Bruce Church Co.

National Labor Relations Board - Board DecisionsFeb 18, 1942

38 N.L.R.B. 1401 (N.L.R.B. 1942)

In the Matter of BRUCE CHURCH COMPANY and FRESH FRUIT & VEGETABLE WORKERS UNION, LOCAL 78, C. I. O. Case No. R-3545.-Decided February 18,1942 Jurisdiction : lettuce and lettuce seed growing and packing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until certified by the Board ; last full pay roll prior to shut -down until spring season'used to determine eligibility where operations of the Company are seasonal ; election necessary. Unit Appropriate for Collective Bargaining : all packers , trimmers , receivers, pressmen , carloaders , top icers , paper folders , labelers, crate liners, icemen, and miscellaneous help at the Yuma lettuce packing shed of the Company, excluding night watchmen , office help , and supervisory personnel with the authority to hire and discharge ; truck drivers who are not eligible to mem- bership in the petitioning union because of their eligibility in another labor organization excluded notwithstanding the desire of the Company for their inclusion. Mr. Sidney L. Church, of Salinas, Calif., for the Company. Mr. Wendell Phillips, Jr., of Yuma, Ariz., and Mr. 4. T. Cunning- ham, of Brawley, Calif., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 13, 1942, Fresh Fruit & Vegetable Workers Union, Local 78, C. I. 0., herein called the Union, 'filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Bruce Church Company, Yuma, Arizona, herein called the Company, and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 6, 1942, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board rules 38 N. L. R. B., No. 247. 1401 1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 6, 1942, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on February 12, 1942, at Yuma, Arizona, before Charles M. Ryan, the Trial Examiner duly designated by the Chief Trial Examiner. _ The Company and the Union were represented 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. At the commencement and close of the hearing, counsel for the Company filed motions to dismiss the petition because (1) notice of hearing had not been given in accordance with provisions of the Act; (2) the Company's employees are agricultural and not subject to the jurisdiction of the Act; (3) a prior proceeding was pending against the Company which had never been properly dis- missed; and (4) an alleged consent election agreement between the Company and the Union, dated February 25, 1941, provided, inter alia, that the Union, if it lost the election contemplated, would not attempt to organize the Company's employees for a period of 1 year. The Trial Examiner denied all the motions. The Board has ex- amined the entire `record and finds that the Company received due notice of hearing," that the employees of the Company are not agri- cultural,2 that the prior proceeding was properly dismissed and the Company so notified, and that the provision of the consent election agreement urged as a bar to this proceeding is inoperative for that purpose since no consent election was held pursuant to the agreement.3 The rulings are hereby affirmed. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Bruce Church Company is a partnership consisting of Marvin Gipe, William Huss, and Bruce Church, engaged in the business of growing "The Company received 5 days' notice of hearing and did not claim that it was unable to present fully all evidence regarding the issues of the case. - 2 See Matter of George G Averill , et al , and Fresh Fruit h Vegetable Workers Union, Local 78 0 1 0., 13 N L R B 411 ; North Whither Heights Citrus Association v. N L R. B., 109 F. (2d) 76 (C C. A 9) Â° Since the condition precedent was not fulfilled by the holding of an election, we do not here pass upon the effect to be given such an agreement if fully performed. 'BRUCE CHURCH COMPANY 1403 and packing lettuce and lettuce seed at Yuma, Arizona. During the fiscal year ending August 31, 1941, the Company purchased shook valued at about $14,000, packing-materials valued at about $27,000, and ice valued at about $11,400. About 95 percent of all such goods were shipped to the Company from points within the State of Arizona. During the same period the Company packed and shipped 'lettuce valued at about ' $152,000, practically all of which was shipped to points outside the State of Arizona. II. THE ORGANIZATION INVOLVED Fresh Fruit & Vegetable Workers Union, Local 78,' is a labor or- ganization affiliated with the Congress of Industrial Organizations, admitting to membership all shed workers of the Company engaged in the packing and shipping of lettuce. III. THE QUESTION CONCERNING REPRESENTATION On or about January 21, 1942, the Union requested the Company to recognize it as the exclusive representative of its packing shed employees. The Company denied this request until such time as the Union is certified by the Board. A statement of the Regional Direc- tor, introduced in evidence at the hearing, shows the Union repre- sents a substantial number of employees in the alleged 'appropriate unit .' 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 Company 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. V. THE APPROPRIATE UNIT The Union contends that all production employees employed at the lettuce packing shed of the Company, excluding office help,,super- visory personnel with the authority to hire and' discharge,. truck drivers, and night watchmen, constitute a unit appropriate for the purposes of collective bargaining. It appears that production em- ployees includes packers, trimmers, receivers, - pressmen, carloaders, top icers, paper folders, labelers, crate liners, icemen and miscellaneous 4 The Regional Director reported that the Union presented 13 dues cards ' or membership books containing the names of persons who appear on the Company 's pay roll of January '12. 1942 . There are approximately 42 employees on the January 12 , 1942 , pay roll. 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD help. The only controversy with respect to the unit concerns truck drivers. The Union urges that they be excluded and the Company that they be included. The Company employs eight truck drivers who are engaged in transportating lettuce from the Company's fields to its packing sheds. A representative of the Union testified that these employees are not eligible to membership in the Union because of their eligibility in another labor organization . Under these circumstances, and in ac- cordance with our practice in similar cases, we shall exclude the truck drivers from the unit. We find that all packers, trimmers, receivers , pressmen , carloaders, top icers, paper folders, labelers, crate liners, icemen, and miscel- laneous help at the Yuma lettuce packing shed of the Company, excluding truck drivers, night watchmen, office help, and supervisory personnel with the authority to hire and discharge constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the, Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot. The Union urges that the Company's pay roll for the period ending January 31, 1942, be used to determine eligibility to vote. The Company contends that the pay roll for the period immediately pre- ceding the date of the Direction should be used for this purpose. The Company normally operates its packing sheds during its winter and spring packing seasons. The winter season commences in December and ends the latter part of January of each year. The spring season commences about the middle of February and ends about the middle of March of each year. It appears from the record that the January 31, 1942, pay roll was the last full pay roll of the Company prior to its shut-down until the spring season. We find that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll period ending January 31, 1942. CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Bruce Church Company, Yuma, Arizona, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. - i' BRUCE CHURCH COMPANY 1405 2. All packers, trimmers, receivers, pressmen, carloaders, top icers, paper folders, labelers, crate liners, icemen, and miscellaneous help employed at the Yuma packing shed of the Company, excluding truck drivers, night watchmen, office help, and supervisory personnel with the authority to hire and discharge, constitute a unit appropri- ate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 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 Relations Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Bruce Church Company, Yuma, Arizona, 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Reg- ulations, among all packers, trimmers, receivers, pressmen, carloaders, top icers, paper folders, labelers, crate liners, icemen, and miscellane- ous help employed at the Yuma packing shed of the Company who were employed during the pay-roll period ending January 31, 1942, excluding truck drivers, night watchmen, office help, and super- visory personnel with the authority to hire or discharge, to deter- mine whether or not they desire to be represented by Fresh Fruit & Vegetable Workers Union, Local 78, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. CHAIRMAN Mrr"r is took no part in the consideration of the above Decision and Direction of Election.