Bercut-Richards Packing Co., et al.

National Labor Relations Board - Board Decisions

Jun 13, 1946

68 N.L.R.B. 605 (N.L.R.B. 1946)

In the Matter of BERCUT-RICHARDS PACKING COMPANY, et al. and
CANNERY AND FOOD PROCESS WORKERS COUNCIL OF THE PACIFIC
COAST AND ITS AFFILIATED UNIONS: FOOD, TOBACCO, AGRICULTURAL
AND ALLIED WORKERS UNION OF AMERICA, C. I. O.
Case No 20-R-1414, et al.
SECOND SUPPLEMENTAL DECISION
June 13, 1946
1
On February 16, 1946, the Board issued a Supplemental Decision
and Order setting aside the prior elections held herein . On March 28,
1946, the Board issued an order reopening the record and directing a
further hearing for the purpose of adducing additional evidence with re-
snect to (1) the time when further elections should be held : (2) eligi-
bility provisions for voting in such further elections ; and (3 ) the form
of the ballot in such further elections. Pursuant to the order reopening
the record, the Board provided for an appropriate hearing upon due
notice before Charles W. Schneider, Trial Examiner . The hearing was
held on April 29, 1946, at San Francisco, California. The C. P. & G.,
certain of the independent companies, the C. I. 0., and the A. F. L.
appeared and participated.' At the hearing certain additional issues con-
cerning the appropriate units and voting groups were also raised. All
parties were afforded full opportunity to examine 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. The motion of the C. P. & G. to postpone the
present proceedings is denied for reasons hereinafter stated. All parties
were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case , the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
I. As to the appropriate units and voting groups
a. The composition of the units and groups in general
The Board, in its prior Decision and Direction of Election, made no
finding with respect to the inclusion or exclusion of non-deputized watch-
'The Independent Council , herein called the Independent , although notified in advance of
the hearing , did not appear at the reopened hearing or request to be allowed to participate in
any subsequent elections.
68 N. L R. B., No. 86.
605
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, cafeteria employees , and floorladies , concerning whom there was
no specific evidence in the record as to their respective duties and re-
sponsibilities. At the reopened hearing, the parties agreed that non-
deputized watchmen and cafeteria employees should be included in the
unit . Under the circumstances, we shall include non-deputized watch-
men and cafeteria employees. With respect to floorladies, however, the
Unions disagreed as to their inclusion, the C. I. 0. contending that some
of the floorladies should be excluded as supervisory employees. The
record discloses that floorladies are generally without supervisory au-
thority and have been included under the provisions of the master con-
tract between C. P. & G. members and the A. F. L. Under the cir-
cumstances , we shall include floorladies as a group, subject to the right
to challenge the ballots of individual floorladies upon the ground that
they are supervisory employees.
b. The scope of the C. P. & G. unit
The parties at the reopened hearing suggested that the C. P. & G. unit
be further clarified specifically to state the plants intended to be covered
by the unit heretofore found appropriate in the Board's Decision and
Direction of Elections. Although such Decision and Direction did not
refer to specific plants of C. P. & G. members within the scope of the
C. P. & G. unit, it was our intention to include therein the employees
of all plants of C. P & G members then engaged in the canning of fruits
and vegetables and covered by the provisions of the recent master agree-
ment between members of the C. P. & G. and the A. F. L. Accordingly,
in view of a possible ambiguity in our previous finding with respect to
the C. P. & G. unit, we shall clarify such unit by a supplemental finding
at the present time. We find, therefore, that all production and main-
tenance employees in the plants of member companies of the C. P. & G.
as set forth in Appendix A,2 attached hereto, including nor-dconti7ed
watchmen, cafeteria employees, and floorladies, but excluding office and
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. conct;tn- a >>r;t
appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
c. Effect of additions to and withdrawals from the C. P. & G.
