Tree Fruits Labor Relations Committee, Inc.

In the Matter of TREE FRUrrs LABOR RELATIONS COMMITTEE, INC., EMPLOYER and FRUIT AND VEGETABLE PACKERS AND WAREHOUSE- MEN'S UNION , LOCAL No. 760, I. B. OF T. C. W. & H. OF AMERICA, AFL, PETITIONER Case No. 19-UA 1005.Decided April 25, 1949 DECISION AND CERTIFICATION OF RESULTS Upon a petition duly filed pursuant to Section 9 (e) (1) of the National Labor Relations Act, a union-security election was conducted during the period from November 3 to December 1, 1948, both dates inclusive, by the Regional Director for the Nineteenth Region, among the employees at the Employer's plants and warehouses located in Yakima, Kittitas, and Benton Counties, Washington, in accordance -with Section 203.67 of the Board's Rules and Regulations, Series 5, as amended. Upon the conclusion of the election, the parties were furnished with a Tally of Ballots, which showed that there were 1,238 eligible voters, and that 669 votes were cast in favor of and 464 were opposed to the proposition; 1 there were 8 void and 28 challenged ballots. On December 4, 1948, the Employer filed objections to the conduct of the election. On December 29, 1948, after due investigation, the Regional Director issued and duly served upon the parties his Report and Recommendations on Objections, in which he recommended that the Employer's objections be overruled. The Employer filed timely Exceptions to the Regional Director's Report and Recommendations on Objections. On February 1, 1949, the Board 2 ordered this proceeding remanded to the Regional Director, for the purpose of conducting further in- vestigation with respect to the Employer's Objections. On March 3, 1 "Do you wish to authorize the union which is your present collective bargaining repre- sentative to enter into an agreement with your employer which requires membership in such union as a condition of continued employment?" 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Mem- bers Houston and Gray]. 83 N. L. R. B., No. 9. 93 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1949, after appropriate investigation, the Regional Director issued and duly served upon the parties his Supplemental Report and Recom- mendations on Objections, in which he again recommended that the Employer's objections be overruled. The Employer filed timely Ex- ceptions to the Regional Director's Supplemental Report and Recom- -mendations on Objections. The Employer is, an- association composed of 30 members engaged in packing, storing, and shipping fresh fruits and vegetables. The election was conducted in an association-wide unit. In its Objections; -the Employer. asserts, that certain employees of one of its members, Mojonnier & Sons, Inc. (Sunnyside Branch-only), herein called Mojonnier,3 who should have been included among the employees eligible to vote, were improperly disenfranchised by reason of the eligibility date established by the Regional Director's Direction of Election, that the number of such disenfranchised employees was larger than the majority in favor of the proposition, as reflected on the Tally of Ballots, and that consequently the votes in favor of the proposition did not represent, a majority of the employees eligible to vote in the election 4 ' ._ ' The operations of Mojonnier and the other members of the Em- ployer are seasonal in nature. Mojonnier's peak employment in 1948 occurred in March and April, with a secondary peak in June and July. Peak•employment for other members varied; for some it occurred in March or April, for others in June, July, or August, and for still others in September and October. ; ,The period of peak employment for the unit as a whole is not stated.5 The election was conducted during the period from November 3 to December 1, 1948. On the basis of the Regional Director's Direction .of Election, those eligible :to vote were those employees in the unit "who worked 30 days in 1947 and are now employed, plus all new employees who have worked 30 days during 1948, and are now em- ployed, and who worked during the pay-roll period ending October 8 In Its Exceptions, the employer also asserts that employees of 8 other of its members were similarly disenfranchised , and that the total of disenfranchised employees exceeded -600. As our decision with respect to the alleged disenfranchisement of Mojonnier's em- ployees disposes of the questions raised with respect to the employees of its other members =similarly situated, we find it unnecessary to consider whether the Exceptions with respect to such other employees, which were not included in the Employer's Objections, were timely. 4 Section 8 (a) (3) of the Act provides in part : "Provided, that nothing in this Act . shall preclude an employer from making an agreement with a labor organization . . . to 'iequlre as a condition of employment membership therein . . . (ii) if, following the most recent election held as provided in Section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote ' in such election have voted to authorize 'such labor organization to make such an agreement." No'contention,' by way of objection' or exception, has been, made that the election was not held at a time when employment in the association unit, considered as a whole, was at or near its peak. - TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 95 23, 1948 . ." On this basis, 15 employees of Mojonnier° were' declared eligible to vote, although 114 had worked more than 30 days, during 1948 and 126 had worked more than 30 days in 1947 7 In its Objections and Exceptions the Employer in substance makes- two alternative contentions with respect to the conduct