Knapp-Sherrill Company v. NLRB

Decision Date18 March 1974
Docket NumberNo. 73-1358.,73-1358.
Citation488 F.2d 655
PartiesKNAPP-SHERRILL COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
CourtU.S. Court of Appeals — Fifth Circuit

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

Marcel Mallet-Prevost Asst. Gen. Counsel, Elliott Moore, Deputy Associate 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 order1 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 Union2 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 "all 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 so-called "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 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 15, 1972, issued its Decision and Direction adopting the Hearing Officer's recommendation that the 13 ballots be opened and counted.4 The Regional Director opened the ballots and issued a revised tally showing 93 votes for and 88 votes against the Union, to which the Company again objected. The Regional Director recommended that the Board overrule the objection and certify the Union, which action the Board took on June 20, 1972.

The Company thereafter refused to bargain with the Union as the representative of the employees in the certified unit, whereupon the Union filed charges of refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. The Board-over Company opposition requesting a hearing on the ground that it had "evidence which was previously unavailable at the hearing on the challenged ballots, and which is highly pertinent to the issues involved in the case"-granted summary judgment and held that the Company had violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the duly certified representative of its employees in an appropriate unit. The Company was ordered to cease and desist from the unfair labor practices found, to bargain on request and to post appropriate notices. To insure that the employees in the appropriate unit will receive the services of their selected bargaining agent for a reasonable time, the Board fixed the initial period of certification to begin on the date when the Company commences to bargain in good faith with the Union.5

The Company's conceded refusal to bargain is based entirely on the contention that the Board's certification of the Union is invalid. It contends that the Board erred in determining which employees were eligible to vote in the election. The...

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