Old Mission Packing Corp., Ltd.

.In the Matter of OLD MISSION PACKING CORP ., LTD. and UNITED FIsn CANNERY WORKERS UNION, LOCAL 64, C. I. O. Case No. B-1637.-Decided December 29, 1939 Pimento Packing and Processing Ind astry-Inves tigation of Representatives: controversy concerning representation of employees : majority status disputed by employer-Unit Appropriate for Collective Bargaining : single unit com- prising all production and maintenance employees, exclusive of supervisory and office employees ; both labor organizations agreed on this unit ; employer asks for two units-Representatives : seasonal fluctuation of number of em- ployees ; eligibility date just before peak of operations chosen-Election Ordered Mr. Frank A. Mouritsen, for the Board. Mr. Eugene Glenn, of San Diego, Calif., for the Company. Mr. Dixie E. Tiller, of San Diego, Calif., for the United. Mr. Marshall Ross, of Los Angeles, Calif., for the Cannery Workers. Mr. Bertram Diamond, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 26, 1939, United Fish Cannery Workers Union, Local 64, C. I. 0., herein called the United, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Old Mission Packing Corporation, Ltd., North San Diego, California, herein called the Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On November 3, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to provide for an appropriate hearing upon due notice. 18 N. L. R. B., 102. 953 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 13, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United, Fish Cannery Workers Union of the Pacific, affiliated with the A. F. of L.,1 herein called the Cannery Workers, a labor or- ganization claiming to represent employees directly affected by the, investigation, the Central Labor Council, Los Angeles, and the Los Angeles Industrial Union Council. Pursuant to the notice, a hearing was held on November 24, 1939, at San Diego, California, before Rapes Davidson, the Trial Examiner duly designated by the Board. The Board, the Company, the United and the Cannery Workers were represented by counsel or official representatives and partic- ipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hear- ing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Old Mission Packing Corporation, Ltd., a Nevada corporation with plant and place of business located at North San Diego, California, is engaged in the processing and packing of chilies, olives, and pi- mentos. During the year ending August 1, 1939, approximately 100 per cent of its raw materials were shipped directly to the plant from within the State of California. For the same period of time the Com- pany's sales approximated $358,000. About 80 per cent of this total represents products sold and shipped to points outside the State of California. The Company admits that it is engaged in interstate commerce. H. THE ORGANIZATIONS INVOLVED United Fish Cannery Workers Union, Local 64, is a labor organiza- tion affiliated with the Congress of Industrial Organizations. Fish Cannery Workers Union of the Pacific is a labor organization affiliated with Seafarers' International Union, which in turn is affil- iated with the American Federation of Labor. 1 At the time of the filing of the petition this union was known as Cannery Workers, Union, Local No. 21251, A. F. L. During November 1939, it became affiliated with the Seafarers' International Union which , in turn , is affiliated with the A . F. L., and changed its name to Fish Cannery Workers Union of the Pacific. ,OLD MISSION PACK NAG COR;PO'RATSCN, LTD. 955 Both labor organizations admit to membership all the production and maintenance employees of the Company, exclusive of *Supervisory and office employees. III. THE QUESTION CONCERNING REPRESENTATION The United has requested the Company to meet and negotiate with it and the Company has refused upon the ground that it is not satisfied that the United represents the majority of its workers. We find that a question has arisen concerning the representation of the employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V.' THE APPROPRIATE UNIT Bpth the United and the Cannery Workers agree that a unit com- posed of all production and maintenance employees of the Company, excluding supervisory and office employees, is a unit appropriate for the purposes of collective bargaining. The Company's operations are seasonal. About 10 employees work throughout the year. It appears that these employees perform various maintenance duties during the year, and that a number of them are also engaged in production work. About 25 employees are engaged in olive canning for 8 days a month during a 5-month period. The remaining employees, numbering more than 300 and engaged in processing and packing, work during more limited periods. Mr. Bert Geren, the superintendent of the Company, testified that the 10 reg- ular employees and the 25 olive canners belong in one unit and the other employees in a separate unit. Both labor organizations involved desire the. inclusion of these 35 employees and the others in a single unit, and it does not appear that the regular employees and the olive canners desire to be segre- gated from the other employees. All these production and mainte- nance employees are eligible for membership in both labor organi- zations. The olive canners are no less seasonal employees than the other packing employees although the olive-packing season is some- what more extended than the other packing seasons. Also olive 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD canners are_ recruited from among the pimento workers whose season terminates at about the time the canning of olives begins. As we have noted, at least some of the 10 regular employees also engage in production work. Under these circumstances we see no reason for separating the employees into two units. We find that the production and maintenance employees of the Company, excluding office and supervisory employees, constitute a unit appropriate for the purpose of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization, and to collective bargaining and to otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Both the United and the Cannery Workers offered uncontested evidence of substantial membership among the Company's employees. All parties conceded that an election should be held to settle the question concerning representation. An election will be directed. A question is raised as to the proper eligibility date. The number of workers employed by the Company fluctuates with its seasonal activities. During May, June, July, and the first part of August, the Company employs about 10 employees. About August 20, the Company employs between 175 and 200 men. About October 1, it increases its personnel to 375. About October 14 or 15, the peak is reached, 15 or 20 more employees being taken on for about 10 or 15 days to assist in the processing of the olives. About October 31, approximately 20 employees are laid off. Not later than December 1, normally, the Company's staff falls to approximately 35. In 1939, this reduction was completed on November 18. The United suggests that the employees in the appropriate unit just before the peak of production activity should be eligible to par- ticipate in the election. This date would be on or about October 10, 1939. The Cannery Workers apparently does not disagree that most of the employees but somewhat less than the peak number should be eligible to vote. The Cannery Workers suggests as the eligibility date November 18, 1939, but we cannot ascertain from the record how many persons were employed on November 18. Thus, it may be that a number of persons employed on October 10 were laid off before November 18 and we are satisfied that such employees have a substantial interest in the outcome of the election. Accordingly, we shall direct that all employees within the appropriate unit who were on the pay roll on October 10, 1939, including employees who did not work during such pay-roll period because they were ill, or on vacation, and employees who were then or have since been tempo- ,OLD MISSION PACKING C'OR'PO'RATION, LTD. 957 rarily laid off, but excluding those who have since quit or been dis- charged for cause, be eligible to participate in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, excluding office and supervisory employees, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for purposes of collective bargaining with Old Mission Packing Corp., Ltd., an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, subject to Article III, Section 9, of said Rules and Regulations among all production and maintenance employees of the Company, excluding office and supervisory employees, who were employed on October 10, 1939, including employees who did not work during such period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Fish Cannery Workers Union, Local 64, C. I. 0., or Fish Cannery Workers Union of the Pacific, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.