Old Mission Packing Corp., Ltd.

National Labor Relations Board - Board DecisionsOct 3, 1940

27 N.L.R.B. 642 (N.L.R.B. 1940)

In the Matter of OLD MISSION 'PACKING CORP., LTD. and UNITED FISH CANNERY WORKERS UNION, LOCAL 64, C. I. O. Case No. R-1637 Investigation and Certification of Representatives : existence of question: pre- vious finding supplemented by fact Company now refuses to bargain with either labor organization until certified by the Board ; election necessary. Unit Appropriate for Collective ' Bargaining : disagreement between Company and one of the unions as to the supervisory character of seven individuals; Board excluded four whose duties are supervisory in nature, and included three whose duties are not supervisory. , SUPPLEMENTAL DECISION AND SECOND AMENDMENT TO DIRECTION OF ELECTION October 3, 1940 On December 29, 1939, the National Labor-Relations Board, herein called the Board, issued a Decision and Direction of Election in this case.' On January 30, 1940, the Board ordered that this Decision and Direction of Election and the record on which it was based be vacated and set aside without prejudice to reinstatement thereof; upon application by either United Fish Cannery Workers Union, Local.64, C. I. O., herein called the United, or Fish Cannery Workers Union of the Pacific, herein called the Cannery Workers, the two labor organizations involved. On. February 23, 1940, the Board issued an order denying a request that the election be held and grant- ing leave to the United' to reapply after August 15, 1940, for the reinstatement of said Decision and Direction of Election and the said record, and to renew, after August 15, 1940, its request that the election in this case be held on or between October 1 and 15, 1940.` Upon an appropriate request by the United, the Board, on Septem- ber 3, 1940, issued an order directing that the said Decision and. Direction of Election and the said record be reinstated; that the said record be reopened, and that a further hearing be held for the purpose of receiving evidence concerning the eligibility date and such 1 18 N. L. R. B. 953. 27 N L R. B., No. 119 642 OLD MISSION PACKING CORP., LTD. 643 other evidence as the parties might wish to present; and that the said Direction of Election be amended by -striking therefrom the words "as early as possible but not later than thirty (30) days from the date of this Direction of Election" and substituting therefor the words "at such time as the Board shall further direct." Pursuant to appropriate notice, a further hearing was held on September 13, 1940, at San Diego, California, before James A. Cobey, the Trial Examiner duly designated by the Board. The Company, the United, and the Cannery Workers were represented by counsel or official representatives and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues was afforded all parties. During the course of the hearing .the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. At the hearing the United moved, in the alternative, either that it be allowed to withdraw its petition or that its name be omitted from the ballot in any election that might be ordered. The Board hereby denies the request of the United that the petition be withdrawn, but grants its request that its name be omitted from the ballot. Upon the entire record. in the case, the Board makes the following : SUPPLEMENTAL- FINDINGS OF FACT 1. THE QUESTION CONCERNING REPRESENTATION Our previous finding that a question affecting commerce has arisen concerning the representation of employees of the Company is supple- mented by the fact that the Company now refuses to bargain with either labor organization until there has been a certification of the exclusive bargaining representative by the Board. There was introduced in evidence at the second hearing a statement by the Trial Examiner showing that the Cannery Workers represents a substantial number of employees in the appropriate unit.2 II. THE APPROPRIATE UNIT In its original Decision the Board found that a unit, composed of all production and maintenance employees of the Company, excluding 2 According to the statement , the Cannery workers submitted 160 cards bearing what appeared to be genuine , original signatures and authorizing it to represent the signers for purposes of collective bargaining Of these cards , 1 was dated October 12, 1939; 1, November 12, 1939; 1, November 13. 1939 ; 16, November 15, 1939; 27, November 16, 1939; 72, November 17, 1939 , and 37, November 18 1939 , 4 cards bear a defective date. Eighty- three of the 160 names appearing on the cards are on the pay roll of the Company dated September 9. 1940 , showing approximately 210 employees i 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory and office employees; -was appropriate ,for the purposes of collective bargaining. At the second hearing, the Cannery Workers and the Company disagreed, however, as to the supervisory character of seven individuals , the Company desiring their inclusion in, and the Cannery Workers their exclusion from the unit heretofore found appropriate. There are four women employees who are paid by,the day. A!,' other women employees are paid either in accordance with the amount of work which they perform, or by the hour . Of these four, Floorlady Elizabeth Edwards and Assistant Floorlady, Vera Denney have power to hire and discharge employees and'to transmit- the orders of Superintendent Geren. The other two , Nellie Broderick and Isabelle Torres, direct the operations of the packers and of the employees at the sorting belt, respectively; they are without authority to hire or discharge or to recommend hire or discharge and are responsible to Mrs. Edwards and Mrs. Denney . We are of the opinion that the duties of these four employees are supervisory in nature. James Broderick, Earl Vick, and Jake Klippert are paid, to- gether with the other male employees, on an hourly basis, although at a somewhat higher rate than the others. During the packing season they, are responsible for the operation of the roasters, the cookers, and ' the labeling machines , respectively . In the perform- ance of these tasks each is assisted by several employees . However, it appears that throughout the portion of the year when no packing is being done they are engaged in maintenance and other functions. and that their duties during this period are in no way different from those of other steady employees . At no time do they have the power to hire or discharge or to recommend that an employee be hired ' or discharged . We are of the opinion that their duties are not supervisory in character. We find , that Elizabeth Edwards, Vera Denney, Nellie Broderick, and Isabelle Torres , are excluded from, and James Broderick, Earl Vick, and Jake Klippert are included in , the appropriate unit. III. THE DETERMINATION OF REPRESENTATIVES We have directed that the question concerning representation shall be settled by an election. It is anticipated that the period of the Company 's peak operations in 1940 will be somewhat more limited - than usual , lasting from about October 15 to 22, and that its crew during that peak will not exceed the approximately 200 men with which it started the 1940 season. The Company and the Cannery Workers are agreed that the pay roll for the pay-roll period which includes October 12, 1940, would be OLD MISSION PACKING CORP., LTD. 645 most convenient for the purpose of determining those eligible to vote. Accordingly, we shall amend our Direction of Electiotr to direct that all employees within the appropriate unit who are on the pay roll for the pay roll period in which October 12 falls, including employees who do not work during such pay-roll period because they are ill or on vacation, and employees who are then or may thereafter have been temporarily laid off, but excluding those who shall have since quit or been discharged for cause, shall be eligible to participate in the election. In accordance with the request of the United, its name will not . appear on the ballot. - SECOND AMENDMENT TO DIRECTION OF ELECTION The Board hereby amends its Direction of Election, as amended, by striking therefrom all matter appearing therein after the words "Old Mission Packing Corp., Ltd.," and substituting for the matter so stricken, the following : an election by secret ballot shall be conducted as early as pos- sible after the expiration of the pay-roll period in which October 12, 1940, falls, but not later than thirty (30) days after October 12, 1940, 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 Regulations among all production and maintenance employees of the Company who are employed during the pay-roll period which includes October 12, 1940, including employees who do not work during such period'because they are ill or on vacation, and employees who are then or shall thereafter have been temporarily laid off, but excluding office and supervisory employees, and those who shall, after the expiration of such period, have quit or been discharged for cause, to determine whether or not they desire to be repre- sented by Fish Cannery Workers Union of the Pacific, affiliated with the American Federation of Labor, for the purposes of col- lective bargaining.