Cochran Co., Inc.

COCHRAN CO., INC. 5 23 as well as with the striking union for a number of years. There is no suggestion in the record, much less any evidence, of hostility on the part of Respondent toward union organiza- tion in general or toward Local 23 in particular. Disparity of treatment there was; but dis- parity of treatment is not the equivalent of discrimination, as the Board and the courts have held in cases too numerous for citation. Neither the brief of the General Counsel nor that of Local 23 cites any cases to the contrary. There is nothing here to show that this disparate treatment was caused by anything else than Respondent's own conception of sound business policy. In my opinion the General Counsel has not met the burden upon him of establishing his case by a preponderance of the credible testimony, viewing the record as a whole. It must be con- cluded, and I find, that Respondent, by paying its unorganized employees for June 3 whether or not they worked, and failing to pay members of Local 23 unless they worked, and then only for the time they performed services, did not commit an unfair labor practice. CONCLUSIONS OF LAW 1. Wagner Electric Corporation is and at all times relevant herein was engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. 2. American Federation of Technical Engineers, Local 23, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication,] read into this statement the meaning that members of Local 23 were being treated unequally simply because they were union adherents. I do not so interpret it. In my opinion Boeruiger's remarks, taken in their context, were merely a paraphrase of Respondent's statement of policy based on its belief that Local 23 members voluntarily absented themselves from work because, as a union, they respected the picket line of the striking union. COCHRAN CO ., INC,and UNITED FRESH FRUIT AND VEGE- TABLE WORKERS , LOCAL INDUSTRIAL UNION NO. 78, CIO, Petitioner THE GARIN GO, and UNITED FRESH FRUIT AND VEGETABLE WORKERS, LOCAL INDUSTRIAL UNION NO. 78, CIO, Peti- tioner. Cases Nos. 20-RC-2048, 20-RC-2049, and 20-RC- 2054. May 26, 1953 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing in the above-con- solidated cases' was held before LaFayette D. Mathews, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employers. 3. The Employers contend that the employees sought by the Petitioner are "agricultural laborers" and not "employees" i On November 24, 1952, the Regional Director consolidated the proceedings in the above cases. 105 NLRB No. 13 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 2 (3) of the Act . The record re- veals that these employees are engaged in packing - shedopera- tions at the Garin Company' s Bixler shed and the Cochran Company's Rhodes Station and Tracy sheds, all in California. At the Bixler shed the employees pack celery. There are approximately 120 employees employed during the peak of the celery harvest . About 46 percent of these employees are em- ployed by the Employer only during the packing season. About 42 percent are transferred from the Garin Company' s ranch operations where they are employed the remainder of the year. The remaining 12 percent are regular , year - round , packing- shed employees . The Company packs celery grown in its own fields. The Company uses about 100 ,000 packing crates each year and its receipts from out-of -State customers are in ex- cess of $ 100,000 annually. At the Cochran Company's Rhodes Station shed the employees involved pack carrots , which are grown principally in the Com- pany's fields . At its Tracy shed the employees are engaged in packing celery and cooling asparagus . Eighteen employees are employed for the celery operation at the Rhodes Station shed and 175 at the Tracy shed for the carrot harvest ; the Company also employs a large number of packing workers in these 2 sheds to pack tomatoes. The latter employees are currently represented by the Petitioner as part of an existing bargaining unit . About 9 of the 18 employees at the Rhodes Station shed packing carrots are carried over from the tomato -packing season, and 4 or 5 are ranch workers. Of the employees pack- ing celery at the Tracy shed only 4 or 5 are employed by the Company as fieldhands the balance of the year. The remainder are either migratory workers, employees carried over from the tomato-packing season, - or persons recruited from the area. On the basis of the foregoing we find that the Employers are engaged in extensive packing-shed operations and that such operations are, in fact , separate commercial enterprises in- dependent of the Employers' farming operations . Accordingly, we find that the employees sought by the Petitioner are em- ployees within the meaning of the Act.2 4. The Petitioner seeks to represent , in separate shed units, "all non-tomato packing shed employees " in the above three sheds. The Employers take no position regarding tl?e appro- priate units. There is no history of collective bargaining covering these employees . The record indicates that the Employers ' tomato- packing employees in the above -named sheds as well as other packing sheds have been represented bythe Petitioner for some years under a series of multiemployer agreements . There is no evidence in the record, however , that non-tomato -packing employees are employed by other employer members of the bargaining association.3 Y See, Imperial Garden