Texsun Citrus Exchange

In the Matter of TEXSUN CITRUS EXCHANGE, EMPLOYER and CITRUS, CANNERY WORKERS AND FOOD PROCESSORS UNION #24473, A. F. OF L., PETITIONER Case No. 39-RC-30.-Decided Marcia 30, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held in this case on Febru- ary 8, 1949, before a hearing officer of the National Labor Relations Board. 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel.* Upon the entire record in this case, the Board finds : 1. The Employer is a non-profit corporation organized under the Co-Operative Marketing Act of the State of Texas. Its plant and principal place of business is at Weslaco, Texas. The Employer con- tends that it is not subject to the Board's jurisdiction on the ground that it is a non-profit co-operative and that it never acquires title to any of the fruit it processes. The Employer consists of nine member Associations, each of which in turn is composed of several hundred individual growers of citrus fruits. The Employer has a contract with each member Association under the terms of which the Employer agrees to sell, market, and proc- ess all fruit controlled by the Associations. Fresh fruit is packed and shipped by the Associations in accordance with instructions given by the Employer's sales department. Fruit that is not marketable as whole fruit is sent to the Employer's plant at Weslaco where juice is extracted and canned; the residue of the fruit is used in the making of cattle feed. Most sales are negotiated by brokers located through- out this country and abroad. In addition, the Employer maintains four selling offices of its own in various parts of the country. At the *Reynolds, Murdock, and Gray. 82 N. L. R. B, No. 66. 540 TEXSUN CITRUS EXCHANGE 541 end of each season, the Employer divides the net proceeds of the season's operations among the member Associations in proportion to the amount of fruit contributed. Title to the fruit itself never passes to the Employer. The raw materials needed by the Employer in its canning and feed operations are all purchased in Texas . However, from such canning operations the Employer markets annually fruit juice having a value in excess of $4,000,000, of which approximately 80 percent is shipped to points outside texas. Moreover, the Employer sells annually as a byproduct cattle feed valued in excess of $500,000 of which between 15 percent and 20 percent is shipped to points outside the State of Texas. The non-profit character of the Employer's business is no deterrent to our assumption of jurisdiction.- Furthermore, it has been clearly established that an employer is not required, for jurisdictional pur- poses, to have title to goods which enter the stream of interstate com- merce; the processing of such goods is sufficient to bring the employer within the Board's jurisdiction 2 We find, contrary to the Employer's contention, that it is engaged in commerce within the meaning of the Act.' 2. The Petitioner is a labor organization which claims to represent employees of the Employer. 3. A question of representation exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All employees in the Products Division of the Texsun Citrus Exchange, Weslaco, Texas, excluding clerical employees, weighers, checkers, guards,4 and supervisors within the meaning of the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Employer's business is seasonal in nature, extending from October to June. There are about 25 year-round employees, but when peak employment is reached the number of employees is about 275. Most of the seasonal employees return to their work with the Employer season after season. The Employer points out in its brief, filed on March 7, 1949, that unusual weather conditions have resulted in a reduction of force to i Matter of Illinois Institute of Technology, etc, 81 N. L R B 201. 2N. L R B. v. Bradford Dyeing Association, et al, 310 U. S. 318 (1940). 8 Matter of Azusa Citrus Association, 65 N L. It. B. 1136; North 'Whittier Heights Citrus Association v. N. L, R B , 109 F. (2d) 76 (C. C. A. 9, 1940), cert. den. 310 U. S. 632. 4 One employee works part of the time as a watchman and the rest of the time as a janitor. Since this employee spends considerably more than 50 percent of his time doing janitorial work, we shall not exclude him from the unit as a guard . Matter of Steelweld Equipment Company, Inc., 76 N. L. It. B. 831. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 50 at the present time, and that shortly there will only be 25 employees in the Products Division. We believe that, customarily, an election in seasonal industries should be held at or near the peak of employment in order that the franchise be made available to the employees most interested in the selection of a bargaining represent- ative.5 If the Regional Director finds the facts alleged above to be substantially true, and that a representative number of employees are not now employed, he may properly defer the election until at or about the peak of employment in the next season. We shall, there- fore, direct that the election be held on a date to be determined by the Regional Director among the employees in the appropriate unit who are employed during the pay-roll period immediately preceding the date of issuance of the Notice of Election. DIRECTION OF ELECTION 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 on a date to be selected by the Regional Director for the Sixteenth Region subject to the instructions set forth in paragraph 5, above, under the direction and supervision of said Regional Director, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph 4, above, who were employed during the pay-roll period immediately preceding the date of issuance of the Notice of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but ex- cluding 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 repre- sented, for purposes of collective bargaining, by Citrus, Cannery Workers and Food Processors Union #24473, A. F. of L. 5 Matter of Edgar F. HurJ Company , 77 N. L. R. B. 762.