Wm. P. McDonald Corp.

3n'the Matter of Wbr. P. McDoNALD CORPORATION, E>rrnLo'mi and CITRUS WORKERS UNION #24218, AFL, PETITIONER Case No.10-RC-495.-Decided May 9,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing' was held before LeRoy W. C. Mather, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. A motion to dismiss the petition, made by the Employer at the hearing, was referred to the Board. For reasons hereinafter stated, the motion is denied. 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-member panel [Members Houston, Reynolds, and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent em- ployees of the Employer.2 I The Employer contends that it was never notified by the Board as to whether or not the CIO Organizing Committee had refused or agreed to represent its employees . The CIO, though notified of this proceeding , did not appear at the hearing and has not evinced any -desire to participate. 2 The Employer also maintains that it does not appear from the petition what union is the Petitioner ; that the American Federation of Labor is actually the petitioner and is an in- dispensable party to this proceeding ; that the Petitioner does not represent a majority or a substantial number of its employees and that the Petitioner has made no showing of inter- est because the authorization cards designated the American Federation of Labor and not the Local ; that the Petitioner was not in compliance with Section 9 (f), (g), and (h) of the amended Act at the time the petition was filed ; and that the Petitioner is not a labor or- ganization within the meaning of the Act. We find no merit in these contentions. The American Federation of Labor has made no effort to become a party to these proceedings other than through its affiliated local . While the Employer claims that the filing of the petition by "Citrus Workers Union #24218, AFL, led it to believe the local union and the- AFL were joint petitioners, we do not believe that the absence of the words "affiliated with" in that signature prejudiced the Employer's rights. As such the alleged misrepresentation cannot serve as a basis for granting the motion to dismiss. See Matter of Crawford Steer Foundry Company, 58 N. L. It. B. 428. The Employer further charges that authorization cards used for the showing of interest of the Petitioner were made out to "Florida Council of Citrus Workers Unions, A. F. of L." and did not authorize the Petitioner to bargain for the signers and that, even were these cards valid, the employees who signed them are in all 83 N. L. R. B., No. 66. 427 428 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 seeks a unit consisting of all employees at the Em- ployer's Auburndale, Florida, plant, excluding office and clerical em- ployees, truck drivers, agricultural workers, night watchmen and guards, professional employees, and supervisors-as-defined in the Act, as amended. The Employer contends that the proposed unit is in- appropriate because it includes seasonal workers with permanent employees and because the unit contains temporary employees who do 'not have a sufficient interest in working conditions to be eligible to participate in collective bargaining activity. It further maintains that garage employees, timekeepers, inspectors, and checkers, cafeteria workers, first aid attendants and nurses, fruit buyers, construction workers, the fresh fruit scale operator, the stock clerk, brix testers, acid ,testers, vacuum pan operators, compressor room operators, firemen, the bacteriologist, laboratory employees, temporary, seasonal and agricul7 .tural employees should be excluded from the' unit. The Employer is engaged in growing, packing, and canning citrus fruits. Fruit is supplied to the plant from the Employer's own groves and from other growers within a radius of 40 miles of the plant. All grove employees of the Employer are excluded from the proposed unit under a stipulation -of both parties. After being trucked into the plant, the fruit is either packed and shipped as fresh fruit or is pro- posed for marketing in other forms. Total plant employment varies from a high of over 700 employees at the peak of operations to a low ,of 30 workers who act as a maintenance force during the off season. The Employer's operations are seasonal in nature and the plant is in operation during the period between September and May with yearly variations. Individual departments of the plant are not nec= essarily in operation at the same time or at all times during the season, reach being regulated by growing and marketing factors and other considerations. probability no longer with the Employer due to the seasonal lay-off. The card authorizes the AFL and "all affiliated organizations" to bargain for the signer. We have previously 'held a designation of a parent organization to be a valid designation of an affiliate. See Matter of Norfolk Southern Bus Corporation, 76 N. L. R. B. 488. The currency of the authorizations as well as the compliance status of the Petitioner are matters of adminis- trative determination not subject to collateral attack at the bearing . See Matter of Procter c Gamble Manufacturing Company, 78 N. L. R B. 1043 , Matter of Mergenthaler Linotype Company, 80 N. L. R. B . 