Bodine Produce Co.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 832 (N.L.R.B. 1964)

832 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Bodine Produce Company and Local 78-B United Packinghouse
Workers of America (AFL-CIO), Petitioner.. Case No. 28-RC-
1132. June 26, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act,' a hearing was held before Hearing Officer J. W. Cherry.
The Hearing Officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
NLRA.
2: Petitioner seeks to represent the employees who pack and handle
melons at the Employer's packing shed.
The Employer, owner of 2,700 acres of land on which it grows
vegetables and fruits, including melons, operates two packing sheds 2
in Phoenix, Arizona, one for carrots and mixed vegetables, and the
other for melons which are packed during a season running from early
June to late July? In 1962 the Employer 'had total sales of $21/2 mil-
lion to $23/4 million, $450,000 of which resulted from the sale of melons
grown on about 350 acres of the land owned by the Employer. In
previous years the Employer also processed and packed melons grown
on 50 to 1 00 acres of leased land.
The melons are harvested by picking crews of unskilled employees.
They are then transported by the Employer's drivers to the melon
packing shed which is located in the city of Phoenix, a distance of 5
to 10 miles from the place of harvest. The shed has a valuation of
$40,000 to $50,000, and contains machinery and equipment with a re-
placement value of $5,000 to $10,000. The employees at the melon
packing shed number 40 to 50 at the peak of the season. They are
skilled employees who are paid the going area piece rates contained in
the-Petitioner's 1962_ master contract with a group of about 60 other
employers represented by Shippers', Labor Committees in Blythe and
Imperial and San Joaquin Valleys, California, and in Yuma Valley,
Arizona 4 Thebasic classifications of melon shed employees are pack-
I Herein called NLRA.
2 The Employer does not process its citrus fruits which are handled for it by . the Arizona
Citrus Association.
3 During other seasons some of the melon employees pack other crops for the Employer.
4 The contract unit, which covers vegetable and melon packinghouse employees, was
certified by the Board in.1950 and 1955 ( Employer Members of Imperial Valley , et al.,
92 NLRB 533, and Grower-Shipper Vegetable Association of Central California , et al.,
112 NLRB 807 ). In neither of these cases was the "agricultural labor " issue raised with
respect to any of the employees in the unit certified therein.
147 NLRB No. 93.
BODINE PRODUCE COMPANY 833
ers, sorters, and loaders, with employees in the first category receiving
as much as $6 to $7 per hour.5
At its packing shed, the Employer packs for shipment to markets
melons which it grows on its own land or an land which it leases. It
does not handle or process melons belonging to or coming from any
other grower.
The melon shed employees perform the following operations : The
melons are dumped into bins, go from there to a conveyor belt, and are
elevated to a sorting table. They are then sorted, waxed, crated, and
chlorinated in a food machinery processor. Next, they go to a belt
where they are identified with decals, and loaded either into railroad
cars or trucks located at the adjoining railroad siding or truck loading
dock.
The melon packing shed employees are separately supervised and
are on a separate payroll from the Employer's field agricultural em-
ployees. There is never any interchange of workersbetween the pack-
ing shed and the field.
The Employer contends that the Board may not assert jurisdiction
over the melon packers herein because they are "agricultural laborers"
within the meaning of Section 2(3) of NLRA and Section 3(f) of the
Fair Labor Standards Act, herein called FLSA. The Petitioner, on
the other hand, relying on Imperial Garden Growers 6 wherein the
Board found melon packing workers to be nonagricultural employees,
asserts that the mere fact that melon packing employees process only
the Employer's own produce is not enough to bring the Employer's
melon packing operations within the agricultural exemption. The
Petitioner also states that its contracts during the past 20 years with
the multiemployer group consisting of the majority of melon pack-
ers in Arizona and California have brought about a stable relationship
in the entire melon packing industry in this part of the country which
would be jeopardized by a finding that the melon packing employees
herein are agricultural laborers.
