Libby, McNeill & Libby

National Labor Relations Board - Board DecisionsMar 23, 1944

55 N.L.R.B. 728 (N.L.R.B. 1944)

In the Matter of LIBBY, MCNEILL & LIBBY and CANNERY WORKERS UNION, LOCAL 20324, AFL Case No. 20-1-977.-Decided_March P,3,19-114 Mr. Paul St. Sure, of Oakland, Calif., and Mr. F. L. Smart, of San Francisco , Calif., for the Company. Mr. Albert E. Bilger, of Sacramento, Calif., for the Union. Mr. TT'illiain Strong, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Cannery Workers Union, Local 20324, AFL, herein called the Union, alleging that a, question affecting com- merce had arisen concerning the representation of employees of Libby, McNeill & Libby, Sacramento, California, herein called the Company, the National Labor Relations Board provided for an appropriate hear- ing upon due notice before Gerald P. Leicht, Trial Examiner. Said hearing was held at San Francisco, California, on February 17, 1944. The Company and the Union appeared 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 pre- judicial 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 TIIE COMPANY The Company, a Maine corporation having its principal office and place of business in Chicago, Illinois, is engaged in the operation of various fruit and vegetable canneries in the State of California. This proceeding involves only the Company's plant in Sacramento, Cali- 55 N. L R B, No 130 728 LIBBY. McNEILL & LIBBY 729 fornia, where during 1943 it canned in excess of 1,500,000 cases of fruit and vegetables, over 80 percent of which was shipped to points out- side the State of California. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED Cannery Workers Union, Local 20324, 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 the Company's employees on the ground that the unit sought by the Union is inappropriate. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees 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. IV. THE APPROPRIATE UNIT The Union seeks a unit composed of all employees in the cost control department of the Company including checkers, office and clerical employees, but excluding supervisors. The Company asserts that this unit is inappropriate on the grounds that the checkers are already within an appropriate unit and are covered by an existing collective agreement, that the office and clerical employees are outside of that agreement, and that a unit ought not be composed of office and clerical employees in only one department of the Company.' The Union is a member of the California Council of Cannery Unions, and the Company is a member of the California Processors and Grow- ers, Inc. There is a master contract between the Council, the Ameri- can Federation of Labor, and the Growers which operates as an agree- ment also between individual companies and individual unions which are members of the contracting parties, and which covers production workers of the Company. The Union has heretofore sought to include 'The Field Examiner iepoited that the Union submitted it designation bearing 19 signa- tures , and that there are 20 employees in the alleged appropriate unit during the peak season , and 10 during the balance of the year. 2 The number varies with the seasons 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the cost control employees under the terms of that contract, but the Company has rejected that request. The matter was referred to a Central Adjustment Board set up under the contract, but no agreement was reached .3 Subsequently the Company again indicated its unwill- ingness to treat with the Union on behalf of the cost control employees. At the hearing, however, the Company stated that its present posi- tion is that the checkers come within the contract. provisions. The Union thereupon disputed this construction of the contract. While in addition to the office and clerical employees in the cost con- trol department the Company employs other office and clerical em- ployees in its general office and elsewhere in the plant, the cost control department and the general office have separate managers, and there is no substantial interchange of employees between the departments. The cost control department employees constitute a homogeneous group engaged in specialized duties unlike those performed by other clerical and office employees of the Company. In the light of all the circum- stances before us, we conclude that the cost control department em- ployees may properly constitute a separate unit. The Union would exclude, and the Company would include the assistant manager of standards. This employee has the power to recommend the hiring, discharging, promoting, and disciplining of employees. He, the manager of standards, and the head of the cost control department are paid on a weekly basis; the rest of the em- ployees in that department are paid on an hourly basis. We shall exclude the assistant manager of standards. We find that all the employees in the cost control department of the Company, excluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. s The cost control department has in it 11 or 12 office workers, clerks, and checkers. Apparently the only employees in dispute on that occasion were the cost control department checkers and not the office and clerical employees in the cost control department. , LIBBY, McNEILL & LIBBY DIRECTION OF ELECTION 731 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Laboii Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Libby, McNeill & Libby, Sacramento, California, 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 Twentieth 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 the date of this Direction, including employees who did not work during the said pay-roll period because they were ill or on vacation or 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 dis- charged 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 represented by Cannery Workers Union, Local 20324, affiliated with the American Federation of Labor, for the purposes of collective bargaining.