Maui Pineapple Co., Ltd.

In the Matter Of MAUI PINEAPPLE COMPANY, LIMITED and INTER- NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, C. I. O. In the Matter of LIBBY, MGNEILL & LIBBY and PROCESSING, WARE- HOUSE AND-DISTRIBUTION WORKERS UNION, LOCAL 144 (ILWU-CIO) In the -Matter of BALDWIN PACKERS, LIMITED and PROCESSING, WARE- HOUSE AND DISTRIBUTION WORKERS UNION, LOCAL 144 (ILWU-CIO) Cases Nos. 23-R-38, '3-R-50 and 03-R-49, respectively.Decided February 3, 1945 Mr. Ryburn L. Hackler, for the Board. Stanley Vitousek, Pratt, and Winn, by Mr. Montgomery E. Winn, and Mr. James E. Blaisdell, of Honolulu, T. H., for the Companies. Messrs. Frank E. Thompson and Joseph Kaholokula, of Honolulu, T. H., for the Union. Mr. Thomas A. Ricci, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon separate petitions duly filed by International Longshoremen's and Warehousemen's Union, C. I. 0., and Processing, Warehouse and Distribution Workers Union, Local 144 (ILWU-CIO), both herein called the Union,, alleging that questions affecting commerce had arisen concerning the representation of employees of Maui Pineapple Company, Limited, Kahului, Territory of Hawaii, herein called Maui, Libby, McNeill & Libby, Haiku, Territory of Hawaii, herein called Libby, and Baldwin Packers, Limited, Lahaina, Territory of Hawaii, herein called Baldwin, all three companies herein collectively referred to as the Companies, the National Labor Relations Board provided for appropriate hearings upon due notice before Peter F. Ward, Trial Examiner. Hearings at Wailuku, Territory of Hawaii, were held in Case No. 23-R-38 on November 14, 15, 17, and 18, 1944, in Case No. 23-R-50 on November 18 and 20, 1944, and, in Case No. 1 Processing, Warehouse and Distribution Workers Union , Local 144, is an affiliate of, and was chartered by International Longshoremen's and Warehousemen 's Union, C. I. 0., after the date of filing of the petition in Case No 23-R-38. 60 N. L. R. B., No. 79. 628563-45-vol 60-27 401 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 23-R-49 on November 20, 1944. The Companies, the Board, and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. The-Trial Examiner's rulings made at the hearings are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Subsequent to the hearing, the Companies and the attorney for the Board moved to amend the record in each case to include a stipulation regarding the status of the Union asna labor organization; and the parties in Case No: 23-R-49 moved to correct the record in that case in certain respects. Both motions are hereby granted. For the purpose of decision, the three cases are hereby consolidated. Upon the entire record in the cases, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE COMPANIES Maui Pineapple Company, Limited, and Baldwin Packers, Limited, are corporations organized and existing under the laws of the Terri- tory of Hawaii. Libby, McNeill & Libby is a corporation organized under the laws of Maine and is authorized to do business in the Territory of Hawaii. Maui operates a cannery at Kahului, Libby at Kuiaha, and Baldwin at Lahaina, all on the Island of Maui, Territory of Hawaii. Libby also grows pineapples in its own fields on the same island. During the year 1944, each of the Companies processed and canned pineapples at its cannery in the Territory of Hawaii, and shipped substantially all of its canned products to the mainland of the United States. Maui's finished products were valued in excess of $4,000,000, and Libby's and Baldwin's were each valued in excess of $2,000,000. During the same period, each of the Companies pur- chased materials, supplies, and parts for use at its cannery from points on the mainland of the United States and from points within the Territory of Hawaii. Maui's purchases were valued in excess of $1,000,000, and Libby's and Baldwin's purchases were each valued in excess of $500,000. We find that the Companies are engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union, and -Processing, Warehouse and Distribution Workers Union, Local 144, both affiliated with the Congress of Industrial Organizations, are MAUI PINEAPPLE COMPANY, LIMITED 403 labor organizations admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION By letter dated August 17, 1944, the Union requested recognition from Maui as the collective bargaining representative of certain of its employees. By separate letters dated September 29, 1944, the Union made similar demands upon Libby and Baldwin. Each of the Com- panies declined to grant such recognition to the Union on the ground that the unit sought in each instance was inappropriate for collective, bargaining purposes. Statements of a Board agent, introduced into evidence at the hear- ings, indicate that the Union represents it substantial number of em- ployees in,each unit claimed to be appropriate 2 We find that questions affecting commerce have arisen concerning the representation of employees of each of the Companies, within the meaning of Section 9 (c) and Section 2 (6), and (7) of the Act. IV. THE APPROPRIATE UNITS The Companies are engaged in the processing and canning of pine- apples throughout the year. During the peak season,3 usually between June 15 and October 