S. Martinelli & Co.

National Labor Relations Board - Board Decisions

May 9, 1952

99 N.L.R.B. 43 (N.L.R.B. 1952)

S. MARTINELLI & COMPANY 43
[Text of Direction of Election omitted from publication in this
volume.]
S. G. MARTINELLI, D/B/A S.. MARTINELLI & COMPANY and WAREHOUSE
UNION, LOCAL 11, INTERNATIONAL LONGSHOREMEN'S & WAREHOUSE-
MEN'S UNION, PETITIONER. Case No. 20-RC-1651. May 9, 1952
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 Robert V. Magor, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.,'
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 [Chairman Herzog and Members Styles and Peterson].
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 em-
ployees of the Employer .2
3. The Employer contends that the petition herein, which was filed
on November 28, 1951) is barred by a contract or contracts covering
the employees sought by the Petitioner. On July 23, 1950, the Em-
ployer and the Intervenor's predecessor entered into a contract to run
to June 1, 1951, and from year to year thereafter, in the absence of
30 days' notice to modify or terminate. This contract covered the
Employer's sales delivery drivers, but not any of the other employees
involved in this proceeding. There is some question as to whether
this contract is still in force. In any event, this contract contains a
clause requiring the preferential hiring of members of the Inter-
venor's predecessor. We find, for that reason, that such contract is
not a bar to this proceeding.3
I The Employer moved at the bearing to dismiss the petition herein on the grounds ( a) that
the Petitioner has failed to make a sufficient showing of interest among the employees
employed during the Employer 's peak season, and ( b) that the petition is barred by a
contract or contracts between the Employer and the Intervenor. The hearing officer
referred this motion to the Board. As to contention ( a), the Board has held that in
seasonal activities , such as this , the required showing is to be made among the employees
employed in the unit at the time the petition was filed. Cf . Holly Sugar Corporation,
94 NLRB 1209 . We are administratively satisfied that the Petitioner has made such a
sufficient showing in this proceeding . Accordingly , we find this contention to be without
merit. For the reasons set forth in the text , infra, we also find contention ( b) to be
without merit . Accordingly , the motion is hereby denied.
2 Teamsters Automotive Workers Union, Local 576 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , AFL, herein called the Inter-
venor, was permitted to intervene on the basis of a contractual interest.
8 F. H. McGraw and Company, 95 NLRB 821.
99 NLRB No. 12.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 18, 1951, the Employer and the Intervenor entered into
a contract, denominated an "Interim Agreement," wherein the Em-
ployer recognized the Intervenor as the representative of the em-
ployees sought by the Petitioner. This agreement, by its terms, gov-
erned the relationships of the parties until February 1, 1952, and for
3 years thereafter. However, the agreement also provided that the
parties would meet as soon as practicable, and before February 1,
1952, for the purpose of negotiating and completing a 3-year contract.
On January 19, 1952, the Employer and the Intervenor executed a
contract effective from January 5, 1952, to February 1, 1955. This
contract recites that it was executed in conformity with the interim
agreement; it also contains a union-security clause which fails to ac-
cord the required 30-day grace period to old employees who were not
members of the Intervenor at the time the contract was executed.
The instant petition was filed on November 28, 1951.
On the basis of the foregoing, we find that neither the interim agree-
ment nor the contract of January 19, whether considered separately
or in conjunction, constitute a bar to this proceeding. If they are con-
sidered separately, the interim agreement, having by its terms been
superseded by the contract of January 19, is no longer a bar, and the
contract of January 19, having been executed after the filing of the
petition, is not a bar. On the other hand, if they are considered as a
single agreement, the existence of the unlawful union-security clause
renders them ineffective as a bar.4 Accordingly, we find that a ques-
tion affecting commerce exists concerning the representation of em-
ployees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in bottling and selling soft drinks and
cider, and in selling beer. The parties agree that a unit of produc-
tion, maintenance, and warehouse employees is appropriate. They
disagree, however, as to the unit placement of sales delivery drivers
and seasonal employees. Except for the sales delivery drivers, none
of the employees involved had been represented for purposes of col-
lective bargaining before the execution of the interim agreement,
referred to above.
Since about 1935, the sales delivery drivers have been represented
by the Intervenor and its predecessors. In an earlier proceeding;
the Board excluded these drivers from the production and mainte-
nance unit therein found appropriate.' On the basis of the Board's
4 Lever Brothers Company, 97 NLRB 1240 ; Heekin Can Company , 97 NLRB 783. No
earlier contract required all the old employees coveted by the current contract to join the
Intervenor . Cf. Josten Engraving Company, 98 NLRB 49.
E S. Martinelli & Co., 81 NLRB 383 No collective bargaining representative was selected
