Bud of California

National Labor Relations Board - Board Decisions

Aug 26, 1993

311 N.L.R.B. 1352 (N.L.R.B. 1993)

1352
311 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The ALRB certification read as follows: All agricultural employ-
ees of Bud Antle, Inc.; excluding employees of all vacuum cooler
plants and Salinas plastic container manufacturing plant employees
and excluding those employees employed exclusively out of the
State of California.
2 Sec. 3(f) of the FLSA provides:
‘‘Agriculture’’ includes farming in all its branches . . . and any
practices . . . performed by a farmer or on a farm as an incident
to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market or to
carriers for transportation to market.
Under this definition, ‘‘agriculture’’ has both a primary and a sec-
ondary meaning. The primary meaning refers to actual farming oper-
ations, i.e., those functions normally associated with farming such as
cultivation, tilling, growing, and harvesting of agricultural commod-
ities. The secondary meaning includes any practices which are per-
formed by a farmer or on a farm as an incident to or in conjuction
with such farming operations. Camsco Produce Co., 297 NLRB 905,
906 (1990) (citing Farmers Reservoir & Irrigation Co. v. McComb,
337 U.S. 755, 762–763 (1949)).
Bud Antle, Inc. d/b/a Bud of California, Employer-
Petitioner and General Teamsters, Warehouse-
men & Helpers Union, Local 890, affiliated
with International Brotherhood of Teamsters,
AFL–CIO, Union-Petitioner. Cases 32–UC–288
and 32–UC–290
August 26, 1993
ORDER GRANTING AND DECISION ON
REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The Employer’s and the Union’s requests for review
of the Regional Director’s March 11, 1993 Decision
and Order in the above cases are granted. On review,
however, for the reasons set forth below, we affirm the
Regional Director’s dismissal of both parties’ unit clar-
ification petitions.
This is another unit clarification proceeding involv-
ing the same parties and employees as in a prior pro-
ceeding, Case 32–UC–263. In that case, the Employer,
Bud Antle, Inc. d/b/a Bud of California, petitioned to
exclude all nonagricultural employees from a unit
which had been certified by the California Agricultural
Labor Relations Board (ALRB).1 In effect, the Em-
ployer sought a determination from the Board as to
which of its employees in its harvest and salad oper-
ations were not actually agricultural laborers and
should therefore be excluded from the ALRB certified
unit.
In a decision dated June 24, 1991, the Regional Di-
rector granted the Employer’s petition and clarified the
ALRB certified unit to exclude all employees except
cutters and employees in the Employer’s transplanting
operations (who the Regional Director found were
clearly agricultural in the primary sense).2 In so find-
ing, the Regional Director rejected the Union’s argu-
ment that the Employer was a ‘‘farmer’’ because its
contractual arrangements with its growers made them
virtually indistinguishable from each other, citing U.S.
Department of Labor (DOL) regulations under the Fair
Labor Standards Act (FLSA) and prior Board deci-
sions.
Thereafter, the Union filed a request for review of
the Regional Director’s decision, contending that the
Employer’s petition was untimely since the subject
employees were covered by an existing contract which
was effective until September 1992. By order dated
January 6, 1992, the Board granted the Union’s request
for review. However, while agreeing with the Union
that the petition was untimely, the Board nevertheless
affirmed the Regional Director’s substantive deter-
mination inasmuch as the Union had not contested it,
and therefore merely deferred the clarification’s effec-
tiveness until the contract’s expiration.
Thereafter, the Union filed a motion for reconsider-
ation of the Board’s Order, contending, inter alia, that
the Board had erred in assuming that the Union had
not contested the Regional Director’s substantive deter-
mination. By order dated February 27, 1992, the Board
denied the Union’s motion for reconsideration as lack-
ing in merit.
The instant proceeding involves two new unit clari-
fication petitions, one filed by the Employer and one
by the Union. We address each below.
Union’s Petition (Case 32–UC–290). The Union’s
petition, filed October 19, 1992, is essentially another
motion for reconsideration, arguing that the Board
should reconsider its decision in Case 32–UC–263 on
the ground that the ALRB subsequently issued a deci-
sion on September 16, 1992 finding, contrary to the
Board, that the Employer and its contract growers are
a single-integrated enterprise under the Board’s four
factor single-employer analysis, and that all of the em-
ployees in the certified unit are therefore exempt agri-
cultural laborers.