Section 2(3) of the NLRA excludes from the definition of the term
"employees" "any individual employed as an agricultural laborer."
Annually, since July 1946, Congress has added to the Board's appro-
priation a rider which in effect directs the Board to be guided by the
definition set forth in Section 3 (f) of FLSA in determining whether
an employee is an agricultural laborer within the meaning of Section,
5 According to its sales manager , the Employer at some time in the past had a separate
collective-bargaining agreement with the Petitioner covering the Employer's melon packing
operations. The sales manager also testified that there was "some possibility" that the
agreement was still in effect at the time of the hearing. However, no contract was urged
as a bar to this proceeding.
6 91 NLRB 1034.
756-236-65-vol. 147-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2(3) of NLRA. The Board has frequently stated that it considers it
its duty to follow, whenever possible, the interpretation of Section
3 (f) adopted by the Department of Labor, the agency which is charged
with the responsibility for and has the experience of administering
the FLSA?
Section 3 (f) reads, in pertinent part, as follows :
.. agriculture includes farming in all its branches and among
other things includes ... the production, cultivation, growing
and harvesting of any agricultural ... commodities . '.. and
any practices . . . performed by a farmer or on a farm as an in-
cident to or in conjunction with such farming operations, inc7ud-
inng preparation for market, delivery to storage or to market or to
carriers for transportation to market. [Emphasis supplied.]
As the melon packing employees herein are not engaged in direct
farming operations such as are included in Section 3 (f )s "primary"
definition of "agriculture," the question in the instant case is whether
they are engaged in activities included in the "secondary" definition 8
In order to come within this definition the operation must be per-
formed either by a farmer or on a farm as an incident to or in con-
junction with the farming operations.
We have been administratively advised by the Department of Labor
that the melon packing shed employees herein may qualify as agricul-
tural laborers under Section 3 (f) of FLSA. According to the Labor
Department, "it has been [its] position that where a farmer operates
a packinghouse located off the farm, as in the instant case, and the
farmer's own employees there engage in packing only his products
for market, such operations by the farmer are within the 3(f) defini-
tion if performed as an incident to or in conjunction with his `farming
operations.' "I In this connection, the Labor Department refers to
Section 780.147 of its latest Interpretative Bulletin, dated 1963,10 which
contains language to this effect. The Labor Department also refers to
Section 780.153 of the Bulletin which states that generally a practice
performed in connection with the farming operation is within the
statutory language only if it constitutes an established part of agri-
culture, is subordinate to the farming operation involved, and does
not amount to an independent business.
7 See Imperial Garden Growers , supra; The ,Sweetlake Land and Oil Company, Inc., 138
NLRB 155 ; Monterey County Building & Construction Trades Council (Vito J. La Torre,
an Indtivedual ), 142 NLRB 139.
6 Farmers Reservoir & Irrigation Company v , McComb, Wage and Hour Administrator,
337 U.S. 755, 762.
B See Wirtz v. Jackson & Perkins Company, 312 F. 2d 48 (C.A. 2) (1963 ), wherein the
court held that the agriculture exemption in Section 3(f) of FLSA was applicable to proc-
essing work done by storage employees in Newark , New York, on rose bushes and other
nursery stock which came from the farms of the employer 's subsidiaries in New Jersey,
California , and Indiana.
10 29 CFR Part 780.
BODINE PRODUCE COMPANY 835
Section 780.157 of the Bulletin, covering special factors relating to
practices performed on farm products, also provides :
In determining whether a practice performed on agricultural .. .
commodities is incident to or in conjunction with the farming op-
erations of 'a farmer or a farm, it. is also necessary to consider
the type of product resulting from the practice-as whether the
raw or natural state-of the commodity has been changed. Such
a change may be a strong indication that the practice is not within
the exemption. (Mitchell v. Budd, 350 U.S. 473) ; "the view was
expressed in the legislative debates on [FLSA] that it marks
the dividing line between processing as an agricultural function
and processing as a manufacturing operation (Maneja v. Waialua,
349 U.S. 254, 260, citing Cong. Rec. 7659-7660,78774879) ?2 Con-
sideration should also be given to the value added to the product
as a result of the practice and whether a sales organization is
maintained for the disposal of the product . . . . [Footnotes
supplied.]