With reference to the inclusion within the C. P. & G. unit of employee;
in plants of certain companies whose relations to the C. P. & G. have
changed or who have put into operation additional plants since the date
2 The list of plants to be found in Appendix A does not include the plants of certain com-
panies hereinafter considered whose relation to the CP&G has changed or which have been
put into operation since the date of the previous Decision and Direction.
BERCUT-RICHARDS PACKING COMPANY, ET AL 607
of our previous Decision and Direction , it appears that the Lincoln
Packing Company has withdrawn from the C. P. & G. and has elected
to pursue an independent course of action with regard to its labor rela-
tions. Under the circumstances , we find that the employees of Lincoln
Packing Company constitute a separate appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.'
With respect to the employees of Allen R. Parrish Company and
California Frozen Foods, Inc., which companies recently have become
members of the C . P. & G. and desire that their employees be included
within the C. P. & G. unit, it appears that such employees , together
with the employees at the new plant of the H J. Heinz Company, re-
cently opened at Tracy, California, have never been included under
the master agreement covering the C. P. & G. unit. The record indicates
that, as a normal practice , plants of C. P. & G. members have been in-
cluded under the A. F. L. contract only upon a showing that a majority
of the employees in individual plants have selected the A. F. L. as their
bargaining representative . Under the circumstances , we are of the
opinion that , before making a final determination as to the inclusion of
these employees within the C. P. & G. unit, such employees should be
afforded an opportunity to express their desires with respect to repre-
sentation for the purposes of collective bargaining , either as members of
the C. P. & G. unit or as members of independent units, as reflected
in separate elections .4 Upon the results of these elections will depend, in
1) 1rt. our determination with respect to the tvFc of unit through which
the employees hereinabove mentioned may exercise their right to bar-
gain collectively . If a majority of the employees in any of the three
voting groups composed of employees of the respective companies select
the same bargaining representative as that selected by the employees
talthill the C. P. & G unit, the employees of that company or the par-
ticular plant involved in such election , will have thereby indicated their
desire to become a part of the existing C. P. & G unit and may be
bargained for as part of such unit; otherwise , they will be considered
as having elected to remain separate groups for the purposes of collec-
tive bargaining.
II. As to the time when further elections should be held
and the determination of eligibility
The parties are agreed that further elections in these proceedings
should be held at or near the peak employment of this year's canning
3 See Matter of Rubin E Rappeport, et al., 62 N L. R. B. 1188, and Supplemental Decision,
Certification, Direction, and Order issued August 3, 1945
4 See Matter of Demuth Glass Works , Inc, 53 N L. R B 451, and Supplemental Decision
issued February 12, 1944.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
season. The Unions, however, are in disagreement as to the need for
a qualifying period of employment and also as to how soon the elections
should be conducted after the date of the eligibility pay roll.
The C. I. O. originally requested at the reopened hearing that no
qualifying period of employment be required. However, it later suggested,
by way of compromise with the A. F. L., that the elections be held
within 10 days after the week selected as determining eligibility to vote.
On the other hand, the A. F. L. adheres to its request for retention of
the 25-day eligibility provision set forth in the Board's earlier Decision
and Direction of Election. In support of its request, the A. F. L. urges
that, as a means of determining eligibility under the claimed 25-day
eligibility provision, the elections be conducted 4 weeks after the selected
eligibility period.
Although in our original Decision and Direction of Elections, we
adopted the agreement of the parties with respect to the use of a 25-day
eligibility period and further indicated in our Supplemental Decision
and Order the desirability of a master eligibility list for employees in
the C. P. & G. unit, the evidence at the reopened hearing convinces the
Board that a 25-day eligibility period which of necessity, would have to
be established by a chaster eligibility list, cannot, as a practical matter,
be employed in the conduct of the elections in view of the difficulties
arising from employment instability in a multi-seasonal industry.5
In the light of these considerations, it is our opinion that the most
representative elections may be obtained by providing that employees
who actually work in any unit or voting group as defined in this and our
earlier decision during the pay-roll period to be selected as representative
of employment during the peak period of the canning season and who
are employed in that unit or voting group on the date of the election,
shall be entitled to participate therein s We shall confine the group of
eligible employees exclusively to those employees who meet both require-
ments. We intend elimination of employees who performed no work
during the pay-roll period of eligibility because of illness or because they
' The record discloses that the preparation in advance of the elections of a satisfactory
master eligibility list showing 25 days prior employment within the CP&G unit, cannot be
accomplished without prohibitive expense and extreme difficulty, mainly by reason of the
unavailability of social security data required for the purpose of checking the identity of
employees within the CP&G unit.
