American Fruit Growers, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1938

10 N.L.R.B. 316 (N.L.R.B. 1938)

In the Matter of AMERICAN FRUIT GROWERS, INC., APACHE DISTRIBU-
TORS, INC., A. ARENA AND COMPANY, LTD., M. 0. BEST, BYco DISTR.
INC., BURREL COLLINS, DAVIS PACKING Co., EATON FRUIT CO.,
FARMERS DISTRIBUTORS COMPANY, INC., CHAS. FREEDMAN, S. A.
GERRARD CO., JOHN JACOBS FARMS, FRED G. HILVERT COMPANY,.
RITZ DISTRIBUTING COMPANY, MILLER-JOHNS COMPANY, RICHMAN
AND SAMUELS, INC., SALINAS VALLEY VEG. ExCH., SMITH-THORN-
BURG, INC., STANLEY FRUIT Co., TOLBY BROS., TRACY-HOLMES FRUIT
Co., WESTERN VEG. DISTR., BRAND-HAGIN, ARIZONA VEGETABLE DIS-
TRIBUTORS, INCORPORATED, E. G. SMITH and FRUIT & VEGETABLY
WORKERS SUB-LOCAL OF #191, UCAPAWA, C. I. 0.
Cases Nos . R-666 to R-690, inclusive , respectively .Decided De-
cember 7, 1938
Lettuce Packing Industry-Employee: agricultural laborer ; individuals em-
ployed in packing sheds during lettuce-packing seasons not employed as agri-
cultural laborers ; seasonal employment : employer-employee relationship held
to exist between shed workers and employers-Investigation of Representatives:
controversy concerning representation of employees : employers ' refusal to
grant recognition of union; contention that employees are agricultural
laborers ; majority status disputed by employers-Units Appropriate for Col-
lective Bargaining : packing-shed workers employed in the packing and ship-
ping of lettuce in the Salt River Valley district of Arizona by each of the
employers , respectively , excluding office help ; foremen, truck drivers, and box
workers-Elections Ordered
Mr. David Persinger, Mr. Charles M. Brooks, and Mr. William,
R. Walsh, for the Board.
Mr. Ivan G. McDaniel, Mr. George C. Lyon, of Los Angeles, Calif.,
and Mr. Herman Lewkowitz, of Phoenix, Ariz., for all the Employers.
Mr. C. B. Moore, of Los Angeles, Calif., for Western Growers
Protective Association on behalf of certain Employers.'
Mr. Barnett E. Marks, of Phoenix , Ariz., for Arizona Vegetable
Distributors, Incorporated.
Mr. Lester Asher, of counsel to the Board.
'American Fruit Growers, Inc., A. Arena and Company, Ltd., M. 0. Best, Byco Distr.,
Inc., Chas. Freedman, S. A. Gerrard Co., John Jacobs Farms, Fred G. Hilvert Company,
Ritz Distributing Company, Miller-Johns Company, Richman and Samuels, Inc., Smith-
Thornburg, Inc, Stanley Fruit Co., and Western Veg Distr.
10 N. L. R.-B., No. 21.
316
DECISIONS AND ORDERS
DECISION
AND
DIRECTION OF ELECTIONS
317
STATEMENT OF THE CASE
On March 7, 1938, Fruit and Vegetable Workers Sub-Local of
No. 191, United Cannery, Agricultural, Packing and Allied Work-
ers of America, C. I. 0.,2 herein called the Sub-Local of No. 191,
filed with the Regional Director for the Twenty-first Region (Los
Angeles, California) separate petitions alleging that questions affect-
Ana commerce had arisen concerning the representation of employees,
respectively, of American Fruit Growers, Inc., Apache Distributors,
Inc., A. Arena and Company, Ltd., M. 0. Best, Byco Distr., Inc.,
Barrel Collins, Davis Packing Co., Eaton Fruit Co., Farmers Dis-
tributors Company, Inc., Chas. Freedman, S. A. Gerrard Co., John
Jacobs Farms, Fred G. Hilvert Company, Ritz Distributing Com-
pany, Miller-Johns Company, Richman and Samuels, Inc., Salinas
Valley Veg. Exch., Smith-Thornburg, Inc., Stanley Fruit Co., Tolby
Bros., Tracy-Holmes Fruit Co., Western Veg. Distr., Brand-Hagin,
Arizona Vegetable Distributors, Incorporated, and E. G. Smith,"
herein collectively called the Employers, and requesting investiga-
tions and certifications of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
On March 18, 1938, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III,- Section 3, and Article III, Section 10 (c) (2), of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice, and further ordered that, for purposes of hearing, the
cases be consolidated and that one record of the hearing be made.
On March 21, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon each of the Employers
and upon the Sub-Local of No. 191. Pursuant to the notice, a hear-
ing was held on March 29 and 30, 1938, at Phoenix, Arizona, before
2 The petitions are signed in abbreviated form : "Fruit and Vegetable Workers Sub-
Local of # 191, UCAPAWA, C. I. o"
8 Apache Distributors , Inc, A. Arena and Company , Ltd, Farmers Distributors Com-
pany , Inc, John Jacobs Farms , Fred G. Hilvert Company, Ritz Distributing Company,
Miller-Johns Company, Brand-Hagin, and Arizona Vegetable Distributors , Incorporated,
were incorrectly designated in the petitions as Apache Distributors , A. Arena Co . and Ltd.,
Farmers Distr . Co, John Jacobs Co , Fred Hilvert Co., P. J. Linde, Miller-Johns , Bryant-
Hagen , and Ariz Veg . Distr., respectively . At the hearing , on motion of counsel for the
Board, the pleadings were amended , without objection , so as to substitute the designations
which are set forth in the text.
318 NATIONAL LABOR RELATIONS BOARD
Thomas H. Kennedy, the Trial Examiner duly designated by the
Board. The Board and each of the Employers were represented
by counsel, participated in the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues.
At the commencement of the hearing, the Employers filed a joint
motion to dismiss the petitions for investigation and certification of
representatives and to dismiss the proceeding on the grounds (1)
that the petitions were not filed for or on behalf of the employees
of the Employers; (2) that no questions affecting commerce had
arisen concerning the representation of employees; (3) that the em-
ployees named in the petitions are all "agricultural laborers" within
the meaning of Section 2 (3) of the Act and are therefore exempt
from the jurisdiction of the Board; (4) that the Employers are not
engaged in nor do their transactions or products affect interstate
commerce; and (5) that the Board's proceeding was without author-
ity-and contrary to the provisions of the Act. The Trial Examiner
reserved ruling thereon. The Board hereby denies the motion.
The petition alleging that a question affecting commerce had arisen
concerning the representation of employees of A. Arena and Com-
pany, Ltd., was filed with reference to employees performing serv-
ices at two separate packing sheds or plants. It appears that A.
Arena and Company, Ltd., is not the employer of persons working at
one of these sheds, but that the employer is Arena-Norton Corpora-
tion, a firm which has the same secretary and many of the same
stockholders. At the hearing it was stipulated between counsel for
the Board and counsel for Arena-Norton Corporation that the peti-
tion relating to A. Arena and Company, Ltd., be amended to include
Arena-Norton Corporation as a party herein.4
During the course of the hearing 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.
On May 6, 1938, the Employers filed a brief which the Board has
considered.
On July 5, 1938, a petition was filed with the Board by Fresh
Fruit and Vegetable Shed-Workers, Local No. 78, United Cannery,
Agricultural, Packing and Allied Workers of America, stating that
pursuant to a direction of the district convention of the United
Cannery, Agricultural, Packing and Allied Workers of America, held
on June 26, 1938, at San Francisco, it had taken over the member-
ship of the Sub-Local of No. 191, and requesting that its name ap-
4 Arena-Norton Corporation is hereinafter included within the collective designation,
"the Employers."