Section 780.154 of the Bulletin, which is entitled, "The Relationship
Is Determined by Consideration of All Relevant Factors," states :
The character of a practice as a part of the agricultural activity
or as a distinct business activity must be determined by ex-
amination and evaluation of all the relevant facts and circum-
stances . . . . The result will not depend on any . . . isolated
factors or tests . . . . Rather, the total situation will control.
(Marteja v. Waialua, 349 U.S. 254 . . . ) ... the general relation-
ship, if any, of the practice to farming as evidenced by common
understanding, competitive factors, and the prevalence of its per-
formance by farmers . . . should be considered. - Other factors
to be considered ... include the size of the operations and re-
spective sums invested in land, buildings and equipment . . . the
amount of payroll for each type of work, the number of employees
and the amount of time they spend in each of the activities, the
extent to which the practice is performed by ordinary farm 'em-
ployees and the amount of interchange of employees between the
operations, the amount of revenue derived from each activity,
the degree of industrialization involved, and the degree of separa-
tion established between the activities. .
11 The Supreme Court held in that case that the processing of tobacco changed and im-
proved the leaf in many ways and turned it into an industrial product.
12 The Supreme Court held in Waialua that employees in a milling operation which
transformed sugar from its raw and natural state were not agricultural employees within
the meaning of Section 3(f) of FLSA. The Supreme Court, however, also found in the
name case that railroad workers, who transported farming implements, field workers, and
'sugar cane on the plantation, were agricultural employees
836 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
The foregoing criteria set forth in the Bulletin support the Labor
Department's opinion that the Employer's melon packing shed opera-
tions are performed as an incident to or in conjunction with the Em-
ployer's farming operation. Thus, the melons packed were grown
by the Employer on its land, there was no change in the form of the
product, and the purpose of the packing operation was to prepare the
product for market and delivery to carriers for transportation.la
Although the Employer employs a separate labor force to work in its
packing shed and follows the wage scale paid by other packers in the
area, we, like the Supreme Court in the•Waial ua case, attach substan-
tial weight to the fact that the operations performed at the packing
shed result in no significant change in the melons themselves, which
leave the packing shed in practically the same raw or natural state
as when they are received from the field.14 As the Court held in
Do fjemyer Bros., the language of Section 3 (f) of FLSA leaves little
doubt that the preparation for market is a necessary function that is
an incident to and is properly to be considered a practice in conjunc-
tion with an employer's farming operation. In a series of cases since
the Court's decision in Do femyer Bros., the Board has also taken the
position that an important determining factor is whether the em-
ployer confines its packing operations to its own produce, as does the
Employer in the instant case.15
We are unable to agree with our dissenting colleagues that congres-
sional intent as reflected by the legislative history of the annual rider
suggests a finding opposite to the one we reach here. While the 1946
debates on the rider show a concern by some Senators that packing
shed employees "have the greatest possible protection under the Na-
tional Labor Relations Act," 16 the inescapable fact remains that the
rider as finally adopted directed the Board to follow the definition of
agriculture contained in Section 3(f) of FLSA. Moreover, unlike
our dissenting colleagues, we do not conclude that the Board's decision
in Imperial, Garden Growers compels us to find in this case that the
13 See Dofflemyer Bros. v. N.L.R.B., 206 F. 2d 813 (,C.A. 9), wherein the court found on
the basis of similar factors that grape packing shed employees were agricultural laborers.
14 ^Cf. Oxford Royal Mushroom Products, Inc., 139 NLRB 1015, wherein the Board took
jurisdiction over employees who canned mushrooms.
