Campbells Fresh, Inc.

National Labor Relations Board - Board Decisions

May 4, 1990

298 N.L.R.B. 432 (N.L.R.B. 1990)

432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Campbells Fresh, Inc. and International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Local 85, AFL-CIO, Peti-
tioner. Case 20-RC-16579
May 4, 1990
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The Board has delegated its authority in this pro-
ceeding to a three-member panel. The Employer's
Request for Review of the Acting Regional Direc-
tor's Decision and Direction of Election, the rele-
vant portion of which is attached, is denied as it
raises no substantial issues warranting review. The
Employer's Motion to Stay the Election is also
denied.
MEMBER OVIATT, dissenting.
For the reasons stated in my concurring and dis-
senting opinion in Camsco Produce Co., 297 NLRB
905 (1990), I would grant the Employer's Request
for Review, reverse the Acting Regional Director,
and dismiss the election petition. The Employer's
outside purchase of 100 pounds of exotic mush-
rooms for resale each week is regular, but along-
side the Employer's own weekly production of
some 400,000 pounds of mushrooms (thus constitut-
ing less than three ten-thousandths of the Employ-
er's production) it is so insubstantial that one
cannot but conclude that the workers here are
plainly agricultural laborers excluded from cover-
age under the Act.
APPENDIX
DECISION AND DIRECTION OF ELECTION
Petitioner seeks a unit comprised of full-time and regu-
lar part-time direct store delivery truck drivers (DSD
drivers) employed by the Employer at its Pescadero,
California facility. The Employer contends that these in-
dividuals are agricultural employees exempt from the
Board's jurisdiction and, therefore, the petition should be
dismissed. The Petitioner contends that the DSD drivers
are employees within the meaning of the Act and, conse-
quently, assertion of jurisdiction is warranted.
The Employer grows, harvests, packages, and ships
mushrooms at its Pescadero facility, which consists of
two adjoining ranches, divided only by a road. The
larger 898-acre ranch is utilized for the storage of fresh
water and disposal of waste water. On the smaller 110-
acre ranch, the Employer has nine wooden buildings di-
vided into 96 smaller "growing" rooms, where the fresh
mushrooms are grown. The mushrooms are harvested by
the Employer's employees and transported to the pack-
aging building, also located on the smaller ranch. From
there, the mushrooms are either placed in a cooler or
sent directly to the packaging line, where they are
sorted, weighed, and packaged in 8-ounce, 12-ounce, or
14-ounce styrofoam containers for retail accounts, or in
10-pound corrugated boxes for bulk orders. Packaged
mushrooms are again placed into a cooler, after which
service employees load them into trucks for transport.
Edward Zoliniak, the farm manager at the Pescadero
facility and the Employer's only witness, testified that
the Employer generally produced somewhere between
375,000 to 400,000 pounds of mushrooms per week at the
Pescadero facility, which constitutes approximately 20
million pounds of mushrooms per year. In addition, the
Employer buys approximately 100 pounds per week of
exotic mushrooms from an independent mushroom farm,
50 pounds of which are shitake mushrooms and 50
pounds of which are oyster mushrooms. The record indi-
cates that approximately 800 pounds of mushrooms per
week are sliced and then sold at a higher price. The
record does not indicate that the nature of the mush-
rooms is changed in any other fashion.
On occasion, customer demands for the Employer's
nonexotic mushrooms exceed its ability to supply them.
The record reflects three methods whereby the Employ-
er deals with such shortages. First, the Employer may
cut a customer's order to adjust to the demand. Second,
the Employer may bring in mushrooms from another of
its mushroom farms. Zoliniak testified that, in the 1988-
1989 fiscal year, the Employer utilized mushrooms from
another of its farms on four or five occasions. As a third
alternative, the Employer may purchase nonexotic mush-
rooms from an independent grower. In the 1988-1989
fiscal year, the Employer purchased mushrooms from in-
dependent growers on two or three occasions; however,
the total volume did not exceed 20,000 pounds. Accord-
ing to Zoliniak, since January 1990, the Employer has al-
ready purchased 9500 pounds of mushrooms from an in-
dependent farmer because of decreased production.
During 1987, the Employer purchased tomatoes from
an outside vendor, which the Employer then labeled and
sold. Zoliniak stated that handling of tomatoes ceased in
1987 because customers did not wish to buy tomatoes
from the Employer. He also stated that the Employer
had no plans to resume handling tomatoes. The record
also reflected one instance of the Employer purchasing,
packaging, and transporting avocados.
In 1977, the California Agricultural Labor Relations
Board (ALRB) certified the United Farm Workers
(UFW) as the collective-bargaining representatives of the
"agricultural employees" at the Employer's Pescadero
facility. The Employer and the UFW have been parties
to successive collective-bargaining agreements, the most
recent of which is effective by its terms from November
1, 1989 to November 8, 1992. The DSD driver classifica-
tion was not created until 1986, and the DSD drivers
have not been covered by any of the contracts between
the Employer and the UFW. However, seven of the pe-
titioned-for DSD drivers were employed until 1986 in
the bargaining unit covered by the contract between the
Employer and the UFW.
Prior to 1986, long-haul drivers transported the mush-
rooms from the Pescadero facility to various warehouses.
