Royal Palm Ice Co.

In the Matter Of ROYAL PALM ICE COMPANY , EMPLOYER and INTER- NATIONAL UNION OF OPERATING ENGINEERS, LOCAL 925, PETITIONER Case No. 10-RC-450.-Decided April 7,1949 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, a 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 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 business of the Employer : The Employer is a Florida corporation engaged in the manufacture and distribution of ice and operates 12 plants all within the State of Florida. Only the Wildwood plant is involved herein. This plant has total yearly sales of more than $250,000, of which 80 percent is derived from the icing of railroad cars and trucks used in the trans- portation of vegetables and fruits. Purchases of supplies for the Wildwood plant amount to approximately $75,000 annually of which $50,000 consists of fuel oil and chemicals produced in other States and purchased from local dealers. We find, contrary to the contention of the Employer, that the Em- ployer is engaged in commerce within the meaning of the National Labor Relations Act.' 2. The labor organization named below claims to represent em- ployees of the Employer.2 •Houston, Reynolds, and Murdock. ' See Matter of Royal Palm Ice Company, 81 N. L. it. B 858, and cases cited therein. 2 The Employer contends that the Petitioner was not shown to be a labor organization and that the Petitioner 's claim to represent the employees of the Employer was not proved at the hearing. We find no merit in these contentions. The constitution of the Petitioner, received in evidence at the hearing, and the testimony of one of Petitioner 's officers shows conclusively that the Petitioner is a labor organization within the meaning of the Act. As to the second, contention , we have often held that the determination of whether a petitioner has made a sufficient showing of interest is solely an administrative matter and not subject to direct or collateral attack at the hearing . See Matter of Mergenthaler Linotype Company, 80 N. L. it. B. 132, and cases cited therein. 82 N. L. R. B., No. 102. 879 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: The Petitioner requests a unit of all employees of the Employer at its Wildwood, Florida, plant, excluding office and clerical employees, professional employees, administrative officials, watchmen, guards, and supervisors as defined in the amended Act. The parties agreed on the inclusion of the car icing foreman. However, as it appears that this employee has the authority effectively to recommend the hir- ing and discharge of personnel, we shall exclude him from the unit. The Employer contends that car icers and ice pullers should be excluded from the unit because their work is of a temporary, seasonal nature. It appears from the record that while the number of these employees varies throughout the year, their job classifications are a permanent part of the Employer's operations. The ice pullers remove ice from the freezing tank and transfer it to storage rooms. The car icers pack cars with ice for refrigeration purposes. They work in company with, and under the same hours, working conditions and pay basis as the other employees. No cogent reason appears for ex- cluding these employees, and we find that the car icers and ice pullers should be included in the unit herein found appropriate. We find that all employees of the Employer at its Wildwood, Florida, plant, excluding office and clerical employees, professional employees, administrative officials, the car icing foreman, watchmen, guards, and supervisors within the meaning of the amended Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The determination of representatives : The Employer's operations are to a great extent dependent upon seasonal variations in the shipping of fruits and vegetables. The number of employees fluctuates between a low of 15 in August and 60 in April and May. Most of the additional personnel hired in this yearly expansion are ice pullers and car icers. The majority of the employees work, with intermittent lay-offs, from September to July. There was no showing herein that the expanded unit consists of tem- porary personnel on short time jobs with little or no expectation of reemployment .3 On the contrary, while some of this labor is migra- tory, it appears that the Employer attempts to encourage permanence particularly in the case of the ice pullers who are often retained in other positions during slack periods. There are presently 53 em- ployees in the unit. We believe, therefore, that an election held at 3 Cf. Matter of Joseph M. Lassonde, 80 N. L. R. B. 1387. ROYAL PALM ICE COMPANY 881 this time would reflect the decision of the majority of the Employer's yearly personnel.4 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purpose 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 Tenth Region, 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 numbered 4, 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 temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated 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 bargain- ing, by International Union of Operating Engineers, Local 925. 4 See Matter of Edgar P. Hurff Company, 77 N. L. R. B. 762 ; Matter of Foster Jewelry Co., 79 N. L. R. B. 1051.