Growers, 91 NLRB 1034, Arena-Norton, Inc., 93 NLRB 375, J. J. Crosetti Co., 98 NLRB 268; Colorado River Farms, 99 NLRB 160; Danny Danenberg, 103 NLRB 714. $ See J. J. Crosetti Co., cited above. COCHRAN CO., INC. 7 The Board normally includes in the same unit all packing- shed employees regardless of the season worked or of the commodity handled .4 However, the non-tomato -packing em- ployees sought by the Petitioner constitute residual groups of employees not presently represented or sought to be repre- sented on a broader basis . Moreover , the Employer has not objected to the unit Petitioner requests . Accordingly , we find that individual shed units of all employees other than the tomato packers constitute appropriate bargaining units.5 Asparagus and onion -handling employees : The record re- veals that about 25 employees are engaged in cooling asparagus at the Tracy shed . A few of these employees are regularly en- gaged in truck -driving duties . The record also reveals that 4 or 5 truckdrivers are employed , in part, to store onions at both the Rhodes Station and Tracy sheds . In the absence of any compelling reason to the contrary , we shall include the em- ployees, except the truckdrivers , engaged in cooling asparagus at the Tracy shed . The record , however, contains insufficient evidence to determine whether the truckdrivers handling asparagus at the Tracy shed and onions at both sheds should be included in the units .6 We shall therefore allow these em- ployees to vote in the elections hereinafter directed subject to challenge . The challenged ballots shall not be counted unless they affect the results of the election , in which event a further investigation concerning the employment status of the employees casting the challenged ballots will be made.7 Accordingly , we find that the following units are appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (1) All packing - shed employees8 employed by The Garin Co. in its Bixler shed located 3Z miles east of Brentwood, California , excluding office clerical employees , guards, the shed foreman, the receiver , the packing boss, the subforeman, and all other supervisors as defined in the Act. (2) All non-tomato -packing-shed employees9 employed by the Cochran Co., Inc ., in its Tracy packing shed located at Tracy, California , excluding office clerical employees , guards, the shed foreman , the packing boss, the receiver , the main- tenance man , the carloading boss, and all other supervisors as defined in the Act. (3) All non-tomato -packing-shed employees 19 employed by the Cochran Co., Inc., in its Rhodes Station packing shed 4See , for example , Imperial Garden Growers , cited above, Employer Members of Imperial Valley Shippers Labor Committee , et al., 92 NLRB 533. 5Compare Jacobs Manufacturing Company , 99 NLRB 482 , Jordan Marsh Company, 85 NLRB 1503. 6See Danny Danenberg , cited above ; L. Maxcy, Inc., 78 NLRB 525. 7Compare Guggenheim Packing Company , 94 NLRB 777. 8The packmg-shed employees who work on their Employer 's ranch farms during the non- packing seasons are excluded from the unit with respect to their time spent in ranch work. They are included in the unit and may be represented by the Petitioner with respect to time spent in packing-shed operations, and are eligible to vote in the election . Archier-Daniels- Midland Company, 97 NLRB 1463. 9See footnote 8, above. 10 See footnote 8, above. 291555 0 - 54 - 2 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located within 4i miles of Tracy , California , excluding office clerical employees , guards, the shed foreman , and all other supervisors as defined in the Act. 5. Because the seasonal employment peaks in the units we have found appropriate have passed , we shall not direct that elections be held at this time. Following our customary practice in seasonal industries , we shall direct that elections be held at or about the time of the employment peak in these units, on a date to be determined by the Regional Director , among the em- ployees in the appropriate units who are employed during the payroll period immediately preceding the date of the issuance of the notices of election. [Text of Direction of Elections omitted from publication.] Chairman Herzog and Member Peterson took no part in the consideration of the above Decision and Direction of Elections. CLIFTON CONDUIT CO. (TENNESSEE) IN.C.and INTERNA- TIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO. Case No. 32-CA-282. May 27, 1953 DECISION AND ORDER On April 7, 1953, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had not violated Section 8 (a) (1) and (3) of the Act as alleged in the complaint and recommending that the complaint against the Respondent be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief; the Respondent also filed a brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendation of the Trial Examiner, with the modifications as set forth below. 1. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1) and (3) of the Act, by failing to rehire the complainants after an economic layoff. We do not adopt, however, the Trial Examiner' s discussion as to the legal effect of an alleged agreement to rehire the laid-off em- ployees. The issue in this proceeding is not whether there was an agreement enforceable at law to rehire these employees. I 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, Murdock, and Peterson]. 105 NLRB No. 10.