15 See B. F. Maurer, an individual, doing business under the name and style of John C.
Maurer c& Sons, 127 NLRB 1459, and K. Malofy & Son and Ray Hart, 107 NLRB 943,
wherein the Board in finding packing shed employees agricultural relied in part on the fact
that the employees packed the employer's own produce. Cf. Oxford Royal Mushrooms Prod-
ucts, supra; Kelly Brothers Nurseries, Inc., 140 NLRB 82; and Cochran Co., Inc., 112 NLRB
1400, 1406, wherein-the Board found that employees who packed or processed products
which were not grown by the employer were nonagricultural employees.
16 See Senator Pepper's statement in Cong. Ree, Senate, July 20, 1946, p. 9519. Senator
Pepper referred to North Whittier Heights Citrus Association v. N.L.R B., 109 F. 2d 76
(C.A. 9), wherein the court concluded that the agricultural exemption ceased as soon as
the fruit was delivered by the growers to the Association for processing, grading, and
marketing. In contrast to the foregoing situation, the Employer in the instant case
packed its own produce in preparation for market.
BODINE PRODUCE COMPANY' 837
melon packing shed is operated as 'a separate'comm'ercial enterprise
apart from the Employer's'farming operation. In the Imperial Gar-
den Growers case, the Board placed substantial reliance on what it
then understood to be the interpretation placed on Section 3 (f) by the
FLSA Administrator, stating, as earlier indicated, that it considered
it proper administrative policy to give great weight to the Labor De-
partment's construction of that section. The Board in succeeding
cases has continued to adhere to-that administrative policy. And we
do so also in the instant case. Relaying in large measure upon the
Labor Department's current administrative advice, but guided also by
the judicial construction given Section 3(f) of the FLSA, all as noted
above, we'are led to our conclusion herein, to wit: that the melon pack-
ers in question are agricultural laborers as they are employed to carry
out functions in conjunction. with and incidental to farming opera-
tions, more specifically, the preparation for market of melons grown
by the Employer."
Accordingly, as no question affecting commerce exists concerning
the representation of "employees" of the Employer within. the mean-
ing of Section 9 (c) (1) of the Act, we shall dismiss the petition herein.
[The Board dismissed the petition.]
MEMBERS FANNING and BROWN, dissenting:
We cannot agree that the melon packing employees herein involved
are agricultural laborers.
The Employer maintains a plant in which there is a substantial
investment in buildings and equipment and in which it conducts an
extensive packing operation that is removed from the Employer's farm
and located in the city of Phoenix next to a railroad siding. In its
packing shed the Employer employs a separately supervised labor
force which performs no functions in connection with the planting,
cultivating, or harvesting of crops, and which is paid in accordance
with the wage scale used by other packers in the area for their pack-
ing shed employees. The processing of the melons by skilled em-
ployees involves a mechanical movement of melons which undergo a
series of operations such as sorting, waxing, chlorination, and iden-
tification with decals that improve and preserve the melons and turn
them into industrial products that are more readily marketable.18
17 In view of the judicial construction noted above , and particularly the decision of the
Supreme Court in Maneja v. Waialua, supra, we hereby overrule Imperial Garden Growers,
supra, and the cases based thereon , to the extent that they are inconsistent with our find-
ing that the melon employees herein are agricultural laborers.
The status as agricultural laborers or statutory employees of the melon packing em-
ployees of other employers , covered by the Petitioner 's 1962 master contract , is not before
us and we express no opinion herein on that issue.
18 See Mitchell v. Budd, supra , at pages 481-482.
838 DECISIONS OF NATIONAL LABOR:] RELATIONS BOARD
As stated in-the majority opinion, Congress has annually added a
rider to the Board's appropriations providing that no part of the ap-
propriations "shall be . . . used; [by the Board] concerning bargain-
ing units composed of agricultural laborers . . . as defined in Section
3 (f) of FLSA." , It is clear from the debates that preceded the adop-
tion of the rider that Congress fully intended to keep packing shed
and processing.employees within the Board's. jurisdiction. Senator
Pepper, for example, stated"' "I desire it to be made clear that I want,
and I hope the Record will so show, these [packing shed] workers to
have the largest possible protection under the National Labor-Rela-
tions Act . . . I believe, fundamentally, that a worker who is
working in a packing house or in a canning factory is an industrial
worker...." 20 -.Similarly, Senator Ferguson stated" that "the
[packing shed] employees'.. are not.ordinary agricultural laborers.
