S. Martinelli & Co.

In the Matter of S. MARTINELLI & Co. and CANNERY WAREHOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL UNION No. 679 Case No. 20-RC-373.-Decided January 28, 1919 I DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial er4or and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labof Relations Act, the Board has delegated its powers in connection witl3 this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in the case, the Board makes the following': FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER S. Martinelli & Co. is a partnership which operates a plant iIi Watsonville, California, and a vineyard in Santa Cruz, California: This proceeding is concerned only with the Employer's operations ill Watsonville where it is engaged in the business' of producing and bottling apple cider, grape juice, coca-cola, and other soft drinks. ' Id addition, it serves as the local distributor of Acme beer. During the fiscal year ending February 28, 1948, the Employer purchased $505,600.45 worth of supplies for its Watsonville operations of which $2,026.00 were obtained from points outside the State of California. During the same period, the Employer's sales at the Watsonville ^lanL amounted to $885,904.20, of which $98,232.90 represents sales to pur- chasers outside the State of California. ` ' We find, contrary to its contention, that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. *Houston , Reynolds , and Murdock 81 N. L. R. B., No. 65. 383 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. 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. IV. THE APPROPRIATE UNIT The parties generally agree that the appropriate unit should be composed of all the Employer's production and maintenance em- ployees, including the route supervisor and the warehouseman, but excluding office workers and the plant superintendent. They further agree that truck drivers, as such, should be excluded, but since the Employer's truck drivers devote a portion of their time to production work, they would have the Board decide whether these employees should be included insofar as they are production workers. The par- ties would also have the Board determine whether the coca-cola bottlers should be included. There has been a bargaining history at the Employer's plant dating back to 1935. In that year, the Employer and Local 287, Interna- tional Brotherhood of Teamsters of Santa Cruz and Monterey Coun- ties, herein called Local 287, entered into a bargaining agreement which covered the Employer's truck drivers. By its terms, this contract was to remain in force until January 1, 1936, and thereafter until either party notified the other of a desire to change its provisions. At various times during the ensuing years, the parties orally amended the con- tract, by, inter alia, increasing the wage rates of truck drivers and expanding the contract's coverage to include a few other employees of the Employer who had joined Local 287. Although the employees in the contract unit were represented by Local 287 until January 1947 no written agreements were executed after the 1935 agreement. In January 1947, Local 296 of the International Brotherhood of Team- sters, herein called Local 296, succeeded Local 287 and from that time until the date of the hearing, it has acted as the bargaining rep- resentative of the afore-mentioned employees, negotiating oral agree- S. MARTINELLI & CO. 385 ments only with the Employer.' A representative of Local 296 ap- peared at the hearing and stated that the only employees of the Em- ployer whom Local 296 desired to represent were the truck drivers. He apparently withdrew from the hearing when the Petitioner and the Employer agreed to exclude truck drivers from the proposed bar- gaining unit. The truck drivers: There are three truck drivers in the Employer's employ whose principal functions are to drive trucks and deliver the Employer's products to customers. During the seasons when deliv- eries are slack, the truck drivers complete their assignments early in the afternoon and spend the balance of their time in the plant per- forming production operations. They also do production work after their regular hours during the plant's busy season. Since these em- ployees are primarily employed as truck drivers and they spend the major portion of their time performing the duties required of such employees, we shall exclude them. The special delivery driver: This employee divides his time be- tween delivering special orders for the Employer and performing production work. As more than 50 percent of his time is devoted to plant work, we regard him as a production worker and shall include him. The coca-cola bottlers: These employees, as their title indicates, bottle coca-cola. Like the bottlers in the cider and grape juice opera- tions with whom they are frequently interchanged, they are unskilled workers. We are of the opinion that the interests of the coca-cola bottlers are closely allied to those of the other production workers and, therefore, we shall include them. We find that all the production and maintenance employees em- ployed at the Employer's Watsonville, California, plant, including the route supervisor,' the warehouseman, the special delivery driver, and the coca-cola bottlers, but excluding the truck drivers, office workers, the plant superintendent, and all supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The record shows that the Employer maintains a force of approxi- mately 20 production and maintenance employees on a year-round ' No claim is made , as indeed it cannot be made, that there is an outstanding agreement between the Employer and Local 296 which constitutes a bar to this proceeding. 2 Despite his title , this employee exercises no supervisory authority . He sets up displays and signs advertising the Employer' s products for customers and devotes the balance of his time to production work. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis. During its production season which begins about the first of September and lasts for from 4 to 6 months, the employee comple- ment is increased by approximately 60 employees. It does not appear that the Employer makes any distinction between the year-round and seasonal employees, either in the work they perform or the records it keeps. At the beginning of each season, the Employer notifies the seasonal workers when to return to work and a large proportion of them return to the plant year after year. The Petitioner and the Employer agree that the seasonal employees have a sufficient com- munity of interest with the other employees to be eligible to vote in the election. Accordingly, and on the basis of the entire record, we shall permit seasonal employees to vote in the election hereinafter directed.3 At the time of the hearing the Employer was having its busy season and there was a full complement of employees at the plant. Under these circumstances, we find that an election in the immediate future is appropriate. DIRECTION OF ELECTION 4 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, and to our determination in Section V, supra, 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 of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or tem- porarily laid off, 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, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bar- gaining, by Cannery Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 679. 3 Matter of American Agricultural Chemical Company , 73 N. L. R. B. 105. 4 [See Order Amending Direction of Election , page 1179 , infra.]