132. Finally , we are satisfied , on the basis of the testimony in the -record and the copy of Petitioner 's constitution and bylaws introduced into evidence, that the Petitioner is a labor organization within the meaning of the Act , The Employer contends that' no demand for recognition has been made by the petition- ing unit and that no demand for recognition of the petitioning union as bargaining agent for employees in an appropriate unit has ever been made. We do not agree and find to the -contrary . See Matter of Advance Pattern Company, 80 N. L. R. B. 29. WM. P. McDONALD CORPORATION 429 There are four main departments at the plant, all housed in build-' ings within a fenced-in area and within a short distance from each other. These are the packinghouse, the sectionizing and peeling de- partment, the juice and canning plant, and the concentrate plant. There is also a small maintenance warehouse and hauling department. The Employer purchases between 40 and 50 percent of its fruit from other growers. This fruit, as well as that raised in the Employer's own groves, is trucked to the packinghouse where it is gassed, colored, waxed, and boxed for shipment, or further processed in the other de- partments. During the sorting of the fruit, the culls are separated and sent to the canning plant by conveyor belt. At the hearing, the Employer indicated that he considered the packinghouse employees to be agricultural employees and thus exempt under the terms of the Act. This contention was not pursued in his brief filed after the bearing. The Board now applies the definition of "agricultural la- borer" found in the Fair Labor Standards Act of 1938 and has held that employees processing produce grown on the employer's own farm are exempt under the Act when "fruit is sold in its raw state and the only processing involved consists of boxing and crating in order to ship it to market." 4 As we have noted, a substantial portion of the fruit handled by the packinghouse is purchased from other growers and, moreover, all fruit shipped is not merely boxed and crated but is chemically treated to enhance its market value. Further, the pack- inghouse operates as the plant source of the fruit used by the other departments and its entire operations seem to be an integrated part of the admittedly non-agricultural operations of the rest of the plant. It was indicated at the hearing that the packinghouse employees are deemed to be covered by the Fair Labor Standards Act, although the record is somewhat confused as to this point .5 We find, therefore, that the packinghouse employees are not agricultural employees within the exemption of the Act. The Employer maintains that the unit is inappropriate because it includes seasonal and temporary employees with regular employees. In its brief, it lays particular stress on the temporary tenure of the personnel employed in the packinghouse and in the sectionizing and peeling department. The packinghouse employs approximately 12U employees when in full operation. All of these employees are on 4 See Matter of Di Giorgio Fruit Corporation, 80 N. L. R. B. 853. We distinguish the facts herein from those present in N. L. R. B. v. John W. Campbell, Inc., 159 F. (2d) 184 (C. A. 5, 1947), and Matter of Salinas Valley Vegetable Exchange, 82 N. L. R. B. 96. In those cases packinghouse or packingshed workers were held to be agricultural laborers where they were engaged in simple packing operations only and which involved produce grown exclusively or almost entirely on the employer 's own farm. At one point in the record, the Employer stated that only the mechanic and the watch- men were covered under the Fair Labor Standards Act. The same witness later testified ix response to a direct question as to the packinghouse employees' status under that Act, that "packinghouse employees are covered by the Wage and Hour Act." 430 DECISIONS-.OF;NATIONAL LABOR (RELATIONS BOARD hourly pay rates with the exception of the foremen and assistant fore- men; who- are salaried, and packers, who, are paid on a piecework basis. The only skilled employee, is a mechanic. Hiring is done on an in- formal word-of-mouth basis and by contacting the foremen. The packinghouse is in operation for a period of from 6 to 8 months but is subject to frequent lay-offs, and part days. All employees with the exception of 10 or 12 who are- retained, throughout the, off season for, maintenance purposes, are terminated during shutdowns and are hired, as new employees when they return to, work. Despite this fact, the superintendent in