Bob Saunders Co.

BOB SAUNDERS COMPANY 415 agents' manual, the Employer reserves and exercises the right to con- trol many aspects of their relationship with it and :with its policy- holders, actual and prospective, we find that the full-time and part- time agents 5 are not independent contractors but are employees within the meaning of Section 2 (3) of the Act.' Accordingly, we find that a question affecting commerce, exists concerning the representation of 'employees of the Employer within the meaning of Section 9 (c) (1) and'Section 2 (6) and (7) of the Act. 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaningof Section 9 (b) of the-Act: All insurance agents, including full-time and, part-time agents in the western area of: the railroad department of the Employer, exclud- ing all other employees and supervisors as defined in the Act. '[Text of Direction of Election omitted froip publication.] 6 We find no merit in the Employer's secondary contention that, in any event, its part-' time agents . are ;not ,emglgy es, but independent contractors. The record contains no ev ,dence thatt "part time agents are treated differently from full-time agents, except that weekly, activity reports are not required from them,"they do not devote ali oftheir't'ime to selling insurance, and, they are . ineligible for participation in the Elnployer,'s. group insurance. plan. These circumstances are not sufficient, in our opinion,.to require a different con- elusion as to their status. 6 See ,9ueet-Orr and Co., .Inc., .117 NLRB 798. We do not believe that the•isolated in stance of the sale of an agency 5 years prior to the hearing herein is a significant factor, :standing by itself, pointing to the existence of independent contractor status. Bob Saunders, d/b/a Bob Saunders Company, Petitioner and United Packinghouse Workers of America, Local 78, AFL-CIO. Case No. 2O-RM413. July 1,1957 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER On January 4,' 19'57, pursuant to it Board Decision and Direction ,of. Election dated 'December' 27; 106,' an election was conducted herein, under the direction and supervision of the Regional Director for the 'Twentieth Region, among employees. in the unit heretofore found :appropriate. Upon. the conOlusion of the balloting; a tally of ballots was issued and served upon the parties in accordance with. the Board's Rules' and Regulations. The tally of ballots shows that there were approximately 65 eligible voters; that 3 votes'were`cast for,' and 10 votes were cast against, the Uflion; and that '68 ballots were challenged. On January 9, 1957, the Union filed objections to the conduct of the election and to conduct affecting the results of the election. There after the 'Regional Director investigated the issues raised by the challenged ballots and. the Union's objections; and, on March 15; 1 Not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 51. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1957, issued and duly served on the parties a report on challenged ballots and objections. The Union and the Employer have filed ex- ceptions to the latter report. The Union's Objections to the Election In its objections (1), (2), and (3), the Union contended, in sub- stance, that an election should not. have been conducted herein because there existed no question concerning representation, because at the time of the the election unresolved unfair labor practice charges were pending against the Employer, and because an unfair labor practice strike was in progress on the date.of the election. As pointed out in the Regional Director's report, the substance of these objections was raised by the Union in the course of the earlier representation hearing herein, and the issues were decided adversely to the Union in the Board's Decision and Direction of Election. Moreover, the Regional Director's report also points out that although at the time of the election there was pending an appeal to the General Counsel in Case No. 20-CA-1235 from the Regional Director's dismissal of the Union's unfair labor practice charges against the Employer, the General. Counsel, thereafter, on January 11, 1957, denied the Union's appeal. In agreement with the Regional Director, we therefore find that on the date of the election herein the strikers in question were economic strikers. The Union's exceptions relative to its objections (1), (2), and (3) are for the most part only a reiteration of points previously disposed of by the Board in its Decision and Direction of Election. In addi- tion, the Union now asserts that the Regional Director did not con- duct a "complete investigation" of the Union's charges in Case No. 20-CA-1235.' We refuse, however, to consider this, latter allegation in this, a representation, proceeding. Accordingly, in agreement with the Regional Director's recommendation, we hereby overrule ob- jections (1), (2), and (3). In its objection (4), the Union alleged that the Employer had "padded" its payroll. The Regional Director found no merit to this allegation. No exception having been filed to the Regional Director's finding in this respect, objection (4) is hereby overruled. In its objection (5), the Union alleged that before the election herein, on or about December 31, 1956, the Employer announced and made effective a wage increase. The Regional Director found in his report that no wage increase was granted to employees on or about the alleged date, or upon any other date material herein. In addition, the Regional Director