DECISIONS AND ORDERS 319
pear in any order or decision issued by the Board in this proceeding
in lieu of the Sub-Local of No. 191. An affidavit in support of the
allegations of the petition was thereafter filed by the district presi-
dent of United Cannery, Agricultural, Packing and Allied Workers
of America.
On November 19, 1938, the Board issued an order reopening the
record for the introduction of evidence relative to the matter covered
in the petition filed by Fresh Fruit and Vegetable Shed-Workers,
Local No. 78.
The Regional Director, on November 19, 1938, issued a notice of
such further hearing, on November 21, 1938, an amended notice of
hearing, and on November 22, 1938, a notice of change of place of
hearing, all of which were duly served upon all parties to the pro-
ceeding. Pursuant to the amended notice of hearing and notice of
change of place of hearing, a hearing was held on November 26,
1938, at Los Angeles, California, before Thomas H.- Kennedy, the
Trial Examiner duly designated by the Board. The Board and each
of the Employers were represented by counsel and participated 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.
At the commencement of the hearing, counsel for the Board moved
to amend the petition filed by Fresh Fruit and Vegetable Shed-
Workers, Local No. 78, on July 5, 1938, and the order of the Board
of November 19, 1938, to designate the name of said organization as
Fresh Fruit and Vegetable Workers, Local No. 78. The Trial Ex-
aminer reserved ruling thereon, as well as on the motion of the peti-
tion requesting that the name of Fresh Fruit and Vegetable Workers,
Local No. 78, United Cannery, Agricultural, Packing and Allied
Workers of America, appear in lieu of the Sub-Local of No. 191 in
any order or decision issued by the Board. The motions are hereby
granted. The Board has reviewed'the ruling of the Trial Examiner
upon an objection to the admission of evidence. The ruling is hereby
affirmed.
On December 5, 1938, the Employers filed a brief, which the Board
has considered, relating to the issues raised in the petition to substi-
tute the name of Fresh Fruit and Vegetable Workers, Local No. 78,
in lieu of the Sub-Local of No. 191.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Each of the Employers is engaged in the business of packing
lettuce in the Salt River Valley district in the vicinity of Phoenix,
Arizona. In the brief filed by the Employers it is admitted that
320 NATIONAL LABOR RELATIONS BOARD
"the lettuce, or most of it, eventually enters interstate commerce;
presumable almost 100% of the lettuce eventually leaves the boundary
of the State of Arizona."
Adopting the language of the Employers' brief, we find that
generally-
the Employers 5 operate in this district in three different methods.
The first method is where the Employer owns or leases the land
on which the lettuce is grown and employs the labor used in plow-
ing the land, planting, irrigating, cultivating, cutting and pack-
ing the lettuce. In such a situation the Employer controls the
operation and pays the labor from the time of planting through
the time of harvesting and until the lettuce is put in the freight
car, the door closed and sealed... .
The second method is where the Employer buys growing
crops. Under this method the Employer, or its superintendent
or fieldman, purchases the growing lettuce in the field prior to
maturity. Upon purchase of the growing crop, the Employer
obtains complete control of the same and from that point on
employs the labor necessary to cultivate and harvest the crop... .
Here again the Employer controls the lettuce until it is put
in the freight car, the door closed and sealed... .
The third method is where the Employer makes cash advances.
Under this method of operation the Employer, or its fieldman
or superintendent selects certain land on which it wishes to
grow lettuce. Then instead of leasing the land, as in the first
method, or instead of buying the growing crops and thereafter
directly hiring the labor, as in the second method, the Em-
ployer, after satisfying itself of soil conditions, purchases the
crop but makes arrangement for the grower to continue the
cultivation. The Employer makes cash advances to the grower,
which money goes to pay for fertilizer, materials and labor.
The Employer supervises the grower in this work and makes
cash payments to the grower from time to time for labor and
other expenses. . . . instead of paying the labor direct, makes
cash advances to the grower... .
The Employers do not pack the lettuce in the field where it is
grown. The lettuce-packing operations are carried on in packing
plants or sheds which are located at railroad shipping points.
In the Salt River Valley district the packing of lettuce is carried
on during two seasons s-in the spring from about the end of Feb-
ruary until the middle of April, and again in the fall from about
the end of November until the middle of January.
s Although the brief uses the term "Respondents," we have in accordance with our usage
herein substituted the designation "Employers "
The record indicates that each season is also known as a "deal."
DECISIONS AND ORDERS 321
American Fruit Growers, Inc., is a Delaware corporation with its
principal offices in Pittsburgh, Pennsylvania, and Los Angeles, Cali-
fornia. The company packs and ships vegetables or fruit in prac-
tically every State of the United States. It does not own or lease
any lettuce fields in the Salt River Valley district, but obtains its
supply of lettuce by means of cash advances, to growers. Although
the company supervises the growing and harvesting, the persons who
harvest the lettuce in the field are employed by the grower. After
the lettuce is cut, it is delivered by the grower to the company's
packing shed which is located at Alhambra, Arizona. The company
also operates its Alhambra shed during the cantaloupe-packing season
which occurs in June and July. During the spring-lettuce deal of
1938, the company packed about 100 carloads ' of lettuce, all of which
were shipped outside Arizona. It employed about 55 to 60 employees
in its packing shed during this lettuce season.
Apache Distributors, Inc., a Colorado corporation, has its principal
office and its packing shed in Phoenix, Arizona. This shed is operated
during both the lettuce and cantaloupe-packing seasons. The com-
pany grows its lettuce on land which it leases under a year-to-year
tenancy. During the, fall-lettuce deal of 1937, the company packed
approximately 35 carloads of lettuce, all of which were shipped out-
side Arizona. It employs about 50 men in its lettuce operations,
15 or 20 being packing-shed workers and the remainder field workers.
A. Arena and Company, Ltd., a California corporation, has its main
office in Los Angeles, California. It operates packing sheds in
Salinas Valley, Imperial Valley, and several other points in Cali-
fornia . Its shed in the Salt River Valley district is located at Mesa,
Arizona, and is used only for packing and shipping lettuce. During-
the spring-lettuce deal-of 1938 approximately 60 workers were em-_
ployed at this packing shed. Ninety carloads of lettuce were packed,
all the cars being shipped outside Arizona.
Arena-Norton Corporation operates only in the Salt River Valley
district. Its packing shed is located at Jean, Arizona, and is op-
erated during the lettuce and carrot 8 seasons . It either grows its
own lettuce supply or purchases growing crops prior to maturity.
During the spring-lettuce deal of 1938, approximately 75 workers
were employed at the packing shed at Jean. About 170 carloads of
lettuce were packed at this shed, all the cars being shipped outside
Arizona.
M. 0. Best is an individual doing business as M. 0. Best Company.
He operates a packing shed at El Centro, California, and at Mobest,
'The record discloses that a carload of lettuce contains from a minimum of 265 to a
maximum of 320 crates. A crate contains either four, five, or six dozen heads of lettuce,
depending upon the size of the heads
8 The carrot-packing seasons follow the lettuce seasons a^ od occur in April and in
January.
322 NATIONAL LABOR RELATIONS BOARD
Arizona, in the Salt River Valley district. The shed at Mobest is
used for packing lettuce, cantaloupes, and beet seed., The, lettuce
which he packs and ships is grown by him. During the spring-
lettuce deal of 1938, approximately 81 workers were employed at the
packing shed at Mobest, and about 118 carloads of lettuce were
shipped. All the shipments were sold to commission merchants from
States other than Arizona under terms f. o. b. the packing shed at
Mobest.