The Regional Director dismissed the Union’s peti-
tion on the ground that the Union had the opportunity
but failed to make its substantive argument to the
Board in the prior UC proceeding, and the mere fact
that the ALRB subsequently issued a decision con-
flicting with the Board’s decision in that proceeding is
not a ‘‘changed circumstance’’ which would warrant
entertaining a repetitive UC petition on the issue.
Contrary to the Regional Director, we find that the
Union’s petition may properly be entertained. While a
party should not be permitted to file repetitive UC pe-
titions seeking further reconsideration of prior Board
jurisdictional determinations in the absence of new
facts, in the instant case there is a new fact: a decision
by a state board which conflicts with the Board’s deci-
sion. Such a Federal-state jurisdictional conflict raises
concerns which go beyond the immediate interests of
the parties and should not go unaddressed simply be-
1353BUD OF CALIFORNIA
3 See 29 CFR § 780.131 (‘‘As a general rule, a farmer performs
his farming operations on land owned, leased, or controlled by him
and devoted to his own use. The mere fact, therefore, that an em-
ployer harvests a growing crop, even under a partnership agreement
pursuant to which he provides credit, advisory or other services, is
not generally considered to be sufficient to qualify the employer so
engaged as a ‘‘farmer.’’) and sec. 780.132 (‘‘Where crops are grown
under contract with a person who provides a market, contributes
counsel and advice, makes advances and otherwise assists the grower
who actually produces the crop, it is the grower and not the person
with whom he contracts who is the farmer with respect to that
crop.’’).
4 In Norton & McElroy, the employer maintained a variety of eco-
nomic arrangements with its growers, including one under which it
owned a one-third interest in both the grower and the corporation
that owned the grower’s land. Similarly, the ALRB found that the
Employer here has ownership or leasehold interests in one-fourth to
one-third of the land on which the growers farm. See judge’s deci-
sion at 53.
5 See, e.g., Gartner-Harf Co., 308 NLRB 531 (1992).
6 In granting review with respect to the Employer’s petition, we
note that, although the Employer’s argument that the cutters should
be excluded from the unit as nonagricultural laborers was considered
and rejected by the Board in the prior proceeding, the Employer was
allowed to present evidence concerning the merits of its position at
the instant hearing and no party argues for dismissal of its petition
on procedural grounds.
cause the petitioner failed to request review of the sub-
stantive issue in a prior UC proceeding.
Nevertheless, we affirm the Regional Director’s dis-
missal of the Union’s petition on the merits. Although
we have carefully considered the December 16, 1991
decision of the state administrative law judge and the
September 16, 1992 decision of the ALRB affirming
it (18 ALRB No. 5), we decline the Union’s request
that we reconsider our prior determination in Case 32–
UC–263 based on the ALRB’s decision. As the state
administrative law judge acknowleged in his decision,
the Board has historically applied a different analysis
in these types of cases, following FLSA regulations3
rather than applying the traditional single-employer
analysis; has consistently found in prior cases (e.g.,
Norton & McElroy Produce, 133 NLRB 104 (1961);
Victor Ryckenbosch, Inc., 189 NLRB 40 (1971); H. M.
Flowers, Inc., 227 NLRB 1183 (1977); Green Giant
Co., 223 NLRB 377 (1976); and Employer Members of
Grower-Shipper Vegetables Assn., 230 NLRB 1011
(1977)), that contract growers are in fact independent
under that analysis; and the Supreme Court in Bayside
Enterprises v. NLRB, 429 U.S. 298, 301–302 (1977),
appeared to uphold the Board’s policy in this regard,
citing with approval Norton & McElroy, supra, a case
which is factually very close to the instant case. See
judge’s decision at 63–69.4
Given these circumstances, we decline to now re-
verse our established policy simply because the ALRB
does not agree with it. Although it is true, as the state
administrative law judge noted (judge’s decision at 64
fn. 54), that the Board in Camsco, supra, recently re-
fused to follow FLSA regulations in adopting a test for
determining a related issue under the agricultural ex-
emption, it noted in doing so that it was thereby ex-
tending the provisions of the Act to the employees,
and that this was consistent with Congress’ intent in
choosing the definition of ‘‘agriculture’’ which was ap-
parently perceived to permit more extensive coverage
of employees by the Act. See 297 NLRB at 908 fn.
19. Here, in contrast, the Union is asking that the
Board adopt a more restrictive test which would effec-
tively render more employees exempt.
Further, as it is the Board and not the ALRB that
has primary jurisdiction over questions involving the
status of employees under the Act, we find that it
would also be inappropriate to defer to the ALRB on
the issue. See H. M. Flowers, supra at fn. 2. See also
Correctional Medical Systems, 299 NLRB 654, 656
(1990).