charge of the packinghouse testified ,that 90 percent of the personnel return from year to year. The sectionizing and peeling' department processes fruit for can; ping. Fruit is peeled and segmented through a series of mechanical and manual operations at the close of which it is placed in cans, closed, cooked, cooled, and packed: in boxes. At peak operation, the depart- ment employs over 500 workers; the majority of whom are sectionizers and peelers. All of the department personnel is either unskilled or semiskilled labor performing essentially, simple tasks. The section-: izers and peelers are on a piecework basis. The-rest of the department, including graders, scalders, inspectors, 'checkers, syrup makers, ma-, chine operators, can cookers, and boxers is on an hourly rate. - Hiring in this department, as in.the case with the rest of the plant, is done chiefly by word-of-mouth and the Employer makes no effort to get in touch with former employees. This is supplemented by contracts with foreladies who have a personal following. Employees are termi- nated by the Employer for absence from work, during shut-downs, and -at the end of the season. 'If rehired, they are classified as new employees. ' • , ' ,-The Employer contends that these departments consist largely of temporary and seasonal employees with little or no community- of interest with other personnel and no expectation of reemployment. We do not agree and we find to the; contrary. The alleged temporary nature of the packinghouse and, the sectionizing and peeling depart- ment personnel is a factor which will be considered in the determina- tion of eligibility for participation in the election hereinafter directed; We can perceive no appreciable difference in the working conditions and interests of these employees and those in the remainder of the plant. The Employer is engaged in a seasonal industry, and its employees are almost exclusively, as a result, seasonal and even migratory. How- ever, contrary to the contention of the Employer,, the seasonal nature of their employment does not per se operate to deny them the right to the processes of collective bargaining. Where no union has re- quested their inclusion, we have excluded seasonal employees from - , .-WM. P. McDONALD CORPORATION C 431 ;bargaining ' units of permanent employees .6 We have also held that where, as here, the Petitioner has requested inclusion of seasonal em- ployees with year-round workers and all the employees as one group have a sufficient community of interest, they may constitute an appro- priate bargaining unit.? The only ' appreciable difference in working conditions referred to herein is the difference between the pieceworkers .and the hourly paid. We.have previously held that differences in, the mode of payment are not conclusive or controlling in unit determi- nations.8 The juice plant, with approximately 40 workers ,.and the concentrate plant, employing nearly 80 , are the remaining production departments. ,These plants process fruit into juice and concentrate products. Both groups consist largely of unskilled labor, on an hourly pay rate, and subject to the same general working conditions and interests as the remainder of the plant personnel. They, also, are recruited at the beginning of the season by advertisements and word -of-mouth notifi- cation and are subject to the same termination procedures noted in the instance of the packinghouse and the sectionizing and peeling depart- ments. A small maintenance, hauling, and warehouse department operates throughout the year. A substantial number of the 30 em- ployees retained throughout the off season are selected from the seasonal production and maintenance personnel . We find that the production and maintenance employees of the Employer constitute a group with a community of interests sufficient to warrant establish- ment as a collective bargaining unit. The Employer, however, main- tains that certain individuals and fringe groups should be excluded from such a unit. Nurse and first, aid attendants : A salaried graduate nurse is em- ployed during the seasonal operations . She is assisted by first aid attendants who also keep records and prepare reports of injuries. In accordance with our usual custom, we shall exclude the nurse and the first aid attendants from the unit .9 - Fresh fruit scale operator : The fresh fruit scale operator is held responsible for all .fruit received in the canning operation . He weighs the fruit and records its origin and its eventual disposition in the plant. The operator is employed for each season on an hourly wage. The 8 See Matter of St. Mary's Packing Co., 72 N. L R. B. 596 and cases cited therein. + See Matter of J. M. Smucker Company, 75 N. L R. B. 202 and cases cited therein ; Matter of Edgar F. Hurff Company, 77 N L. R B. 762 ; cf. Matter of Southern Fruit Dis- tributors, Inc., 74 N. L. R. B. 72, where a sectionizing and peeling department was excluded from the unit on the finding that it was the only department where all employees were dis- missed at the end of the season and there was a year-round continuity of employment in the rest of the plant. 