P. G. Gray

1026 DECISIONS Or NATIONAL LABOR RELATIONS BOARD included in the unit but were ineligible to vote.18 The Board subse- quently changed this rule by holding that if employees were properly includable in a bargaining unit their eligibility to vote followed auto- matically.19 Until now this has continued to be the Board's practice. Now, however, the majority is holding that persons may be eligible to vote although they may not be properly includable in the unit. We can see some reason for the inclusion without eligibility, and we are in accord with the automatic combination of inclusion and eligibilty. But eligibility without inclusion is without support in logic or prece- dent. We must reject such a procedure as an abuse of the Board's dis- cretion and a breach of its obligations under the Act. In sum, the Board's attention has been directed here to the fact that possible supervisors may be included in the stipulated unit and that their votes may affect the election results. Under these circum- stances, we do not believe that the Board can substitute the parties' agreement for its determination of the status of the disputed persons, for purposes, of either inclusion or eligibility, and thus evade or abdicate its obligations and duty under the Act. Nor, for the reasons given, can we subscribe to the changes which the majority is making in the Board's precedures. Whether the unit contains supervisors who should be excluded therefrom and ineligible to vote can only be ascertained in a hearing. We would order such a hearing. Indeed, we are firmly convinced that this is the only appropriate action which the Board can take. Therefore, we dissent from the majority's decision. is E.g., The Fair Department Store, 107 NLRB 1501 ; Producers Rice Mills , Inc., et at., 106 NLRB 119. 19 See, e.g., Sears Roebuck t Company, 112 NLRB 559, 569, footnote 28. P. G. Gray 1 and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 18-RC-4148. August 06, 1960 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 Kenneth W. Haan, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 em- ployees of the Employer. 1 The name of the Employer appears as amended at the hearing. 128 NLRB No. 117. P. G. GRAY 1027 3. A question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent, and the Employer concedes that, a production and maintenance unit with the usual exclusions is appropriate. The Petitioner, however, would include certain em- ployees, characterized by the Employer as seasonal, while the Em- ployer would exclude them. The Employer is engaged in the business of processing eggs and poultry. It operates three departments: (1) egg candling and grading; (2) egg breaking, where eggs are cracked and prepared for canning; and (3) eviscerating, where poultry is killed, defeathered, and eviscerated in preparation for packing and sale. Egg candling is a year-round operation and normally employs approximately 13 people. The egg breaking department operates with approximately 42 permanent employees from January to June, after which those employees are transferred to poultry eviscerating, which operates from July to December with the peak operation and employee comple- ment in September and October. This is the largest department, and the employer customarily hires additional employees to help with this work during this period. These seasonal employees perform the same tasks, are paid the same rate, punch the same clock, work the same hours, wear the same uniforms, receive the same benefits, and are under the same supervision as the permanent employees. Normally, the Employer hires approximately 30 additional em- ployees for the poultry season. However, the Employer's plant manager, Wells, testified that 58 named seasonal workers were hired for the 1959 poultry season because the Employer was experimenting that season with a dual rather than its customary single poultry line and that the second line was discontinued as of October 24, 1959, necessitating a number of layoffs. Wells further stated that the dis- continuance of the second line was intended to be permanent and it would not be reinstituted in future years. Although the year 1959 therefore somewhat atypical, nevertheless, since the October layoff was at or near the time of slackening of the poultry operations, it affords a basis for determining what the Employer's hiring practices were with respect to its seasonal employees and the probable extent of such employees' job tenure. According to Wells, approximately 29 of the seasonal employees were laid off on October 26, 1959, but the remaining 29 were still work- ing as of the first day of the hearing-November 5, 1959-and were expected to continue to do so until sometime in December, the end of the 41/2- to 5-month poultry season, thus revealing the expectancy of a relatively stable work force. Further, the Employers exhibits reveal that during 1959 approximately 47 of the seasonal employees worked at least 2 months, approximately 34 having worked between 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 and 5 months. The record also shows that of the 29 laid off in October, 19 had worked 2 months or more; and of those who remained after the layoff, 20 apparently worked until the end of the season in December, having been employed between 2 and 41/2 to 5 months. Nine others who were retained may have been terminated either by layoff or quitting prior to December, but had been employed between 2 and 41/2 to 5 months at the time