Finally, even assuming we were to disregard FLSA
regulations and apply a single-employer analysis here,
it is not clear that we would reach the same result as
the ALRB. For example, as the administrative law
judge himself acknowleged, while the Board generally
gives great weight to the factor of centralized control
of labor relations,5 ‘‘the ALRB appears to be some-
what more flexible in assessing the importance of [that
factor].’’ Judge’s decision at 49–50. And in fact the
only evidence of centralized control of labor relations
cited by the ALRB was the fact that the Employer has
given work orders to the growers’ labor contractors
and sometimes pays the bills from the contractors and
other grower costs directly, subject to later reimburse-
ment by the growers. See ALRB decision at 13–14;
and judge’s decision at 45–47 and 52–53.
Although the ALRB also found that there was a lack
of arm’s-length dealing between the Employer and the
growers, the only evidence it cited for this finding was
the fact that when the Employer has rented and sold
farm equipment to the growers, it has ‘‘painlessly’’
factored the price of that equipment into its contracts
with the growers. See ALRB decision at 14–15; and
judge’s decision at 37–38 and 53–54. It is not clear
what the ALRB actually meant by ‘‘painlessly,’’ how-
ever; its other findings indicate that the Employer does
in fact charge such costs to the grower’s account,
thereby reducing the proceeds which the grower even-
tually receives. See judge’s decision at 46.
Accordingly, for all the foregoing reasons, we affirm
the Regional Director’s dismissal of the Union’s peti-
tion.
Employer’s petition (Case 32–UC–288). The Em-
ployer’s petition, filed September 16, 1992, seeks a de-
termination that the Employer’s cutters, like its other
employees, are nonagricultural laborers, since they also
perform noncutting work, and are therefore properly
covered by the Act along with the other employees.6
1354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We agree with the Regional Director that the Em-
ployer’s petition should be dismissed, but do so for the
following reasons. In Camsco, supra, the Board held
that it would return to the rule of Olaa Sugar Co., 118
NLRB 1442 (1957), and apply a regularity test in de-
termining the significance of nonexempt work handled
by employees who are engaged in agricultural work in
the secondary sense. In so holding, however, the Board
specifically noted that a different ‘‘substantiality’’ rule
is properly applied in determining whether to assert ju-
risdiction over employees, such as the cutters here,
who are concededly engaged in farming in the primary
sense. See 297 NLRB 905, 908 fn. 18 (1990) (citing,
e.g., NLRB v. Kelly Bros. Nurseries, 341 F.2d 433 (2d
Cir. 1965)) (14 percent nonagricultural on year-round
basis not enough to bring employees within Act);
Light’s Tree Co., 194 NLRB 229 (1971) (jurisdiction
not asserted where only 10 percent of time spent on
nonagricultural work); and Aquaculture Research, 215
NLRB 1 (1974) (jurisdiction asserted where work
intermixed and nonagricultural work was substantial)).
See also Valley Harvest Distributing, 294 NLRB 1166
fn. 3 (1989) (cutter-trimmers found to be exempt agri-
cultural laborers since they spent the vast majority of
their time in primary agriculture and any nonexempt
work they performed was not frequent or substantial
enough to cause them to lose the exemption). Thus,
contrary to the implication in the Regional Director’s
decision, the ‘‘substantiality’’ rule rather than the Olaa
Sugar ‘‘regularity’’ rule is the appropriate rule to apply
in assessing the nonagricultural work performed by the
cutters.
Nevertheless, applying this rule, we agree with the
Regional Director that the Employer’s petition should
be dismissed. The Regional Director found that the
cutters ‘‘generally’’ perform cutting work, but that,
‘‘on occasion,’’ depending on a number of cir-
cumstances, they also perform other duties—including
work of packers, loaders, box closers, and
windrowers—and that, depending on a number of cir-
cumstances, any cutter on any given day may perform
noncutting work from 5 percent to 50 percent of the
workday. Although it is difficult to determine how
these latter figures would translate on an annual or av-
erage basis, it seems clear that the cutters do in fact
spend the large majority of their time performing pri-
mary agriculture. Indeed, as indicated, the Regional
Director characterized the cutters as performing other
duties only occasionally. In these circumstances, we
conclude that the cutters are agricultural employees en-
tirely exempt from the Act. See Valley Harvest Dis-
tributing, supra.
Accordingly, for all the foregoing reasons, we affirm
the Regional Director’s dismissal of the petitions.