The Employer continues to employ two long-haul driv-
298 NLRB No. 54
CAMPBELLS FRESH INC.
ers, who are members of the agricultural employee bar-
gaining unit covered by the current collective-bargaining
agreement between the Employer and the UFW. Since
1986, the Employer has utilized DSD drivers to trans-
port mushrooms, including those purchased from inde-
pendent farms. In contrast to the long-haul drivers, DSD
drivers transport mushrooms to retail sellers and are ex-
pected to build a relationship with these customers. Zo-
liniak testified that sales duties account for approximately
two percent of the DSD drivers' duties. DSD drivers oc-
casionally will pick up a mechanical part necessary to
the farming operation. While long-haul drivers are paid
on an hourly basis, DSD drivers are salaried employees.
DSD drivers are separately supervised by Mitch Vice.
Section 2(3) of the Act provides that the term "em-
ployee" shall not include any individual employed as an
agricultural laborer. Annually since 1946, Congress has
.added a rider to the Board's appropriation bill which
provides that the term "agricultural laborers" shall be
defined in accordance with Section 3(f) of the Fair
Labor Standards Act, which provides:
"Agriculture" includes farming in all its
branches . . . and any practices . . . per-
formed by a farmer or on a farm as an incident
to or in conjunction with such farming oper-
ations, including preparation for market, deliv-
ery to storage or to market or to carriers for
transportation to market. 29 U.S.C. §203.
The Supreme Court has stated that agriculture has
both a primary and a secondary meaning. The primary
meaning refers to actual farming operations, such as the
cultivation, tilling, growing, and harvesting of agricultur-
al commodities. The secondary meaning includes activi-
ties performed by a farmer or on a farm in conjunction
with "such farming operations." Farmers Reservoir & Irri-
gation Co. v. McComb, 337 U.S. 755 (1949). Department
of Labor Regulations Section 780.141, interpreting the
phrase "such farming operations" from the Section 3(f)
definition of "agriculture," states that:
No practice performed with respect to farm com-
modities is within the language under discussion by
reason of its performance on a farm unless all of
such commodities are the products of that farm.
Thus, the performance on a farm of any practice,
such as packing or storing, which may be incidental
to farming operations, cannot constitute a basis for
considering the employees engaged in agriculture if
the practice is performed upon any commodities
that have been produced elsewhere than on such
farm.
Prior Board cases interpreting this regulation have
been conflicting. In DeCoster Egg Farms, 223 NLRB 884
433
(1976), the Board concluded that, although only 13 per-
cent of the 11 million eggs processed by the employer
were received from contract farmers, the activities of the
employer's employees did not fall within the secondary
definition of agriculture because not all of the eggs proc-
essed by the employer were the products of his farm.
In contrast, in Employer Members of Grower-Shipper
Vegetable Association, 230 NLRB 1011 (1977) the Board
held that individuals engaged in secondary agricultural
activity for farmer-employers will be found to be exempt
agricultural laborers unless a "regular and substantial"
portion of their work effort is directed toward process-
ing the crops of an independent grower. The Board con-
cluded that individuals employed by farmer-employers
who handled outside produce constituting less than 10
percent of their employer's total volume would still
come within the exemption for agricultural employees.
The Board recently resolved the conflict and set forth
the proper test to be applied in determining agricultural
laborer status under the secondary definition in Camsco
Produce Co., 297 NLRB 905 (1990). In Camsco, the em-
ployer was engaged in the identical enterprise, a mush-
room growing farm, as is the Employer here. In con-
cluding that the conflicting standards set forth in DeCos-
ter Egg Farms and Employer Members were both defi-
cient, a plurality of the Board created a new test, over-
ruling both DeCoster and Employer Members to the
extent inconsistent with the decision in Camsco. Hence-
forth, the Board will assert jurisdiction if any amount of
farm commodities, other than those of the employer-
farmer, are regularly handled by the employees in ques-
tion. Camsco, supra at 907.
Applying the Board's new standard set forth in
Camsco to the facts before me, I conclude that the asser-
tion of jurisdiction is warranted. Although certain pur-
chases of outside mushrooms are not made on a regular
basis, Zoliniak's uncontested testimony establishes that
the Employer's Pescadero farm purchases approximately
100 pounds of exotic shitake and oyster mushrooms on a
weekly basis from an independent, outside farmer. Al-
though the purchase of these exotic mushrooms consti-
tutes less than .001 percent of the Employer's total
weekly product, the transportation of this small quantity
of "outside" mushrooms on a regular basis is sufficient to
satisfy the criteria established by the Board in Camsco
for the assertion of jurisdiction. Thus, although the UFW
represents the agricultural employees at the Employer's
Pescadero facility pursuant to an ALRB certification, the
evidence reflects that the work of the DSD drivers is not
within the agricultural exemption.
Accordingly, I conclude that the direct store delivery
drivers are not exempt agricultural employees, and the
assertion of jurisdiction is warranted. As the parties have
stipulated to the appropriateness of the unit, it is found
that the unit sought by Petitioner constitutes an appropri-
ate unit for purposes of collective bargaining.