noted that the Union had withdrawn this por- _2 In its exceptions , the Union asserts that on March 27 , 1957 , it filed a new charge against the Eniployer, "re-alleging the violation of 8 (a ) ( 5)." It "suggests" that a hear- ing be ordered by the Board on both its new charges and its exceptions herein. We see no reason to adopt the "suggested" procedure. BOB SAUNDERS COMPANY 417 tion of its objections. In its exceptions, the Union asserts that despite the withdrawal of its objection, the Regional Director should have found that a wage increase was granted employees "immediately after" the period October 1 to 4, 1956, which allegedly interfered with the employees' freedom of choice in the election. We find this exception without merit. The Union having withdrawn its objection in; the course of the Regional Director's investigation may not now reassert the substance of this objection before the Board at this stage of the proceeding. Moreover, the Board does not consider election objections based upon alleged interference which occurs prior to the issuance of a Decision and Direction of Election.' Accordingly, the Union's objection (5) is hereby overruled. The Challenged Ballots The Union challenged the ballots of 39 voters on the ground that these voters were hired during a strike and were temporary replace- ments for striking employees. According to the Regional Director, 9 of these 39 voters were in fact hired before October 1956, the date on which the strike began, and the parties agree that these 9 voters are permanent employees. Neither party has excepted to the Regional Director's recommendation that the ballots of these nine voters, whose names appear on Appendix A attached hereto, be opened and counted. Accordingly, we hereby overrule the challenges to their ballots. As to the other 30 ballots challenged by the Union, the Regional Director found that they were the ballots of employees hired between October 3 and December 18, 1956, and that these employees were laid off on January 10, 1957, when the Employer's packing season ended and all its employees were laid off. The Regional Director further found that the Employer had stated that the 30 employees in question will be recalled when the Employer's 1957-58 season begins, and that, al- though requested so to do, the Union had furnished no evidence to indicate that these employees had been hired on a temporary basis. Accordingly, the Regional Director recommended that the challenges to their ballots be overruled. In its exceptions, the Union criticizes the manner in which the Re- gional Director conducted his investigation, repeats its contention that the 30 employees hired during the October 3 to December 18 period are temporary employees; attacks the Employer's credibility generally, and makes certain broad factual allegations which, accord- ing to the Union, supports its contentions. However, the Union admits that it does not have available "specific information with respect to each of the alleged temporary replacements," and submits no substan- tiating evidence, by affidavits or otherwise, to support its broad factual 3 F. W. Wooltoorth Co., 109 NLRB 1446, 1449. 450553-58--vol. 118-2.8 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations. Accordingly, we adopt the Regional Director's recom- mendations, and find that the 30 employees whose names appear on Appendix B attached hereto are permanent employees. The chal- lenges to these ballots are hereby overruled. The Employer challenged the ballots of 22 voters, whose names appear on Appendix C attached hereto, on the ground that they were economic strikers who had been permanently replaced. The Regional Director noted the number of persons employed in the plant during the course of the 1956-57 packing season, noted further that the "Em- ployer has not taken the position that any strikers would be refused employment during the 1957-58 season," and concluded that "under the circumstances present in this case, including the seasonal nature of the operations, the strikers may reasonably be viewed as occupy- ing a status similar to temporarily laid off employees with a right to reinstatement, whom the Board ordinarily permits to vote." Ac- cordingly, the Regional Director recommended that the challenges to the ballots of these employees be overruled. We do not adopt the Regional Director's recommendation in this respect. Section 9 (c) (3) of the Act states explicitly that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote."' Under well-established principles, economic strikers lose their right to reinstatement upon being replaced.4 The Regional Director here appears to have superimposed upon this rule a distinction be- tween economic strikers in a seasonal industry and economic strikers in a nonseasonal industry. We, however, perceive nothing in the lan- guage or intent of the Act to warrant the distinction. It is an irrele- vant consideration, we think, that economic strikers in a seasonal in- dustry who have actually been replaced by other employees may conceivably be rehired during the next, or a subsequent, season.' For whether the industry be seasonal or nonseasonal in nature, the narrow issue that is presented in a case. of this sort is whether or not the economic strikers have in fact been replaced. Proceeding, as he did, upon an erroneous interpretation of the law, the Regional Director did not squarely pass upon the narrow issue of whether or not the economic strikers here involved had in fact been permanently replaced. He cited no fact, however, which is incon- sistent with the Employer's assertion that they had been replaced.' 