Stokely Foods, Inc.

In the Matter of STOKELY FOODS , INC. and FOOD, TOBACCO, AGRICUL- TURAL AND ALLIED WORKERS UNION OF AMERICA, C. I. 0. Case No. 11-8-851 SUPPLEMENTAL DECISION AND ORDER July ,23,1946 On March 14, 1946, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding," and on April 12, 1946, an amendment thereto, extending the time for holding the election to 40 days. On April 22, 1946, pursuant to the Direction of Election, as amended, the Regional Director for the Eleventh Region held an election among employees of Stokely Foods, Inc., Greenwood, Indiana, herein called the Company, to determine whether or- not they desired to be represented by Food, Tobacco, Agricultural and Allied Workers Union of America, C. I. 0.,2 herein called the Union, for the purposes of collective bargaining. The Tally of Ballots, served on the parties, indicates the results of the election as follows : Approximate number of eligible voters------------------------------- 52 Void ballots-------------------------------------------------------- 0 Votes cast for the Union-------------------------------------------- 19 Votes cast against the Union---------------------------------------- 23 Total votes counted ----------------------------- ------------------ 42 Challenged ballots------------------------------------------------ 19 Since the challenged ballots cast in the election were sufficient in number to affect its outcome, the Regional Director investigated the challenges, and on May 29, 1946, issued his Report on Challenged Ballots. The Regional Director therein found that Charles Sparks and James Rose were supervisory employees and recommended that the challenges to their ballots be sustained; that George MacDonald, Erschel Lewis, and Hyma Weaver were production and maintenance 1 66 N. L. R. B. 749. 2 The Decision and Direction of Election and other formal papers in this proceeding were amended at the further hearing to show the correct name of the Union. 69 N. L. R. B., No. 97. 801 701592-47--vol. 69-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, and recommended that the challenges to their ballots be overruled; and that the eligibility of the 14 other challenged voters should be determined after hearing on the issues concerning their status. On June 10, 1946, the Company filed exceptions to the Regional Director's report. On June 14, 1946, the Board, having considered the Regional Director's Report on the Challenges, and the Company's exceptions thereto, ordered that a hearing be held for the purpose of resolving the issues raised in connection with all challenged ballots except those of Charles Sparks, James Rose, and George MacDonald. On July 9, 1946, a further hearing was held at Indianapolis, Indiana, before Howard Meyers, Trial Examiner. The Trial Examiner's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed. On the basis of the entire record in this proceeding, the Board makes the following : SUPPLEMENTAL FINDINGS of FACT Charles Sparks and James Rose, challenged by the Union, are year- round employees who, during the active canning period, serve as fore- men, directing the activities of seasonal workers hired for food proc- essing. When the canning season is past, Sparks and Rose are engaged in maintenance work and have no supervisory authority. Since the unit found appropriate for bargaining in this proceeding includes year-round employees and excludes seasonal employees, and since Sparks and Rose have no supervisory authority except in the canning season and were not serving in a supervisory capacity at the time when the election was held, we find that Sparks and Rose are included in the unit of year-round employees 3 and that they were eligible to vote in the election conducted on April 22, 1946.' Their ballots are, therefore, hereby declared valid. George MacDonald, challenged by the Union, checks incoming ma- terials and supplies operators with necessary stock. He spends ap- proximately 11/2 hours a day at a desk in the main office, completing reports. He also performs the duties of a general handy-man, han- dling tomato sets, shoveling coal, etc. Since it appears that Mac- Donald does manual work in the plant in connection with the produc- tion process, we find that he is a production employee and, as such, included in the bargaining unit. His ballot, therefore, is hereby de- clared valid. Erschel Lewis and Hyma Weaver, classified by the Company as labeling machine foremen, were not included on the eligibility list and were therefore challenged by the Board's agent. Lewis is in charge of a bottle labeling machine and Weaver, in charge of a can labeling 3 Matter of Reid, Murdock & Go., 56 N. L. R. B. 284. ':Matter of Hunt Foods, Inc., 68 N. L. R. B. 800. STOKELY FOODS, INC. 803 machine. Each has a crew of from 10 to 12 employees whose work they direct. The Company contends that Lewis and Weaver are su- pervisory employees and should be excluded, as such, from the unit. The Union contends that Lewis and Weaver are "lead" men and label- ing machine operators, but denies that they possess substantial super- visory authority. The customary rate for a labeling machine opera- tor is 21/2 cents per hour more than helpers on the machines. Lewis and Weaver receive 15 cents per hour more than the highest paid employee on their machines. The Company contends that the larger differential between the wages of Lewis and Weaver is due to the supervisory responsibility imposed upon them for the direction of their crews. Their rate is the same as that of other employees who the Union contends are supervisory. Although neither Lewis nor Weaver has authority to hire, discharge, or transfer employees, they make recommendations with respect to hire, discharge, and transfer, and their recommendations are given weight. The warehouse foreman has broad duties which require his attention away from the labeling machines. The operation of the machines and the direction of the labeling crews are vested in Lewis and Weaver. Since labeling ma- chines are operating from 8 to 12 months in the year, the supervisory authority of Lewis and Weaver extends well beyond the food proc- essing season, and covers non-seasonal workers. We therefore find that Lewis and Weaver are supervisory employees and, as such, are excluded from the bargaining unit.5 Their ballots, therefore, are hereby declared invalid. The 14 remaining ballots are those of food processing employees whose services are not required in the plant when the food processing work is over. In normal times the Company's canning season begins in June for about 3 weeks when peas are processed, and, after a lay-off, again in August when tomatoes are ripe. The tomato season closes early in October with the frosts. During the war years, the Company canned some dry products, such as tomato sauce beans, which extended the work of its seasonal employees beyond the normal time for process- ing fresh vegetables.6 The lengthening of the processing season offered a longer period of work, but it did not change the essential nature of the work. In its Decision and Direction of Election, the Board rejected the contention of the Union that seasonal employees retained to work on dry products became "regular part-time employees," and it excluded all seasonal employees from the unit appropriate for year-round em- ployees. The challenged employees were retained beyond the fresh vegetable canning season in 1945 to work on dry products. The pro- 5 See Matter of Reid, Murdock & Co., supra. Since war requirements no longer are a factor in its operations, the Company will no longer process dry products at this plant. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longed season did not change their status as seasonal workers, al- though they worked a longer period. We find that Elmo Young, Court Hemphill, Lee Polk, Theodore Beaman, Wallis Church, Geneva Newton, Stella Angell, Valeria Graves, Pearl Vest, Flo Hensley, Mary Barlow, Micha Sparks, Leona Rose, and Florence Sego were seasonal employees at the time of the election and, as such, ineligible to vote. Their ballots are, therefore, hereby declared invalid. Since the counting of the valid ballots of Charles Sparks, James Rose, and George MacDonald would not affect the results of the elec- tion, we will not direct that these ballots be opened and counted. Since the Union failed to receive a majority of the valid votes cast, we will dismiss the petition filed herein. ORDER IT IS HEREBY ORDERED that the petition for investigation and certifi- cation of representatives filed herein by Food, Tobacco, Agricultural and Allied Workers Union of America, C. I. 0., be, and it hereby is, dismissed. MR. JOHN M. HousTON took no part in the consideration of the above Supplemental Decision and Order.