Val Vita Food Products, Inc.

In the Matter Of VAL VITA FOOD PRODUCTS, INC. and UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF AMERICA, LOCAL 2, AFFILIATED WITH THE C. I. O. Case No. R-1353.-Decided October 22, ,199, Jurisdiction : fruit and vegetable canning industry. Investigation and Certification of Representatives : existence of question : con- flicting claims of rival representatives ; contract for indefinite term held no bar; eligibility determined by customary- pay -roll period where it was impos- sible to ascertain when peak would be reached in seasonal operations ; laid-off employees held ineligible to vote where it appeared that large percentage of such employees never returned to work ; election necessary. Unit Appropriate for Collective Bargaining : all employees at one of Company's plants, engaged in handling, processing, packing, can stacking, storage, prepara- tion for shipment of products, maintenance, and tin can manufacturing, exclud ing warehousemen , supervisory employees, assistant foremen, office employees, and truck drivers. Mr. George T. Tapper, of Los Angeles, Calif., for the Company. Mr. Victor Kaplan, of Los Angeles, Calif., for the United. Mr..,Hubert R. Lande, of San Pedro, Calif., for the Truck Drivers. Mr. Wesley N. King and Mr. A. H. Petersen, of Los Angeles, Calif., for Local 22637. Mr. DeForest Mellen, of Fullerton, Calif., for the Independent. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition and amended petition duly filed by United Cannery, Agricultural, Packing and Allied Workers of America,.Local 2, affili- ated with the C. 1. 0., herein called the United, alleging that a question affecting commerce had arisen concerning the representation of_ em- ployees of Val Vita Food Products, Inc., Fullerton, California, herein .called the. Company, the National Labor Relations Board provided .for an appropriate hearing upon due notice before Guy Farmer, Trial Examiner. Said hearing was held at Los Angeles on October 2, 1942. 45 N. L. R. B., No. 5. 23 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company, the United, General Truck Drivers, Chauffeurs and Helpers Union, Local 692, herein called the Truck Drivers, Local 226371 American Federation of Labor, herein called Local 22637, and Val Vita Employees Union, herein called the Independent, appeared, par- ticipated, and 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE - BUSINESS OF THE COMPANY Val Vita Food Products, Inc., is a California corporation with its principal place at Fullerton, California, where it is engaged in the canning, preserving, and sale of fruits and vegetables. During 1941, the Company purchased products valued at about $4,000,000, approxi- mately $1,500,000 worth of which was shipped to it from outside California. During the same period. the Company sold, products valued at about $5,000,000, approximately $3,000,000 worth of which was shipped out of California. II. THE ORGANIZATIONS INVOLVED United Cannery, Agricultural, Packing and Allied `Yorkers of America, Local'2, is a -labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. General Truck Drivers, Chauffeurs, and Helpers Union, Local 692, and Federal Labor Union Local 22637, Are labor organizations affili- ated with the American Federation of -Labor, admitting to member- ship employees of the Company. Val Vita Employees Union is -an unaffiliated labor organization, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION During August 1942, the United, claiming to represent a majority'of the Company's employees, requested the Company to recognize it'as the exclusive bargaining representative of said employees. The CiOln- pany refused this request, stating that it was operating under ' a' con- tract with Local 22637 and the Truck Drivers. On.March 7, 1941, the Company, Local 22637, and the Truck'D -rivers entered into a closed-shop contract covering all the Company's em- ployees. The contract provides that it shall remain in full force and VAL VITA.FOOD PRODUCTS, INC. 25 effect until such time as Local 22637 and the Truck Drivers collectively or Local 22637 individually, shall have obtained the execution of a contract between them or it and a majority of the canneries in South- ern California. All parties stipulated at the hearing that the latter contingency has not yet arisen. On February 19 and June 12, 1942, respectively, Local 22637 and the Truck Drivers notified the Company that they no longer considered the contract between them and the Company to be in effect. The issue of-validity of the contract is at present the subject of litigation between the Company and Local.22637 in a State court. At the.hear- ing in the instant proceeding the Company and Local 22637 took the position that the contract of March 7, 1941, constitutes a" bar to a present determination of representatives and they urge that the peti- tion be dismissed. However, Local 22637 takes the position in the California litigation that its contract is null and void and of no effect. On August 6, 1942, employees of the Company