Byco Distr. Inc., an Arizona corporation, has its principal office and
its packing shed at Alhambra, Arizona. This shed is operated dur-
ing the lettuce and cantaloupe-packing seasons. The company grows
the lettuce which it packs and ships. During the spring-lettuce
deal of 1938, the company packed 86 carloads of lettuce, all of which
were shipped outside Arizona. It employs about 73 people in its
lettuce operations, 42 being packing-shed workers, and the remainder
field workers.
Burrel Collins is an individual operating a packing shed at
Phoenix, Arizona, during the lettuce and cantaloupe seasons. The
lettuce which he packs and ships is either grown by him, or pur-
chased as growing crops prior to maturity, or obtained pursuant to
cash advance contracts. During the spring-lettuce deal of 1938, 31•
workers were employed at the packing shed and -26 carloads of
lettuce were shipped. All the shipments were sold f. o. b. the packing
shed to buyers representing various commission merchants.
Davis Packing Co. is the name under which E. E. Davis does
business. He operates a packing shed at Alhambra, Arizona. He
obtains his supply of lettuce by the purchase of growing crops or by
the purchase of harvested lettuce which is delivered to the shed.
During the spring-lettuce deal of 1938, he packed 24 carloads of
lettuce, all of which were shipped outside Arizona under f. o. b. sales
contracts. He employed 37 people in his lettuce operations, 15 being
packing-shed workers and the remainder field workers.
Eaton Front Co: is a partnership composed of Ralph and Ray
Eaton. The partnership operates cantaloupe-packing sheds at vari-
ous places in California, New Mexico, and Colorado. In the Salt
River Valley district it operates a shed at Alhambra, Arizona, which
is used during the lettuce and cantaloupe seasons. It grows a por-
tion of the lettuce which it packs and ships on leased land, but its
principal supply is obtained by purchasing growing crops prior to
maturity. During the spring-lettuce deal of 1938 it packed 85 car-
loads of lettuce at its Alhambra shed, all of which were shipped
outside Arizona. The partnership employed 92 people in its lettuce
6 As noted above, the--cantaloupe-packing season occurs in Tune and July, several
months after the spring-lettuce -deal' Beet seed is likewise packed about 2 months after
the spring-lettuce deal.
DECISIONS AND ORDERS 323
operations , 34 being packing-shed workers and the remainder field
workers.
Farmers Distributors Company , Inc., an Arizona corporation, op-
erates a packing shed at Alhambra , Arizona, during the lettuce and
cantaloupe seasons. On occasion it purchases growing crops of let-
tuce, but its principal supply comes from land which it leases or
from cash advances . During the spring-lettuce deal of 1938 it
packed 52 carloads of lettuce, all of which were shipped outside
Arizona. It employed 49 workers in its packing shed during the
lettuce season.
Chas. Freedman is partner of a firm composed of Chas. Freedman
and O. J. Jennings . The partnership operates a packing shed for fruit
and vegetables at Imperial Valley, California. In the Salt River
Valley district it operates a shed at Jean, Arizona, at which it packs
only lettuce . It obtains its supply of lettuce by the purchase of
growing crops or by cash advances. During the spring-lettuce deal
of 1938, 49 workers were employed at the Jean packing shed and 75
carloads of lettuce were shipped . The majority of the shipments
were sold f. o. b. the packing shed to buyers representing eastern
commission merchants.
S. A. Gerrard Co. is a corporation having its main office in Cin-
cinnati, Ohio. It operates packing sheds in Colorado and in the Im-
perial Valley and Salinas Valley in California. In the Salt River
Valley district of Arizona it operates a shed at Mesa for packing
lettuce and carrots, at Cowden for packing lettuce, and at Fowler
for packing cantaloupes . For the most part, it leases land upon
which it grows its supply of lettuce. On infrequent occasions, how-
ever, it purchases growing crops of lettuce. During the spring-lettuce
deal of 1938, the company employed 78 workers at its packing shed
at Mesa and 48 at its shed at Cowden . It shipped 149 carloads of
lettuce from Mesa and 69 carloads from Cowden, all the shipments
going outside of Arizona.
John Jacobs Farms, a California corporation, has its packing shed
at Alhambra , Arizona. It packs and ships lettuce, carrots , broccoli,
and cabbage . It grows most of its lettuce supply on leased land, but
occasionally buys growing crops. During the spring-lettuce deal of
1938 it packed 100 carloads of lettuce, the great majority of which
were shipped outside Arizona . It employed 58 workers in its packing
shed during the lettuce season.
Fred G. Hilrvert Company, a common-law trust, operates packing
sheds at several places in Colorado and in California . In the Salt
River Valley district of Arizona it operates sheds for packing lettuce
and cantaloupes at Campo and at Normal Junction. It grows nearly
all of its lettuce supply on leased land, and only infrequently pur-
chases growing crops. During the spring-lettuce deal of 1938 it
324 NATIONAL LABOR RELATIONS BOARD
shipped 88 carloads of lettuce from the Campo shed and 61 from the
Normal Junction shed. All of the shipments went to destinations
outside Arizona. During the same lettuce season the firm employed
55 workers at the Campo shed and 85 at the Normal Junction shed.
Ritz Distributing Company is the name under which M. Duddy
does business. He operates a packing shed in Utah and at Jean,
Arizona, in the Salt River Valley district. The shed at Jean is used
for packing lettuce and cantaloupe. He grows his lettuce on land
which he leases. During the spring-lettuce deal of 1938, he packed
120 carloads of lettuce, all of which were shipped outside Arizona.
He employed about 115 men in his lettuce operations, 40 being pack-
ing-shed workers, and the remainder field workers.
Miller-Johns Company, a partnership composed of O. D. Miller
and C. W. Johns, operates a packing shed at Cowden, Arizona, during
the lettuce and carrot seasons. On occasion it purchases growing
crops of lettuce, but its principal supply comes from land which it
owns or leases. During the spring-lettuce deal of 1938, the partner-
ship packed 110 carloads of lettuce, all of which were shipped outside
Arizona. It employed about 230 men in its lettuce operations, 80
being packing-shed workers and the remainder field workers.
Richman and Samuels, Inc., an Arizona corporation, has its main
office in New York City. The company operates a packing shed at
Jean, Arizona, which is used "during the lettuce, cantaloupe, and carrot
seasons. Various affiliated corporations operate packing sheds at sev-
eral places in California. The company's lettuce supply is grown on
land which it leases. During the spring-lettuce deal of 1938, the
company packed about 125 carloads of lettuce, all of which were
shipped outside Arizona. It employed 46 workers in its packing
shed during the lettuce season.
Salinas Valley Veg. Exch. is a partnership composed of T. M.
Bunn and T. Yuki. It operates lettuce-packing sheds at several places
in California and its main office is at Salinas, California. In the
Salt River Valley district of Arizona its lettuce-packing shed is
located at Fowler. The lettuce which it packs and ships is either
grown on land which it leases or is obtained through the purchase
of growing crops. During the spring-lettuce deal of 1938 it packed
350 carloads of lettuce, all of which were shipped outside Arizona
under f. o. b. sales contracts. The partnership employed 191 men
in its lettuce operations, 106 being packing-shed workers and the
remainder field workers.
Smith-Thornburg, Inc., an Arizona corporation, operates one pack-
ing shed at El Centro, California, and another in the Salt River Val-
ley district at Mobest, Arizona. The shed at Mobest is used during
the lettuce, cantaloupe, carrot, and cabbage seasons. The company's
lettuce supply is grown on land which it leases or owns. During the
DECISIONS AND ORDERS 325
spring-lettuce deal of 1938w the company packed 186 carloads of let-
tuce, all of which were shipped outside Arizona. It employed 127
workers in its lettuce operations, 44 being packing-shed workers and
the remainder field workers.
