The Illinois Canning Co.

THE ILLINOIS CANNING CO. 669 integration of operations between the Western Division and the retail distribution subsidiaries located therein and the long bargaining his- tory on a broader basis, we find that the unit sought by the Petitioner is inappropriate.5 We shall therefore grant the motions to dismiss the instant petition. [The Board dismissed the petition.] a In New England Power Company ( Worcester Central Division ), supra, a petition was filed for a unit of employees limited to another Division of the Employer represented by the Petitioner in the instant case. The Board, taking cognizance of the integration of operations between the Division and its retail distribution subsidiary, and of the broader 10-year bargaining history, dismissed the petition on the grounds that the unit was too narrow in scope. We do not perceive any cogent reason for departing from the decision in that case , or for not applying herein the rationale of that case. The Illinois Canning Co. and United Packinghouse Workers of America, AFL-CIO, Petitioner. CaBe No. 13-RC-5666. April 30, 1958 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election executed on June 11, 1957, an election by secret ballot was conducted on June 25, 1957, under the direction and supervision of the Regional Director for the Thirteenth Region, among the employees in the agreed appropriate unit. Following the election, the Regional Direc- tor served upon the parties a tally of ballots which showed that of approximately 134 eligible employees 140 cast ballots, of which 63 were for the Petitioner, 61 were against the Petitioner and 16 were challenged. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investiga- tion and on August 29, 1957, issued and served upon the parties his report on challenged ballots in which he recommended that the chal- lenges to the ballots of Thomas Dalton, Grover Hollen, Roy Borders, William Hardwig, Harley Huckleby, John McIntyre, and M. H. Cran be sustained, .and that the challenges to the ballots of Chapman Jones, Theodore Clayborn, Cleve Kirts, Henry Gothberg, Kelly Cox, Jeff Dean, Charles Felleure, Harold Galloway, and Lovell Wood be overruled. On September 6, 1957, the Petitioner filed exceptions to the Regional Director's report' On November 12, 1957, the Board ordered a hearing held with respect. to the issues raised by the challenged ballots of Borders, 1 As no exceptions were filed to the Regional Director's findings and recommendations that the challenges to the ballots of Thomas Dalton and Grover Hollen be sustained and that the challenges to the ballots of Chapman Jones and Theodore Clayborn be over- ruled, those four recommendations are hereby adopted pro forma. 120 NLRB No. 94. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hardwig, Huckleby, Cox, Dean, Felleure, Galloway, and Wood. The Board's order stated "that the hearing officer designated for the pur- pose of conducting the hearing shall prepare and cause to be served upon the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said challenges." Pursuant to the Board's order, a hearing on the challenges was held on December 3, 11, and 12, 1957, before John W. Hines, hearing officer. All parties appeared and participated in the hearing. The hearing officer's rulings at the hearing are free from prejudicial error and are hereby affirmed. On February 10, 1958, the hearing officer issued and duly served upon the parties his report on challenged ballots in which he recommended that these eight challenges be overruled and the. ballots opened and counted. Both the Petitioner and the Employer filed timely excep- tions and briefs, in support thereof, to the hearing officer's report.2 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 [Members Rodgers, Bean, and Fanning]. Upon consideration of the hearing officer's report, the exceptions and briefs and 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In agreement with the stipulation of the parties, we find that the following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's two plants in Hoopeston and at its plant in Fowler, Indiana, excluding all seasonal employees, office and plant clerical employees, sales employees, over-the-road (long haul) truckdrivers, professional employees, guards, and all supervisors as defined in the Act. 1. In its exceptions to the Regional Director's report, the Peti- tioner contends that John McIntyre and M. H. Cran are not guards, that their inspection duties are limited to those required by the Com- pany's fire insurance policy and that, therefore, they are eligible voters. The Regional Director found that these employees, in addi- tion to their duties embraced in the fire insurance policy, are employed 2 As no exception was filed to the hearing officer's recommendation that the challenge to Roy Borders be overruled and his ballot opened and counted, his recommendation is hereby adopted pro forma. THE ILLINOIS CANNING CO. 671 primarily to protect the premises of the Employer and that they patrol the plant and check at regular intervals for thefts . We agree with the Regional Director's conclusion that McIntyre and Cran are guards within the meaning of the Act and we hereby sustain the challenges to their ballots. 