1, of each year, their canneries are operated continuously. Between peak seasons, the canneries operate intermit- tently, or 1 or 2 days weekly, depending upon the amount of fruit available. The Companies' employees fall into three categories: (1). basic employees, who work all year round and never go off the pay rolls; (2) intermittent employees, who work regularly during the- peak season and, also the 1 or 2 days weekly during the remainder of the year when the Companies do off-season canning; and (3) "sea- sonal" employees, for the most part school children, housewives, and' casual laborers, who work only during the peak season. The great majority of employees fall into this last seasonal group. The Union seeks to represent only the basic and certain intermittent employees and the Companies generally agree to the appropriateness- 2 The Field Attorney reported that in Case No. 23 -R-38 the Union submitted 115 appli-- cation for membership cards and that there are 200 employees in the unit alleged to be appropriate in that case. The Field Attorney also reported that in Case No. 23-R-50 the Union submitted 213' application for membership cards and that there are 260 employees in the unit , alleged appropriate in that case. He further reported that in Case No. 23-R-49 the Union submitted 78 application for membership cards and that there are 180 employees in the unit alleged to be appropriate in that case. 3 The peak season is defined by the parties as the 14 -week period designated by each of the Companies under the Fair Labor Standards Act during which overtime need not be paid up to 56 hours per week. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such bargaining units at their respective canneries .' The Com- panies also agree with the Union with respect to certain specific exclusions. There is disagreement, however, between the Union and the Companies with respect to certain categories of employees, all of whom the Companies would exclude from the proposed units for various reasons, but all of whom the Union would include . In Case No. 23-R-38, the dispute centers about : ( 1) Lunas,5 (2) table fore- ladies, (3) watchmen , (4) the storeroom attendant, ( 5) assistant chemists, and (6) the chief cook. In Case No. 23-R-50, the following categories are in dispute :, ( 1) subforemen , (2) table foreladies, (3) watchmen, (4) the general storekeeper , ( 5) the checker, car shipping -depar-tment, ( 6) the clerk and label head, stock warehouse , (7) garage employees, and ( 8) truck drivers on the plantation pay roll. In Case No. 23-R-49, the disputed categories are: (1) foremen, (2) table foreladies, ( 3) watchmen , and (4 ) the chemist. , Disputed categories and the appropriate unit -in Case No. 03-R-38 1. Lunas: Maui contends that Lunas should be excluded as super- visory employees, while the Union maintains that they are merely -gang leaders without authority effectively to recommend changes in the status of employees. Three sets of job descriptions applicable to Lunas, prepared at different times from 1940 to 1 week before the hearing, were submitted in evidence, and they reveal conflicting state- ments regarding the duties performed by the various Lunas. In some descriptions, it appears that they require "ability to work from detailed instructions," "make minor decisions requiring some judg- ment," and have "some latitude in planning sequences of .function where standard methods of procedure are established." In others it appears that a Luna "corrects or reprimands any infraction of operat- ing or safety rules by members of his crew ; if necessary, refers such infraction of the rules to foremen for disciplinary action." The same Luna would appear to have authority to recommend hiring in one description and in another to have no such authority. Again, one description says the duties of Lunas require sustained physical effort and another says they require only slight physical effort. The record discloses that Lunas perform duties analogous to those of set-up men or gang leaders during the peak season and on inter- The parties agree that the intermittent employees to be included in the units are those who work regularly throughout the peak season and during three -fourths of the canning days between peak seasons e "Luna" is a Hawaiian word meaning overseer or foreman In this category are in- cluded, more specifically, the following Lunas' crush and juice filler Luna , crushed loft Luna, byproducts Luna, cook room Luna , can room Luna , can stacking Luna, tray boy Luna, fibre case Luna , cooling room Luna , label room Luna, warehouse shipping clerk Luna, clean-up Luna , cook room forelady Luna , tray off Luna, label line Luna, fruit receiving Luna, and assistant can stacking Luna. MAUI PINEAPPLE COMPANY, LIMITED ,405 mittent canning days during the-off season. At other times, they do maintenance and repair work, the Company retaining them as expe- rienced men needed during the peak season. Foremen attend, super- visory meetings while Lunas do not. Moreover, foremen are paid strictly on a salary basis while some Lunas are paid by the hour, and, as to others, as the Company's plant superintendent testified, "instead of saying that somebody gets $1. an hour, he gets $40. a week, and he gets a little special vacation privilege." All Lunas are paid overtime on an hourly basis. In view of the above facts and upon the entire record, we are of the opinion that Lunas are not supervisory employ- ees within the meaning of our customary definition, and we shall include them in the unit. 2. Table foreladies: Maui urges the exclusion of table foreladies as supervisory employees, and the Union would include them. The evidence reveals that they exercise much greater authority than Lunas. At the start of each peak season, they recruit seasonal em- ployees by letter, visits to their homes, and interviews at the cannery. They make daily reports for their crew workers, marking their rec- ords for ability, speed, and attitude. They instruct and teach others to become instructors. Unlike Lunas, table foreladies are given written instructions on "How to be a Good Foreman," and receive literature on "Foremanship." Under the circumstances, we are of the opinion that table foreladies are supervisory employees, and we shall, therefore, exclude them from the unit. 3. Watchmen: Maui contends that watchmen are part of manage- ment. They perform the usual duties of watchmen, simply looking after the safekeeping of the Company's property. They are not uniformed, armed, deputized, or militarized. We shall include watchmen. 4. Storeroom attendant: Maui would exclude the storeroom at- tendant as a clerical employee, but the Union contends that he is, in fact, a maintenance and repair employee. He works in the tool and materials storeroom where he dispenses materials and machine parts for use in ordinary cannery operations as well as maintenance work. He is listed as an employee in the maintenance and repair department and is supervised by the master mechanic who, in turn, works under the chief engineer. While he does keep storeroom records, his duties are primarily related to maintenance operations, and we shall, therefore, 'include him in the unit. 5. Assistant chemists: Maui claims that these are professional em- ployees and should, therefore be excluded. The assistant chemists are university graduates, in chemistry and they are engaged in research work in the chemical laboratory.' They work under the chief chemist. We are of the opinion that they are professional employees and shall exclude them from the unit. 406 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD 6. The chief cook: Maui urges that he be excluded as a super-- visory employee. The record discloses that he has charge of the -cafeteria and supervises from 2 to 12 employees, depending upon the season. There is uncontradicted testimony that he has the power to hire employees for the cafeteria. We shall exclude him from the unit. We find that all Maui's basic employees and intermittent employees working regularly throughout the peak season and during three- fourths of the canning days between peak seasons, who are engaged at its Kahului, Territory of Hawaii, cannery, including Lunas, watch- men, and the storeroom attendant, but excluding table foreladies, assistant chemists, the chief cook, all employees listed in Schedule A attached hereto, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Disputed categories and the appropriate unit in Case No. 03-R-50 1. Sub f oremen: 6 Libby and the Union make the same contentions regarding subforemen that Maui and the Union made regarding Lunas. The parties stipulated that subforemen have and exercise the same authority as the Lunas employed by Maui. In view of that stipulation, we find that subforemen are not supervisory employees within the meaning of our customary definition, and we shall, therefore, include them in the unit. 2. Table foreladies: Libby and the Union make the same conten- tions regarding table foreladies that Maui and the Union made re- garding Maui's table foreladies. The parties also agreed that these table foreladies have and exercise the salve authority as table fore- ladies employed by Maui. In view of that stipulation, we find that table foreladies are supervisory employees, and we shall, therefore, exclude them from the unit. 3. Watchmen: 7 The parties agreed that these employees have the same duties, authority, and responsibilities as the watchmen em- ployed by Maui. Libby urges their exclusion, and the Union would. include them. Having found that Maui's watchmen are not part of management, we shall include the watchmen employed by Libby. 4. General storekeeper: The parties stipulated that if witnesses were called they would testify that the duties of this employee are roughly the same as those of the storeroom attendant employed by Maui. For the reasons stated regarding the inclusion of the store- More specifically , the receiving, canning, and label machine subforemen. ' Included in this category is a wharf watchman. MAUI PINEAPPLE COMPANY, LIMITED 407 room attendant employed by Maui , we shall include the general storekeeper in the unit found appropriate in this case. 5. Checker, car shipping department : Libby urges the exclusion of the checker as a clerical employee, and the Union contends that he is a production worker. He counts out goods for shipping , directs case truckers to various freight cars, checks incoming and