who were members of Local 22637 voted to dissolve Local 22637 and to return all its physical properties and charter to its national headquarters. It should be noted that the contract of March 7, 1941, is for an indefinite term. In view of this fact and under the circumstances, we find that the con- tract does not constitute a bar to a determination of representatives at this time. - - A statement of the Regional, Director, introduced into evidence at the"hearing, indicates that the United and Local 22637 each represents a substantial number of the employees in the unit hereinafter found to be 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 National Labor Relations Act. IV. THE APPROPRIATE UNIT The United, Local 22637, and the Truck Drivers contend that all employees at the Fullerton plant of the Company engaged in han- dling, processing, packing, can stacking, storage, in the preparation for shipment of products,,,maintenance, and tin-can manufacturing, excluding warehousemen, supervisory employees with the authority to hire and discharge, office employees, and truck drivers, constitute a unit appropriate for the purposes of collective bargaining. The 'The Regional Director reported that the United presented 254 membership application cards bearing apparently genuine signatures of persons whose names appear on the Com- pany's pay roll of September 1, 1942. Ile further reported that Local 22637 presented 153 membership application cards bearing apparently genuine signatures of pei sons on that pay roll He also reported that the Independent presented an authorization petition containing apparently genuine signatures of 95, persons whose names are on the September 1, 1942, pay roll There are approximately 1,300 employees in the unit hereinafter found to be appropriate. 26 DECISIONS OF NATIONAL- LABOR ' RELATIONS BOARD' Independent agrees with this contention , but would also include ware- housemen in the unit. The Company urges that all'its employees, including warehousemen and truck drivers, -constitute an appropriate bargaining unit. The warehousemen and truck drivers were recognized as a separate bargaining unit in the contract of March 7 , 1941, alluded to above. The Truck Drivers was recognized as the exclusive bargaining agent of such employees and it is at the present ' time also claiming to represent them. Inasmuch as warehousemen and truck drivers have in the past been recognized by the Company as a 'suitable unit for collective ,bargaining purposes and the petitioner herein . does not desire them included in the unit alleged by it to be appropriate because of the existence of another labor organization to which such employees are eligible, we shall exclude warehousemen and truck drivers from the unit. The only other controversy with respect to the unit concerns assistant foremen. The United and Local 22637 would exclude such employees from the unit, and the - Independent and the Company would include them. During its peak seasons,'.which last several weeks at a time, the Company designates some of its employees as_ Assistant foremen. Such employees are vested with the authority to hire and discharge and do, in fact , exercise such authority . We shall exclude the assistant foremen from the unit. We find that all employees at the Fullerton plant of the Company engaged in handling, processing, packing, can stacking , storage,, in the preparation for shipment of products, maintenance, and tin can manufacl wring, excluding warehousemen , supervisory employees with the authority to hire and ' discharge, assistant foremen with the authority to hire'and discharge, office employees, and truck drivers, 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 find that the question concerning representation which has - arisen can best be resolved by an election by secret -ballot. The Com- pany contends that a pay roll as of September 1942 should ' be used to determine -eligibility to vote. - The United, contends that a pay' roll- for the latter , part of October 1942 should be used for that pur- pose. Local 22637 requests that a current pay roll be used , and the Independent that a November 1942 pay roll be utilized for determin- ing eligibility to vote. The Company's operations are highly sea- sonal in nature and reach several peak employment periods' through- out the year. The Company ' is at present engaged in packing to- VAL VITA FOOD' PRODUCTS, INC .