2. The Petitioner also contends that Cleve Kirts and Henry Goth- berg are a part of the office clerical group and therefore ineligible to vote. The Regional Director found that Kirts and Gothberg are on the factory payroll and spend over one-half of their time in the factory and warehouse making minor repairs and cleaning up, and, in addition, cut grass and shovel snow around all the buildings. He concluded that as they work more than 50 percent of their time with the production and maintenance employees and as their duties are mostly "maintenance" in nature, their interests are more closely allied with the production and maintenance employees than with the office group. We agree with the Regional Director and hereby overrule the objections to the ballots of Kirts and Gothberg. 3. Hardwig and Huckleby : The Employer operates three canning plants: beans, a year-round operation, at plants Nos. 1 and 2; corn, from August 5 to September 1 at plants Nos. 1 and 3 ; asparagus, from April 30 to June 27; and tomatoes, from August 15 to October 1 at plant No. 2. Because of the seasonal nature of its business, total employment in this Company mounts from 100 to 200 employees to over 600 during the summer months. All seasonal employees are excluded from the bargaining unit by agreement of the parties. Hardwig was hired as a truckdriver on June 5, 1957, after the open- ing of the asparagus season and discharged for absenteeism on July 2. Huckleby was hired as a truckdriver and general laborer on May 27, 1957, and discharged on June 27 for lack of work. Both of these men had worked for the Employer as seasonal employees over a period of several years. Although both men were put to work at nonseasonal occupations, it is the Employer's policy to intermix its steady year-round employees with casual employees by putting some of the casuals to nonseasonal tasks in order to release permanent employees for temporary assignments. The Employer challenged both these men as seasonal workmen. Despite the precise timing of their employment with the seasonal expansion of the work, the hearing officer concluded that they were not seasonal employees at the time of the election but probationary employees entitled to vote like the regular year -round complement. He reached his conclusion primarily upon a passing statement made to each of them by the superintendent . One day during Hardwig's very short employment the superintendent told him that if he did not take time off without permission he would "have a good chance. to become a permanent employee ." When Huckleby started work, 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was told that he would not be eligible for the Christmas bonus because he was starting work after the beginning of the bonus year. We do not view these single comments, ambiguous at best, as suffi- cient to remove Hardwig and Huckleby from the general class of seasonal employees into which the total picture of the record as a whole quite clearly places them. They were seasonal employees in the past; they started work together with about 450 other casuals at the start of the seasonal asparagus season; they were dropped with about 300 others at the end of that season. But for the ambig- uous conversations they had with the superintendent, there is no direct evidence of any intent to confer upon them a status more per- manent than that of the hundreds of other seasonal employees. Finally, it does not appear that this Company has ever maintained a probationary employees program. Accordingly, we find that Hard- wig and Huckleby were seasonal employees excluded from the bar- gaining unit, and we therefore sustain the challenges to their ballots. 5. Cox, Dean, Felleure, Galloway, and Wood were challenged as supervisors. Cox, at plant No. 1, is a foreman under Production Superintendent Fisher, directing 3 to 8 employees loading and un- loading trucks at several locations. He assigns his crew to various locations as the work demands, reprimands them for poor work and reports derelictions of duty directly to the superintendent or his assistant. He earns $1.50 an hour. Cox does not assign the men as drivers of trucks and his reports of misconduct are thereafter independently handled by the superintendent. Dean is a foreman in the shipping department at plant No. 1, direct- ing 2 casing and labeling crews of 7 employees each; he moves the men from job to job according to their speed and ease at the machines, reprimands them for poor work, receives changes in the production schedule and reassigns his crews, reports absenteeism, and grants time off for personal or emergency reasons. He has been employed 10 years and earns $1.70 an hour, 60 cents more than some members of his crews. Requests for extended time off are referred to the super- intendent and any unusual situations and their implementations are talked over with the superintendent. Felleure is a foreman in the shipping department at plant No. 3 when it is in operation (8 to 10 weeks a year) and is relief foreman for Dean, Galloway, and Wood in their absences. The rest of his time he works as a regular crew member for other foremen. As fore- man he directs nine employees in casing and labeling and transfers his men from job to job according to their ability to perform. Fel- leure has been employed for 9 years and earns $1.65 an hour. He testified that he had never been asked or granted time off. Galloway, another foreman in the shipping department of plant No. 1, directs 8 to 10 men at stacking and labeling, reports absentee- THE ILLINOIS CANNING CO. 673 ism, sends his men to other crews when requested for help, and grants time off for emergencies . He has been employed 10 years and earns $1.70 an hour. Although the superintendent