated with the American Federation of Labor.
On October 9, 1939, Amalgamated Association of Iron, Steel and
Tin Workers of North America Local No. 1473, affiliated with the
Congress of Industrial Organizations, herein called the Amalga-
mated, and Steel Workers Organizing Committee, on behalf of the
Amalgamated, filed with the Board exceptions to the Direction of
Election and requested that the Amalgamated be placed on the ballot
for the election to be held among seasonal employees at the Martins-
ville plant..
Although the Amalgamated offered evidence at the hearing that
it had obtained members among seasonal employees at the Martins-
ville plant, we did not place it on the ballot for the election directed
there because ai the hearing and oral argument it also insisted that
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was not possible to bargain for seasonal employees and asked
that they be excluded from the unit it contended was appropriate.
Since, however, the Amalgamated now expresses a desire to repre-
sent the seasonal employees at the Martinsville plant and since it
appears from the record that certain of such seasonal employees have,
by joining or applying for membership in the Amalgamated, ex-
pressed a desire to be represented by that union, we feel that it
should be placed on the ballot.
The Board hereby amends paragraph 2 of its Direction of Elec-
tions, which applies to seasonal employees at Van Camp's, Inc. Mar-
tinsville plant, to read as follows :
2. All seasonal employees at Van Camp's Martinsville, Indiana,
plant, exclusive of those in a supervisory capacity, whose names
appear on Van Camp's last regular pay roll next preceding the
date of this Direction, including seasonal employees who did not
work during such pay-roll period because they were ill, and seasonal
employees who were then or have since been temporarily laid off,
but excluding those who have since quit or been discharged for cause,
to determine whether they desire to be represented for purposes of
collective bargaining by Federal Labor Union No. 21752, affiliated
with the American Federation of Labor, or by Amalgamated As-
sociation of Iron, Steel and Tin Workers of North America, Local
No. 1473, affiliated with the Congress of Industrial Organizations, or
by neither.
15 N. L. R. B., No. 99a.