Elsa Canning Co.

National Labor Relations Board - Board DecisionsSep 29, 1965

154 N.L.R.B. 1810 (N.L.R.B. 1965)

1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT reduce the pay of any officer or crewmember because of union activity or result of an election. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to organize , perform , join, or assist a labor organization , to bargain collectively through a bargaining agent chosen by themselves , to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any such activities. WE WILL offer Henry Bartie , Roosevelt Fountain, David Lute , Joe Mayne, James B. Moore , Roland Mouton , John B . Payton , J. C. Van Dyke , Desire Bishop, and Matthew J. Hooper their former or substantially equivalent jobs, preferably under Captain Fletcher Miller (without prejudice to seniority to other employment rights and privileges ), and WE WILL pay them and Charles Berry , Raymond Broussard , Gene Dozier , Whitney Pradia, Clarence West, and Thirlen Lennett , with interest , for any loss suffered because of our discrimina- tion against them. All our employees are free to become or remain members of any labor organization. PATTERSON MENHADEN CORPORATION , D/B/A GALLANT MAN, AND FLETCHER MILLER , AGENT : SURPRISE , INC., D/B/A SURPRISE, AND FLETCHER MILLER , AGENT, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, T6024 Federal Building ( Loyola ), 701 Loyola Avenue , New Orleans , Louisiana, Telephone No. 529-2411 , Extension 63 96. Elsa Canning Company and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, and General Drivers Local Union No. 657 , affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Joint Petitioners. Case No. 23-RC-2458. September 29, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer C. L. Stephens. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Employer and Petitioners have filed briefs which the National Labor Relations Board has considered. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Members Fanning, Brown, and Zagoria]. 154 NLRB No. 147. ELSA CANNING COMPANY 1811 Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question concerning representation exists concerning the rep- resentation of employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find, in accordance with the agreement of the parties, that all production and maintenance employees, warehouse employees, and truckdrivers employed by the Employer at it Elsa, Texas, plant, excluding all fieldmen, office clerical employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. The Employer contends that any election directed herein should be conducted in May or June 1966 during the peak of its tomato- packing season, on the ground that a representative number of em- ployees will not be employed until that time. Petitioners assert that an immediate election may be directed or, alternatively, an election should be held during the Employer's September 1965 pea-packing season. Petitioners contend that there is a sufficiently representative body of employees employed by the Company in the proposed unit to warrant an election at any time. The Company is engaged in the processing and canning of several varieties of seasonal vegetables, and the complement of employees working at any given time is determined by the nature of the crop then being processed. Briefly, the Employer's undisputed figures indicate that the period of greatest employment occurs for approximately 3 weeks in June when it is engaged in processing tomatoes, its main pro- duction item. During that period, employment in the unit rises to some 200 persons engaged in production, warehousing, trucking, and maintenance. However, at the time of the hearing the Employer planned to curtail its production line upon completion of the 1965 tomato pack, and to reduce the unit to a force of 20 truckdrivers and maintenance men.' This shutdown was expected to last through July and August 1965, until peas would be received from West Texas and employment would rise to a total of 41 employees. At the end of Sep- tember the production line is expected to shut down again until Novem- ber, when additional peas will be received and employment will probably rise to some 47 employees. The Company plans to close the i This and the other layoffs mentioned below do not appear in the Company's past em- ployment figures . However, the Company's witnesses testified without contradiction that the layoffs may be anticipated as a result of the Employer 's discontinuing certain pro- duction lines such as beans , beets, and carrots. 1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production line during December and the number of employees will again drop to 20. The Employer indicates there is a possibility that in January employment will rise to 100 if a successful tomato crop should be available at that time. However, such tomato crops are rare and the Employer testified that only one such crop was received in the past 4 years. Sauerkraut will be processed from February through April and usually requires from 35 employees in February and April to 52 employees in March: Production is expected to decline in May but to rise sharply in June when the tomato crop comes in to start the cycle again. In sum, then, the Employer anticipated several peaks of employment and planned to take on a complement of 100 employees in January 1966, 200 employees in June 1966, and approximately 50 employees in September and November 1965, and February, March, and April, 1966. In July, August, October, and December, 1965, and May 1966, the production lines were expected to be shut down and employment to drop to 20 men engaged as drivers and maintenance men. The Employer seeks to hire employees who have had experience and, of the 212 employees employed during the June 1965 peak, approximately 68 percent, or 144, had worked for the Employer in the past. The employees who work the June peak normally provide the source of labor for the subsidiary employment peaks that occur during the balance of the year since the Employer recruits its work force by submitting to the Texas Employment Commission (T.E.C.) a list of people who were employed in the past peak season. The T.E.C. then contacts as many of these people as the Employer requests and directs that they report for work. No one is accepted for employment who is not sent, by the T.E.C. It is apparent from the above that the Employer maintains its oper- ation on a year-round basis. Accordingly, we do not find it necessary to postpone the elect ion to the annual peak of employment as is usually done in sea.-tonal industries which operate only during a certain por- tion of the year. Rather, in cases such as this which are characterized by a series of several employment peaks, we must weigh the advantage of an early election, the possibility that more employees may vote at a higher peak of employment, and the relative interest of those employed daring the various peaks as determined by their rate of return.- While, curler the circumstances of this case, we cannot say that there is nog oilier appropriate time for the conduct of the election, we find that the anticipated 41 employees who will be employed during the. coining pei-packing season in September 1965 or, in the event 2Libby, 1rcAeill L Libby, 90 NLRB 279, 281. KOLPIN BROS. CO., INC. 1813 this decision should issue too late for the conduct of an election at that time, the 47 employees expected to be employed during the November 1965 pea-packing season, comprise a substantial portion of the comple- ment of employees that are engaged in the Employer's year-round operation. Under these circumstances, a postponement of the election until the June 1966 peak would delay those who are employed in the Employer's year-round operation in the exercise of their rights under the Act.3 Accordingly, we shall direct that the election be held on a date during the next representative season, at a time when the. Regional Director determines that a representative number of employees are employed in the designated unit during the payroll period immediately preceding the date of the issuance of the notice of election .4 [Text of Direction of Election omitted from publication.] a Cf. The Baugh Chemical Company, 150 NLRB 1034. 4 The Board denies the Petitioner's request that eligibility to participate in the election be limited to those employees who were employed during the 1963 season. We see no reason to depart from our customary eligibility date . Libby, McNeill d Libby , supra. Kolpin Bros . Co., Inc. and Textile Workers Union of America, AFL-CIO. Case No. 30-CA-36 (f ormerly 18-CA-1779). Sep- tember 29,1965 SUPPLEMENTAL DECISION AND ORDER On June 2, 1965, Trial Examiner Frederick U. Reel issued his Sup- plemental Decision in the above-entitled proceeding, recommending that employees Dora Jones and Leone Smoody be awarded backpay, as set forth in the attached Trial Examiner's Supplemental Decision.' The Respondent filed exceptions to the Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- mental Decision and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. 'The Board , by Decision and Order of December 7, 1964 , Kolpin Bros. Co., Inc., 149 NLRB 1378, directed Respondent to make whole certain employees for their losses result- ing from the Respondent 's unfair labor practices. 154 NLRB No. 148.