of a union authorization election in a multi-employer unit in a seasonal industry:- (1) that no single eligibility pay roll may appropriately be used, but rather that all employees in the unit who have worked the requisite number of days must be permitted to vote; or (2) that a separate eligibility pay roll must be established for each member of the associa tion, so that the election will be conducted, with respect to each such member, at its individual peak employment season. For the reasons stated hereinafter, we disagree. In conventional representation cases involving seasonal industries, the Board has, both before and since the amended Act, directed that elections be held and approved prehearing elections which had been held prior to the amended Act, at or near the seasonal employment peak.8 In cases involving a single employer whose operations, with respect to the unit, involve more than one seasonal peak, the Board has directed that the election be held at or near one of the seasonal peaks .9 The practice of directing elections at or near seasonal peaks has prevailed, not only in cases involving a single-employer unit, but also in cases involving, as here, a multi-employer unit 10 In all such cases the Board, in its Directions of, Elections, has provided that eligibility to vote in the election thus directed shall be governed, at 6 The Regional Director found that 4 employees who, on this basis , were eligible to vote in the election were not included in the number of eligible voters, as reflected in the Tally of Ballots. On the basis of the eligibility requirements of the Direction of Election, the, Tally accordingly should have reflected, and is hereby revised to reflect 669 votes cast in favor of the proposition out of a total of 1,242 eligible voters. This error, is therefore, insufficient to affect the results of the election. 4 The extent of duplication , if any, in such employment figures is not given . In view of our decision , however, we do not consider material the number of employees who might have been eligible to vote under one or the other of the Employer' s theories. 9 See Matter of Dover Shoe Mfg. Co., 80 N. L R B. 139; Matter of Greenville Cotton Oil Company, 78 N. L. R. B. 1175; Matter of California Almond Growers Exchange, 73 N. L. R. B. 1367, 1373. See also , Matter of Carl and Joe Theiler, Inc, 73 N. L. R. B., 1175, 1177, and Matter of San Fernando Heights Lemon Association, 72 N. L. R. B. 372, 375, in which the Board set aside prehearing elections, and directed new elections , in cases in which the number of employees eligible to vote at the prehearing elections was sub- stantially less than one-half of the peak seasonal employment in the, respective units. But see Matter of Foremost Dairies, Inc., 80 N. L. R. B. 764 , in which the Board directed an election in a, unit in which seasonal employees were included at a time when no seasonal. employees were employed ; the seasonal employees in the unit comprised approximately one-half of the total peak working force. 9 See , Matter of Ballantine Produce Co., Inc., 81 N. L. R. B. 629 ; Matter of California Growers, Inc, 80 N. L. R. B 578; Matter of Edgar F. Hurff Company, 77 N. L. R. B. 762. 10 See Matter of Alaska Salmon Industry , Inc., 78 N. L. R. B. 522; Matter of Bercut- Richards Packing Company, et ai.,,.64 N. L. R. B. 133, 139. 1 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, least in part, by employment status as of a particular period of time preceding the election 11 The purpose of the Board's practice in seasonal industry cases has been to assure, within the limits of administrative practicability, that the employees eligible to vote in the election will be most nearly rep- resentative of the total employment in the unit 12 It has never been considered necessary, in a conventional representation proceeding, and it would be administratively impossible to provide, that every em- ployee who might conceivably be affected by the results of an election be eligible to vote therein, so long as those who were eligible were rep- resentative of the entire unit. Accordingly, if this were a conventional representation proceeding, we would be constrained to find, on the basis of the Regional Director's Reports and the Employer's Objections and Exceptions, that the em- ployees in the unit who were eligible to vote pursuant to the Regional Director's Direction of Election were representative of the total em- ployment in the unit 13 The fact that those eligible to vote among the employees of one or more of the individual employers 14 might not have been representative of such individual employers' total employment would not, in a conventional representation proceeding, have con- stituted sufficient grounds for setting aside the election.'-, Nor do we find anything in the amended Act, or in its legislative history, to compel a different result in an election conducted pursuant to Section 9 (e).16 Section 8 (a) (3) of the amended Act provides - 11 See Matter of Greenwich Oyster Company, 73 N. L. R. B. 1459, 1461, and cases cited in footnotes 8, 9, and 10, supra. See also Matter of John H. Maclin Peanut Company, Incorporated, 80 N. L. R. B. 611, in which the Board held that seasonal employees whose names were not on the determinative pay roll , as provided in the Direction of Election, were not entitled to vote, although it set aside the election and directed a new election, as the number of employees eligible to vote in the earlier election was not representative of the peak seasonal employment. 