Bauske Bros.

National Labor Relations Board - Board Decisions

Jan 20, 1942

38 N.L.R.B. 435 (N.L.R.B. 1942)

In, the Matter Of HERMAN SAND OTTO BAUSKE, CO- PARTNERS , DOING BUSI-
NESS AS BAUSKE BROS. and INTERNATIONAL BROTHERHOOD OF FIREMEN
AND OILERS, LOCAL 94, AFFILIATED WITH THE A., F. OF L. - ^
Case No. R-3353.-Decided , January 20,1942
Jurisdiction : commercial greenhouse industry.
Investigation and Certification of Representatives : existence of question: dis-
pute as to appropriate unit; refusal to accord union recognition; contention
of Company that;, employees were not subject to the provisions of the Act;
election necessary.,
,Unit Appropriate for Collective Bargaining : all firemen and maintenance em-
ployees employed in, and in connection with, the boiler room of the Company,
held 'to constitute' an appropriate unit, notwithstanding contention of the
Company 'that the unit should include all its employees ; such 'employees
perform different types of work from production employees, and do not work
under the same supervisors. , .
.
'
Definitions : commercial greenhouse employees engaged in cultivating plants and
flowers, and in tending to the heating,and watering facilities, held not to be
agricultural laborers, within the meaning of the Act.
Mr. Otto A. Jaburek, of Chicago, Ill., for the Company.
Mr. Howard A. Plank, ,of Chicago, Ill., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 26, 1941, International Brotherhood of Firemen and
Oilers, Local 94, affiliated with the A. F., of ,L., herein called the
Union, filed with the Regional Director for the Thirteenth Region
(Chicago, Illinois) a petition, and 'on October '24, 1941, an amended
petition, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Herman and Otto Bauske,
co-partners, -doing business as Bauske Bros., Woodstock,. Illinois,
herein called the Company,. and requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the'National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Novem-
38 N. L. R. B., No. 88. -
435
436 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
ber 14, 1941, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On November 28, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. Pursuant to notice, a hearing was held on December 4,
1941, at Chicago, Illinois, before David H. Karasick, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Company
was represented by counsel, and the Union by a representative. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded both parties.
During the course of the hearing the Trial Examiner made several
rulings on the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Herman and Otto Bauske are co-partners, doing business under the
name of Bauske Bros. at Woodstock and Des Plaines, Illinois. The
Company's plant at Woodstock is the only plant involved in this
proceeding. The Company owns 100 acres of land at Woodstock, of
which approximately 12 acres are covered with 36 greenhouses and
approximately 2 acres of open land are devoted to the culture of
peonies.' In its greenhouses the Company grows roses, for the most
part, and a small amount of gardenias and other flowers. During
1940 the Company grew a small amount of tomatoes in one green-
house, but no tomatoes were grown in 1941.
The Company consigns its cut flowers to five wholesale flower
companies at Chicago, Illinois, for sale on a commission basis. Such
flowers leave the Company's plant each morning wrapped in bundles
marked with a number identifying them as having been grown by
the Company. The wholesale florists do not repackage the flowers,
but sell and ship them in the marked bundles to retail florists. Title
to the flowers remains in the Company until the retail florists receive
them. If the flowers are of poor quality when thus received, the
Company is responsible for the ensuing loss.
I The remaining 86 acres of open land are, for the most part , uncultivated, but produce a
small amount of timothy hay. The Company generally sells such hay to a neighboring
farmer who cuts it.
BAUSKE BROS. 437
During, the year 1940, the Company purchased for its Woodstock
plant materials valued at $58,730, 44 percent of which were brought
to the plant from points outside Illinois. During the year 1940,
the total sales resulting from the Company's operations at its Wood-
stock plant amounted to $228,194. Of this amount $175,000 repre-
sents receipts from flowers sold through wholesale florists, each of
whom shipped 15 percent of such flowers outside Illinois.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers, Local 94, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE EMPLOYEES, WITHIN THE MEANING OF SECTION 2 (3) OF THE ACT
The Company contends that its employees are engaged in agri-
cultural labor and therefore are not employees within the meaning
of the Act.2
The Company devotes about 2 acres of its open land at Woodstock
to the outdoor culture of peonies. Its other growing operations are
performed in 36 greenhouses, where roses, for the most part are grown
for cutting and sale. The greenhouses are heated through radiation
by steam produced in the Company's boiler room. The employees
of the Company directly involved in this proceeding are maintenance
employees who fire the boilers and service the heating apparatus in
the boiler room and in the greenhouses. Other employees of the
Company grow, cut, wrap, and ship the flowers, which are produced,
for the most part, in its greenhouses.
We have had occasion to interpret the term "agricultural laborer"
in previous cases,3 and have held that, under circumstances compar-
able to those present here, persons employed to cultivate plants and
flowers in commercial greenhouses and to perform other services in
connection with the operation of such greenhouses, such as tending
to the heating and watering facilities, are not agricultural laborers.
The work in the greenhouses is industrial in nature rather than agri-
cultural, in the common understanding of that term. We, therefore,
find that the employees of the Company working in connection with
2 Section 2 (3) of the Act provides in part: "The term `employee ' shall include any em-
ployee . . but shall not include any individual employed as an agricultural laborer . . .
See Matter of Knaust Brothers , Inc. and Local 17 of International Hodcarriers , Building
& Common Laborers Union of America , 37 N. L R . B 166; Matter of Great Western
Mushroom Co . and United Cannery Agricultural Packing and Allied Workers of America,
United Mushroom Workers Local Union No 300, affiliated with the Congress of Industrial
Organizations, 27 N. L. R. B 352; Matter of The Park Floral Co. and United Greenhouse
and Floral Workers Union No. 510 of the United Cannery Agricultural Packing and Allied
Workers of America, affiliated with the Congress of Industrial Organizations , 19 N. L. R. B.