G By virtue of the requirement of employment both during the eligibility period and on the
date of the elections, and the lapse of time which normally occurs between the eligibility
pay-roll period and the actual elections, only those employees who have been employed within
the CP&G unit a sufficient length of time to acquire a recognized interest in the election will
be entitled to participate therein, substantially in accord with the eligibility contention of the
A. F. L. and the compromise suggestion offered in this regard by the C. I. O.
BERCUT-RICHARDS PACKING COMPANY, ET AL 609
had been temporarily laid off,7 and also of employees who, although they
worked during the period of eligibility, lost their employee status through
resignation or lawful discharge prior to the election . Conversely, we
propose to permit voting of employees who subsequent to working during
the eligibility pay-roll period are temporarily laid off and who, for that
reason or because of temporary illness or excused absence, are not in
actual work status on the day of the election. Employees otherwise
elig ble to vote in the C. P. & G. unit who, on the date of the election,
are employed in that unit elsewhere than at the plant at which they were
employed during the period of eligibility, shall vote at the plant where
currently employed. The ballots of such employees will be segregated
and the fact of their employment in the C. P. & G. unit during the
period of eligibility will be determined subsequent to the elections.
III. The form of the ballot
The C. I. 0. desires to appear on the ballot as F. T. A.-C. I. 0. The
A. F. L. requests that it appear on the ballot as California State Council
of Cannery Union, A. F. of L. The several requests of the C. I. 0. and
the A. F. L. with respect to their own designation on the ballot are
hereby granted. The request of the C. I. 0. that the A. F. L. be re-
quired to amend its designation on the ballot is hereby denied.
There remains the further question as to whether the name of the
Independent or its constituent locals should appear on any of the ballots,
and also whether in the election at the plant of Ensher, Alexander &
Barsom, Inc., herein called the Ensher plant, the C. I. 0. should be per-
mitted a place on the ballot. So far as the Independent is concerned,
the evidence indicates that the Independent is either defunct or no longer
interested in the present proceedings. Inasmuch as it did not appear at
the reopened hearing or request that it be allowed to participate in the
elections, we shall omit its name from the ballot in all further elections.
With respect to the request of the C. I. 0. that its name be included
on the ballot at the Ensher plant, the Board in its earlier Decision and
Direction of Election denied the C. I. 0. a place on the ballot at the
Ensher plant upon the ground that it had made an inadequate showing
of interest among the employees therein. As the basis of its request, the
C. I. 0. now relies on the fact that the local of the Independent which
made a substantial showing both prior to and at the recent election at
the Ensher plant, has become an affiliate of the C. I. 0. The request
of the C. I. 0. is opposed in the present instance by the A. F. L. The
t Although this specific elimination will disenfranchise a few employees who, under our normal
practice, would he entitled to vote in the elections, we are of the opinion as previously stated,
that the difficulties presented in conducting elections among seasonal employees in a multi-
seasonal industry are such that it would be administratively impossible to extend eligibility
beyond the point indicated above and still maintain the safeguards which we have always
considered essential to the conduct of truly representative elections.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. I. O. has produced no additional cards in its own name aside from
seven cards which were submitted after the close of the hearing which
preceded the Board's original Decision and Direction of Elections.
Under the circumstances, we shall not at this time include the name of
the C. I. O. upon the ballot at the Ensher pant. We shall, however,
permit the name of the C. I. O. to appear on the ballot providing the
C. I. O. submits adequate and timely evidence of its interest to the
Regional Director.