of termination. At the time of the October 1959 layoff, a notice was posted advising that because of the decrease in volume the listed employees "need not report untill [sic] called" and requesting that each listed employee write his telephone number following his name so that he could be called if volume increased. Moreover, there is evidence in the record that the Employer retains application cards containing the names, addresses, and telephone numbers of employees hired for the seasonal work in the past and has recalled them as the need has arisen. The present plant superintendent testified that he recorded the telephone numbers from the October 1959 notice and there is testimony that both he and his predecessor have telephoned prior employees to return to work. In this connection, at least 10 of the disputed employees had worked for the Employer in the preceding years, 1 since 1951. And it is clear that even following the October 1959 layoff, at least six or eight of the laid-off employees had been recalled prior to the hearing. It appears from Wells' testimony that the Employer also draws its seasonal employees from the same labor market area from season to season by advertising in the local newspapers of the nearby towns. In view of the foregoing, we find that the Employer's seasonal em- ployees have a reasonable expectation of substantial future employ- ment 2 and have sufficient interest in employment conditions to justify their inclusion in the unit and their participation in the election directed herein.' Our dissenting colleague, in disagreeing with this finding, relies exclusively upon a summary of a brief portion of Wells' testimony' 2 Foremost Dairies, Inc , 124 NLRB 293 . Cf. Di Giorgio Wine Company d/b/a Santa Fe Vintage Co ., 120 NLRB 268, 272, where the record showed that the vintage seasonal em- ployees did not have a reasonable expectation of substantial future employment. 3 Foremost Dairies, Inc., supra, footnote 2. 4 Wells testified : Q. (By Mr. FITZGIBBONS .) I would like just for the record to have Mr. Wells state for the record-describe the labor unit in terms of its overall permanency. I don't know whether that question is too general or not, but would you state for the record whether or not there is a turnover of employees at the plant' A. Well, the number that we hired during the year was about 300 and we have an average force of 80 to 90. So we have a terrific turnover , I would say. Q. In the course of a year you mean you employ 300 different people? A. Q. Uh huh. Is that because of lay offs or quits or what reason? Why the turnover' A. Lots of folks come and work for a week or two and leave. And some people come to work and want to work during the summer , the school children. Q. So they- A. (Interposing.) Some come to work to earn a little money for Christmas. P. G. GRAY 1029 which he states was uncontradicted. This testimony was given near the close of the hearing and appears on 2 of the 225 pages of record in this case. At the outset we are constrained to observe that, contrary to the summary in the dissenting opinion, a reading of the testimony quoted in the margin reveals that it related to the entire year, not solely the poultry season; that it referred to an average force of 80-90 employees overall, not a peak force; that it mentioned, without speci- fying whether they were seasonal, permanent, or casual, the hiring during the year of 300 workers, not extra workers; that it asserted that "lots of folks," not most of the extras, worked for only a week or two and then quit; and it stated that some came to earn a little money for Christmas not that they worked "a small number of weeks for brief periods" for that purpose. However, even if we were to accept our dissenting colleague's ver- sion of Wells' testimony, we would not alter our conclusion as to the disputed employees. For, if Wells was referring in this portion of his testimony to the seasonal employees, then his testimony is not only self-contradictory, but it is belied by the Employer's own exhibits with regard to the employment history of the seasonals. Specifically, none of the seasonals worked for only a week or two and then quit, as shown by the above analysis of the record. There is no evidence that any of them were students who worked solely during the summer months and, in fact, all of them were working at a time when any school would have been in session. Finally, the record is entirely barren of any evidence that any particular employees were working only to earn money for Christmas spending or that any of them worked intermittently for only "a small number of weeks," and, in fact, the above analysis refutes these assertions of the dissenting opinion. Under these circumstances, the variances in Wells' testimony can only be reconciled by concluding that, in addition to its permanent and seasonal employees, the Employer hires casual employees during the course of the year, and in the above quotation Wells was referring to such casual or extra employees. In other words, he was discussing an entirely different group of employees, whom our dissenting col- league has equated to the disputed seasonals. While we disagree with our dissenting colleague's equation of the casuals to the seasonals, we do agree with him that the Employer ap- parently utilizes casual employees during the year and that such em- ployees should not be included in the unit. Therefore, in accordance with established Board policy, we shall exclude