outgoing freight, and makes records of shipments generally . While his duties include a certain amount of clerical work, he is generally subject to indoor cannery conditions . We are of the opinion that the checker works more closely with production than with clerical employees, and we shall, therefore, include him in the unit. 6. Clerk and label head , stock warehouse : Libby urges her exclusion as a clerical employee , and the Union contends that her duties are related to production . Her work consists of checking receiving and shipping reports, making inventory records of labels on hand, and performing other clerical duties related to the warehouse office. It was stipulated by the parties that, if called, the Libby superintendent would testify that this clerk devotes 80 percent of her time to doing' purely clerical work. We are of the opinion that this clerk is essentially a clerical employee and we shall exclude her., 7. Garage employees : Libby maintains a garage near its cannery in which are employed : ( 1) mechanics , who repair and maintain agricultural machinery and trucks ; (2) helpers, who service equip- ment, repair tires, and clean the garage; and (3) blacksmiths, who repair plantation trucks and tractors . These employees use a metal saw, an electric hack saw, a forge, and air lubricator , and gas welding equipment. When necessary, cannery trucks are also serviced and repaired by these employees . Libby contends that since these em- ployees work on tractors and trucks that are - used in agricultural pursuits, they are agricultural laborers . _ The Union maintains that they are mechanical craftsmen and therefore subject to the jurisdic- tion of the Board. It is clear that the essential character of the work performed by tractor mechanics and blacksmiths , and their helpers, is not agricultural in character . For this • reason, we shall include the garage employees. 8. Truck drivers on the plantation pay roll : Libby contends that these drivers are agricultural workers and , therefore , not subject to the jurisdiction of the Board. The Union urges that they be in- cluded in the unit. Four of the drivers devote almost all of their time to spraying the fields. The plantation superintendent testified that the remaining 10 are assigned various duties , depending upon seasonal requirements. Among these duties are hoeing, picking, and spraying on the plantation fields; and trucking and operations inci- 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dental thereto s While engaged in hoeing, picking, and spraying, truck drivers are clearly agricultural workers, within the meaning of Section 2 (3) of the Act. However, while engaged in trucking and operations incidental thereto, functions which are essentially of a non-agricultural nature, they are "employees" within the meaning of the Act and are therefore entitled to its benefits. Accordingly, we shall include within the appropriate unit all those truck drivers who divide their time between agricultural and non-agricultural employ- ment, and the Union, if successful, is authorized to bargain for such employees with respect to that part of their activities which is not agricultural in character." We find that all Libby's basic employees and intermittent employees working regularly throughout the peak season and during three- fourths of the canning days between peak seasons, who are engaged at its Haiku, Territory of Hawaii, cannery, including subforemen, watchmen, the general storekeeper, the checker in the car shipping department, garage employees, truck drivers on the cannery pay roll, and truck drivers who divide their time between agricultural and non-agricultural employment, but excluding table foreladies, the clerk and label head in the stock warehouse, all employees listed in Sched- ule B attached hereto, and all other' supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Disputed categories and the appropriate unit in Case No. 03-R-49 1. Foremen: 10 Baldwin urges the exclusion of these foremen as supervisory employees, and the Union would include them. The par- ties stipulated that they have and exercise the same authority as the disputed Lunas employed by Maui. Accordingly, for the reasons stated concerning the inclusion of Lunas employed by Maui, we shall include these foremen. 2. Table foreladies: Baldwin contends that table foreladies should be excluded as supervisory employees, and the Union would include them. The parties also stipulated that table foreladies have and exercise the same authority as the table foreladies employed by Maui. Accordingly, we shall exclude Baldwin's table foreladies. - 9 These 10 drivers , in addition to other trucking and incidental operations ,,devote about 50 percent of their total time loading on trucks boxed pineapples that have already been carried to the edges of the fields and trucking the load to the cannery platform. See Matter of Newday Seeds, Inc , 55 N. L. R. B. 1049. 10More specifically , the syrup , empty cans , crush, can tester, clean -up, cooling room,, and assistant warehouse foremen. MAUI PINEAPPLE COMPANY, LIMITED 409 3. Watchmen,: The parties stipulated that watchmen have the samo duties, authority, and responsibilities as the watchmen employed by Maui. Accordingly, we shall include Baldwin's watchmen. 