The Welch Grape Juice Co.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found in the installation departments, including unskilled helpers and group 4 and 5 mechanics. The mechanics in the fabrication departments and the mechanics in the installation departments are essentially sheet metal workers with similar skills. There is a fair amount of transfer of employees be- tween inside and outside jobs. Employee benefits are the same for all employees whether they work in the fabrication or the installation de- partments. There has been no history of collective bargaining. The proposed unit is not a craft unit. It does not include all em- ployees having similar skills. Nor is it the kind of multidepartment unit which the Board has sometimes held to be appropriate. The Petitioner urges, however, in support of its unit position, that the employees in the fabrication departments of their own initiative requested the Petitioner to file the present petition. This is in sub- stance an argument that the proposed unit be found appropriate on the controlling basis of extent of organization, which is forbidden by Section 9 (c) (5) of the Act" We find that the proposed unit is not appropriate. Accordingly, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. Section 9 (c) (5) provides : In determining whether a unit is appropriate for the purposes specified in sub- section (b) the extent to which the employees have organized shall not be controlling. THE WELCH GRAPE JUICE COMPANY and AMERICAN FEDERATION OF LABOR, PETITIONER. Case No. 6-RC-737. September 17, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William A. McGowan, 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 Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 96 NLRB No. 26. THE WELCH GRAPE JUICE COMPANY 215 3. Pursuant to an agreement for consent election, executed by the Employer and the Petitioner and approved by the Regional Director, an election was held on February 23, 1951, in the agreed appropriate unit. At the election, a sufficient number of ballots was challenged to affect the results thereof. Thereafter, the Regional Director inves- tigated the challenged ballots and, on May 25, 1951, issued his report on challenges and order setting aside election, in which he withdrew his approval of the agreement for consent election, and set aside the election, on the ground that there had been no meeting of the minds regarding the terms of the consent agreement. The Employer asserts that the Regional Director's action in setting aside the election and directing a hearing c'e novo on the petition was arbitrary and capricious; it further contends that the Board should remand this proceeding to the Regional Director, with instruc- tions that he rule upon the challenged ballots and certify the results of the election, in accordance with the agreement for consent election. We are satisfied, however, that the Regional Director's finding that there was no meeting of the minds of the parties as to the terms of the consent agreement was neither arbitrary nor capricious, and that his action did not involve any abuse of discretion. Accordingly, the Employer's motion to remand is hereby denied., A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance employees at the Employer's North East, Pennsylvania, plant, ex- cluding office clerical, seasonal, and professional employees, watch- men-firemen, guards, hourly paid foremen and assistant foremen, and all other supervisors as defined in the Act. The Petitioner would also include in the unit, and the Employer would exclude, certain so- called nonregular employees. The Employer otherwise agrees that the proposed unit is appropriate. The Employer is engaged in processing and preserving food prod- ucts. The Employer's personnel requirements fluctuate widely, reach- ing a peak during the harvest season, which lasts from July to early November. In addition, the Employer's operations are subject to other intermittent peaks, called production surges, which are governed largely by the demand for the Employer's products. The timing, extent, and duration of such production surges, and the number of employees required thereby, cannot generally be predicted. ' General Armature & Manufacturing Co, 89 NLRB 654, 659; Cohn-Hall-Mare Company, 86 NLRB 101 ; McMullen Leavens Company, 83 NLRB 948; Lufkin Foundry & Machine Company, 83 NLRB 768 As the election of February 23, 1951, was not a valid election, we also find without merit the Employer 's contention that the holding of a second election within 12 months of the earlier election would violate Section 9 ( c) (3) of the amended Act.' NAPA New York Warehouse, Inc., 76 NLRB 840. 216 DECISIONS,,OF NATIONAL LABOR RELATIONS BOARD In addition to its complement of "regular" employees, who are em- ployed on a year-around basis, and its "seasonal" employees who are, employed only during the harvest season peak,2 the Employer em- ploys a number of "nonregular" employees to meet the requirements of its production surges. When employed, the nonregular employees receive the same rates of pay, work the same hours, and under the same supervision, and perform the same kind of work, as the regular em- ployees. As our unit finding is based upon functionally related occu- pational categories, nonregular employees working at jobs within the unit are necessarily included and entitled to representation 3 We find, accordingly, that- all production and maintenance employees at the Employer's North East, Pennsylvania, plant, including nonregular employees, but excluding office clerical, seasonal, and professional em- ployees, watchmen-firemen, guards, hourly paid foremen and assistant foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes' of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Petitioner contends that the nonregular employees are eligible to vote in the election hereinafter directed; the Employer contends they are not, because of the intermittent nature of their em- ployment and the alleged excessive turnover among the employees in this group. The Employer maintains a list of nonregular employees for recall from time to time during production surges; those on the list with the longest service are generally given preference for employ- ment. Those who do not accept employment when offered, or who indicate that they are not available, are dropped from the list.' The number of nonregular employees on the payroll averages about 30 throughout the year; except for short periods, there are usually some such employees on the payroll .4 Evidence was introduced at the hearing reflecting the employment histories of the nonregular employees who were on the payroll at the time of the consent election. . These, the most frequently employed nonregular employees, were about equally divided between employees who had worked intermittently for the Employer for more than 1 year before the consent election, and those who were first employed less than 1 year before that date. Of those who worked for the Employer for 2 Pursuant to the stipulation of the parties, seasonal employees are excluded from the unit 8 The Sheffield Corporation, 94 NLRB 240 ; J. C. Penney Company, 86 NLRB 920. The separate issue of the voting eligibility of these employees will be discussed infra. The Employer also contends that if the Board finds that nonregular employees are In- cluded in the unit, the petition should be dismissed because the Petitioner has failed to make a sufficient showing of interest . As the Petitioner's showing of interest is a matter for administrative determination , and is not litigable by the parties , and as we are admin- istratively satisfied that the Petitioner ' has made an adequate showing of interest, we find this contention to be without merit. J. I. Case Company, 95 NLRB 207. 4 At the time of the February 1951 consent election , about 140 nonregular employees were on the recall list and 85 were on the payroll . At the time of the hearing, July 10, 1951 , about 45 nonregular employees were on the payroll. THE WELCH GRAPE JUICE COMPANY. 217 more than 1 year, more than half had worked intermittently for more than 5 years, and more than one-third for more than 10 years.' As these employees have been recalled by the Employer from year to year, as most of them are still working or are subject to recall before junior employees, and the majority of them have worked for the Em- ployer for substantial periods during the year preceding the consent election, we find that nonregular employees who were first employed by the Employer more than 1 year prior to the date of this Decision and Direction of Election have a reasonable expectation of substantial, albeit in some cases irregular and intermittent, yearly employment by the Employer. We find, accordingly, that they have a substantial interest in employment conditions at the plant, and are therefore eligible to vote in the election." Among the employees whose employment began less than 1 year before the consent election the turnover was, however, substantially greater.7 The record establishes, nevertheless, that the chances of future employment were substantial for such of these employees as were on the payroll a total of more than 6 months prior to the date of the election.8 We find, therefore, that nonregular employees who were first employed by the Employer less than 1 year prior to the date of this Decision and Direction of Election, but who have been on the Employer's payroll a total of more than 6 months, have a reasonable expectation of substantial future employment by the Employer. We find, accordingly, that they have a substantial interest in employment conditions at the plant, and are therefore eligible to vote in the elec- tion. We further find that nonregular employees who were first employed by the Employer less than 1 year prior to the date of this Decision and Direction of Election, and who have not been on the Employer's payroll a total of more than 6 months, do not have a reasonable expectation of substantial future employment by the Em- ployer, and accordingly are not eligible to vote. [Text of Direction of Election omitted from publication in this volume.] - ° Moreover, over one-half of this group had been on the payroll a total of more than 6 months in the year before the election , and more than one-third of them were still on the payroll at the time of the hearing, about 41/2 months later ; some of the latter had become permanent regular employees . Except for about one-fifth, who had quit, the others were on leave or had been laid off, subject to recall . Under the Employer's practice, they would normally be recalled before junior employees. ° R. L. Polk f Co., 91 NLRB 443; The Sanger Winery Association, 88 NLRB 852. * Thus, by the time of the hearing over half had quit or been discharged , and only about one-fourth , some of whom had become permanent regular employees , were still on the payroll Moreover, although the remainder , who were on leave or had been laid off, were subject to recall, they were less likely to be recalled , under the Employer's practice, than the older employees. ° Between the date of the consent election and the time of the hearing , only one-fourth of these employees with more than 6 months prior experience had been removed from the payroll , as against over five-sixths of those who had 6 months or less prior experience.