The Great Western Sugar Co.

THE GREAT WESTERN SUGAR COMPANY 551 and San Juan are centralized and integrated; 11 (2) similar terms and conditions of employment prevail at both ports; 18 and (3) for-many years-collective bargaining for the longshore employees throughout Puerto Rico has been carried out, in general, on an islandwide basis.19 The Board, as recently as 1956, thoroughly reexamined its "appro- priate unit" policy with respect to stevedoring employees on the Puerto Rico waterfront in the Puerto Rican Steamship Association case2° There, after indicating that the established pattern of islandwide bargaining has had a salutary effect, the Board dismissed a petition for a Ponce unit of stevedores on the ground that a single-port unit was inappropriate. On the record before us, we are unable to perceive any cogent reason for departing from the views expressed in the Puerto Rican Steamship Association decision. Thus, even without considering the bargaining history between Pan Atlantic and the I.L.A., we believe that a multiport unit is the only appropriate one in this case. Accordingly, we ' would affirm the Regional Director's dismissal of the instant petition and direct him to certify the results of the election previously conducted in Case No. 24-RC-1753. 17 Thus, the Employer's Puerto Rican operation is centralized under tin control of a district manager in San Juan , the Company' s principal office is in San Juan where clerical and payroll records for the Ponce employees are maintained , final settlement of grievances and labor disputes takes place in San Juan, the Company's major policy decisions are formulated in Newark , New Jersey, and then passed on to the San Juan office which completely supervises operations in Ponce , the stevedoring -superintendent from San Juan also supervises the overall loading and unloading of ships at Ponce, the loading plans for all Ponce port calls are made at San Juan, and all ships destined for Ponce make a prior stop at San Juan . Moreover, there is sonic interchange of employees , for example, about 25 stevedores from Ponce worked at San Juan on approximately 7 occasions last year during which time they were supervised by San Juan personnel. is The employees at both ports are subject to similar rates of pay, and enjoy similar benefits, privileges, and general working conditions . Likewise, the skills they exercise and the duties they perform, are similar. 19.Thus ,, the record discloses that the Puerto Rican Steam slit p -Association,- a multi-• employer bargaining association of which Sea-Land is not a member, has bargained since the mid-1950's on the basis of islandwide units and that the companies which comprise this association handle 85 percent of the sea freight coming into and leaving all the ports on the island of Puerto Rico . Moreover , numerous other nonmember steamship companies have bargained on the basis of islandwide or multiport units in the past and continue to do so today. 20116 NLRB 418. Also, ef. The New York and Puerto Rico Steamship Company,, supra. The Great Western Sugar Company and International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Petitioner. Case No. 17-RC-3454. June 8, 1962 AMENDED DECISION AND DIRECTION On August 10, 1961, the Board issued a Decision and Direction of Election 1 in the above-entitled case. On August 31, 1961, the Inter- 1132 NLRB 936. 137 NLRB No. 73. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD venor 2 filed a motion for reconsideration and request for oral argu- ment, specifically objecting to that part of the Board's Decision and Direction which provided for the exclusion from the appropriate unit of certain individuals found by the Board to be supervisors. On November 2, 1961, the Board granted the motion for reconsid- eration and the request of the Intervenor and Petitioner for oral argument. On December 14, 1961, the Board heard oral argument by the Employer, the Petitioner, and the Intervenors.' Upon consideration of the entire record, the briefs of the parties, and the oral argument in this case, we hereby amend the Decision and Direction of Election to conform with the following finding and direction : For reasons earlier indicated, we find that the unit comprised of both seasonal and year-round production and maintenance employees is appropriate. In the earlier decision, however, certain classifications of employees' were excluded from the unit as supervisors under the holding in Whitmoyer Laboratories, Inc.' The individuals in question exercise supervisory powers only 85 to 120 days of the year, and spend the rest of the year as rank-and-file employees. The Board has reconsidered its holding in the TVhitmoyer Labora- tories case and decided to modify its policy with respect to the unit placement and voting eligibility of individuals in seasonal industries who spend a part of their working year as rank-and-file employees and the remainder as supervisors. At the outset we note, as the parties carefully pointed out in their argument, that there is a distinction between individuals who spend a part of each working day or week as supervisors,' and those individuals who exercise supervisory authority full time for a portion of the year and perform rank-and-file functions for the remainder. It is the latter classification of employees, referred to as "seasonal supervisors," with which we are here concerned. Briefly stated, TT'hitmoyer holds that employees who spend a regular and substantial part of their time performing supervisory duties on a 2 American Federation of Grain Millers , Sugar Division , AFL-CIO. The Petitioner joined in the motion. 