They work in the packing sheds just as other laborers work in plants
and factories. I am of the opinion that we should not deprive them
of their rights under the .:.• Act." Senator Murdock quoted 22 with
approval the following description of packing plants made by the
Chairman of the-Social Security Board "The inside of a typical
packing house is a place of conveyor belts and machinery. There is
little to distinguish these plants.from ordinary factories, except for
the product handled, for the work is virtually identical." Senator
LaFollette referred 23 to the' investigation of the Civil Liberties Com-
mittee in California concerning strikes among the packing shed em-
ployees and asserted that the removal of the, protection of the NLRA
over packing shed employees would be "moving in the direction of
returning to chaotic' and bitter controversies."
Although the Board had, prior to the rider, directed elections among
packing'shed employees, the Board thereafter modified this policy and
by 1948. ceased to assert jurisdiction over packing shed employees ex-
cept when they engaged in packing produce not grown by their own
employer, or where the processing materially changed the produce to
enhance its market value. As a result, on September 30, 1949, Senator
Hayden of Arizona wrote 24 to the Labor Department expressing con-
cern regarding the decisions of the Board refusing to take jurisdiction
over workers employed in fresh fruit and vegetable packing sheds on
19 Cbng. Rec., Senate , July 20, 1946, p. 9515.
20 Senator Pepper also stated that the rider would leave undisturbed North Whittier
Heights Citrus Association v. N.L.R.B., 109 F. 2d 76 (C.A. 9), wherein the court held that
packinghouse workers were "Industrial laborers and are entitled and do now enjoy the pro-
tection of the". NLRA. See 'Gong. Rec ., Senate, July 12, 1946, p. 8742.
21 Cong. Rec., Senate, July 12,1940, p. 8736.
22 Cong. Rec., Senate, July 12, 1946, p. 8737.
23 Cong._ Rec., Senate , July 12, 1946,.p. 8736.
24 See Labor Relations Reporter ( Wages and Hours Section ), vol. 25, No. 3 , November 14,
1949.
BODINE PRODUCE COMPANY 839
the ground that the workers were employed in agriculture as defined in
FLSA.' The Department's Solicitor on October 3, 1949,_ replied in
part as follows:
In some instances, the operator of a fruit and vegetable packing
house may also be engaged in farming operations and may pack
only the fruit and vegetables which he himself grows. Whether
in such a situation, the packing house operations are included in
the definition of agriculture cannot be categorically stated....
I .also understand that where an individual operator does con-
fine his packing operations to the products of his own activities
as a farmer, such packing operations as performed in this area
are not normally performed as a subordinate and established part
of the employer's farming operations, but are generally large
operations which follow the pattern 'of the fruit and vegetable
packing industry rather than' that of farming. Thus, I under-
stand that it is usual to hire separate work forces for the packing
operation, rather than to use the ordinary farm laborers, and
to pay such workers, in accordance with scales established for
packing operations in commercial packing houses, rather than at
farm labor rates. Where these and other factors indicate that
the packing is performed as a distinct and separate enterprise
rather than as a subordinate and established part of the em-
ployer's own farming operations, the Department of Labor would
not consider the activity to be one defined as "agriculture" by Sec-
tion 3(f) of the Fair Labor Standards Act.