12 The board follows the same practice, for the same reasons in cases involving an employer whose operations are expanding . See, for example, Matter of Allied Container Corporation, 76 N. L. R. B. 1186, 1188 ; Matter of Textron, Incorporated, 73 N. L. R. B. 393, 394. 1" See footnote 5, supra. 14 According to the allegations of the Employer 's exceptions, approximately 49.9 percent of the employees employed by eight of its members (footnote 3, supra) were disenfran- chised . The Board has set aside elections in seasonal industries in which the employees eligible to vote represented less than half of the total seasonal peak employment. (Matter of San Fernando Heights Lemon Association, 72 N. L. R. B. 372; Matter of Bercut-Richards Packing Company, et at., 65 N. L. R. B. 1052 ), but has declined to set elections aside (Matter of California Almond Growers Exchange, 73 N. L. R. B. 1367 ) and has directed that elections be held (Matter of Foremost Dairies, Inc., 80 N. L. R. B. 764; Matter of North Whittier Heights Citrus Association, 63 N. L. R. B. 240 ) when the employees eligible to vote represented one-half or more of the total seasonal peak employment. 1" We can see no substantial difference between the facts presented in this case and the situation involving a single employer whose operations, with respect to the unit , involve more than one seasonal peak . See footnote 9, supra. 14 See Matter of Shell Oil Company (Bulk Plant), 79 N. L. R. B. 1255, in which the Board applied the same rule, with respect to an alleged ground for setting aside the re- sults of an election to an election conducted pursuant to Section 9 (e) (1) as is applied to elections conducted pursuant to Section 9 (c). 'TREE FRUITS LABOR RELATI'ONS COMMITTEE, INC. -'^ 97 'that the vote necessary to authorize a union-security agreement shall be a majority of the employees "eligible to vote." 17 Nowhere in- the Act is the term "eligible to vote" defined; nor is there anything in the -legislative history to indicate that either House gave consideration to the time element in connection with that term. As the term "eligible to vote" was inserted in Section 8 (a) (3) subsequent to a history of interpretation of eligibility requirements in conventional representa- tion -proceedings, and, without further distinction or refinement, we conclude, that it was intended to have, the same meaning therein as has been given to it in Section 9 (c) proceedings" We find that the eligibility date established in the Direction of Election is reasonable and proper. Accordingly, we agree with and adopt, the Regional Director's recommendation that the Employer's Objections do not raise substantial and material issues with respect to the conduct of the election; the Objections are therefore overruled,. CERTIFICATION OF RESULTS Upon the basis of the Tally of Ballots, as revised, and the entire record in the case, the Board finds : 1. A majority of the employees eligible to vote in the unit described below have voted to authorize Fruit and Vegetable Packers and Ware- housemen's Union, Local No. 760, I. B. of T. C. W. & H. of America, AFL, to make an agreement with Tree Fruits Labor Relations Com- mittee, Inc., Yakima, Washington, requiring membership in such labor organization as a condition of employment, in conformity with Sec- tion 8 (a) (3) of the Act, as amended. 2. The appropriate bargaining unit in which the election was con- ducted comprises : All employees of members of Tree Fruits Labor Relations Committee, Inc., performing work on any product or com- modity in the packing plants and warehouses located in Yakima, 17 See footnote 4, supra. 's The legislative history does not appear to negate a requirement for eligibility to vote such as that here expressed. Section 9 (g) of the original House bill ( Sec. 9 (g) of Sec. 101, Title I, H. R. 3020 , 80th Cong., 1st Sess. ) required approval of a union-security agree- ment by "a majority of all the employees in the bargaining unit." In its report accom- panying the bill (p. 39 of House Report No . 245 on H. R. 3020, 80th Cong., 1st Sess.) the House Committee on Education and Labor stated , with respect to such agreements (and as the Employer would have us hold ), that "The majority of all the employees who are to be subject to such an agreement must vote for carrying it out." (Under the original House bill, such a vote was to be taken after the agreement had been executed .) In their report on the Conference bill, however, which bill became the Labor Management Relations Act, 1947 (p. 41 of House Conference Report No. 510 on H. R. 3020, 80th Cong., 1st Sees.), the House Managers stated that a condition precedent to the valid execution of such an agreement was authorization therefor by "a majority of the employees in the bargaining unit ,in question eligible to vote," thereby recognizing (as we do here) that some employees in the unit subject to the agreement might not be eligible to vote with respect to the authori- zation thereof. '98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kittitas, and Benton Counties, Washington, but excluding outside salesmen, field men, managers, bookkeepers, office employees, engineers, engine room employees, truck drivers, watchmen, foremen and fore- women, who have the authority to employ and discharge employees, and guards, professional employees, and supervisors as defined in the Act 19 >a Although Board Member Gray would not find a multiple-employer unit appropriate ,under Section 9 (e) for the reasons set forth in his dissenting opinion in Matter of Furn& ture Firms of Duluth, 81 N. L. R. B. 1318, he considers himself bound by the majority holding in that case, and agrees with the disposition of the remaining issues herein. 'I