8 The Board permitted the following labor organizations to intervene : American Bakery and Confectionery Workers International Union, AFL-CIO ; Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO; United Cement, Lime & Gypsum Workers International Union, AFL-CIO ; Industrial Union Department , AFL-CIO ; To- bacco Workers International Union, AFL-CIO ; and Stove Mounters International Union, AFL-CIO 4 The beet end foremen , sugar end foremen, steffen house foremen , pulp dryer foreman, head pipefitter, and chief electrician . In Its Order of November 2, 1961, the Board per- mitted these classifications of employees to cast challenged ballots. 5 114 NLRB 749. 9 See The Texas Company, 85 NLRB 1211 ; United States Gypsum Company, 127 NLRB 134. THE GREAT WESTERN SUGAR COMPANY 553 seasonal basis are supervisors and excluded from a unit of seasonal and year-round employees even as to their nonseasonal, nonsupervisory duties. In our opinion that holding denies to individuals who spend the bulk of their working time as rank-and-file employees the right to bargain collectively concerning the terms and conditions of such em- ployment. This denial of bargaining rights affects adversely not only the individuals performing such duties, but other employees who perform similar duties on a year-round basis, and whose terms and conditions of employment cannot help but be affected by terms and conditions under which the seasonal supervisors perform rank-and- file duties in the off seasons. As it is plain that rank-and-file positions filled by these individuals come within the scope of our unit description, and as nothing con- tained in the Act requires the Board to exclude such positions from the unit we shall include these individuals in the unit, but only with respect to their rank-and-file duties.' The argument of our dissenting colleagues completely disregards the foregoing essential condition, i.e., that we shall include these em- ployees in the unit, "but only with respect to their rank-and-file du- ties." They treat the unit as one uniformly including supervisors with rank and file employees and raise the obvious objections of the con- gressional action in 1947 and conflict of interest principles. But the majority has limited its order, by the condition expressly set forth above, to avoid those objections. As to their functions as rank-and-file employees and for the period out of season when they thus serve, these persons are covered in the unit. As to their func- tions as seasonal supervisors and during the period when they thus serve, they are not covered in the unit. It is the employer who gives these employees one status (as em- ployees) for the 8 to 9 months out of season. The Board merely adapts the certification in respect to these employees to their shifting status as determined by the employer. Since our certification includes them in the unit only as to their rank and file nonseasonal duties, the simple conflict of interest alleged in the dissent does not exist. These em- ployees will not be "serving two masters at, the same time." They will be serving them at different times. We do not overlook the possibility that even with this degree of separation there may be problems both for the employer and the union. Each must determine whether an employee who is for a part of the 7 As the record indicates that the chief electrician and the head pipefitter exercise supervisory authority during the intercampaign as well as the camraign periods, we shall exclude them from the unit. The challenges of their ballots are hereby sustained •554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year in a status "on the other side of the table"' is one who will be "100% loyal," in whom they can "repose trust and confidence," as to the functions and for the part of the year when such employee is on its side of the table. But this problem is commonplace whenever an employer decides to promote a rank-and-file employee to be a super- visor, i.e., whenever there is a shift in the employee's status, up or down. When the functions to be performed and periods of the year are as sharply demarcated as they are with the seasonal employment here, we believe the limited inclusion in the unit now ordered by the Board is a practicable adjustment to the realities of the situation.' It is an adjustment which the record and argument before us reveal that the parties themselves have made in the past. It is, most importantly, an adjustment which accommodates the re- -quirements of the statute for separating supervisors from employees, to those protections which the statute holds out to persons who are employees to engage in self-organization and bargaining, and during their status as employees, to be free from unfair labor practices by em- ployers or by unions. When the seasonal supervisors lose their super- visory powers, we see no reason why they hould be deprived of the law's protection for "employees," which they then become. And as noted before, if these protections were denied them, it would also ad- versely affect the efforts of the other year-round employees to protect their terms and conditions of employment. In our view the problem is then one of determining the eligibility