H. F. Byrd, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1953

103 N.L.R.B. 1278 (N.L.R.B. 1953)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and part-time used car lot man,17 but excluding the working foreman,
office employees, automobile salesmen, and supervisors as defined in
the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
17 The part-time wash and grease employee and the part -time used car lot man are
both high school students who work primarily as washers In the 2 weeks before the
hearing, each averaged more than 15 hours work per week . Both work regularly every
afternoon from 2: 30 to 5 p. in. and Saturday morning As these employees are
"washers," which job classification is normally included within a service or garage unit
(see Wm. J. Sslva Company, 85 NLRB 573 ), and as it is our usual policy to include
regular part-time employees in a unit ( see Worden-Allen Company, 99 NLRB 410), we
shall , despite the agreement of the parties , include both employees in the unit. See
Vevoda Motor Sales, 86 NLRB 573.
H. F. BYRD, INC. and AMERICAN FEDERATION OF LABOR, PETITIONER.
Case No. S-RC-1135. March 30, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Henry L. Segal, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. 1
Upon the entire record in this case, 2 the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. The question concerning representation :
The Employer moved to dismiss this proceeding on the ground that
the cannery involved herein is incident to its farming operations, and
therefore its cannery employees are agricultural laborers within the
meaning of the Act. At its cannery, which is in the same "area of pro-
duction" as its farms or orchards, the Employer is engaged in an
extensive operation of processing apples, grown almost entirely by
it, into sauce, juice, butter, cider, and related products, and ware-
housing and shipping these products throughout the year. The can-
nery occupies 3 buildings containing 70,000 square feet and represents
'The Employer 's motion to dismiss because the record fails to show the Petitioner's
interest is denied , as the showing of interest is an administrative matter that is not
litigable P J. Mallory & Co., Inc., 101 NLRB No . 10. Moreover , we are administra-
tively satisfied of the adequacy of that showing.
2 The Employer 's request for oral argument is denied , as the record and briefs ade-
quately present the issues and positions of the parties.
103 NLRB No. 119.
H. F. BYRD, INC. 1279
30 percent of the Employer's capital investment. Further,,it accounts
for more than half of the Employer's $3,000,000 in sales. It is a
separately operated division of the Employer and has its own labor
force, who are paid the prevailing commercial cannery rate of 10
cents per hour more than the orchard employees. Under the policy
enunciated in Imperial Garden Growers 3 of following the interpre-
tation of Section 3 (b) of the Fair Labor Standards Act made by the
Wage and Hour Division of the Department of Labor, it is clear and
we find that the Employer's cannery operations are not subordinate to
its farming operations, and that its cannery employees are not agri-
cultural laborers. Accordingly, we deny the Employer's motion to
dismiss this proceeding'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The appropriate unit:
At the hearing, the parties agreed to the appropriateness of a unit
of regular year-round production and maintenance employees at the
Employer's Berryville, Virginia, cannery. The parties disagreed as
to the inclusion of laborers, and regular year-round employees who
also work as supervisors during the season. The Petitioner would
include, and the Employer exclude, them.
At the time of the hearing, the Employer had 12 laborers employed
in labelling, warehousing, and cleaning. Most of them are not quali-
fied to fill the vacant job classifications in the Employer's permanent
organizational setup. All were hired only until qualified personnel
are found who can fill these vacancies. However, some have already
worked 6 months and all will continue to work for an indefinite period.
As the Employer expects to retain them indefinitely, these laborers are
properly included in the unit. 5
During the brief season from September through November, there
are six regular year-round employees who supervise seasonal help.
The balance of the year they have no supervisory functions. To the
extent that these employees are engaged in nonsupervisory work,
they are properly included in the unit. 6
Accordingly, we find that all regular year-round production and
maintenance employees at the Employer's Berryville, Virginia, can-
nery, including those who also work as supervisors during the season
and further including laborers, but excluding office clerical, admin-
istrative, and seasonal employees, salaried foremen, and supervisors as
91 NLRB 1034.
*'See Dofemyer Bros., 101 NLRB 205.
See New York Water Service Corporation and Western New York Water Company, 100
NLRB 1246.
4 Libby, McNeil ct Libby, 90 NLRB 279.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
STOW MANUFACTURING Co. and INTERNATIONAL ASSOCIATION OF
MACHINISTS , AFL. Case No. 3-CA 531. March 31, 1953
Decision and Order
On December 15, 1952, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied. The record,
including the exceptions and brief, adequately presents the issues and
positions of the parties.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings of the
Trial Examiner are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 2 except insofar as they are inconsistent
with our findings and order as herein set forth.
The Trial Examiner found that certain statements and actions of
the Respondent, set forth in paragraphs numbered 1 through 6 on
pages 1298-1299 in the Intermediate Report, whereby the Respondent
initiated and sponsored the Monthly Meeting. of All Departments as
an alternative to collective bargaining constituted independent viola-
tions of Section 8 (a) (1) of the Act. We are of the opinion, how-
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-member panel [Members Houston , Murdock,
and Styles].
2 In view of the Trial Examiner's findings , with which we agree , that no genuine question
concerning representation was raised in the representation . proceeding, Case No. 3-RC-834,
and that therefore such proceeding was void ab initio, we find it unnecessary to adopt the
Trial Examiner's observations , set forth in footnote 35 of the Intermediate Report, con-
cerning the effect of a certification of the results of an election on the right of employees
to choose a collective-bargaining representative during the 1-year period immediately fol-
lowing the date of the issuance of the certificate.
Consistent with his dissenting opinion in M. If. Davidson Company, 94 NLRB 142,.Mem-
ber Murdock would be disposed to dissent from the. Trial , Examiner 's finding of a violation
of Section 8 (a) (5), but considers himself bound by the majority decision in that case
103 NLRB No. 121.