On October 55 1949, Wage and Hour Administrator; Wm. R. Mc-
Comb, wrote to NLRB Chairman Paul M. Herzog concerning Section
3(f) of FLSA and stated that the Department had adopted several
"objective tests" for determining whether packing' house operators
were a subordinate and established part.of farming. Mr. McComb
in this connection repeated the substance of the letter to Senator Hay-
den and stated that the determination must ultimately rest upon the
"complete factual picture." 25
The following year the Board in Imperial Garden Growers, 91
NLRB 1034, reevaluated its decisions since the adoption of the rider
and took into account both' the legislative history of the rider and the
Labor Department's "objective tests" for applying Section 3(f), of
FLSA. The Board then concluded that Congress desired NLRA
coverage of fruit and vegetable packing house employees. The Board
also stated it wished to follow, whenever possible, the Department's
interpretations of. Section 3(f) and therefore took into consideration
the "complete factual picture." Accordingly, on the basis of such fac-
u The objective tests were set forth in Interpretative Bulletin No. 14, par . 10, 1949, and
are substantially the same as those stated in Section 780.154 of the current Bulletin.
840 DECISIONS Or NATIONAL LABOR RELATIONS BOARD.
tors as investment in packing shed, degree of- indutrialization, sep-
arate work force, and higher pay scales, the Board concluded in Im-
perial Garden Growers that the melon and vegetable packing shed
employees therein were not agricultural employees.
. In a number of cases since 1950. 26 in - which the facts were substan-
tially similar to those in Imperial Garden Growers and the instant
case, the Board has held that.fruit and,vegetable packing operations
constituted a separate commercial enterprise apart from the em-
ployer's farming operations and that therefore the employees were not
agricultural employees 27 We see no reason at this time for ignoring
or departing from (1) congressional intent as to NLRA coverage of
packinghouse employees and (2) the Labor Department's own criteria
as explicated by the Department's, Solicitor and Wage and Hour
Administrator in 1949 and as spelled out in Section 780.154 of the De-
partment's current Bulletin. The Labor Department's administra-
tive determination that the melon employees herein are agricultural
laborers appears to rely exclusively on the fact that the Employer
packs only its own produce. However, we subscribe to the Labor De-
partment's own current Bulletin that "the character of a practice as a
part of the agricultural activity or as a distinct business activity must
be determined by examination and evaluation of all the relevant facts
and circumstances." 26 We are unable to.find, in applying these criteria
in the light of the legislative and. judicial background set forth above,
that the melon shed workers in this case are within the agricultural
exemption of Section 3(f) of FLSA. While we agree with our col-
leagues that great-weight is to be accorded-to the Labor Department's
opinion for which we have utmost respect, in the final analysis we are
charged with responsibility for our own jurisdictional determinations.
In the circumstances, therefore, we find that the melon shed workers
are employees within the meaning of Section 2 (3) of NLRA and we
accordingly dissent from our colleagues' refusal to entertain the present
faction. For the foregoing reasons, we would find that the Board
should assert jurisdiction over the melon shed workers herein as "em-
ployees" within the meaning of Section 2(3) of NLRA.
21 Grower-Shipper Vegetable Association of Central California , et al., supra ; Albert
Rossi, d/b/a Al Rossi Produce Company , 103 NLRB 750 ; Holme & Seifert and Grower-
Shipper Vegetable Association of Central California, 102 NLRB 347 , 353; Colorado River
Farms, et al ., 99 NLRB 160.
n That collective bargaining has followed this pattern is evidenced by the fact that the
Petitioner ' s 1962 master contract was made wtih a group of about 60 other employers in
Blythe and Imperial and San Joaquin Valleys, California, and in Yuma Valley, Arizona.
In fact, as noted in , footnote 5 of the majority opinion, the Employer involved in this
proceeding has had, and at the time of the hearing may still have hfad, a separate agree-
ment with the Petitioner covering the Employer 's melon packing operations . We would,
-indeed , be reluctant to bring about any possible unstabilizing effect on long established
'bargaining relationships respecting melon packing operations in the area except for the
most compelling reasons-reasons which we find totally lacking here. -
28 It is noteworthy that the Supreme Court in ' finding the milling employees in the
IVaialua case to be nonagricultural considered the various criteria set forth by the Labor
Department in 1949 and repeated in Section 780.154 of the current Bulletin.