California Spray-Chemical Corp.

I a the Matter of CLAIFORNIA SPRAY-CHEMICAL CORP., EMPLOYER and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER Case No. 2-RC-1289.-Decided October 11, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed , a hearing was held before Merton C. Bernstein, hearing officer. 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-member panel [Members Reynolds , Murdock, and Gray]. Upon the entire record in this case , the Board finds : 1. The Employer, a Delaware corporation, has its principal office in Richmond , California, and operates factories in several States. We are here concerned with the Employer's Elizabeth, New Jersey, plant. At this plant the Employer is engaged in the manufacture and distribution of agricultural insecticides, fungicides, and related prod- ucts. The Employer's annual purchases of raw materials and supplies for the Elizabeth, New Jersey, plant, exceed $500,000, of which 50 percent is procured from sources outside the State of New Jersey. Its annual sales are in excess of $1,000,000, of which approximately 50 percent is made outside the State of New Jersey. The Employer admits and we find that it is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- t ion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the National Labor Relations Act. 4. The Petitioner seeks a unit of all production and maintenance" employees of the Employer at its Elizabeth , New Jersey, plant exclud- e ig office employees and supervisors. The Employer contends that the i•laimed unit is inappropriate upon the grounds ( 1) that the unit would 86 N. L. R. B., No. 63. 867351-50-vol. 86-30 453 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD include "basic" or permanent employees with employees classified by the Employer as "casual" employees; and (2) there are no maintenance employees to support the unit description of a production and mainte- nance unit. The parties are also in dispute as to the supervisory status of the Employer's mill operators on the second and third shifts? The Employer further contends that the office janitor should be excluded from the-unit. The Employer has no history of collective bargaining. The Employer's operations are mainly seasonal. As the agricultural industry is the principal consumer of the Employer's products, the main production season is from about March 1 to September 1. The Employer maintains a year-round group of 9 employees classified as "basic" employees all of whose jobs are relatively unskilled and inter- changeable with the possible exception of those of the 3 mill operators. During its main production season, this force is augmented by approxi- mately 18 employees who are classified as "casual" employees.2 The average period of employment for "casual" employees is approximately 6 months per year. Notwithstanding the Employer's testimony that it makes no effort to reemploy "casual" employees, the record discloses that, because of the permanent location and the regularly seasonal nature of the Employer's business, 6 of the 18 "casuals" presently em- ployed worked for the Employer during the previous season. More- over, it appears that "casual" and regular employees perform the same type of work. In view of the foregoing, we are of the opinion that the employees classified as "casual" are seasonal employees of the type which the Board customarily includes in the same unit with regular production and maintenance employees.3 Accordingly, we shall in- clude seasonal employees classified by the Employer as "casual" em- ployees within the unit hereinafter found appropriate 4 The second and third shift mill, operators are in charge of their re- spective shifts, no other admitted supervisors being normally present in the plant during their shifts. Although the plant manager testified that they do not have authority to recommend the discharge of em- ployees, the second and third shift mill operators are solely responsible for the production on their respective shifts. In this connection, it is their duty to see that employees remain on the job during working hours and to report all instances of employee misconduct to the plant manager on the following day. Under these circumstances, notwith- standing the Employer's contention to the contrary, we believe that the ' It is apparently conceded that the mill operator on the first shift is not a supervisor, and upon the entire record , we find him not to be a supervisor within the meaning of the Act. 2 During the recent season two employees from the "casual" list namely , a mill operator and a utility man were reclassified as "basic " or year-round employees. 3 See Matter of Stokely Foods, Inc., 83 N. L. R. B. 795 , and cases cited therein. 4 See Matter of J. M . Smucker Company, 75 N. L. R. B. 202 and cases cited therein ; Matter of Stokely Foods Inc. supra. CALIFORNIA SPRAY-CHEMICAL CORP. ' 455 .second and third shift mill operators must, of necessity , have authority responsibly to direct employees on their shifts . We find, therefore, that the second and third shift mill operators are supervisors , and shall exclude them from the appropriate unit.5 Office Janitor: The Employer would exclude from the unit the of- fice janitor who keeps the office and locker rooms clean . We believe that the nature of the work which the janitor performs is that of main- tenance which allies hint more closely with production and mainte- nance employees, than with office employees. Accordingly , we shall include him in the requested production .and maintenance unit here- inafter found appropriates We. find that all production and maintenance employees employed by the Employer at its Elizabeth, New Jersey, plant, including the office janitor, and seasonal employees classified by the Employer as "casual" employees as well as those classified as "basic" employees, but excluding office employees , guards, professional employees, the second and third shift mill operators, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The inclusion of the seasonal employees in the unit of necessity requires a consideration of the question as to the eligibility of the sea- sonal employees to vote in any election which the Board may direct. The Board has frequently held that where an Employer's business is seasonal in nature seasonal employees have a substantial interest in a collective bargaining relationship and are therefore eligible vot- ers.' In view of the circumstances here present , we believe that the so-called "casual " employees have a, substantial interest in the selection of a bargaining representative sufficient to allow their participation in the election.s As noted above, the Employer 's main production season usually ends zbout September 1. However, there is evidence in the present record which indicates that the operations this year might continue later than September 1. We believe that, customarily , an election in seasonal b See Matter of Aragon-Baldwin Mills, Inc., Aragon plant, 80 N . L. R. B. 1042 ; Matter of Flour Mills of America, Inc., d/b/a Valier Spies Milling Company, 78 N. L. R. B. 324; Matter of Moro¢oebb Cotton Mills Company 75 N. L. It. B. 987 ; Matter of Shortie Brothers Machine Company, 57 N. L. R. B. 1546. 6 See Matter of Victor Chemical Works, 85 N. L. R. B. 495 ; Matter of Evans Milling -Company, 85 N. L. R. B. 391. In view of our opinion that the office Janitor is a main- tenance employee, we find, contrary to the Employer's contention, that the description "production and maintenance" properly describes the unit of employees herein concerned. ' See Matter of Strathmore District Orange Association, 85 N. L. R. B. 1029 ; Matter .of S. Martinelli & Company, 81 N. L. R. B. 383; Matter of California Almond Growers Ea;- change, 73 N. L. R. B. 1367. 8 See Matter of Win . P. MacDonald Corporation , 83 N. L . R. B. 427 ; Matter of Georgia Fertilizer Company, 83 N. L. R. B. 180. See also Matter of Cain Conning Company, 81 N. L. R. B. 213. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 representative. Therefore, we shall not fix a specific date for holding the election, but shall direct an election be held at such time as the Regional Director determines that a repre- sentative number of employees are employed so that they may be af- forded the opportunity to vote in an election. If the Regional Director finds that the present season has now closed or 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 sea- son. We shall, therefore, 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 im- mediately preceding the date of issuance of the notice of election." 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 for the Second 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 Na- tional Labor Relations Board Rules and Regulations, 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 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 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 reinstate- ment, to determine whether or not they desire to be represented, for purposes of collective bargaining, by United Gas, Coke and Chemical Workers of America, CIO. 9 See Matter of Texsun Citrus Exchange, 82 N. L. R. B. 540.