them. The following employees at the Employer's Estherville, Iowa, plant constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 5 7 7684-61-vol. 128-66 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Al production and maintenance employees including the seasonal employees, but excluding casual employees, office and clerical em- ployees, guards, and all supervisors as defined in the Act .5 [Text of Direction of Election omitted from publication.] MEMBER RODGERS, dissenting : I do not agree with the majority's decision to include the so-called seasonal employees in the unit established in this proceeding. The Employer's permanent year-round complement of employees is approximately 53. It customarily hires extra help for work in the poultry eviscerating department of its egg and poultry processing establishment. According to the testimony of Robert G. Wells, the plant manager, the Employer commences the hiring of these extras in July when its poultry processing operations begin. The initial hiring continues until about August 10 when the plant reaches its capacity production. Full scale production continues thereafter until about the first of November, the peak period being reached sometime in September and October. Thereafter, as production wanes, the extras are terminated. Like the permanent or year-round employees in the eviscerating department, the extra employees perform unskilled duties relating to the preparation and processing of poultry for market. At its peak operation, the Employer has a complement of from 80 to 90 employees. The Employer's plant manager, Wells, testified, without contradic- tion, that in order to maintain an average peak force of from 80 to 90 employees, the Employer, during the past year, had to hire about 300 extra workers. Wells further testified that instead of working the full poultry processing period, which extended from about 41/2 to 5 months, most of these extras worked for only a week or two, and then quit. Moreover, a number of the extras were students who worked only during the summer months; others worked only a small number of weeks for brief periods in order to obtain money for Christmas spending. It is obvious in the light of the foregoing factual recital that the extras involved here do not have, as my colleagues say they do, "a reasonable expectation of substantial future employment." The prin- ciple of Foremost Dairies, Inc., 124 NLRB 293, which my colleagues cite in support of their disposition of the extras, has consequently not been satisfied. The assertions made in the majority's attempt to explain away Wells' testimony are without significance. Thus, I fail to see how the number of the page of the transcript on which Wells' testimony ap- pears is relevant in evaluating the content of the testimony. I have 5In accordance with the agreement of the parties , we exclude Duane cox, I. H. Miller, and Anton Berven. TEAMSTERS, CHAUFFEURS, ETC., LOCAL 386 1031 stated that Wells referred to the "past year," just as the majority contends he did. Nor do I contend that Wells had in mind anything other than an overall complement of 80-90 employees. The point is, that as found by the majority, 55 of these are permanent employees.' It therefore appears that these 55 employees must be considered not to be employees among whom exists the "terrific turnover" referred to by Wells. Further, Wells' testimony does not have to be accepted as mathe- matically precise in order to support my conclusion. The exhibits to which the majority refers also show that of 58 seasonal employees working on October 24,1959, only 7 had ever worked for the Employer before the 1959 season. The majority's involved description of how many months various numbers of the extra employees worked, also obscures the fact that of the 58 working on October 24, 1959, 17 were hired in September and 10 were hired during October. The unit description includes "seasonal" employees, and excludes "casual" employees. This solves nothing, for it is not apparent from the record or from the findings of the majority, which employees are in these respective categories. In my opinion, all the extra employees here are merely temporary seasonal employees who do not have a sufficient community of interest with the Employer's regular, year-round employees to warrant their inclusion in the unit.' I would so hold. CHAIRMAN LEEDOM and MEMBER FANNING took no part in the con- sideration of the above Decision and Direction of Election. 8 This includes 13 employees in the candling department ( Employer's exhibit B, amended ), and the 42 employees in the egg breaking department. 7 See California Vegetables Concentrates , Inc., 120 NLRB 266; Mission Pak Company, 127 NLRB 1097. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 386 and Hobbs-Parsons Co., a corporation. Case No. A0-14. August 26, 1960 ADVISORY OPINION This is a petition, filed by Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 386 (herein called Local 386), for an advisory opinion conformable to Section 102.98 of the Board's Rules and Reg- ulations, Series 8. A. In material part, said petition alleges as follows : 1. Hobbs-Parsons Co. (herein called Hobbs), designated as the Employer in the petition, is a California corporation engaged in the wholesale produce business. It is admitted by Employer that during 1958 the value of merchandise purchased by Ilobbs and shipped to it directly from points outside the State of California was $317,055.82. 128 NLRB No. 109.