Stanley Fruit Co., an Arizona corporation, operates one packing
shed in Colorado and another in the Salt River Valley district at
Cowden, Arizona. The shed at Cowden is used for packing lettuce,
cantaloupe, and beet seed. The company's lettuce supply is grown
on land which it leases or owns. During the spring-lettuce deal of
1938, the company packed 99 carloads of lettuce, all of which were
shipped outside Arizona under f. o. b. sales contracts. It employed
32 workers in its packing shed during the lettuce season.
Tolby Bros., a partnership composed of three brothers, C. C., M. A.;
and C. A. Tolby, operates a packing shed at Jean, Arizona, during the
lettuce and cantaloupe seasons. The partnership's lettuce supply is
grown on land which it owns or leases. During the spring-lettuce deal
of 1938, the partnership packed 117 carloads of lettuce, all of which
were shipped outside Arizona. It employed 75 workers in its packing
shed during the lettuce season.
Tracy-Holmes Fruit Co., an Arizona corporation, operates a pack-
ing shed at Jean, Arizona, which is used for shipping lettuce. The
company's lettuce supply is grown on land owned by its principal
stockholder. During the spring-lettuce deal of 1938, the company,
packed 91 carloads of lettuce, all of which were shipped outside Ari-
zona. It employed 60 workers in its packing shed during the lettuce
season.
Western Veg. Distr., a partnership composed of Elmer Hartner and
Calvin Kunz of Denver, Colorado, operates lettuce-packing sheds in
California, in Colorado, and in the Salt River Valley district of Ari-
zona at Alhambra and at Jean. Its supply of lettuce is obtained
pursuant to cash advance contracts. During -the spring-lettuce deal
of 1938 it shipped a total of 238 carloads of lettuce which were evenly
divided between the shed at Alhambra and the shed at Jean. All the
shipments went to destinations outside Arizona. The partnership
employed about 80 workers in its Alhambra packing shed during the
lettuce season. .
Brand-Hagin, a partnership composed of Wayne Brand and Ken-
neth Hagin, operates a lettuce-packing shed at Fowler, Arizona. Its
supply of lettuce is obtained through the purchase of growing crops
prior to maturity. During the spring-lettuce deal of 1938, the part-
nership packed 35 carloads of lettuce, all of which were shipped out-
side Arizona under f. o. b. sales contracts. It employed 30 workers in
its packing shed during the lettuce season.
Arizona Vegetable Distributors, Incorporated, an Arizona cor-
poration, operates a packing shed at Fowler, Arizona, which is used
147841-39-vol 10--22
326 NATIONAL LABOR RELATIONS BOARD
during the lettuce, cantaloupe, and carrot seasons. The company's
lettuce supply is grown on land which it leases. During the spring-
lettuce deal of 1938, the company packed 97 carloads of lettuce, all of
which were shipped outside Arizona. It employed 56 workers in its
packing shed during the lettuce season.
E. G. Smith is an individual operating a packing shed at Jean, Ari-
zona, during the lettuce and cantaloupe seasons. The lettuce which
he packs and ships is purchased as growing crops prior to maturity.
During the, spring-lettuce deal of 1938, Smith packed 35 carloads of
lettuce, about 90 per cent of which were shipped outside Arizona under
f. o. b. sales contracts. He employed 40 workers in the packing shed
during the lettuce season.
II. THE ORGANIZATION INVOLVED
Fresh Fruit and Vegetable Workers, Local No. 78, United Cannery,
Agricultural, Packing and Allied Workers of America, herein called
the Union, is a labor organization affiliated with the C. I. 0.,10 admit-
ting to its membership all shed workers engaged in the packing and
shipping of lettuce, except foremen, clerical employees, truck drivers,
and box makers.
III. THE EMPLOYEES
An Employer which grows its own supply of lettuce or which pur-
chases growing crops prior to maturity carries on its pay rolls field
laborers who perform the harvesting and cutting of the crop. In
the field the lettuce is packed into field crates and transported by
truck to the packing shed. The truck drivers are generally field
workers who have been engaged in the harvesting of the lettuce.
At the packing shed the lettuce is unloaded from the truck and is
handled by shed workers, who are classified as receivers, truckers, or
floormen. These shed employees move the lettuce to the trimming
benches, where the trimmers remove the decayed or brown leaves and,
using a sharp knife, chop off the butt of the head of lettuce. After
being trimmed, the lettuce is handled by a packer who works at the
trimming table packing two crates at a time. Generally there are three
or even four trimmers for each packer. The packer picks up two heads
of lettuce at a time and, depending upon the size of the heads, places
them in one of the two crates which he is packing.
The packed crate is next placed upon a skid or conveyor belt. An
iceman puts crushed ice into the crate. The crate then moves under
a lidding. machine, which nails on a lid. The crate is labeled, the size
of the heads is marked on it, and then a car loader places the crate
10 At the time of the hearing this designation referred to the Committee for Industrial
Organization. We take notice that the name has since been changed to the Congress of
Industrial Organizations.
DECISIONS AND ORDERS 327
.in a railroad car which is on a siding alongside the packing shed.
Finally, ice is packed over the tops of the crates in the railroad car,
and the lettuce is ready for shipment.
In the vast majority of cases, the shed employees do not perform
any work in the fields. Nor do they work in the sheds during the
cantaloupe- or carrot-packing seasons. They leave the Salt River
Valley at the end of its lettuce-packing seasons and go to the Imperial
Valley or the Salinas Valley in California to work in packing sheds
during the lettuce-packing seasons of these districts. The Employers
tend to give preference to their old employees, and many of the died
workers work for the same employer or for the same foreman in the
,Salt River Valley, then in California, and finally return for the next
lettuce deal in the Salt River Valley. The shed workers generally do
only lettuce-packing work and move from one lettuce deal to another.
The petitions of the Union requesting an investigation and certifi-
cation of representatives are filed with reference to the shed employees
who are engaged in the packing and shipping of lettuce. The Em-
ployers contend that all of their employees are "agricultural laborers,"
the packing-shed workers as well as the laborers in the fields. Section
2 (3) of the Act excludes "any individual employed as an agricultural
laborer" from the definition of the term "employee," and consequently
from the jurisdiction granted to the Board.
The term "agricultural labor" has been defined by other Federal
agencies. The Social Security Act, 49 Stat. 620, provides :
The term "employment" means any service ... except-(1) agri-
cultural labor; . . .11
The United States Treasury Department, Bureau of Internal Rev-
enue, and the Social Security Board have promulgated regulations
defining the term "agricultural labor," as used in the Social Security
Act, as follows :
... The term "agricultural labor" includes all services per-
formed-
(a) By an employee, on a farm, in connection with the cultiva-
tion of the soil, the harvesting of crops, or the raising, feeding, or
management of livestock, bees, and poultry; or
(b) By an employee in connection with the processing of ar-
ticles from materials which were produced on a farm; also the
packing, packaging, transportation, or marketing of those mate-
rials or articles. Such services do not constitute "agricultural
labor", however, unless they are performed by an employee of the
owner or tenant of the farm on which the materials in their raw
or natural state were produced, and unless such processing, pack-
ing, packaging, transportation, or marketing is carried on as an
"Sections 210 (b), 811 (b), and 907 (c) of the Social Security Act.
328 NATIONAL LABOR RELATIONS BOARD
incident to ordinary farming operations as distinguished from
manufacturing or commercial operations.
As used herein the term "farm" embraces the farm in the
ordinarily accepted sense, and includes stock, dairy, poultry, fruit,
and truck farms, plantations, ranches, ranges, and orchards.
Forestry and lumbering are not included within the exception.12
We are of the opinion that this definition sets forth an adequate
interpretation which may be applied to the term "agricultural
laborer", as used in Section 2 (3) of the National Labor Relations
Act.13 It is apparent from this definition that the mere fact that an
12 Art. 6 , Social Security Board Regulations No 2, relating to Federal Old-Age Benefits
under Title II of the Social Security Act ; Art. 6, U . S. Treasury Department , Bureau of
Internal Revenue Regulations 91 relating to the Employees ' Tax and the Employers' Tax
under Title VIII ; Art. 206 ( 1), U. S Treasury Department , Bureau of Internal Revenue
Regulations 90 relating to the Excise Tax on Employers under Title IX.