403, and cases cited therein.
438 DECISIONS OF NATIONAL LABOR' RELAT'IONS BOARD
the Company's greenhouses, including' the employees involved' in
this proceeding, are employees within the meaning of Section 2 (3)
of the Act. =
IV. THE QUESTION' CONCERNING REPRESENTATION
On or about, August 29, 1941, the Union asked the Company, to
recognize the Union as the exclusive bargaining agent of the Com-
pany's boiler-room and maintenance -employees. , The Company re-
fused to bargain with the Union, on the grounds that the Company
doubted the majority of the Union 'among 'employees in the proposed
unit,' that the unit' proposed by the Union was not appropriate for'
bargaining, and that all employees of. the Company were agricultural
laborers and not subject to the provisions of the Act.
A statement of the Regional Director introduced into evidence at
the,hearing indicates that the Union represents a substantial number
of employees in the appropriate unit.4
We find that a question has arisen concerning the representation
of employees of the Company.
V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company,
described in Section I above, has a close, intimate, and substantial,
relation to trade, traffic, and commerce among the several States and'
tends to•lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE APPROPRIATE UNIT
The Union contends that the firemen and maintenance employees,
employed in, and, in connection with, the Company's boiler room at
Woodstock constitute an appropriate unit.' Subject to its contention
that the Board has no jurisdiction in this case, the Company contends
4 The Union submitted to the Regional Director three authorization cards, dated in August
and' October 1941. The cards appeared to bear genuine 'signatures . The employer refused to
submit its pay roll to the Regional Director before the hearing, and the names on the cards
were not checked against any pay roll of the Company.
At the hearing the Union submitted to the Trial Examiner a fourth authorization card,
dated December 2, 1941, which bore the name of an employee in the appropriate unit.
At the time of the hearing there w ere seven employees in the appropriate unit.
In its amended petition the Union so described the employees whom it would include in
the bargaining unit At the commencement of the hearing, the Union reworded its conten-
tion, submitted that all boiler-room and/or maintenance employees at Woodstock consti-
tuted an appropriate unit. The record shows that by both descriptions the Union intended
to include the same employees. We have adopted the description used in the amended peti-
tion, since it is free from ambiguity.
BAUSKE BROS. 439
that all its employees at Woodstock constitute a single appropriate
unit. 1 1 1 , . , . , • , . ' .
The Company employs at Woodstock a superintendent and about
50 other employees. All employees except the superintendent are
hourly paid and work under his supervision. The Company does
not specifically classify its eniployees`on the pay roll. Three employees
function as firemen and work on ' 9-hour interlocking shifts to keep
the greenhouses at a fixed temperature 24 hours a day. All other em-
ployees of the Cor`npany work from 7 a. m. to 4 p. m. Firemen tend
the furnaces, unload coal, and clear the ashes. Four maintenance em-
liloyees spend half of their time in the boiler room and the remainder
of their time in the greenhouses.' Their ' duties ' include boiler repair
and mashing, steam fitting, and general repair work. They repair
the pipes that lie in the rose beds and in the walls of the greenhouses.
From March to July they assist the production workers in the repair
of • rose benches. The maintenance employees give some assistance
in watering the flowers, and' at least one of them has assisted in cut-
ting flowers. Other employees of the Company tend the plants and
cut, wrap, and pack, the flowers for shipment. Such production em-
ployees work under the supervision of range bosses, each of whom is in
'charge of four or more greenhouses. ' Such bosses have nothing to do
with the work of the firemen 'or maintenance men; who work directly
under thesuperintendent. '
'' The Company infrequently transfers men from work in the green-
houses to its maintenance crew. Once or twice during the past year
boiler-room employees have been 'transferred to work in the green-
'h'ouses.
'W e 'firid- that all fi'remen' and maintenance employees employed in
and in connection with, the Company's boiler' room at Woodstock,
excluding the superintendent, constitute a unit appropriate for the
purposes of collective bargaining. We further find that said unit' will
insure to:, the employees of the Company at Woodstock the full benefit
of their right to self-organization and to collective bargaining,' and
will otherwise effectuate the policies of the Act.
VII. THE DETERMINATION OF'REPRESENTATIVES
We find that, the question concerning representation which, • has
arisen can best be, resolved by, and we shall accordingly direct, an
election by secret ballot. .
Those eligible to vote in the election shall be all employees in the
appropriate unit who were employed by the,Company during the pay-
roll period immediately preceding the date of this Direction of Elec-
tion,,subject to the limitations and additions set forth therein.
440 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
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. The employees of Herman and Otto Bauske, co-partners, doing
business as Bauske Bros., Woodstock, Illinois, are employees within
the meaning of Section 2 (3) of the Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees of Herman and Otto Bauske, co-partners,
doing business as Bauske Bros., Woodstock, Illinois, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
3. All firemen and maintenance employees employed in, and in
connection with, the boiler room of Herman and Otto Bauske, co-
partners, doing business as Bauske Bros., Woodstock, Illinois, ex-
cluding the superintendent, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of Na-
tional Labor Relations Board Rules and Regulations-Series 2, as
amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Herman and Otto Bauske, co-partners, doing business as Bauske
Bros., Woodstock, Illinois, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Thirteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations, among all fire-
men and maintenance employees employed in, and in connection with,
the Company's boiler room at Woodstock who were employed during
the pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing the superintendent and employees who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented by International Brotherhood of Firemen and Oilers,
Local 94, affiliated with the A. F. of L., for the purposes of collective
bargaining.