IV. The time for directing the elections and the
selection of the eligibility pay-roll period
We shall direct that elections be conducted among plants of the
C. P. & G. unit during a representative week at the peak of the canning
season. Similarly, we shall conduct elections among the employees of the
independent companies during their respective seasons of peak operations
either at the same time or following the elections of the C. P. & G.
unit. However, we shall not at this time select a pay-roll period deter-
mining eligibility to vote in any of the elections to be hereinafter directed
or a period in which the actual elections shall be held in view of the
difficulty of ascertaining when the peak period of employment in can-
ning operations may be expected to occur during the present season.
Accordingly, the determination of the eligibility date and the issuance of
a Direction of Election with respect to the C. P & G. unit, the several
voting groups and the separate units of the independent companies, will
be withheld until such time as the Regional Director for the Twentieth
Region shall advise us that the arrival of a representative period in the
peak season of employment makes appropriate the holding of the elections
among the employees in the various appropriate units and voting groups
hereinabove referred to.8
APPENDIX A
Location of
Name Plant
F. M. Ball Co., Inc . ............................Oakland
Barron-Gray Packing Company .................. San Jose
Bercut-Richards Packing Company .............. Sacramento
California Conserving Company ............. .... Ryde
(Mountain View Supply Co., Subsidiary) .... Hayward
Mountain View
(Pacific Packing Co., Subsidiary) ................ Oakdale
$ Counsel for the Companies indicated at the reopened hearing the Companies' willingness
to cooperate with the Board in the furnishing of such pay rolls during the peak season of
operations as may be required in the determination of a representative period for purposes of
eligibility.
BERCUT-RICHARDS PACKING COMPANY, ET Al. 611
Location of
Name Plant
California Packing Corporation .... ..... ....... # 3 San Jose
#8 San Leandro
# 11 Sacramento
# 12 Sacramento
# 14 Yuba City
#24 Oakland
#25 Kinsburg
#35 Emeryville
#37 Oakland
#39 San Jose
#10 Stockton
Chevy Chase Company .......................... San Jose
Drew Canning Company ....................... . Campbell
Escalon Packers , Inc ............................ Escalon
Filice & Perrelli Canning Co . .... .. ......... . Richmond
Gilroy
Foster & Wood Canning Company .... . ......... Lodi
Gerber Products Company ...... .......... ... Oakland
Harter Packing Company ...................... Yuba City
H. J. Heinz Company .......................... Berkeley
H ickmott Canning Company ........ . .. ...... Antioch
G W. Hume Company ....... ..... .......... Turlock
Hunt Foods , Inc . .............................. Hayward
L^hbv. 11IcNeill & Libby. ..... . . ........ .. Gridley
Nimbus
Sacramento
Selma
Sunnyvale
Manteca Canning Company ..................... Manteca
Mission Valley Canning Company .... ..... .... San Jose
Mor-Pak Preserving Corporation .. ... ....... Stockton
National Packing Company ..................... Isleton
Oakland Canning Company .... . ............. Oakland
Pratt-Low Preserving Company .................. Santa Clara
Ryde
Richmond- Chase Company . .............. .... Stockton
San Jose'
Riverbank Canning Company ................ ... Riverbank
Santa Clara Packing Company ............. ..... San Jose
3 Includes warehouse in Mountain View
696966-46-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Location of
Name Plant
Santa Cruz Fruit Packing Co . ...................Oakland
Oroville
Schukl & Company, Inc . ....................... Sunnyvale
Niles ,
The Shaw Family, Inc ................. ........ San Jose
Stockton Food Products, Inc . .................... Stockton
Sutter Packing Company ........................ Palo Alto
Thornton Canning Company .....................Thornton
Tri-Valley Packing Association .................. Modesto
San Jose
Turlock Cooperative Growers ................... Turlock
U. S. Products Corporation, Ltd . ................ San Jose
Western California Canners ..................... Antioch
Frank M. Wilson Company, Inc ................. Stockton