Is We do not, however , adopt all the specific rulings which have been made with respect
to the foregoing definition . We expressly reject the ruling contained in the following
letter which is cited in the Employers ' brief :
TREASURY DEPARTMENT,
OFFICE OF COMMISSIONER OF INTERNAL REVENUE,
Washington , D. C., Sept. 10, 1937.
Refer to : SST : OA : C
WESTERN GROWERS PROTECTIVE ASSN,
1231 E. 7th St., Los Angeles, Calif.
(Atten : Mr C. B Moore, Managing Secretary.)
SIRS : Reference is made to your letter dated May 13, 1937, requesting advice as to
whether services- performed by employees of a lettuce grower in connection with the
packing of the lettuce under certain described circumstances constitute "agricultural
labor" within the meaning of the taxing provisions of the Social Security Act.
It is stated that the lettuce grower in question owns three hundred acres of land on
which he plants and cultivates lettuce of the iceberg variety. In preparing the let-
tuce for shipment to eastern markets, it is carefully packed with small pieces of ice in
a crate, and the refrigerator cars in which it is transported are top iced ; i. e., crushed
ice is blown over the top of the crates after they are loaded in the cars . This method
of packing is, of necessity , used both by commercial packers and lettuce farmers, since
all lettuce must be packed in the same manner . The employees performing the pack-
ing operations do not perform services in connection with the harvesting of the lettuce
for the reason that the highly perishable nature of the product demands cutting at
selected times of the day, and it must be immediately packed to insure satisfactory
marketing. The packing operations are not conducted on the farm , usually being
carried on some distance away where cailoading facilities are available . However, it
is claimed that without such packing there would be no iceberg lettuce farming in
Califoi nia and Arizona , and that the packing operations are an integral and dependent
part of the farming operation The lettuce is sold exclusively at wholesale.
You are advised that upon the basis of the facts submitted, and in view of the
provisions of Articles 6 and 206 (1) of Regulations 91 and 90 , issued pursuant to
Titles VIII and IX of the Act, respectively, the services performed by the employees
of the lettuce grower under the circumstances described in your letter , in connection
with the packing of lettuce which was grown on a farm owned or tenanted by the
employer, constitute "agricultural labor" for purposes of the taxes imposed by the
Social Security Act. Accordingly, the remuneration with respect to such services is
not subject to the taxes imposed by Titles VIII and IX thereof.
Respectfully,
(sgd) Guy T. HELVERINO,
Commissioner.
In our opinion , this ruling is based upon an incomplete statement of facts which are
more fully ievealed in this proceeding and, furthermore , overlooks the requirement that
the packaging must be carried on "as an incident to ordinary farming operations as dis-
tinguished fiwn manufacturing or commercial operations."
DECISIONS AND ORDERS 329
employee is engaged in handling products grown upon a farm does
not of itself classify him as an "agricultural laborer." Although the
employees with whom we are here concerned handle products grown
upon a farm , their services are not rendered in the fields. Instead,
they work only in the packing sheds or plants and their services are
devoted entirely to the handling of lettuce as it is being prepared
in the sheds for shipment to market. It is our conclusion that the
services which are performed by shed workers engaged in the pack-
ing and shipping of lettuce are not "agricultural" in nature , but are
performed in connection with commercial packaging and shipping
enterprises . Moreover , the employees of those firms which operate
by means of,the purchase of growing crops or by means of cash
advances are not agricultural laborers for the added reason that they
are not employed by the owner of the farm on which the products
were produced.
We find that the individuals employed by the Employers in the
packing sheds during the lettuce-packing seasons are not employed
as agricultural laborers.
IV. THE QUESTIONS CONCERNING REPRESENTATION
The petitions for investigation and certification of representatives
alleged "that the Employers, although requested by registered letters
on March 1, 1938, had refused to meet with the Union and recognize
it as bargaining agent for the packing -shed employees . On March
10, 1938, the Salt River Valley Grower-Shipper Committee, repre-
senting,the Employers , notified a Field Examiner of the Board at
Phoenix, Arizona, that they contended : (1) "that the work performed
in their packing sheds is agricultural labor and as such not within
the scope of the Act . . ."; and (2) that the Union does not represent
and has never represented a majority of the employees.
The Employers claim that no question concerning representation
has arisen for the reasons that at the time of the hearing the spring-
lettuce deal of 1938 had been finished, that no arrangements had
been made for rehiring any of the employees when the fall packing
season began, that the relationship of employer and employee had
terminated , and that the employees for the spring season could not
determine for the employees during the fall season whether or not
they wanted an election to determine their choice of representatives.
We find, however, that approximately 50 per cent of the lettuce-
shed workers that were employed by each Employer during the
spring-lettuce packing deal return to work for the same Employer
during the fall-lettuce deal. Moreover, the great majority of these
shed workers return season after season to work for one or another
of the Employers in this proceeding . We conclude that an employer-
330 NATIONAL LABOR RELATIONS BOARD
employee relationship exists between these lettuce-shed workers and
the Employers.14
We find that a question has arisen concerning representation of
employees of each of the Employers.
V. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find as to each of the Employers in this proceeding that the
question concerning representation which has arisen, occurring in
connection with its operations 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 burden-
ing and obstructing commerce and the free flow of commerce.
VI. THE APPROPRIATE UNIT
The Union, in its petitions, claimed that the production employees
in and about the lettuce-packing sheds of each Employer, respectively,
except office help, foremen, and truck drivers, constitute a unit appro-
priate for the purposes of collective bargaining. At the hearing a
member of the executive board of the Union clarified its claim by
defining "production employees" as including receivers, truckers,
trimmers, packers, crate liners, icemen, lidders, and car loaders. He
further asserted that the box makers working in the sheds are
employees of an independent box company and should be excluded
from the unit.
As we have noted above, the Employers contended that all of their
employees, the packing-shed workers as well as the field workers,
are agricultural laborers. Other than this, the Employers made no
objection to the unit described by the Union and made no claim for
any other unit.
The propriety of a unit which is limited to packing-shed workers
is supported by several considerations. The packing-shed workers
receive substantially higher rates of pay than do the workers in the
field; 15 they do not, as a rule, perform any services in the field; and
14 See Matter of Alaska Packers Association and Alaska Cannery Workers Union Local
No. 5, Committee for Industrial Organization , 7 N. L. R. B 141.
16 The usual rates of pay in the Salt River Valley for the different types of lettuce work
are as follows :
Field Workers
Cutters--------------------------------------------- 30 cents an hour
Loaders----- ---------------------------------------- 30 cents an hour.
Shed Workers
Floormen and truckers -------------------------------- 60 cents an hour
Trimmers------------------------------------------- 60 cents an hour.
Packers--------- 4 cents a crate , which amounts to about 80 cents an hour.
Lidders-------------------------------------------- 821/2 cents an hour.
Icemen----------------------------------------- 60 to 65 cents an hour
Car loaders ----------------------------------------------- $ 3.25 a car.
DECISIONS AND ORDERS 331
their operations in the packing sheds involve entirely different
processes. We see no reason for deviating from the unit claimed by
the Union.
