Santa Fe Vintage Co.

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 6 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.] a 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 refer red 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. 21-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. SANTA FE VINTAGE CO. 269 America. This Union was duly served with notices addressed to the International and to its Local 56 at the same Fresno, California, address, but did not appear at the hearing. A telegraphic request by Local 56 for a continuance, received just before the hearing and specifying no reason, was denied. An earlier request for continuance, which neither the Employer nor the Petitioner opposed, was granted, Styling itself an Intervenor, the International organization of the Distillery Workers has since filed a motion to adopt as it own the Employer's brief, which urges the contract as a bar. Although an original brief on behalf of the incumbent Union so filed would be untimely, we shall-because the Union was not present at the hearing to state its position-grant its request to adopt the brief which was timely filed by the Employer. In addition, we shall consider the motion a formal intervention on behalf of the International organi- zation of the Distillery Workers based upon the contract interest it asserts. The Petitioner contends that the contract in question is no bar. The Los Angeles plant at which the unit is sought was bought by the Employer in March 1956. At the same time a winery at Kerman was also bought. The Di Giorgio Company had operated its plant at Arvin, where its employees have also been represented by the Dis- tillery Workers, Local 45, for some years at the time it annexed the Los Angeles and Kerman plants. The Employer has continued to operate the Los Angeles plant under the name of its predecessor, Santa Fe Vintage Co. Before the change in ownership the employees were represented by Local 56 of the Distillery Workers, as evidenced by an unsigned agreement dated January 1, 1956, with a termination date of May 31, 1957.1 This contract with Local 56 contained a union-security provision, which the new Employer continued to honor along with the contract as a whole. Board records indicate that Local 56 has been out of compliance with Section 9 (f) and (g) since 1953, and with 9 (h) since December 1954. The Employer contends that this Local is defunct, alleging that there has been no local activity at the Los Angeles plant since the purchase. The employees at the Kerman plant were also covered by an un- signed contract with the Distillery Workers, Local 45. This was dated October 27, 1955. In May 1956 the contracts covering the Los Angeles and Kerman plants were extended to December 31, 1957, by separate addenda signed by "Avis L. Ethridge, International Representative," 1 for Local 56 and 1 for Local No. 45. The current petition, which affects only the Los Angeles employ- 1 This contract named the Union as "Winery, Distillery and Rectifying Workers Union affiliated with the A F. of L." and designated it for signature purposes as "Winery, Distillery and Rectifying Workers Union #56." _ 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, was filed November 1, 1957, approximately 60 days before the December 31, 1957, termination date. No automatic renewal clause is involved, and the petition would be timely if it were not for an additional addendum. This was executed on November 7, 1956, and referred to the employees of all three plants of the Employer. It extended the contractual relation for 4 additional years, to Decem- ber 31, 1961. This addendum-upon which the contract-bar question turns-reads as follows : ADDENDUM TO AGREEMENT PRESENTLY IN EXIST- ENCE BETWEEN DI GIORGIO WINE COMPANY AND THE WINERY, DISTILLERY, AND RECTIFY- ING WORKERS' UNION The parties hereto agree that the Agreements presently in exist- ence between them covering Santa Fe Vintage Company, Di Giorgio Wine Company, and the Kerman Winery, are hereby amended to extend the term thereof until December 31, 1961; provided, however, that commencing in the year 1958, the Agree- ments may be reopened for the purpose of discussing wages only, by giving notice as provided in said Agreements. The same no-strike and work stoppage provisions of the Di Giorgio Winery contract will apply to all said plants. Di GIORGIO WINE COMPANY, B. W. SANBORN, DATED-November 7, 1956. WINERY, DISTILLERY AND RECTIFYING WORKERS' UNION, Avis L. ETHRIDGE. The Employer takes the position that this November 1956 adden- dum is not a premature extension of the original contract as extended. We find it unnecessary to pass upon this argument in view of the fact that the existing contract, whose term is extended by the adden- dum in question, contains a union-security clause in favor of a con- tracting union which is not in compliance with Section 9 (f), (g), and (h) of the Act. As Section 8 (a) (3) requires that a labor organization entering into a union-security contract shall be in com- pliance or have received a notice to that effect within the preceding 12 months, the Board does not allow a contract which does not meet these requirements to bar an election by another union.' The Em- ployer contends, however, that the contracting union is now the International Union rather than Local 56, and that, as the Interna- tional is in compliance with Section 9 (f), (g), and (h) of the Act, the lack of compliance by its Local 56 is immaterial. 