- 27 matoes, aifd -at the time of the hearing had about 1300 persons in its employ. However, .the peak -of -the tomato season had not beeii reached at that time and the Company anticipated employing an additional 300 persons. The record indicates that it is impossible to ascertain 'with any degree of certainty when the peak of the pres- ent season will be reached due to numerous incalculable factors. Under these circumstances we shall direct that the employees eli- gible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll period immediately preced- ing the date of the Direction of Election herein, subject to the limi- tations and additions set forth in the Direction. In the latter part of September 1942, the Company laid off ap- proximately 300 employees due to a curtailment in its operations. The. Company contends that such employees should be eligible to vote, and all the labor organizations take the position that such per- sons should not be eligible to vote. Although the Company gives preference to its former employees when.it becomes necessary to hire additional help, the record indicates that between 40 and 60 percent of laid-off employees never return to work. Also, as stated above, it is uncertain whether or not any additional employees will be hired this season. Under these circumstances, we find that the group of employees laid off in the latter part of September 1942 should not be eligible to vote in the election. 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the-investigation to ascertain represent- atives for the purposes of collective bargaining with Val Vita Food Products, Inc., Fullerton, 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 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 Reg- ulations, 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 any such employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or train- i 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether they desire to be represented by United Cannery, Agricul- tural, Packing, and Allied Workers of America, Local 2, affiliated with the Congress of Industrial Organizations, or by Local 22637, American Federation of Labor, or by Val Vita Employees Union, for the purposes of collective bargaining, or by none of said organ- izations. ' - MR . GERARD D. REILLY took no part in-the consideration of the above Decision and Direction of Election. 0 In the Matter of VAL VITA FOOD PRODUCTS, INC. AND HUNT BRos. PACKING, COMPANY- and UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED `YORKERS OF AMERICA, LOCAL 2, AFF°ILLITED'-WITH THE C. I. O. Case No. R-4353 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES December 15, 1942 1 On October 22, 1942, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding,' directing that an election be conducted among all cannery and tin can manufacturing employees of Val Vita, Food Products, Inc., herein called Val Vita. On November 3, 1942, upon motion of Val Vita reciting that it had leased its cannery to Hunt Bros. Packing Company, herein called Hunt Bros., the Board ordered the record in the above-entitled pro- ceeding reopened and directed that a further hearing be held. At the same time Val Vita requested that the directed election be indefi- nitely postponed. The Board denied that request. Pursuant to the Direction of Election, an election by secret ballot was conducted on November 4, 1942, under the direction and super- vision of the Regional Director for the Twenty-first Region (Los Angeles, California). On November 6, 1942, the Regional Director, acting pursuant to Article III, Section 10, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Report. As to the balloting and its results, the Regional Director reported as follows : Can Shop Total on eligibility list-------------------------------------- 51 Total ballots cast------------------------------------------- 36 Total ballots challenged------------------------------------- 0 Total blank ballots------------------------------------------ 1 Total void ballots------------------------------------------- 0 1 45 N. L R B 23. 45 N L. R. B., No. 5a. 29 30 DECISIONS OF NATIONAL LABOR RELATION S BOARD Votes cast for United Cannery, Agricultural, Packing and Allied Workers of America, Local 2, affiliated with the C. I. 0------ 29 Votes cast for Local 22637, American Federation of Labor ---- 0 Votes cast for Val Vita Employees Union----------- -------- 1 Votes cast for none----------------------------------------- 5 Cannery Employees Total on eligibility list______________________________________ 582 Total ballots cast___________________________________________ 332 Total ballots challenged_____________________________________ 35 Total blank ballots_________________________________________ 0 Total void ballots------------------------------------------- 2 - Votes cast for United Cannery,- Agricultural, Packing and, Allied Workers of America, Local 2, affiliated with the C. I. O__ 233 Votes cast for Local 22637, American Federation of Labor____ 3 Votes cast for Val Vita Employees Union____________________ 30 Votes cast for none________________________________________ 29 Thereafter the Company filed Objections to the Election. On No- vember 19, 1942, the Regional Director issued a Report on Objections, finding that the objections raise no substantial or material issues. We have considered the objections and the Regional Director's report thereon, and find that the objections raise no substantial or material issues with respect to the conduct of the ballot. The objections are hereby overruled. On November 9, 1942, United Cannery, Agricultural, Packing and Allied Workers of America, Local 2, affiliated