4 N. L. R. B. Y. Mackay Radio & Telegraph Co., 304 U. S. 333; Kansas Milling Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10) ; The Pipe Machinery Company, 79 NLRB 1322; Mid- west Screw Products Company , 86 NLRB 643. 5 See John TV. Thomas Co., 111 NLRB 226 , 228-229; and Dura Steel Products Com- pany, 111 NLRB 590, 592. "The Regional Director cited certain statistics pertaining to the number of persons employed by the Employer at various periods of its operations , and also bearing upon the rate of employee turnover. The cited statistics, in our opinion , are susceptible of con- flicting interpretations , and, therefore , lack probative value in resolving the instant factual issue. BOB SAUNDERS COMPANY 419 Moreover, a finding, which the Regional Director implicitly made, that the 30 employees who were hired after the strike began were permanent employees, is itself inconsistent with any notion that those who remained on strike were not replaced. Accordingly, upon all the facts before us, we find that the voters whose names appear on Appen- -dix C attached hereto were in fact economic strikers who had been permanently replaced, and the challenges to their ballots are hereby sustained. The Employer challenged the ballots of four voters on the ground that they quit prior to the strike. As to these challenges, the Union has not excepted to the Regional Director's recommendation that the chal- lenges to the ballots of two of such voters, Connie Larez and Lucy Melendrez, be sustained; and these challenges are accordingly hereby sustained. In accordance with the Regional Director's recommenda- tion, we shall not at this time resolve the issues pertaining to the ballots of the other two of such voters, Bebe Larez and Lois Matasci. The Employer challenged the ballot of Philip Torres on the ground that he did not work in the packingshed during the 1956-57 season, and hence was not within the unit. The Regional Director found that Torres was an agricultural employee during the 1956-57 season, and was actually offered employment in the Employer's shed, but refused the transfer. The Union does not dispute the Regional Director's factual finding, but contends that in the circumstances Torres, al- though he refused the Employer's offer of transfer, became a striking ,employee. We find no merit in this contention, and the challenge to Torres' ballot is hereby sustained. The Employer also challenged the ballots of two striking persons, Leonard Correa and Juana V. Ortega, on the ground that the jobs they perform had been eliminated. As a conclusive election may result from the opening of the ballots hereinafter directed, we shall not at this time pass upon the issues raised by the challenges to the ballots of Correa and Ortega. We shall direct that in the event that the ballots of the voters whose names appear on Appendix A and Appendix B give the Union a majority of the valid votes cast, the Union be certified as the collective- bargaining representative of the employees in the unit heretofore found appropriate; we shall also direct that if the Union does not receive a majority of the valid votes cast, the results of the election be certified. If the election is not concluded in either such way, the Board will, upon being so advised by the Regional Director, give further consideration to the disposition of the challenged ballots not ruled upon herein. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board directed that the Regional Director for the Twentieth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of the employees whose names appear on Appendix A and Appendix B attached hereto, and serve upon the parties a revised tally of ballots. If the Union receives a majority of the valid votes cast in this election, the Regional Director shall issue a certification of representatives; if the Union does not receive a majority of the valid votes, the Regional Director shall issue a certification of results of election. If the revised tally shows an inconclusive result, the Regional Director is hereby directed to so advise the Board, in order that the Board may proceed further in the matter. . [The Board ordered the above-entitled matter referred to the Regional Director for the Twentieth Region for disposition.] CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con- sideration of the above Supplemental Decision, Direction, and Order. APPENDIX A Berti, Margaret Godina, Salome Saunders, Floyd Fellows, Fred Negroni, Dorothy Villalobos, Joe Flores, Elfredo Sandez, Loreto Villalobos, Julia APPENDIX B Aquino, Benigno Caraccioli, Louie O'Connor, Bob Arthurs, Cora May Ellis, Arzula . Rianda, Jim Arvizu, Jose Fernandez, Gregorio Robledo, Lupe Baldwin, Effie Fernandez, Kathalina Robledo, Mercy Barlogi, Aurelia Garcia, Mary Rowe, Dick Bassetti, John Garcia, Rubin Silastre. Margaret Bendelle, Nora Handley, Jemiie Silastre, Rustice Berti, Letitia McDowell, Henry Souza, Mary Bianchi, Joe Muniz, Connie Teues, Connie Bianchi, Ruby Ochinaug, Aurora Torres, Manuel APPENDIX C Abina, Aimeda Melendrez, Isabel Rodriguez, Enedina C. Correa, Mary M. Melendrez, Maximo R. Rodriquez, Mercedes O. Correa, Mike C. Mena, Alexia Rodriguez, Mike P. Luna, Dolores Mena, Vincente Rodriguez, Robert P. Luna, Mary Ortega, Fermina V. Torres, Maria P. Macias, Eloisa V. Ramirez, Evangelina Villalobos, Frank Marks, Cecilia Renteria, Jesus D. Villalobos, Petra Marks, Eva