Trenton Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1769 (N.L.R.B. 1952)

TRENTON FOODS, INC. 1769
As the millwrights, by themselves, constitute a distinct craft group,
we find that they may, if they so desire, constitute a separate unit.
The maintenance welder, although employed in the same department,
does not appear to be closely allied to the millwrights. We shall
therefore exclude him.
Accordingly, we shall direct separate elections among the employees
of the Employer at its Louisville, Kentucky, plant, in the voting
groups set forth below, excluding from each group office clerical em-
ployees, guards, professional employees, all other employees, and all
supervisors as defined in the Act.
1. All employees in the machine shop.
2. All millwrights.
If a majority of the employees in either group vote for the Petitioner,
they will be taken to have indicated their desire to constitute a separate
bargaining unit, and the Regional Director conducting the elections
directed herein is instructed to issue a certification of representatives
to the Petitioner for such unit, which the Board, under such circum-
stances, finds to be appropriate for purposes of collective bargaining.
In the event a majority in either group vote for the Intervenor, they
will be taken to have indicated a desire to remain a part of the existing
bargaining unit, and the Regional Director will issue a certificate
of results of election to such effect.
. [Text of Direction of Elections omitted from publication in this
volume.]
TRENTON FOODS, INC.' and AMERICAN FEDERATION OF GRAIN MILLERS,
AFL, PETITIONER. Case No. 17-RC-1433. December 31, 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 Michael T. Lucero, 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 [Members Houston, 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.
I The name of the Employer appears as amended at the hearing.
101 NLRB No. 248.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Petitioner claims to represent certain employees of the Em-
ployer. The Employer contends that the Petitioner is not qualified
to represent these employees because it has had no experience in repre-
senting employees engaged in the type of work they perform and
because it has not yet organized a local to represent these employees.
As we have held that a union's willingness to represent employees is
the controlling factor in determining its qualification to represent
them,2 we find no merit to this contention of the Employer.
The Employer moved to dismiss the petition on the ground that the
Petitioner is disqualified as a bargaining agent because supervisors
participated in organizing it. The general foreman attended and
voted at one meeting of the Petitioner, and one part-time supervisor
is listed on the transcript of record as appearing for the Petitioner
although he did not put in a formal appearance or participate in the
hearing in any manner. As it appears that no supervisor solicited
membership in the Petitioner, we find that there was no participation
by supervisors in the organizational drive sufficient to disqualify the
Petitioner.3 Accordingly, we deny the Employer's motion to dismiss
the petition on this ground.
3. The Employer also moved to dismiss on the ground that no ques-
tion of representation exists. The Employer contends that the Peti-
tioner's showing of interest is insufficient as the Petitioner organized
at a time when the Employer was not operating at full capacity, and
as it limited its organizational drives to the employees then employed.
At the time the petition was filed, the Employer had 64 employees,
whereas the Employer claims its regular complement is 225 employees.
The showing of interest is a matter of administrative determination
not litigable by the parties. Furthermore, it is the Board's policy,
in cases involving fluctuating operations, to require a showing only
among those employed at the time the petition is filed 4 The Em-
ployer has presented no reason for deviating from this policy 5 As
the Petitioner's showing was adequate at the time the petition was
filed, we find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The Em-
ployer's motion to dismiss on this ground is therefore denied.
2 Buzza-Cardozo Company, 99 NLRB 40; New Castle Products, 99 NLRB 811.
s Allen B. Dumont Laboratories, 88 NLRB 1296; Jackson Daily News, 86 NLRB 729.
Mount Whitney Lumber Co., 90 NLRB No. 84.
s The Employer claims that its business is not seasonal , but has peak and slow periods
depending upon orders received and inventory on hand. Thus the Employer had about
60 employees in December 1951, 225 in July 1952, 64 In September 1952, and approximately
12 at the time of the hearing in October 1952. The general foreman testified that the
average employee complement is about 60 to 70. As the Employer refused to introduce its
payr - 11 records , it is impossible to determine the length of the peak periods of employment.
However, these periods do not appear to be of such duration as to require a showing of
interest based upon the number of employees during such peaks. See Consolidated
Steamship Company, 75 NLRB 1254.
TRENTON FOODS, INC. 1771
4. The parties agree that a unit consisting of all production and
maintenance employees at the Employer's Trenton, Missouri, plant,
including in-town truck drivers and night watchmen, but excluding
office and clerical employees,. confidential employees, over-the-road
truck drivers, professional employees, guards, and supervisors as
defined by.the Act, is appropriate. However, the Employer claims,
while the Petitioner denies, that the general foreman and the de-
partmental foremen are supervisors within the meaning of the Act.
