Libby, McNeill and Libby

National Labor Relations Board - Board Decisions

Dec 12, 1944

59 N.L.R.B. 864 (N.L.R.B. 1944)

In the Matter of LIBBY, MONEILL AND LIBBY and LOCAL 7,60, FRImr
AND VEGETABLE PACKERS AND WAREHOUSEMEN 'S UNION, AFFILIATED
WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. OF L.
Case No. 19-R-1387.-Decided December 12, 1941.¢
Mr. T. L. Smart, of San Francisco, Calif., and Mr. William H. Long,
bf Chicago, Ill., for the Company.
Mrs. Ethel Way, and Mr. C. V. McCoy, of Yakima, Wash., for the
Union.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Local 760, Fruit and Vege-
table Packers and Warehousemeil's Union, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L., herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Libby, McNeill and Libby, Yakima, Washing-
ton, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before William
E. Spencer, Trial Examiner. Said hearing was held at Yakima,
Washington, on October 11, 1944. The Company and the Union ap-
peared and participated. All parties were afforded full opportunity
to be heard, 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.
All parties were afforded an opportunity to file briefs with the Board..
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Libby, McNeill and Libby is a Maine corporation having its prin-
cipal office for its northwest operations in San Francisco, California.
59 N. L. R. B., No. 172.
864
LIBBY, McNEILL AND LIBBY 865
At its cannery in Yakima, Washington, with which we are solely con-
cerned in this proceeding, the Company is engaged in the processing,
canning, and packing of fruit. In addition to fresh fruits, the Com-
pany annually uses in its operations at said plant, sugar`, salt, labels,
and miscellaneous supplies exceeding $100,000 in value, which are ob-
tained from sources outside the State of Washington. Products fin-
ished at the Yakima plant annually exceed $1,000,000 in value, of
which at least 60 percent is sold to various branches of the armed serv-
ices of the United States and shipped to points outside the State.
The Company does not deny, and we find, that it is engaged in com-
merce within the meaning of the National Labor Relations Act.
II. TILE ORGANIZATION INVOLVED
Local 760, Fruit and,Vegetable Packers and Warehousemen's Union,
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, in turn affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of certain of its employees
until the Union has been certified by the Board in an appropriate unit.
A statement of a Board Field Examiner, introduced into evidence
at the hearing, indicates that the Union represents a substantial num-
ber of employees in the unit hereinafter found appropriate.,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
W. THE APPROPRIATE UNIT
The Union seeks a unit of all production, maintenance, and ware-
house employees at the Company's Yakima, Washington, plant, ex-
cluding seasonal workers, field men, test clerks, office and clerical
employees, the superintendent, the assistant superintendent, the gen-
eral foreman, department foremen, and all other supervisory person-
nel. The Company contends that without seasonal workers the pro-
posed unit is inappropriate.
The Company is engaged in processing, canning, and packing fruit
during a season which normally extends from the middle of June
The Field Examiner reported that the Union submitted 35 membership applications
bearing the names of persons listed on the Company's pay roll of August 15, 1944, which
contained the names of 61 employees in the alleged appropriate unit.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the middle of December of each year.' The season is continuous
except for a 4- to 6-week period between the processing of cherries
and pears. There is practically no break between the processing of
pears and apples which is the last seasonal operation. The number
of persons employed varies with the particular fruit processed.
Thus, the Company employs approximately 175 workers during the
cherry operation, 600 during the pear operation, and 375 during the
apple operation. A large number of seasonal workers are house-
wives and students. The record indicates that between 20 to 50
percent of the seasonal workers of a given year return to their jobs
the following year, and that during the processing season itself there
is a high rate of labor turn-over.
In addition to seasonal workers, the Company has a regular force of
approximately 65 employees whom the Company regards as regular
or "year around" employees. This group includes mechanics, keymen
in various departments who have been in the Company's employ for a
number of years, and others.' While a great many of these employees
may be engaged in processing during the season, they may perform
maintenance, shipping or other work during the non-processing season.
The Company maintains a vacation plan primarily intended for these
regular employees and not for seasonal workers, inasmuch as benefits
• are available only to those employees who have continuously worked
for an entire year.
From the foregoing facts, it is evident that seasonal workers lack the
substantial, continuing interest in their jobs which regular or "year
around" employees possess. Under the circumstances , and in view of
the fact that the Union has confined its organizational efforts to the
regular or "year around" employees, and does not claim or seek to rep-
resent seasonal workers, we shall exclude seasonal workers solely en-
gaged for the duration of the processing season.4
Accordingly, we find that all production, maintenance, and ware-
house employees at the Company's Yakima, Washington plant, ex-
cluding seasonal workers solely engaged for the duration of the process-
ing season, field men, test clerks, office and clerical employees, the
superintendent, the assistant superintendent, the general foreman,
department foremen, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
2 It appears that the 1943 processing season abnormally ran until about February 14,
1944.
3In order to fill its personnel requirements for the non-processing season, the Company,
at the close of the processing season, retains in its employ the most capable seasonal
workers.
* Matter of Stokely Foods, Inc., 58 N. L. R. B . 130 ; Matter of National Fruit Products
Company, Incorporated, 57 N. L . R. B. 100 ; Matter of Reid, Murdock & Co., 56
N. L. R. B. 284.
The employees described in footnote 3 are included in the unit and shall be eligible to
vote as provided in Section V, infra.
LIBBY, McNEILL AND LIBBY 867
changes in the status of employees, or effectively recommend, such
action, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The record discloses that there are certain workers employed during
the processing season whom the Company will retain in its employ
after the season closes for such manual work as may be available during
the non-processing season.5 These employees apparently possess a
sufficient interest to warrant their participation in the selection of a
bargaining representative. Since the evidence indicates that the sea-
son normally ends the middle of December, it appears that the identifi-
cation of such employees who would be eligible to vote may best be
achieved by deferring the election to a date subsequent to January 1,
1945, and by using a pay roll for a period subsequent to January 1,
1945.
Accordingly; we shall direct'that the question concerning represen-
tation which has arisen be resolved by an election by secret ballot to
be held within 60 days from the date of this Direction, among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding January 25, 1945, subject to the
limitations and additions set forth in the Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby '
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Libby, McNeill
and Libby, Yakima, Washington, an election by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Nineteenth Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding January 26, 1945, including employees who did not work
during said pay-roll period because they were ill or on vacation pr
S They are the employees mentioned in footnotes 3 and 4, who , according to the record,
may or may not be seasonal workers.
868 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
temporarily laid off, and including employees in the armed forces of
the United States, who present themselves in person at the polls, but
excluding those employees, Who have since quit or been discharged
for cause and have not been rehired or reinstated 'prior to the date
of the election, to determine whether or not they desire to be repre-
sented by Local 760, Fruit and Vegetable Packers and Warehouse-
men's Union, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. of L., for
the purposes of collective bargaining.