California Vegetables Concentrates, Inc.

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Intervenor did circulate a leaflet containing the two alleged misrepresentations. However, even assuming that the two items were misrepresentations, they were not deliberate misstatements of material facts within the Intervenor's special knowledge which the employees could not properly evaluate. Accordingly, the Intervenor's circula- tion of the leaflet has not been shown to exceed the standards of legiti- mate campaign propaganda so as to impair the employees' free choice in the election 9 As we have overruled the objections to the election and as the tally of ballots shows that the Intervenor received a majority of the valid ballots cast, we shall certify the Intervenor as the collective-bargain- ing representative of the employees in the appropriate unit. [The Board certified Local Union No. 59, Chauffeurs, Warehouse- men and Helpers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective- bargaining representative of the employees of the Employer in the appropriate unit.] 9 C. If Wheeler Manufacturing Company, 118 NLRB 698. California Vegetables Concentrates, Inc. and Packing House Employees and Warehousemen ' Local Union No. 698, I. B. T. C. W. & H. A., Petitioner . Case No. 20-RC-3418. March 31, 1958 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 M. C. Dempster, hear- ing 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- member panel [Chairman Leedom and Members Bean and Fanning]. 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. 3. 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. 1 The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi- cate of affiliation revoked by convention action, the identification of this Union is hereby amended. 120 NLRB No. 40. CALIFORNIA VEGETABLES CONCENTRATES, INC. 267 4. The parties agree that the overall production and maintenance unit sought by the Petitioner is appropriate. However, the Petitioner would include and the Employer would exclude certain alleged casual or seasonal employees. The Employer, which is engaged in dehydrating vegetables and fruits, operates its plant continuously throughout the year; however, its labor force fluctuates according to weather conditions and the availability of fruits and vegetables for processing. Thus, during 1957, its work force fluctuated from a high employment figure of 448 to a low employment figure of 110. To meet its employment require- ments the Employer has a complement of about 165 regular employees, being those employees who have completed a probationary period; who are willing to work for the Employer whenever they are needed; and who have job seniority and preferential reemployment rights.2 During peak periods, when the Employer's needs exceed its regular employee complement, and which in 1956 occurred during February, March, May, October, and November, the Employer hires additional employees which it classifies as recurrent and casual employees. These employees, as a rule, have jobs at canneries in the area and work for the Employer during periods of slack at their regular place of em- ployment. Recurrent employees are distinguished from casual em- ployees in that they have previously worked for the Employer and, because they have indicated an interest in further employment, they are offered work in preference to other applicants. Both groups, however, are hired on a temporary basis; they are not expected to remain with the Employer if they are offered employment at plants where they have seniority; and they may or may not return during subsequent peak periods or seasons.3 Although they perform the same duties as regular employees and receive the same rate of pay, they do not share in the Employer's health or vacation plan or receive other benefits enjoyed by regular employees. From the foregoing and the entire record, it is clear and we find that, although at some periods of the year the Employer has peak and low periods of production, necessitating augmentation and re- duction of its labor complement, it operates on an annual basis with a representative work force of regular year-round employees, rather than on a seasonal basis with a work force composed primarily of seasonal employees.4 It is also clear, and we find, that the employees 2 Some regular employees are temporarily laid off during low production periods such as those which occurred during June and December of 1956 3 The Employer was unable to state what proportion of the recurrent and casual em- ployees return during subsequent peaks ' Cases relied on by the Petitioner involving operations primarily seasonal in nature, such as Imperial Rice Mills, Inc, 110 NLRB 612, are therefore inapposite. Moreover, as the Board does not include categories of employees in a unit without finding them eligible to vote , cases such as Marvel Roofing Products, Incorporated, 108 NLRB 292, are no longer controlling. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD classified as recurrent and casual employees are temporary seasonal employees who do not have a sufficient community of interest with the regular employees to warrant their inclusion in the same unit with the regular employees.' We shall, therefore, exclude them. As the parties are otherwise in agreement as to the unit, we find that the following employees at the Employer's Modesto, California, plant, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, excluding all temporary seasonal employees, office clerical employees, laboratory technicians or helpers, the fieldman, plant superintendent, quality control man, the head floorlady, the foremen, guards, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 5 American Rice Growers Association, 115 NLRB 275 . As we are excluding temporary seasonal employees from the unit , we deny the Petitioner's request that the election be- referred until the September-November peak season. Di Giorgio Wine Company d/b/a Santa Fe Vintage Co. and Food, Drug & Beverage Warehousemen & Clerical Employees' Union, Local #595, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 01-RC-5047. March 31, 1958 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 G. Wilkerson, 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-member panel [Chairman Leedom and Members Jenkins and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. Petitioner seeks a unit of production and maintenance employees at the Employer's Los Angeles plant, where bottling and distributing are done. The Employer contends that the petition is barred by a contract executed on November 7, 1956, with the Distillery Workers, whom it refers to as the Intervenor and whose official title is Distillery, Rectifying, Wine and Allied Workers' International Union of 120 NLRB No. 41.