Several of the Employers, as we have previously noted, operate two
lettuce-packing sheds in the Salt River Valley 18 With reference to
A. Arena and Company, Ltd. and Arena-Norton Corporation, to
S. A. Gerrard Co., and to Western Veg. Distr., the respective petitions
for investigation and certification of representatives set forth a single
unit composed of the employees engaged in packing operations at the
two sheds coining under the same ownership. With reference to Fred
G. Hilvert Company, the petition for investigation and certification
of representatives refers to the employees at the packing shed at
Phoenix, which is the billing point for both of the sheds which this
firm owns. The record indicates that S. A. Gerrard Co. shifts its pack-
ing-shed workers back and forth between its two sheds, and that Fred
G. Hilvert Company and A. Arena and Company, Ltd. and Arena-
Norton Corporation operated only one of their two sheds during the
fall-lettuce deal of 1937. It appears that S. A. Gerrard Co. and West-
ern Veg. Distr. each operated two packing sheds during the fall-let-
tuce deal of 1937. We shall include within a single unit the workers
in the designated classifications who are employed in one or more of
the packing sheds operated in the Salt River Valley by the same
Employer. However, the record does not contain sufficient facts to
warrant finding that A. Arena and Company, Ltd., and Arena-Nor-
ton Corporation are to be considered as a single employer. We shall
consider the packing-shed employees of each of these concerns as
constituting a separate unit. '
We find that all the receivers, truckers, trimmers, packers, crate
liners, icemen, lidders, car loaders, and others employed as packing-
shed workers in the packing and shipping of lettuce in the Salt
River Valley district of Arizona by each of the Employers, respec-
tively, excluding office help, foremen, truck drivers, and box makers,
constitute, in the case of each Employer, a unit appropriate for the
purposes of collective bargaining, and that said units will insure to
these employees the full benefits of their right to self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
VII. THE DETERMINATION OF REPRESENTATIVES
No evidence was introduced at the hearing upon the basis of
which we could make a finding that a majority of the employees
in the units found to be appropriate have designated and selected
39 A. Arena and Company , Ltd , and Arena-Norton Corporation operate at Mesa and at
Jean ; S. A. Gerrard Co. operates at Mesa and at Cowden ; Fred G. Hilvert Company
operates at Campo and at Normal Junction ; Western Veg . Distr. operates at Alhambra and
at Jean.
332 NATIONAL LABOR RELATIONS BOARD
any representatives for the purposes of collective bargaining. We
therefore find that an election by secret ballot is necessary to resolve
the questions concerning representation.
Inasmuch as packing-shed workers frequently shift their employ-
ment from one Employer to another, we shall select a date for
determining eligibility to participate in the elections which will most
,closely reflect the employment situations at the time of the election.
Eligibility to vote in the elections is, therefore, extended to packing-
-shed workers within the appropriate unit employed by the Employers
on* the date of issuance of this Decision and the Direction of Elec-
`tions hereinafter provided for.
The record of the second hearing discloses that in June 1938 a
district convention of the United Cannery, Agricultural, Packing
and Allied Workers of America granted to Fresh Fruit and Vege-
table Workers, Local No. 78, jurisdiction over workers in fresh
fruit and vegetable sheds within the district ; that on July 17, 1938,
a meeting of the Sub-Local of No. 191 voted unanimously to come
under the jurisdiction of Fresh Fruit and Vegetable Workers, Local
No. 78, and to turn over all books, supplies, and moneys; and that
-six out of the nine officers of the Sub-Local of No. 191 became
,officers of Fresh Fruit and Vegetable Workers, Local No. 78. We
need not determine whether or not every member of the Sub-Local
of No. 191 has become a member of Fresh Fruit and Vegetable
Workers, Local No. 78. For the purposes of conducting an election
by secret ballot in order to resolve the questions concerning repre-
sentation, a sufficient showing has been made to warrant placing the
name of Fresh Fruit and Vegetable Workers, Local No. 78 upon
the ballot. We fmd on the basis of the entire record that Fresh
Fruit and Vegetable Workers, Local No. 78, may properly be sub-
stituted for the purposes of the present proceeding for the Sub-Local
of No. 191, and it is hereby so substituted. Accordingly, the name
Fresh Fruit and Vegetable Workers, Local No. 78, United Cannery,
Agricultural, Packing and Allied Workers of America shall be placed
upon the ballot.
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. Questions affecting commerce have arisen concerning the rep-
resentation of employees of each of the Employers listed in Ap-
pendix "A", respectively, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All the receivers, truckers, trimmers, packers, crate liners, ice-
men, lidders, car loaders, and others employed as packing-shed work-
ers in the packing and shipping of lettuce in the Salt River Valley
DECISIONS AND ORDERS 333,
district of Arizona by each of the Employers listed in Appendix
"A", respectively, excluding office help, foremen, truck drivers, and
box makers, constitute, in the case of each Employer 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 ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigations authorized by the Board
to ascertain representatives for the purposes of collective bargaining,
elections by secret ballot shall be conducted within fifteen (15) days
from the date of A his Direction of Elections, under the direction,
and supervision of the Regional Director for the Twenty-first Re-
gion, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all the receivers, truckers, trimmers, packers,
crate liners, icemen, lidders, car loaders, and others employed as
packing-shed workers in the, packing and shipping of lettuce in the
Salt River Valley district of Arizona on the date of the issuance of
this Direction of Elections by each of the Employers listed in Ap-
pendix "A", respectively, exclusive of office help, foremen, truck
drivers, and box makers, to determine whether or not such employees
desire, in the case of each Employer, to be represented by Fresh Fruit
and Vegetable Workers, Local No. 78, United Cannery, Agricultural,
Packing and Allied Workers of America, for the purposes of col-
lective bargaining.
Mx. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Direction of Elections.
Appendix "A"
1. American Fruit Growers, Inc.
2. Apache Distributors, Inc.
3. A. Arena and Company, Ltd.
4. Arena-Norton Corporation.
5. M. O. Best, an individual doing business as M. O. Best Company.
6. Byco Distr. Inc.
7. Burrel Collins.
8. Davis Packing Co.
9. Eaton Fruit Co.
10. Farmers Distributors Company, Inc.
334 NATIONAL LABOR RELATIONS BOARD
11. Chas. Freedman and O. J. Jennings, copartners doing business
under the name of Chas . Freedman.
12. S. A. Gerrard Co.
13. John, Jacobs Farms.
14. Fred G. Hilvert Company, a common-law trust.
15. M. Duddy, an individual doing business as Ritz Distributing
Company.
16. O. D. Miller and C. W. Johns, copartners doing business under
the name of Miller-Johns Company.
17. Richman and Samuels, Inc.
18. T. M. Bunn and T. Yuki, copartners doing business under the
name of Salinas Valley Veg. Exch.
19. Smith-Thornburg, Inc.
20. Stanley Fruit Co.
21. C. C. Tolby, M. A. Tolby, and C. A. Tolby, copartners doing
business under the name of Tolby Bros.
22. Tracy-Holmes Fruit Co.
23. Elmer Hartner and Calvin Kunz, copartners doing business
under the name of Western Veg. Distr.
24. Wayne Brand and Kenneth Hagin, copartners doing businessl
under the name of Brand-Hagin.
25. Arizona Vegetable Distributors, Incorporated.
26. E. G. Smith.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTIONS
December 17, 1938
On December 7, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Elections in the
above-entitled consolidated proceeding, the elections to be held within
fifteen ( 15) days from the date of the Direction , under the direc-
tion and supervision of the Regional Director for the Twenty-first
Region.
The Board , having been requested by the Regional Director to
postpone the -elections to be held among employees of Eaton Fruit
Co., S. A. Gerrard Co., and Stanley Fruit Co., hereby amends its
Direction of Elections by extending the period within which the
elections shall be conducted among employees of Eaton Fruit Co.,
of S. A. Gerrard Co., and of Stanley Fruit Co-to such time as the
Board may in the future direct.
Mn. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Amendment to Direction of Elections.