4. The chemist: This is one of the assistant chemists presently em- ployed by Maui on a temporary assignment. The parties stipulated that while employed by Baldwin he performs the same duties presently carried out for Maui. Accordingly, we shall exclude the chemist. We find that all Baldwin's basic employees and intermittent em- ployees working regularly throughout the peak season and during three-fourths of the canning days between peak seasons, who are engaged at its Lahaina, Territory of Hawaii, cannery, including the syrup, empty can, crush, can tester, clean-up, cooling room, and assist- ant warehouse foremen, and watchmen, but excluding table foreladies, the chemist, all employees listed in Schedule C attached hereto, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which have arisen be resolved by separate elections by secret ballot among the employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. As indicated in Section IV, above, some of Libby's employees divide their time between agricultural and non-agricultural pursuits. While, 'as previously indicated, all such employees may be represented by the Union, if*Successful, in respect to that part*of their employment which is not agricultural, only those who spend 50 percent or more of their time in such non-agricultural employment have a sufficiently substantial interest in the terms and conditions of employment to entitle them to vote in the election. - Accordingly, only those employees who during the past year or so much thereof as they have been in Libby's employ, have spent at least 50 percent of their time at non- agricultural employment within the unit found appropriate in Case No. 23-R-50, shall be eligible to vote in the election to select a bargain- ing representative for that unit. The'record in the Maui case discloses that for a number of months Tsugio Yamaguchi, canning room Luna, and Isauri Oyama, tray boy Luna, have been acting foremen; exercising undisputed supervisory 410 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority. If at the time of the election they are still engaged as acting foremen, they shall be ineligible to vote; if they shall have reverted to Lunas, they shall be eligible to vote n DIRECTION OF ELECTIONS 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 9 of National Labor Relations 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 Maui Pineapple Company, Limited, Kahului, Libby, McNeill & Libby, Haiku,-and Baldwin Packers, Limited, Lahaina, all of the Territory of Hawaiij separate elections by secret ballot shall be conducted as early as pos- sible, but not later than sixty (60) days from the date of this Direc- tion, under the direction and supervision of the Regional Director for the Twenty-third Region, acting in this matter as agent for the Na- tional .Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees of each of the Companies in the units 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 that period because they were ill or on vacation , or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections , to deter- mine whether or not they desire to be represented by Processing, Ware- house and Distribution Workers Union, Local 144 . (ILWU-CIO), for the purposes of collective bargaining. SCHEDULE A 1. Manager 2. Assistant manager 3. Superintendent 4. Chief engineer 5. Chief chemist 6. Warehouse foreman 7. Assistant warehouse foreman 8. Head forelady 9. Assistant head foreladies 10. Cook room foreman 11. Platform foreman 12. Byproducts foreman 13. Preparation foreman . 14. Chief clerk " The Union 's request to appear on the ballot in each of the elections as Processing, Warehouse and Distribution Workers Union , Local 144 (ILWU-CIO), is hereby granted. MAUI PINEAPPLE COMPANY, LIMITED 15. Chief electrician 16. Master mechanic 17. Assistant master mechanic 18. Head bookkeeper 19. Shipping clerk 20. Statistical clerk 21. Employment clerk 22. Office clerks 23. Assistant shipping and utility clerk 24. Credit union and registration clerk 411 25. Preparation and canning de- partment clerk 26. Warehouse label clerk 27. Warehouse stenographic clerk, 28. Junior stenographer 29. Warehouse statistical clerk 30. Draftsman 31. Junior draftsman 32. Superintendent's secretary 33. Nurse 34. Warehouse chief clerk SCHEDULE B 1. Superintendent 2. Maintenance department fore- man 3. Receiving department fore- man 4. Canning and preparation de- partment foreman 5. Cooking and cooling room foreman 6. Empty can department' fore- man 7. Warehouse foreman 8. Wharf foreman 9. Juice and syrup assistant fore- man 10. Head forelady 11. Warehouse clerks 12. Chief clerk 13. Stenographer clerk 14. Office clerk 15. Posting clerk 16. Office cannery clerk 17. Cost control checkers 1-8. Shipping clerks 19. Nurse SCHEDULE C 1. Superintendent 2. Chief engineer 3. Master mechanic and drafts- man 4. Warehouse foreman 5. Cook room foreman 6. Platform foreman 7. Juice foreman 8. Preparation foreman 9. Head foreladies 10. Nurse 11. Office manager 12. Cashier 13. Head timekeeper 14. Assistant timekeeper 15. Chief clerk 16. Assistant chief clerk 17. Stenographers 18. Purchasing agent 19. Shipping and label clerk 20. Personnel man