2 Mellen-Quincy Manufacturing Co , Inc, 98 NLRB 457. SANTA FE VINTAGE CO. 271 It is true that the November 1956 addendum makes no specific reference to Locals 56 and 45. But it clearly states that the parties to it are also the parties to the "Agreements presently in existence," that is, the agreements between the Employer and Locals 56 and 45. Thus it cannot be said that the November 1956 addendum on its face creates a contract with the International Union alone despite the omis- sion of local numerical designations. We also consider it significant that the continuing union-security provision of the contract is imple- mented, for the employees in question, by checkoff authorizations which specifically run in favor of the Local. These authorizations are captioned : Initiation Fee and Monthly Dues Authorization Winery, Distilling, Rectifying Workers No. 56. The Employer testified that no employee had been discharged pur- suant to the union-security provision and that it had no knowledge whether its employees were actually required to join Local 56 or only the International. Clearly the record before us does not support a finding that the November 1956 addendum with its union-security provision is a contract with the International alone. The Employer further contends that Local 56 has never been an active local to its knowledge, unlike Local 45, which it considers active. But this contention by no means establishes that Local 56 is defunct and unable to comply. On the contrary, there are definite indications in the record that Local 56 is not defunct. We note a let- ter written to the Employer several weeks after the addendum was signed. This letter, by an officer of Local 45 who later became an international representative, states that Ethridge, who signed the addendum, had been relieved of all of his duties with the Winery, Distillery and Rectifying Union Locals Nos. 45, 56, and two others, as well as his duties as international representative. We note also that the telegram requesting a last-minute continuance of the hearing was sent on behalf of Local 56. In addition, the earlier addendum, of May 1956, was entered into by the Employer and Local 56 on behalf of the Los Angeles employee here in question, and when asked about this in connection with its contention of local inactivity at this plant since the beginning of its ownership, the Employer's representative could offer no explanation. In all the circumstances we find no merit in Employer's contention that the current contract existing between it and the Union was made with the International alone, and that the compliance of the Inter- national makes valid the continuing union-security provision. The legal consequence flowing from the noncompliance of Local 56 attach to the contract, which we find no bar to the present petition.' 3 See Fesn'a Tin Can Co Inc, 99 NLRB 158; Moench Tanning Co Inc., 114 NLRB 22, 23. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties stipulated that a production and maintenance unit including warehouse employees was an appropriate unit. They would exclude truckdrivers, office clerical employees, and salesmen who are already bargained for in separate units. Under the existing contract vintage season employees, who are hired in the fall and work only from October into December, are defined as temporary or part- time and are not required to become a member of the Union until they have worked 60 days during the particular season. Employer took no position as to their inclusion in the unit; Petitioner contends that, in line with the contract, they should not be allowed to vote unless they have been employed more than 60 days at the time of the election. The record indicates that vintage season employees do not return from year to year. On this record we find that the vintage season employees are temporary employees with no reasonable expectation of future employment, hence no substantial interest in employment conditions at the plant.4 We shall exclude them from the unit. We find that all production and maintenance employees of Em- ployer at its Los Angeles, California, plant, including warehouse em- ployees and checkers,5 but excluding vintage season employees, truck- drivers, office clerical employees, salesmen, professional and technical employees, guards, and 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. [Text of Direction of Election 6 omitted from publication.] 4 Compare The Welch Grape Juice Company, 96 NLRB 214 , 216, where the record showed that many "noniegular" employees did have a reasonable expectation of substantial future employment s The record indicates that Employer classifies checkers as warehouse employees. e If Local 56 of the Distillery Workers should achieve timely compliance with Sec- tion 9 ( f), (g), and ( h), the International and/or its Local 56 may be placed on the ballot upon application to the Regional Director within 10 days after the issuance of this Decision and Direction Local Union 219, Retail Clerks International Association, AFL- CIO and Carroll House of Belleville, Inc., J. J. Newberry Company, W. T. Grant Company, J. C. Penney Company, and S. S. Kresge Company. Cases Nos. 14-CB-450, 14-CB-451, 14-CB-453, 14-CB-454, and 14-CB-461. April 1, 1958 DECISION AND ORDER On October 31, 1957, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the 120 NLRB No. 48.