W. & W. Fruit Co.

In the Matter of BILL LEVERMAN, K. C. BOYSEM, AND SAWNIE B. S-111TH, COPARTNERS D/B/A W. & W. FRUIT COMPANY and TEXAS FRUIT & VEGETABLE WORKERS UNION, LOCAL 35, AFFILIATED WITH: FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORKERS OF AMERICA, C. 1. 0. Case No. 16-R-1135.-Decided January 19, 1945 Strickland, Ewers, and Wilkins, by Mr. Scott Toothaker, of Mis- sion, Tex., and Mr. Austin E. Anson, of Harlingen , Tex., for the- Company. Mr. Otis G. Nation, of Mercedes, Tex., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Texas Fruit & Vegetable Workers. Union, Local 35, affiliated with Food, Tobacco, Agricultural and, Allied Workers of Ameria, C. I. 0., herein called the Union,' alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Bill Leverman, K. C. Boysem, and Sawnie B. Smith, copartners d/b/a W. & W. Fruit Company, Edinburg, Texas, herein called the Company, the National Labor Relations Board provided ` for an appropriate hearing upon due notice before John H. Garver, Trial Examiner. Said hearing ' was held at Edin- burg, Texas, on December 18, 1944. The Company and the Union ap- peared, participated, 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. At the hearing the Company made motions that the petition be dismissed. I At the time the petition was Sled the Union was affiliated with United Cannery, Agricultural, Packing and , Allied Workers of America. However, several weeks prior to the hearing in the instant proceeding, the latter changed its name in convention to Food, Tobacco, Agricultural'and Allied Workers of America. - 60 N. L. R. B , No. 31. 164 W. & W. FRUIT COMPANY 165 The Trial Examiner reserved rulings on those motions for the Board. The motions are hereby denied. All parties were afforded opportunity ,to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Bill Leverman, K. C. Boysem, and Sawnie B. Smith are engaged at Edinburg, Texas, in packing citrus fruits. They use raw materials valued in excess of $20,000 annually. From October 9, 1944, to-the ,date of the hearing, the Company packed and shipped citrus fruit -valued in excess of $60,000 all of which was shipped to points outside the State of Texas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act 2 - II. THE ORGANIZATION INVOLVED Texas Fruit & Vegetable Workers Union, Local 35, affiliated with Food, Tobacco, Agricultural and Allied Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On Noveniber 14, 1944, the Union requested the Company to grant it recognition as the exclusive collective bargaining representative of certain of the Company's employees. The Company refused this re- quest until such time as the Union is certified by the Board.3 2 The Company asserts that the Board is without jurisdiction because the employees of the Company fall within the definition of the term "agricultural laborer" in Section 2 (3) of the Act . We find no merit in this contention. See e . g. North Whittier Heights Citrus Ass'n v. N. L. R. B., 109 F. ( 2d) 76 ( C. C. A. 9 ), cert. den 310 U. S. 632. 'The Company contends in its brief that it is not the., proper„ representative for collec- tive bargaining with the Union, but that Texas Citrus and Vegetable Growers and Ship- pers Association , herein called the Association , of which it is a member , is. This issue as not raised at the hearing . In support of its contention the Company points out in its brief that the Association is its representative in various matters, including the right to represent it in all natters of national and state legislation before all boards, bureaus, and committees ; to handle all matters for regulating wages and hours, labor , freight rates, etc . ; and that wage increase applications have heretofore been filed with the National War Labor Board by the Association as the result of which wages of employees of the Company were raised. The Company as the employer has the primary obligation of bargaining with the representative of its employees, and although it might properly designate the Associa- tion to fulfill such obligation , the Company 's request that the Association be so certified is clearly not properly before the Board ; it is the function of the Board to certify the bargaining representative of the employees and not that of the employer. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of the Trial Examiner, read into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found to be appropriate 4 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 urges that all car loaders, packers, graders, labelers, lidders, general floor helpers, the watchman, the mechanic, and box contractor and helpers at the Edinburg packing plant of the Com- pany, excluding office and supervisory employees, constitute an appropriate unit. The only controversy with respect to the unit con- cerns the watchman, the mechanic, and box .contractor and helpers. The Company would exclude all such persons from the unit. The mechanic is an all around "handy" man. He repairs the pack- ing machinery used by the employees admittedly in the unit and, on occasion, assists the regular packing employees with their work. The record discloses that he has no supervisory authority. We shall include him in the unit. The Company has an oral arrangement with a box contractor whereby the latter undertakes to make the boxes that are needed for the Company's packing operations for a stipulated amount. The work is performed inside the packing plant and equipment and mate- rial are supplied by the Company. In the event the contractor re- quires additional help, he hires and pays them. The contractor and his helpers are neither carried on the Company's pay roll nor cov- ered by the Company's workmen's compensation insurance and other employee benefits. We find that the box contractor and his helpers are not employees of the Company, but are an independent con- tractor and his employees. Accordingly, we shall exclude them from the unit. The Coinpany employs one watchman whom the Union would in- clude in the unit. The watchman is not armed, uniformed, or depu- tized and performs duties normally performed by watchmen. We shall include him in the unit. We find that all employees of the Company, including the watch- man and the mechanic, but excluding clerical employees, box con- tractor and helpers, foremen, and any other supervisory employees. with authority to hire, promote, discharge, discipline, or otherwise 4 The Trial Examiner reported that the Union presented 10 authorization cards bearing the names of persons who worked during one or more of the pay -roll periods ending Novem- ber 16, November 23, November 30, and December 7, 1944. The Company employed am average of 26 employees during each of these pay -roll periods. W. & W. FRUIT COMPANY 167- effect changes- in the status of employees, or effectively recommend- such action, constitute a unit appropriate for the purposes of collec- tive 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. 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 Relations. Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Bill Leverman,_ K. C. Boysem, and Sawnie B. Smith, copartners d/b/a W. & W. Fruit Company, Edinburg, Texas, an election by secret ballot shall be con- ducted 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 Sixteenth 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- said pay-roll period because they were ill or on vacation or tempo- rarily laid off, and including employees in the armed forces of the United States cello present themselves in person at the polls, but excluding those employees who have since quit or been discharged 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 Texas Fruit & Vegetable Workers Union, Local 35, affiliated with Food, Tobacco, Agricultural and Allied Workers of America, C. I. O., for the purposes of collective bargaining. 11