8 See Matter of General Motors Corp., Chevrolet Forge, Spring and Bumper Division, 80 N. L. It. B . 145; Matter of H. 0. Canfield Company, 76 N. L. R. B. 606. 8 See Matter of Standard Oil Company (Indiana), 80 N. L. It. B. 1022 ; Matter of Art Metal Construction Company ', 75 N. L. R. B. 80. 432 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD present scale operator,. who .has been employed in this position for sev I eral seasons, is the brother-in-law of the president of the Employer. In view of his close relationship to management, we shall exclude him from the unit.LD Construction workers: Although no employees are hired perma- nently for construction work, the Employer employs unskilled, hourly paid workers for incidental work as it arises. In view of the fact that the construction workers are casual employees whose work is not related to that of the production and maintenance personnel, we shall exclude them from the unit 11 Cafeteria employees: The Employer maintains a cafeteria for the plant workers which is run by a manager and several employees. They, perform the usual functions of that work classification and are on an hourly pay rate. Their employment is seasonal and they do not take part in production and maintenance work. The manager appears to have no authority to hire, discharge, or effectively recommend such action. Inasmuch as there is no showing that the working conditions and interests of the cafeteria employees differ substantially from those of the remainder of the unit hereinafter found appropriate, we shall include them in the unit .12 Bacteriologist and laboratory employees: The bacteriologist is a university graduate with a degree who performs tests and technical work. He is a salaried employee and works on a yearly basis. The laboratory also includes laboratory assistants who perform detail work for and under the direction of the bacteriologist. The assistants must be high school graduates, with some background in chemistry. They, also, are employed throughout the year and are on a salary pay basis. The bacteriologist is clearly a professional and technical em- ployee. The laboratory assistants perform technical tasks under sepa- rate supervision and have little contact with the production and main- tenance employees. We shall, therefore, exclude the bacteriologist and the laboratory assistants from the-unit 18 Timekeepers: Personnel time records are maintained by three time- keepers who work in an office apart from the production rooms under the separate supervision of the personnel manager. They are hired for the duration of the season and terminated at its close. Prior pay-roll experience is usually required by the Employer of appli- cants for the position of timekeeper. While we have, on occasion included timekeepers who were employed as factory clericals, it is 10 See Matter of Associated Electronic Enterprises, Inc , 80 N. L. R. B. 295. 11 See Matter of Clarkton Gramwood Products Company, Inc., 76 N. L. R. B. 1044: Mat. ter of Kansas City Power d Light Company, 75 N. L. R. B. 609. 12 See Matter of Mississippi Products , Inc., 78 N. L. R. B. 873 ; Matter of Western Electrio Company, Incorporated, 76 N. L. R. B. 400. 18 See Matter of Cutter Laboratories, 80 N. L. R. B. 213 ; Matter of United States Gypsum Company, 79 N. L. It. B. 869. ' WM. 'P MdDONALD•' CORPORATION 433 apparent that the duties and interests of these employees are separate and distinct from those of the production and maintenance employees. As a result, we shall exclude them from the unit 14 Fruit buyer: The fruit buyer is a -salaried employee employed throughout the entire year to purchase quantities of citrus fruits for the Employer. The position requires native talent and a minimum of .5 years' experience and training. While he is not necessarily a profes- sional employee, we are of the opinion that his interests are closely connected with those of management. Accordingly, we shall exclude the fruit buyer from the unit 15 Firemen: The firemen perform the usual functions of that classifi- cation. They watch the boilers, control the inflow of fuel and water, and see that proper steam pressure is maintained. There are two ..employees in this job; one on the day shift and one on at night. They do not interchange with the remainder of the plant personnel, are paid hourly rates, and are employed for the season only. There was no showing that the firemen have substantially different working con- ditions or interest from those of the remainder of the unit. We shall, ,therefore, follow our usual policy of including these employees in the unit 16 Brim testers and acid testers: The acid testers and brig