with the Congress of Industrial Organizations, herein called the United, moved to amend its petition to include Hunt Bros. as an interested party. On No- vember 10, 1942, the Board granted the motion. On November 18 and 23, 1942, a further hearing was held at Los. Angeles, California, before Guy Farmer, Trial Examiner. Val Vita, Hunt Bros., the United, and American Federation of Labor, herein called A.Y. of L., appeared, participated, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to. introduce evidence bearing on the issues. During the course of the hearing, counsel for Hunt Bros. moved to dismiss the proceeding. The Trial Examiner made no ruling. The motion is hereby denied. During the course.of the hearing, the A. F. of L. moved that a new election be conducted among the employees of Hunt Bros. The Trial Examiner reserved his ruling. The motion is hereby denied. At the close of, the hearing counsel for the C. I. O. moved for a single certifi- cation of the employees of Hunt Bros. and Val Vita. The Trial Examiner reserved his ruling. The motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : VAL. VITA, FOOD- PRODUCTS, INC. 31 SUPPLEMENTAL FINDINGS OF FACT S - Hunt Bros. Packing Company is a Delaware Corporation and op- erates canneries in the States of Washington, Oregon and California. On October 22, 1942, Hunt Bros. entered into a 10-year lease for Val Vita's cannery with an option to purchase. Representatives of Hunt Bros. stated at the hearing that-Hunt Bros. would take possession of the cannery on December 1, 1942, as a going concern, and that all competent cannery employees of Val Vita would be retained as em- ployees of Hunt Bros. - - During the course of the reopened hearing the United requested Hunt Bros. to recognize it as exclusive representative of the cannery employees. Hunt Bros. refused this request. The A. F. of L. contends that a new election should be directed. among the cannery employees of Hunt Bros. on the ground that the prior election did not truly reflect the wishes of the employees. The A. F. of L. appeared on the ballot in the prior election and all em- ployees were afforded an opportunity to vote for it. The request of the A. F. of L. for a new election is hereby denied. Hunt Bros. contends that a new election should be directed inas- much as at the time of the election discussed above, it was not the em- ployer of any of the employees involved herein. However, as stated above, Hunt Bros. stated at the hearing that it would, pursuant to its lease, take over the cannery of Val Vita on December 1, 1942, and would retain all competent employees of Val Vita as its own. We find that the contention of Hunt Bros. in this respect is without merit. In our Decision and Direction of Election we found that all can- nery and tin can shop employees constitute a single appropriate unit. Since Hunt Bros. is now the employer of the employees of the can- nery, while Val Vita remains the employer of those in the tin can shop, we hereby set aside our prior finding-of one unit for these two groups. 'We now find that the employees of the tin can shop and employees in the cannery constitute two separate appropriate bar- gaining units; within the meaning of Section 9 (b) of the Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Sections 9 and 10,- of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that United Cannery, Agricultural, Pack- ing and Allied Workers of America, Local 2, affiliated with the Con- gress of Industrial Organizations, has been designated and selected by a majority of all employees at the Fullerton cannery of Hunt Bros. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Packing Company; Fullerton, California, engaged in handling, proc- essing, packing, can stacking, storage, preparation for shipment of products, and maintenance, excluding warehousemen, supervisory em- ployees with the authority to hire and discharge, assistant foremen with the authority to hire and discharge; office employees and truck drivers, as their representative for the purposes of collective bar- gaining, and that pursuant to Section 9 (a) of the Act, United Cannery, Agricultural, Packing and Allied Workers of America, Local 2, aflili= ated with the Congress of Industrial Organizations, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. IT IS HEREBY CERTIFIED that United Cannery, Agricultural, Packing, and Allied'Workers of America, Local 2, affiliated with the Congress of Industrial Organizations, has been designated and selected by a majority of all tin can manufacturing employees of Val Vita Food Products, Inc., Fullerton, California, excluding warehousemen, super- visory employees with the authority to hire and discharge, assistant foremen with the authority to hire and discharge, office employees and truck drivers, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, United Cannery, Agricultural, Packing and Allied Workers of America, Local 2, affiliated with the Congress of Industrial Organizations, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.