10 N. L. R. B., No. 21a.
DECISIONS AND ORDERS 335
[SAME TITLE
SECOND AMENDMENT TO DIRECTION OF ELECTIONS
December 00, 1938
On December 7, 1938, the National Labor Relations Board, herein
called the Board , issued a Decision and Direction of Elections in the
above-entitled consolidated proceeding , the elections to be held within
fifteen (15) days from the date of the Direction, under the direction
and supervision of the Regional Director for the Twenty-first Re-
gion. On December 17, 1938, the Board issued an Amendment to
Direction of Elections , postponing the elections to be held among
employees of Eaton Fruit Co., S. A . Gerrard Co ., and Stanley Fruit
Co. until such time as the Board should in the future direct.
The Board hereby amends its Direction of Elections, as amended,
to provide that an election shall be conducted among employees of
S. A. Gerrard Co. within ten (10) days from the date of this Second
Amendment to Direction of Elections.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Second Amendment to Direction of Elections.
10 N. L. R. B., No. 21b.
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
AND
ORDER
January 18, 1939
On December 7, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Elections in
the above-entitled consolidated proceeding , the elections to be held
within fifteen (15) days from the date of the Direction,' under the
direction and supervision of the Regional Director for the Twenty-
first Region. On December 17, 1938, the Board issued an Amend-
ment to Direction of Elections, postponing the elections to be held
among employees of Eaton Fruit Co., S. A. Gerrard Co., and Stanley
Fruit Co. until such time as the Board should in the future direct.
On December 22, 1938, the Board issued a Second Amendment to
Direction of Elections , providing that an election among employees
of S. A. Gerrard Co. be conducted within ten (10) days from the
date of the Second Amendment.
Pursuant to the Decision and Direction of Elections , as amended,
elections by secret ballot were conducted on December 19, 20, 21, and
336 NATIONAL LABOR RELATIONS BOARD
22, 1938, under the direction and supervision of the Regional Director
for the Twenty-first Region. Full opportunity was afforded all
parties to the investigation to participate in the conduct of the secret
ballots and make challenges. On December 23, 1938, the said Re-
gional Director, acting pursuant to Article III, Section 9, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, issued and, on December 26, 27, and 28, 1938, dul I served
upon the parties to the proceeding his Intermediate Report on the
ballots.
On January 3 and 6, 1939, 17 of the Employers 4 filed with the
Regional Director letters protesting the elections. The letters, all
of which are identical, state objections in the form of conclusions
without specification of the facts, if any, relied on, or raise issues
which were considered by the Board in its Decision and found to
be without merit or which have been passed upon on numerous
occasions.' We find that the letters of protest raise no' substantial
or material issues with respect to the conduct of the elections or to
the Intermediate Report. The protests are hereby overruled.
d These Employers are : American Fruit Growers , Inc., Arena-Norton Corporation, M. 0.
Best Company , Byco Distr. Inc., Burrel Collins, Farmers Distributors Company , Inc, S A.
Gerrard Co , John Jacobs Farms , Fred G. Hilvert Company, Miller-Johns Company, Rich-
man and Samuels , Inc., Salinas Valley Veg. Exch ., Smith-Thornburg , Inc., Western Veg.
Distr ., Brand-Hagin , Arizona Vegetable Distributors , Incorporated , and E. G. Smith
Each of the letters is addressed to the Regional Director and reads as follows :
The undersigned does hereby protest against the election held on December 20,
1938, and the results thereof , and any participation of the National Labor Rela-
tions Board therein on the following grounds :
1. That the Board has no jurisdiction to call or to conduct said election or to
interfere in any manner with the business of the undersigned or its employees for
the reason that said undersigned is not engaged in any activities in interstate
commerce or affecting interstate commerce as that term is used in the Act, and
for the further reason that all the employees of the undersigned affected by the
election are agricultural workers within the meaning of that term as used in
Section 2 (3) of the Act;
2. For the further reason that said election was not properly called or con-
ducted, and does not truly and accurately set forth the wishes of a majority of
persons who are the employees of the undersigned , because-
(a) The payroll of the date selected by the Board does not properly represent
the employees of the undersigned eligible to vote at such an election ;
(b) The classification of employees selected by the Board as being entitled to
vote is arbitrary and unreasonable;
(c) There is no unity or connection between the employees of different sheds
even though employed by the same employer as would justify the same committee
representing such employees ;
(d) That all of said employees are seasonal and there is no such continuity of
employment as would permit a committee to represent employees beyond one
season ;
( e) That said election was determined by a majority vote of persons participat-
ing therein rather than a majority of all employees of the classification mentioned.
The issue raised by the protest against certifying the representative receiving a majority
of the votes of the employees participating in the election , although the only issue not
considered in the Decision of the Board , was discussed at great length in Matter of
R. C. A. Manufacturing Company, Inc. and United Electrical & Radio Workers of America,
2 N. L R. B. 159 . Moreover, the results of the elections indicate that in the case of each
employer who filed a letter of protest a majority of all the employees eligible to participate
in the election voted for the labor organization named upon the ballots.
DECISIONS AND ORDERS 337
As to the balloting and, its results, the Regional Director reported
as follows :
AMERICAN FRUIT GRowERs, INC
Total number eligible_______________________________________ 69
Total number of ballots counted_____________________________ 56
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 49
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 7
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
APACHE DISTRIBUTORS, INC.
Total number eligible_______________________________________ 16
Total number of ballots counted_____________________________ 15
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O. 13
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local.No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 2
Total number of blank ballots _______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
ARENA-NORTON CORPORATION
Total number eligible_______________________________________ 65
Total number of ballots counted_____________________________ 62
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C I. O__ 44
Total number of votes against the Fiesh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 18,
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
M. 0. BEST
Total number eligible_______________________________________ 41
Total number of ballots counted_____________________________ 39
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 33
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of,America, affiliated with the C I. O__, 6
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ 0
'Total number of challenged votes____________________________ 0
338 NATIONAL LABOR RELATIONS BOARD
BYco DISTR INC.
Total number eligible_______________________________________ 19
Total number of ballots counted_____________________________ 17
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 15
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 2'
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ - 0
Total number of challenged votes____________________________ 0
BURREL COLLINS
Total number eligible_______________________________________ 25
Total number of ballots counted_____________________________ 25
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 22
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 3
Total number of blank ballots_______________________________ 0'
Total number of void,ballots________________________________ 0
Total number of challenged votes ---------------------------- 0
D.^vls P.\cIcINC Co
Total number eligible_______________________________________ 23
Total number of ballots counted_____________________________ 21
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 8-
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 3
Total number of blank ballots_____________________________ P
Total number of void ballots_______________________________ 0
Total number of challenged votes____________________________ 0
FARMERS DISTRIBUTORS COMPANY, INC.
Total number eligible_______________________________________ 33
Total number of ballots counted____________ _________________ 30
Total number of votes for the Fresh Fruit and Vegetable
Workers,'Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
0.1.0 --------------------------------------------------- 9'
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, ^ affiliated with the
C. I. 0--------------------------------------------------- I
DECISIONS AND ORDERS 339
FARMERS DISTRIBUTORS COMPANY, INC -Continued
Total number of blank ballots----------------------------- 0
Total number of void ballots------------------------------- 0
Total number of challenged votes--------------------------- 0
S. A GERRARD CO.
Total number eligible-------------------------------------- 79
Total number of ballots counted---------------------------- 77
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0-------------------------------------------------- 0
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I 0-------------------------------------------------- 7
Total number of blank ballots------------------------------- 0
Total number of void ballots-------------------------------- 0
Total number of challenged votes--------------------------- 0
JOHN JACOas FARMS
Total number eligible-------------------------------------- 35
Total number of ballots counted----------------------------- 32
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 8
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 4
Total number of blank ballots------------------------------- 0
Total number of void ballots-------------------------------- 0
Total number of challenged votes-------------------------- 0
FRED G. HILVERT COMPANY
Total number of eligible------------------------------------ 84
Total number of ballots counted---------------------------- 75
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 9`
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C I. 0-------------------------------------------------- ,
Total number of blank ballots------------------------------- 0,
Total number of void ballots------------------------------- . 1
Total number of challenged votes-------------------
.340 NATIONAL LABOR RELATIONS BOARD
RITZ DISTRIBUTING COMPANY
Total number eligible-------------------------------------- 44
Total number of ballots counted----------------------------- 40
Total • number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 9
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural,' Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0-------------------------------------------------- 1
'Total number of blank ballots------------------------------- 0
Total number of void ballots-------------------------------- 0
Total number of challenged votes--------------------------- 0
MILLER-JOHNS COMPANY
Total number eligible--------------------------------------- 66
Total number of ballots counted--------------------------- 56
Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 0
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0-------------------------------------------------- 5
Total number of blank ballots------------------------------- 0
Total number of void ballots-------------------------------- 0
Total number of challenged votes---------------------------- 1
RICHMAN AND SAMUELS, INC.