testers per- form essentially simple tests on fruit at stations inside the various de- partments. While a high school education is preferred and some knowledge of chemistry is helpful, the tests require only the exercise of judgment and a few days' experience. They work on seasonal basis and are paid by the hour. While the brix and acid testers do not interchange with the production and maintenance employees other than through contact at their stations, we believe the record shows their interests and working conditions to be identical. We will in- clude the brix and acid testers in the unit. 7 Stock clerk: The stock clerk works under the supervision of the per- sonnel manager and receives all maintenance materials for the plant operation. He maintains a current stockroom inventory and records tM disposition of materials. Familiarity with maintenance materials and 2 years' experience is required. The stock clerk is paid by the hour. While this employee-is more experienced than the majority of the plant personnel and is under different supervision, we believe his interests are closely allied to those of the production and maintenance "Matter of General Motors Corporation, Fisher Body Division-Van Nuys Plant, 79 N. L. R. B. 341. 16 See Matter of Vulcan Corporation, 58 N. L. R. B. 733. 16 See Matter of New York Steam Laundry, Inc., et al., 80 N. L. R. B. 1597 ; Matter of Mo- Glraw-Curran Lumber Co ., Inc., 79 N. L. R. B. 705. 17 See Matter of Sampsel Time Control, Inc., 80 N. L. R. B. 1250. '434 DECISIONS- OF' NATIONAL, LABOR 'RELATIONS BOARD employees. In accord with our usual policy' as to factory clerical •workers, we shall include him in the unit 18 Vacuum pan operators and compressor room operators: The vacuum pan operators are highly skilled employees who were initially trained by the machine manufacturer. Three of these employees are assigned to the concentrate and frozen fruit operations of the plant. They are -hired for each season and are on an hourly pay rate. They do not interchange with other personnel. The compressor room operators are also highly skilled and are required to have considerable experience and training in refrigeration, motors, compressors, and other mechan- ical equipment. The present operators were trained in the plant and ,were formerly maintenance employees. Their employment is seasonal and they are paid by the hour. Both the compressor room operators and the vacuum pan operators are engaged in the production process. 'In the absence of any cogent reason for their exclusion other than their superiority in skills, we find that the compressor room operators and -the vacuum pan operators should be included in the.unit. Garage employees: The garage employees consist of two mechanics, ,one of, whom is a foreman with, authority to hire or discharge. We shall exclude the garage foreman from the unit in view of his super- visory authority. The mechanics maintain,and repair the trucks and -goats owned by the Employer. and 'used-for the harvesting and trans- port of fruit. Their employment is year-round and they do not inter- change with other production and maintenance employees. No other labor organization desires to represent these employees. We shall include the garage mechanic in-the unit 19 Inspectors and checkers: The roving inspectors are assigned to the sectionizing department- and advise and assist the sectionizer in pack- -irig. the fruit in the base * as well'as checking to see that the fruit is packed correctly. Their authority is limited to reporting continuing -mistakes to the forelady. They are paid by the hour and their em- ployment is seasonal. Only 2 to 3 months of experience is necessary for training as a roving inspector.' Piecework checkers work in the packinghouse where they check the stamp on the packed box of fiRiit and keep records of individual production of the pieceworkers. They are also employed in the peeling room where they keep a tally of the 'amount of fruit processed by the 'peelers, and in the sectionizing •.plant where they check the number of cans filled by the. sectionizers. The case receiver works in the warehouse and records the labels on cans of juice produced and placed in storage. The basket inspector works in the peeling room in conjunction with-the piecework checker -`there and has the further duty of checking the quality of the fruit. 28 See Matter of General Electric Company, 80 N. L. R. B 174. 