testified that transfers of men from one crew to another are first cleared with him, the fore- men select the appropriate man to go. Wood, also a crew foreman in the shipping department of plant No. 1, directs 8 to 10 men loading semitrailers , trucks, and railroad cars at 4 different locations. He trains new men, is responsible that the cars are loaded safely and with ease for unloading at the destina- tions, reports damaged goods and absenteeism, and grants time off for short periods of time. Because it does not appear that any of these foremen has authority to hire or discharge employees or to recommend hiring, discharge, or disciplinary action, and because they enjoy the same hours and work- ing conditions generally as all other workmen, the hearing officer concluded that they exercise only routine authority and therefore are not supervisors as defined in the act. He therefore recommended that their ballots be opened and counted. There are further facts in the record, however, which we deem highly significant to the issue raised by the challenges. Rates of pay for male employees throughout the plant vary from $1.10 to $1.70 an hour; working foremen rates vary from $1.40 to $1.85. None of the challenged foremen earn over $1.70 an hour, but all receive a substantial rate above their crew members. Evidence as to the amount of time these foremen spend in manual labor along- side their working crew is contradictory. Crew members testified that the foreman's manual labors are limited to a few hours a week. From the record as a whole, however, it appears that the foremen work only in the absence of a crew member or because of a particu- larly heavy workload, and that the greater percentage of their time is spent directing the crews. Superintendents make only infrequent trips through the plant and the activities of the foremen directing their crews is not under regular check by the superintendents. The four foremen in the shipping department submit daily produc- tion sheets which they verify as foreman and all are designated as foreman in the Company's advertising brochure. These foremen also. meet in the superintendent's office 15 minutes early in the morning and again 15 minutes during the lunch hour to receive production assign- ments. However, they are paid only for the first 15-minute period in the morning. Although they do not attend any other administrative meetings with admitted supervisors, the Company's personnel direc- tor testified that on two occasions he, a foreman and the superintend- ent discussed personnel problems together. 483142--59-vol. 120----44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because the Company operates a seasonal business the total num- ber of employees varies considerably during the low period. As in- dicated above, from sometime in the latter part of September until the latter part of April, the total complement approximates 160 em- ployees, some of whom appear to be agricultural employees excluded from this proceeding. During the approximately 4-month period, April 30 to the end of August, the total number of employees aver- ages about 500, mounting as high as 630 in June and 670 in August. On the record before us, it appears there are only 8 admitted super- visors : the vice president, 2 superintendents with 3 and 1 assistants respectively, and an additional shipping superintendent in plant No. 2.3 If the 5 foremen whose challenges are now in dispute are not supervisors the ratio between rank and file and the admitted super- visory staff would be about 1 to 20 during the off season and 1 to 60 during the 4-month summer period. We deem this a highly dispro- portionate ratio in normal experiences .4 Even adding the 5 disputed foremen as supervisors, the ratio between the 2 groups becomes about 1to38. The circumstances described above, including the infiltration of in- experienced employees into the various crews during the peak season, the abnormally high ratio of employees to supervisors if the foremen are not deemed supervisors, and the fact that these foremen assign work to the employees, direct them in their work performance and are responsible for efficiency of operations, lead us to conclude on the record as a whole that the foremen have the authority responsibly to direct the employees under them. Accordingly, in disagreement with the hearing officer, we find these foremen are supervisors within the meaning of the Act and therefore excluded from the unit. We here- by overrule the hearing officer's recommendations as to Cox, Dean, Felleure, Galloway, and Wood and sustain the challenges to their ballots. [The Board directed that the Regional Director for the Thirteenth Region shall, within ten (10) days from the date of this direction, open and count the ballots of Chapman Jones, Theodore Clayborn, Roy Borders, Cleve Kirts, and Henry Gothberg and serve upon the parties a revised tally of ballots. If the petitioner receives a majority of the valid votes the Regional Director shall issue a Certification of Representatives; if the Petitioner does not receive a majority of the valid votes the Regional Director shall issue a Certification of Re- sults of Election.] "The evidence indicates that eight other employees, referred to in the record as "foremen," voted in the election without challenge The nature of their duties w is not shown 4 See Morowebb Cotton Mills Company, 75 NLRB 987 , and Controls Company of America, 118 NLRB 170; cf. United States Gypsum Company, 118 NLRB 20.