488 F.2d 655 (5th Cir. 1974), 73-1358, Knapp-Sherrill Co. v. N. L. R. B.

Docket Nº:73-1358.
Citation:488 F.2d 655
Party Name:KNAPP-SHERRILL COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
Case Date:January 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 655

488 F.2d 655 (5th Cir. 1974)

KNAPP-SHERRILL COMPANY, Petitioner-Cross Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 73-1358.

United States Court of Appeals, Fifth Circuit.

January 21, 1974

Rehearing Denied March 18, 1974.

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R. Glenn Jarvis, McAllen, Tex., for petitioner.

Marcel Mallet-Prevost Asst. Gen. Counsel, Elliott Moore, Deputy Associate

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Gen. Counsel, N. L. R. B., Washington, D. C., Willard I. Boss, Clifford Potter, NLRB, Region 23, Houston, Tex., William R. Stewart, Washington, D. C., for respondent.

Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Knapp-Sherrill Company (the Company) asks that we review and set aside a Board order 1 finding it in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, (Title 29, U.S.C., Sec. 151 et seq.) for refusal to bargain with the Union 2 certified by the Board as the exclusive bargaining representative of the Company's employees in an appropriate unit. The board has filed a cross-application for enforcement of its order.

The dispute centers around the proper construction to be accorded to a "Stipulation for Certification upon Consent Election" between the Union and the Company under which the pre-election hearing provided for in Section 9(c)(1) of the Act was waived, the parties agreeing to proceed directly to an election in an agreed-upon bargaining unit which included "[a]ll production and maintenance employees, including warehousemen and truck drivers, employed at the Employer's facilities at . . . Donna, Texas." The Stipulation contained standard printed language stating that the election "shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedures and policies of the Board." With regard to voter eligibility the Stipulation provided:

"The eligible voters shall be those employees included within the Unit . . . who were employed during the payroll period indicated below [March 31, 1971], including employees who did not work during the payroll period because they were ill or on vacation or temporarily laid off . . . but excluding any employees who have quit or been discharged for cause . . . ."

A secret-ballot election was conducted pursuant to the Stipulation on April 29, 1971, in which the Tally of Ballots disclosed that 85 votes were cast for the Union, 84 against. 18 ballots were challenged by the Board agent because the names of the voters casting them did not appear on the eligibility list supplied by the Company. Because there were sufficient challenged votes to affect the election's result, the Board's Houston, Texas, Regional Director investigated the challenges and concluded that substantial issues of fact and law were involved and directed a hearing be held. A hearing ensued before a duly designated Hearing Officer, at which all parties appeared and participated.

The Hearing Officer recommended to the Board that challenges to five of the ballots be sustained but that the challenges to the remaining 13 ballots be overruled and the votes counted. Of these 13 ballots, 11 were cast by socalled "temporary seasonal" employees and one by a "regular seasonal" employee. 3 The Company argued initially that all 13 were ineligible under the Stipulation, but now questions only the votes of the 11 "temporary seasonal" employees.

The Company processes and cans tomatoes, carrots, beets, green beans and citrus juice at various seasons of the year and its need for employees varies considerably with weather and crop conditions. Its two departments, production

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and warehouse, have a combined total of 50 to 60 regular employees who work full time. At the start of the canning of a particular crop this regular work force is supplemented by about 30 to 35 workers considered by the company as "regular seasonals" who work on the processing of all vegetables. During the early summer six weeks tomato canning season numerous additional employees, 170 to 200 in 1970, for example, are needed. These are called "temporary seasonals" by the Company and they are often used for canning other vegetables than tomatoes during various times of the year. These temporary seasonals are not carried on the payroll records except when they are working but when the workload increases hiring preference is given to those who have worked for the Company in the past. As a result many temporary seasonals work for the Company on a regular basis during the busy seasons. An assistant manager testified "they are generally hired year after year because of their ability to perform the duties that they do perform". He added that while the Company's business may fluctuate, they have a regular need for temporary seasonals at least during the tomato season. This is confirmed by the work history of the temporary seasonals whose ballots are at issue. Most of these have worked at least three or four years for the Company and some have worked there for as many as twenty years.

The Hearing Officer concluded that "'temporary seasonals' worked under the same general conditions as the regular seasonals whose eligibility is not questioned. The difference rests only in the circumstance that their periods of employment were shorter and less certain than those of the 'regular seasonals' . . . Because of [their] work history and because the record otherwise demonstrates that each had a reasonable expectation of substantial employment from year to year, I find that they shared a community of interest with the Employer's regular work force and the 'regular seasonals'."

The Board (Chairman Miller dissenting) overruled the Company's exceptions to the Hearing Officer's Report and Recommendations and on May...

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