19 See Matter of Enrtd Co-Operative Creamery Association, 79 N. L. R. B. 444. WM. P. McDONALD CORPORATION' ' " 435 The packing inspector works in the packinghouse and checks the in- dividual packer's work to see-that the goods are properly placed in the boxes. The pay basis, length of employment and experience required of the piecework checkers, case receivers, basket inspector, and packing inspector are similar to that noted for the roving inspec- tors. In no case can they hire or discharge nor was there any showing of authority effectively to recommend such action. We have previously held that in the absence of such authority, the duty of reporting defective work is insufficient to constitute super- visory or managerial status.20 We find that the roving inspectors, piecework checkers, case receivers, basket inspectors, and packing in- spectors have interests, duties, and working conditions closely allied to those of the production and maintenance employees and we shall in- clude them in the unit.21 We find that all production and maintenance employees of the Employer's plant at Auburndale, Florida, including cafeteria em- ployees, firemen, Brix testers, acid testers, the stock clerk, vacuum pan operators, compressor room operators, roving inspectors, piecework checkers, case receivers, basket inspectors, packing inspectors, garage employees and seasonal employees, but excluding the nurse, first aid attendants, the fresh fruit scale operator, truckdrivers,22 construction workers, the bacteriologist, laboratory assistants, timekeepers, the fruit buyer; office and clerical employees, agricultural employees, night watchmen and guards, professional employees, and all supervisors as defined in the amended Act constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of theAct. 5. The determination of representatives : The Employer contends that a great number of its employees in the unit we have found appropriate, are not only seasonal but tem- porary employees. The high rate of absenteeism existing in the sec- tionizing and peeling department and in the packinghouse is cited as showing that these employees do not have sufficient interest in their employment to participate in the election of collective bargaining representatives. Further, the Employer maintains that these employees do not have a reasonable expectation of reemployment after termination at the end of the season's operations due to the migratory nature of the labor it employs and the Employer's policy of making no effort to contact 20 See Matter of Luminous Processes, Inc., 71 N. L R. B. 405. 21 See Matter of United States Gypsum Company, 78 N. L. R. B. 849; Matter of Clayton Mark Company, 76 N. L. R: B. 280. 11 The truckdrivers are covered under a contract between the Employer and the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL. Neither party desires their inclusion in the unit and in accordance with our usual custom we shall exclude them. See Matter of Clayton Mark & Company, supra, footnote 21. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and rehire previous employees., As we have noted, supra, this con- .tention bears on the eligibility of the employees to vote in the election hereinafter ordered rather than on their inclusion in the unit found appropriate. Of necessity, these employees will be represented by the Petitioner if it wins the election we are directing. 23 We are of the opinion that their tenure of employment is sufficient to allow their participation in the election. Although the Employer keeps no rec- ords as to reemployment, the superintendent in charge of the packing- house testified that 90 percent of his employees returned from year to year. There was evidence that the high rate of absenteeism in the sectionizing and peeling department is partially the result of factors such as the limited work space. The four main production departments at the Employer's plant do not begin or cease operation at the same time and are subject to sea- sonal variations. The peak of the season, according to the dates sub- mitted by the Employer, appears to be in January, and, as we have noted, the plant employment reaches a low of 30 employees in April and May. Under these circumstances, an election held at this time would not be representative. We. shall direct an election to be held at or about the peak of the next seasonal production period, 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 the issuance of Notice of Election by the Regional Director. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted on a date to be selected by the Regional Director in accordance with the instructions set forth in paragraph numbered 5, above, under the direction and supervision of the Regional Director for the Tenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Reg- ulations-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 the issuance of Notice of Election by the Regional Director, and em- ployees who did not work during such pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who thereafter quit or are discharged for cause and are not rehired or reinstated prior to the date of the election, to determine • whether or not they desire to be represented for purposes of collective -'bargaining, by Citrus Workers Uliion #24218, AFL. 23 See Matter of Providence Public Market Company, 79 N. L. R. B. 1482 and cases cited 'therein.