Bear Creek Orchards

In the Matter of BEAR CREEK ORCHARDS, EMPLOYER and TEAMSTERS, CANNERY AND FRUIT PACKING WORKERS ' LOCAL 962-A, INTERNA- TIONAL BROTHERHOOD OF' TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER Case No. 36-RC-286 SECOND SUPPLEMENTAL DECISION AND DIRECTION October 6, 1950 Pursuant to a Supplemental Decision and Direction of Election 1 issued herein on June 9, 1950, a second election by secret ballot among employees of Bear Creek Orchards was conducted under the direc- tion and supervision of the Regional Director for the Nineteenth Region. At the conclusion of the balloting, a tally of ballots was issued and served upon the parties hereto, in accordance with the Rules and Regulations of the Board. The tally shows that of the 69 ballots cast, 13 were cast for the Petitioner, 26 were against the Petitioner, and 30 were challenged. On July 12, 1950, the Petitioner protested the conduct of the election. After an investigation the Regional Director issued a consolidated report on objections and challenges. Thereafter, the Petitioner filed objections to his report. The Objections to the Conduct of the Election The Petitioner objected to the conduct of the election and moved that it be set aside on the grounds that it was improperly denied the opportunity to challenge voters after they marked their ballots, and that ineligible, seasonal, and part-time employees were allowed to vote. We find no merit in either of these objections. In Board elections it is customary to require that challenges be made before voters receive and mark their ballots. We have hereto- fore considered and rejected the Petitioner's argument that this pro- cedure antagonizes challenged voters and thus interferes with em- ployees' free selection of bargaining representatives.2 Experience 190 NLRB 286. 2 Burrows & Sanborn, Inc., 84 NLRB 304. 91 NLRB No. 134. 713 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has proved that it is more practical in Board elections to require that challenges be made before rather than after ballots are marked. The Petitioner further contends that the Board agent who con- ducted the election improperly disallowed a number of challenges made after the voters had marked their ballots, and that as a con- sequence ineligible employees were permitted to vote. In his report the Regional Director does not indicate that any challenges were dis- allowed. The Petitioner has set forth no specific instance of the disallowance of such a challenge, and has offered no reason, other than that set forth above, why it was not proper in this election to follow the Board's customary practices and procedures. Under all the cir- cumstances, we are satisfied that sufficient opportunity was afforded the Petitioner to enter challenges to the ballots of voters in the election. We find, therefore, that the Petitioner's objections do not raise sub- stantial and material issues with respect to the conduct of the elec- tion. Accordingly, the objections are overruled. The Challenged Ballots The Petitioner at the election challenged 30 ballots. The Peti- tioner challenged the ballots of J. T. Allen, Edith Cline, Myrtle Johnson, Charles Nelson, Robert Rudy, and Ollen Showwalter on the grounds that these employees are supervisors. The Regional Director recommended that the challenges to all of these ballots, ex- cept those of Cline and Showwalter, be overruled, and that as to these 2 the challenges be sustained. Because no exceptions have been filed to the Regional Director's findings with respect to these 6 employees, we shall adopt his recommendation. The Petitioner challenged the ballots of the following 24 employees on the ground that none of them are nonseasonal employees within the meaning of that term as used in the original Decision and Direc- tion of Election herein : Mildred Bailey, Mae Beagle, Leda Bishop, Viola Burton, Gladys Campbell, Donald L. Coffman, Lillian Ethel Crook, Louella Fawcett, Laura Golsbuy, Norma Hagebusch, Mary Hoffman, Gertie Hutton, Eppie Killingsworth, Jenette King, Elsie Mowbray, Ina Myers, Myrtle Nelson, Esther Newton, Buma Nicks, Alma Polk, Marcella Rice, Ruth Sheperd, Juanita Silvers, and Helen Wetterer. in our original Decision and Direction of Election we found that the Employer normally had 4 packing periods each year, with the longer periods occurring in the last half of the year. In his report on the challenges to the first election, the Regional Di- rector concluded that "the season" consisted primarily of a period of from 4 to 41/.2 months running from August to December. Accord- BEAR CREEK ORCHARDS 715 ingly, in that report he generally considered working time during the first half of the year 1949 as nonseasonal employment. The Union took no exception to this finding concerning the nonseasonal period. In his report on objections and challenges covering the second elec- tion, the Regional Director concluded that a similar period in 1950 constituted the nonseasonal operations in that year. For the first time, in its exceptions to his second report, the Petitioner apparently contends that the first 6 months of the year contain the peak season of the Employer's operations. As the Petitioner has not produced any evidence in support of this contention, and as it is contrary to all the evidence in the record, we must reject it. We further conclude that the Regional Director, in determining the eligibility of these challenged employees, did not act arbitrarily in basing his findings upon the number of pay periods each employee worked during the first 6 months of 1950 and the total number of hours worked during that time. In our opinion it is clear that all nonsupervisory employees who worked in more than half of the 26 pay periods in the first 6 months of 1950 are nonseasonal employees within the meaning of our original Decision and Direction of Elec- tion. Accordingly, we shall adopt the Regional Director's recom- mendations, and order that the ballots of the following 19 named employees be opened and counted : Mildred Bailey, Mae Beagle, Leda Bishop, Viola Burton, Gladys Campbell, Lillian Ethel Crook, Lonella Fawcett, Laura Golsbuy, Mary Hoffman, Gertie Hutton, Eppie Kill- ingsworth, Jennette King, Elsie Mowbray, Myrtle Nelson, Esther Newton, Buma Nicks, Alma Polk, Ruth Sheperd, and Helen Wetterer.. We shall make no determination at this time regarding the validity of the ballots of the following named employees who worked in 13 or less of the 26 pay periods in the first 6 months of 1950: Donald L. Coffman, Norma Hagebusch, Ina Myers, Marcella Rice, and Juanita Silvers. If, after a new tally of ballots is prepared, it is found that the ballots of the last 5 named employees can effect the outcome of the election, we shall then take further appropriate action with re- spect to these challenges. DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Bear Creek Orchards, Med- ford, Oregon, the Regional Director for the Nineteenth Region shall, pursuant to the National Labor Relations Board Rules and Regula- tion, within ten (10) days from the date of this direction, open and count the ballots of J. T. Allen, Myrtle Johnson, Charles Nelson, Robert Rudy, Mildred Bailey, Mae Beagle, Ledo Bishop, Viola Burton, 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gladys Campbell, Lillian Ethel Crook, Louella Fawcett, Laura Gols- buy, Mary Hoffman, Gertie Hutton, Eppie Killingsworth, Jennette King, Elsie Mowbray, Myrtle Nelson, Esther Newton, Buma Nicks, Alma Polk, Ruth Sheperd , and Helen Wetterer, and thereafter cause to be served upon the parties a supplemental tally of ballots, in- cluding therein the count of such challenged ballots.