The general foreman: The Employer has one general foreman
.who is in charge of the plant when both the plant manager and the
plant superintendent are absent. The general foreman at all times
has power to discharge employees, to transfer them to various jobs
in the plant, and, in conjunction with the manager and superin-
tendent, to determine who is to get laid off. Under these circum-
stances, we find that the general foreman is a supervisor within the
meaning of the Act, and we shall therefore exclude him from the
unit.
The departmental foremen: The Employer employs 10 depart-
mental foremen, 6 of whom are considered to be full-time foremen.
Although they spend up to 50 percent of their time performing man-
ual labor, these 6 foremen at all times have power effectively to rec-
ommend the discharge of employees, may transfer employees within
their departments, and are responsible for the quality of work turned
out by the men working under their direction. They receive 10 per-
cent more pay than the rank-and-file employees whom they direct.
Under these circumstances, we find that the 6 full-time departmental
foremen are supervisors within the meaning of the Act and should
be excluded from the unit.
The remaining four departmental foremen serve in the capacity
of foremen only when, during periods of peak employment, the Em-
ployer operates two shifts at its plant. When not acting as depart-
mental foremen, these four individuals perform the same work as
regular rank-and-file employees and have no supervisory authority.
They receive the same premium pay whether or not they are acting
as foremen. When serving as departmental foremen, they have the
same authority and the same duties as the full-time departmental
foremen. The record, however, does not show the frequency, regu=
larity, or duration of the periods during which they exercise super-
visory authority. We find, therefore, that if the part-time depart-
mental foremen serve as foremen infrequently and sporadically, they
should be included in the unit. On the other hand, if they regularly
serve as departmental foremen for fixed and substantial periods, they
should be excluded from the unite Accordingly, we shall permit
them to vote subject to challenge. In the event that the counting
6 Tennessee Coach Company , 88 NLRB 253.
242305-53-113
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the challenged ballots will affect the outcome of the election, a
further investigation will be conducted to determine their super-
visory status.
Accordingly, we find that a unit consisting of all production and
maintenance employees at the Employer's Trenton, Missouri, plant,
including in-town truck drivers, night watchmen,7 and part-time
departmental foremen," but excluding office and clerical employees,
confidential employees, over-the-road truck drivers, professional
employees,9 guards, the general foreman, departmental foremen, and
all other supervisors within the meaning of the Act, is a unit appro-
priate for the purposes of collective bargaining within the mearffng
of Section 9 (b) of the Act.
5. The Petitioner contends that voting eligibility should be deter-
mined as of the time of the filing of the petition, when there were 64
employees working. The Employer contends that all 225 employees
who are employed during peak periods are regular employees entitled
to vote. The Employer keeps a list of laid-off employees, and in the
past, when production increased, these employees were called back ac-
cording to seniority. The Employer testified that it intended to con-
tinue this practice as soon as the expected increase in business material-
ized. Under these circumstances, we find that the laid-off employees
have a reasonable expectation of reemployment by the Employer, and
therefore are entitled to participate in the election herein directed.10
[Text of Direction of Election omitted from publication in this
volume.]
7 The parties agreed to include the night watchmen in the unit As the record establishes
that the primary duty of these employees is to operate the boilers at the Employer 's plant,
that they have no authority to report or discipline employees of the Employer , and that
their watchman duties consist mainly in reporting fires and broken u indows and in checking
licks at the Employer 's plant, we find that the night watchmen are not guards within the
meaning of the Act. Accordingly, we have included them in the unit.
8 For the reasons set forth above, the inclusion of the part -time departmental foremen
is solely for the purpose of permitting them to vote , and is not to be taken as a final
determination of their status as supervis-rs.
O The parties agreed to the exclusion of the chemist as a professional employee within
the meaning of the Act . Accordingly , he is excluded from the unit.
10 Cherry Brook Worsted Mills, 86 NLRB 1321.
SAN JOSE BUILDERS COMPANY 1 and UNION DE TRABAJADORES DE LA
CONSTRUccION Y RAMAS ANEXAS DE PUERTO Rico (UGT), PETI-
TIONER. Case No. 24-RC-146. December 31, 1954
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 Roy J. Cohen, hearing officer.
1 Herein called the Company.
101 NLRB No. 168.