of the individuals involved, rather than one of determining whether such individuals' nonsupervisory duties are within the unit. This problem is complicated by the fact that in seasonal industries the Board normally directs that elections be held at the peak of the season, and it has done so in the instant case, when the seasonal supervisors would not be performing rank-and-file duties within the unit. How- -ever, we believe that it would be totally inconsistent to include in the unit employees who spend the major or substantial portions of their time performing duties within the unit and then deny them a voice in the selection of the bargaining representative who will negotiate with their employer concerning the terms and conditions under which such duties to be performed. Their situation is not unlike that of em- 8 It is precisely because the functions and responsibilities of part -time supervisors are not so sharply differentiated , but are more closely and regularly intermingled with those ,of rank-and-file employees , that we would reach a contrary result in that situation THE GREAT WESTERN SUGAR COMPANY 555 ployees who at the time of a Board election are temporarily laid off but have a reasonable expectancy of recall. Accordingly, we find the seasonal supervisors eligible to vote regardless of their employee status at the time of the election,9 and we shall follow this practice in other cases involving comparable situations.10 DIRECTION IT IS HEREBY DIRECTED that the Regional Director for the Seven- teenth Region shall take such action as is necessary to give full effect to the conclusion of the Board set forth hereinabove. MEMBERS RODGERS and LEEDOM, dissenting : Our colleagues are abandoning the rule laid down by the Board in Whitmoyer Laboratories, Inc., 114 NLRB 749, and will now permit supervisors working in seasonal industries to be included in employee units. In our opinion the Whitvwyer rule was, and still is, consistent with the demands of industrial life, the intent of Congress, and the policies of the Act. We would adhere to it. As originally enacted in 1935, the Act did not expressly deal with the status of "supervisors." However, through a series of decisions, the Board interpreted the term "employee" to include such individuals, thereby giving to supervisors the right to organize to select repre- sentatives, and to bargain collectively with their employer, not only in units confined to supervisors, but also in units including rank-and- file employees as well." In 1947 Congress sought to reverse the effect of such decisions. It expressly excluded supervisors from the defini- tion of the term "employee." 12 Underlying this significant change was the fact that Congress was gravely concerned lest rank-and-file employees be interfered with or dominated by their supervisors, and 6 Our decision to this effect is not to be taken as a license to these employees to utilize their supervisory authority to interfere with , restrain , or coerce other employees to vote for or against representation Further, and contrary to the implications of the dissent, we do not, by this action, place the Board's imprimatur upon possible control of a union by an employer's supervisors . Nowhere have we indicated that our decision is based upon the fact that a union 's officers may come from the group of seasonal supervisors involved herein . In any event, we see no necessary conflict or inconsistency between our decision herein and the Board 's decision in Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174. We deem it wiser to treat issues in this area, if, as, and when they arise, at which time our decision respecting the interplay between various policies can be decided on the basis of concrete factual situations and argument relating thereto, rather than on the basis of surmise and speculation. "To the extent that WVhttmoyer Laboratories, Inc., supra, is inconsistent with this decision It is hereby overruled ii Packard Motor Car Company, 64 NLRB 1212 , enfd. 157 F 2d 80 ( C.A. 6 1946), affd 330 U S 485. The Board had originally held that supervisors were "employees" within the meaning of the Act Union Collieries Coal Company, 41 NLRB 961, Godchaux Sugars, Inc , 44 NLRB 874, then reversed itself in Maryland Drydoclc Company, 49 NLRB '733, and reversed itself once more in the Packard case 12 Section 2(2) of the Labor Management Relations Act of 1947 , excludes from the term "employee"-"any individual employed as a supervisor." 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lest employers lose the loyalty of, and control over, their supervisors.i3 It is not shown that Congress, when changing the Act in this re- spect, ever specifically addressed itself to any issue respecting "sea- sonal" supervisors. However, it seems clear to us that those considera- tions which impelled Congress to exclude supervisors from the "employee" provisions of the Act derive their validity and force, not from the fact that a supervisor may, or may not exercise his authority for a relatively short "campaign" or season, but rather from the fact that such supervisory status exists at all. For it is obvious that "Management, like labor, must have faithful agents . . . ," and that "no one, whether employer or employee, need have as his agent one who is obligated to those on the other side [of the bargaining table], or one whom, for any reason, he does not trust." 