Total number eligible-------------------------------------- 37
-Total-number of ballots counted---------------------------- 37
'Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 9
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 8
Total number of blank ballots------------------------------- 0
Total number of void ballots-------------------------------- 0
Total number of challenged votes---------------------------- 0
SALINAS VALLEY VEG. EXCH.
-Total number eligible--------------------------------------- 75
Total number of ballots counted----------------------------- 67
-Total number of votes for the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
,C. I. 0--------------------------------------------------- 4
DECISIONS AND ORDERS
SALINAS VALLEY VEG. EXCH.-Continued
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
341
C. I. 0--------------------------------------------------- 13
Total number of blank ballots______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes__________________________ 0
SMITH-THORNBURG, INC.
Total number eligible______________________________________ 46
Total number of ballots counted____________________________ 45
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the C. I. 0------ 30
Total number of votes against the Fresh Fruit and Vegetable
-Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 5
Total number of blank ballots______________________________ 0
Total number of void ballots________________________________
Total number of challenged votes____________________________
TOLBY BROS.
Total number eligible --------------------------------------- 9
Total number of ballots counted__ ____________________ 69
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the C. 10________ 53
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing,
and Allied Workers of America, affiliated with the C. I. 0__; 16
Total number of blank ballots______________________________ 0
Total number of void ballots ------------------------------------ 0
Total number of challenged votes____________________________ 0
TRACY-HOLMES FRUIT CO.
Total number eligible______________________________________ 41
Total number of ballots counted____________________________ 34
'Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America,, affiliated with the C. 1. 0______ 12
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C I 0__ 22
Total number of blank ballots______________________________ 0
Total, number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
147811-39-vol 10--23
342 NATIONAL LABOR RELATIONS BOARD
WESTERN VEG. DISTR.
Total number eligible_______________________________________ 112
Total number of ballots counted---------------------------- 110
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the C. I. O____ 92
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the
C. I. 0--------------------------------------------------- 7
Total number of blank ballots______________________________ 1
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
BRAND-HAGIN
Total number eligible_______________________________________ 23
Total number of ballots counted_____________________________ 23
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the C. I. 0------ 18
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Packing
and Allied Workers of America, affiliated with the C. I. O__ 4
Total number of blank ballots______________________________ 1
Total number of void ballots________________________________ 0
Total number of challenged votes---------------------------- 0
ARIZONA VEGETABLE DISTRIBUTORS, INCORPORATED
Total number eligible_______________________________________ 45
Total number of ballots counted____________________________ 40
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the C. I. O_-__ 24
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the C. I. O_ 16
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
E. G. SMITH
Total number eligible_______________________________________ 50
Total number of ballots counted_____________________________ 44
Total number of votes for the Fresh Fruit and Vegetable Work-
ers, Local No. 78, United Cannery, Agricultural, Packing and _
Allied Workers of America, affiliated with the C. I.0-------- 29
Total number of votes against the Fresh Fruit and Vegetable
Workers, Local No. 78, United Cannery, Agricultural, Pack-
ing and Allied Workers of America, affiliated with the C. I. O_ 15
Total number of blank ballots_______________________________ 0
Total number of void ballots________________________________ 0
Total number of challenged votes____________________________ 0
DECISIONS AND ORDERS 343
The Regional Director reported that no elections were conducted
among employees of A. Arena and Company, Ltd., and Chas. Freed-
man and O. J. Jennings, copartners doing business under the name
of Chas. Freedman because their packing sheds were not operating.
Since they did not employ any persons eligible to participate in the
elections directed by the Board, we shall dismiss the petitions for
investigation and certification of representatives of employees of these
concerns.
We shall also dismiss the petitions for investigation and certifica-
tion of employees of the following concerns since a majority of those
voting at the elections conducted among the respective employees
of these firms have not signified that they desire to be represented
by a labor organization : Davis Packing Co., M. Duddy, an individual
doing business as Ritz Distributing Company, and Tracy-Holmes
Fruit Co.
CERTIFICATION OF REPRESENTATIVES
By virtue of and, pursuant to the power vested in the National
Labor Relations Boardby Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and
9, of National Labor Relations Board Rules and Regulations-Series
1, as amended,
IT IS HEREBY CERTIFIED that Fresh Fruit and Vegetable Workers,
Local No. 78, United Cannery, Agricultural, Packing and Allied
Workers of America, affiliated with the C. I. O., has been designated
and selected by a majority of the receivers, truckers, trimmers, pack-
ers, crate liners, icemen, lidders, car loaders, and others employed as
packing-shed workers in the packing and shipping of lettuce in the
Salt River Valley district of Arizona by each of the Employers
listed in Appendix "B," respectively, exclusive of office help, foremen,'
truck drivers, and box makers, as their representative for the purposes
of collective bargaining, and that pursuant to Section 9 (a) of the
Act, Fresh Fruit and Vegetable Workers, Local No. 78, United Can-
nery, Agricultural, Packing and Allied Workers of America, affili-
ated with the C. I. O., is the exclusive representative, in the case of
each Employer, of all such employees for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
ORDER
By virtue of Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended,
344 NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY ORDERED that the petitions for investigation and certi-
fication of representatives of employees of A. Arena and Company,
Ltd., Chas. Freedman and O. J. Jennings, copartners doing business
under the name of Chas. Freedman, Davis Packing Co., A Duddy,
an individual doing business as Ritz Distributing Company, and
Tracy-Holmes Fruit Co., be, and they hereby are, dismissed.
MR. DONALD WAKEFIELD SMITH took no part in the above Certifi-
cation of Representatives and Order.
APPENDIX B
1. American Fruit Growers,' Inc.
2. Apache Distributors, Inc.
3. Arena-Norton Corporation.
4. M. O. Best, an individual doing business as M. O. Best Company.
5. Byco Distr. Inc.
6. Burrel Collins.
7. Farmers Distributors Company, Inc.
8. S. A. Gerrard Co.
9. John Jacobs Farms.
10. Fred G. Hilvert Company, a common-law trust.
11. O. D. Miller and C. W. Johns, copartners doing business under
the name of Miller-Johns Company.
12. Richman and Samuels, Inc.
13. T. M. Bunn and T. Yuki, copartners doing business under the
name of Salinas Valley Veg. Exch.
14. Smith-Thornburg, Inc.
15. C. C. Tolby, M. A. Tolby, and C. A. Tolby, copartners doing
business under the name of Tolby Bros.
16. Elmer Hartner and Calvin Kunz, copartners doing business
under the name of Western Veg. Distr.
17. Wayne Brand and Kenneth Hagin, copartners doing business
under the name of Brand-Hagin.
18. Arizona Vegetable Distributors, Incorporated.
19. E. G. Smith.
10 N. L. R. B., No. 21c. -