in the election therein directed.
8 The Board 's decision in the earlier proceeding , to which the Petitioner herein was not a
party, was based in part on the agreement of the parties therein.
S. MARTINELLI & COMPANY 45
decision in the earlier case, the Petitioner would exclude the drivers
from the unit sought herein, whereas the Employer and the Intervenor
contend that they are appropriately a part of that unit. The Peti-
tioner has indicated that it is willing to represent the drivers as part of
that unit, should the Board decide that they may appropriately be
included.
The drivers solicit orders for and make deliveries of the Employer's
products. On occasion, they also work in the plant during the Em-
ployer's slack season in their regular hours after they have completed
their deliveries, and during the Employer's busy season after their
regular hours. On such occasions, they perform the same type of
work as the other employees in the agreed unit. The parties have
agreed to include in the unit a special delivery driver who, although
he spends a larger proportion of his time in the plant than do the sales
delivery drivers, has duties which correspond in part to the duties of
the sales delivery drivers.
The Board has sanctioned the inclusion of driver-salesmen in pro-
duction and maintenance units when, as here, they have a sufficient
community of interest with other employees in the unit and no labor
organization seeks to represent them in a separate unit.' Although
the sales delivery drivers in the past have been separately represented,
no labor organization now seeks to continue such separate representa-
tion. Under these circumstances we perceive no cogent reason for
excluding them, and we shall therefore include the sales delivery
drivers in the unit.
The Employer's cider operations are seasonal in nature. The Em-
ployer maintains a year-around complement of about 25 employees, and
hires additional employees to meet the seasonal needs. The record
establishes that the seasonal employees work with and do the same type
of work as the regular employees, and under the same conditions of
employment. Accordingly, as all employees working at jobs within
the unit are included and entitled to representation we find, contrary
to the contention of the Petitioner, that the seasonal employees are
included in the unit 8
On the basis of the foregoing and the entire record, we find that all
production, maintenance, and warehouse employees at the Employer's
Watsonville, California, plant and warehouse, including sales delivery
drivers and seasonal employees, but excluding office clerical employees,
the route supervisor,9 professional employees, guards, and supervisors
7 Coca-Cola Bottl ing Company, 96 NLRB 1425; Indianapolis Cleaners and Launderers
Club, 87 NLRB 472; Dr. Pepper Bottling Company, 78 NLRB 1261.
8 R. Appel, Inc ., 95 NLRB 7. The separate issue of their voting eligibility is discussed
infra.
8 Although the parties agree, and we find, that this employee is not a supervisor within
the meaning of the Act ( S. Martinelli & Co., supra ), it appears that he is a nephew of the
Employer. In accord with established Board policy , we shall exclude this employee from
the unit. Rosedale Passenger Lines, Inc., 85 NLRB 527, 531.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. As stated above, the Employer's cider operations are seasonal,
the peak season generally occurs sometime during the months of Oc-
tober, November, or December. The number of employees in the unit
varies from about 25 at the minimum to from 60 to 80 at the peak. The
Petitioner requests that the Board direct an immediate election and
find the seasonal employees ineligible to vote; the Employer and the
Intervenor request that the seasonal employees be permitted to vote in
an election to be held at the next seasonal peak. The record reflects
that the majority of the seasonal employees return to work for the
Employer from year to year. We find, therefore, that the seasonal
employees have a substantial interest in working conditions at the Em-
ployer's plant and warehouse, and are therefore eligible to vote in the
election herein directed.10 As we have found that the seasonal em-
ployees are eligible to vote, we find no persuasive reason for departing
from the Board's usual practice in seasonal industry cases.," Accord-
ingly, we shall direct'that the election be held at the Employer's next
seasonal peak, on a date to be determined by the Regional Director,
among the employees in the appropriate unit who are employed during
the payroll period immediately preceding the date of the issuance by
the Regional Director of the notice of election.
[Text of Direction of Election omitted from publication in this vol-
ume.]
ao East Coast Fisheries, Inc., 97 NLRB No. 1261.
11 Truck Equipment Company of Atlanta, 93 NLRB 825.
LOROCO INDUSTRIES, INC. and INTERNATIONAL BROTHERHOOD OF PULP,
SULPHITE & PAPER MILL WORKERS, A . F. OF L., PETITIONER. Case
No. 9-RC-1454. May 9, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph A. Butler, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial 'error and are hereby affirmed.'
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 [Chairman Herzog and Members Houston and Murdock].
1 The hearing officer referred to the Board the separate motions of the Employer and
Loroco Workers Independent Union, Reading Division , herein called the Intervenor, to
dismiss the uetition. For the reasons stated in paragraph numbered 3, the motions are
hereby granted.
99 NLRB No. 13.