14 In the instant case, some of the "seasonal" supervisors whom our colleagues are including in the unit may well be, as they have been in the past, officers and trustees of the Union. As individuals, these persons probably wish to retain not only their supervisory status, but also the protection of the Act when they engage in union activities. Whatever their desires, the fact remains that there exists an inherent conflict in their position. No man can serve two masters at the same time. Once an individual has been elevated by management, and voluntarily agrees to serve as one of its representatives, then, we submit, he must be prepared to be 100 percent loyal. Conversely, a union of employees should be protected as much as possible from the inroads of management into its ranks. Stated somewhat differently, management must have agents and representatives in whom it can repose trust and confidence; and so must a union. And it matters not that certain individuals are supervisors for only 3 to 4 months of the year, and employees the rest of the time. Moreover, the majority would apparently distinguish " seasonal" supervisors from part-time supervisors. Thus as far as we can see they would now include the former in units of rank-and-file employees, while adhering, at the same time, to the present Board rule of exclud- ing the latter. We can see no way to reconcile this difference in result. No significant distinction exists between an individual who, when not working as a rank-and-file employee, spends, for example, less than 1 day a week, every week of the year, as a supervisor ; 15 and one who is a full-time supervisor for only 3 to 4 months of the year. In each instance, the problems created for management and unions are iden- tical; for in either instance both the employer and the union, depend- 13 Legislative History of the Labor Management Relations Act, 1947, vol 1, pp 304- 308 (House Rept. No 245 on H R 3020 ) ; pp. 409-411 ( Senate Rept. No. 105 on S. 1126 ) ; vol. 2, pp. 1008-1009 ( Remarks of Senator Taft). 14 Legislative History of the Labor Management Relations Act, 1947, vol. 1, pp 304- 308 (House Rept. No 245 on H R 3020) 15 Archer Mills, Inc, 115 NLRB 674, 676 , where the Board excluded from the unit, individuals who spent only 10 percent of their working time in a supervisory capacity. GAYLORD DISCOUNT STORES OF DELAWARE, INC., ETC. 557 ing on the label which will now be applied, must be concerned with the problem of a "supervisor-employee" with conflicting loyalties. We are also disturbed by the implications of this decision with respect to the Board's decision in the Nassau and Suffolk case.16 One of the arguments advanced in this proceeding for the result reached by our colleagues here is that all union officers, including presump- tively the union negotiators, come from the group involved in this decision. The practical effect of our colleagues' decision, therefore, is to place the Board's imprimatur upon the possible control of the Union by the Employer's supervisors. As our colleagues' disposition of this issue must necessarily turn on a finding that these supervisors are "employees" in the statutory sense,17 they would seem as eligible to participate in negotiations as in other union activities. Thus, our colleagues seem to sanction the Employer's presence on both sides of the bargaining table. Congress in 1947 sought to resolve this problem by excluding super- visors from the definition of "employee." In fairness to employees, to unions, and to management, we would continue to construe the Act as Congress intended. 10Aassaa and Suffolk Contractors' Association, Inc, 118 NLRB 174, in which the Board held that certain supervisors who were long - time union members and who, through custom and practice in the industry , were voluntarily included by the parties in the bargaining unit, might lawfully participate in union affairs including serving on union committees and holding union office, but might not lawfully participate in bargaining negotiations. "The fact that these seasonal supervisors are being permitted by our colleagues to vote-a right belonging exclusively to employees under the Act-at precisely the time when they admittedly "would not be performing rank-and -file duties within the unit" serves , in our opinion , to emphasize how unrealistic and untenable the position of our colleagues actually is If, as our colleagues seem to hold, these supervisors can com- partmentalize their interests , would they, when casting their votes in their status as supervisors , be voting their interests as supervisors or their inteiests as employees'? If they vote as supervisors , is not management intruding into an area where it does not belong? If they vote as employees, what of their duty to be loyal to management while they are supervisors '? Our colleagues provide no answers to these questions Gaylord Discount Stores of Delaware, Inc., Gay Apparel Corpo- ration and Local 1349, Retail Clerks International Association, AFL-CIO Marrud, Inc., Archer Sales Co., Hardlines Distributors, Inc. and Local 1349, Retail Clerks International Association , AFL-CIO. Cases Nos. 4-CA-2418 and 4-CA-2449. June 8, 1962 DECISION AND ORDER On January 8, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled proceeding, finding that all the Respondents except Marrud, Inc., had engaged in and were engaging in certain unfair labor practices, and recommending that 137 NLRB No. 66.