Comer Produce Co.

National Labor Relations Board - Board Decisions

Jul 25, 1951

95 N.L.R.B. 542 (N.L.R.B. 1951)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HORACE E. COMER , FLOYD B . PERRY AND PAUL WUBBOLDING , D/B/A
COMER PRODUCE CO., AND DON. M . BROWN AND KEMPER MARLEY,
D/B/A B & M FARMS, AND RAY HUMPHREY ' and UNITED FRESH
FRUIT & VEGETABLE WORKERS, L. I. U. 78, CIO, PETITIONER. Cash
No. 21-RC-1826. July 25,1951 '
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Ben Grodsky, hear-
ing'officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. In 1938, Comer Produce Company, herein called Corner, and
B & M Farms, herein called B & M, formed a partnership in which
B & M had charge of the farming operations where fruits and vege-
tables were grown, and Comer operated the packing shed where the
fruits and vegetables were packed and shipped. It appears that in
] 943 the partnership was dissolved, and B & M took over control of
i he packing shed operations as well as the farming operations, and
Comer became sales agent for B & M2 B & M leases the shed in which
packing operations are carried on, pays industrial compensation in-
surance premiums for the shed employees, and owns most of the facil-
ities in the shed.3 Humphrey is employed by B & M as foreman
of the packing shed employees. Although Comer conducts its activi-
ties as sales agent in one end of the shed and makes out payroll checks
for the shed employees, the checks are paid out of B & M funds.
Accordingly, we find, contrary to the Petitioner's contentions, that
Comer and Humphrey are not employers of the packing shed em-
ployees, and that B & M is the sole employer of those employees. We
-will, therefore, grant the motions to dismiss the petition as to Comer
and Humphrey.
During 1950, B & M sold fruits and vegetables valued in excess of
$800,000, of which more than 95 percent was shipped out of State.
' The Employers ' names appear as set forth in the amended petition filed by the Petitioner
on April 2, 1951.
2 The record is not clear as to when Comer ceased to operate the packing shed, but it is
clear that Comer presently has no supervision or control of the shed operations or any of
the shed employees.
8 The lidding machine is still owned by Comer, but is kept in repair by B & M.
95 NLRB No. 69.
COMER PRODUCE CO. 543
As B & M during 1950 was engaged in producing goods destined for
out-of-State shipment valued in excess of $25,000, we find, contrary
to B & M's contentions, that its operations affect commerce within
the meaning of the Act, and that it will effectuate the purposes of the,
Act to assert jurisdiction over B & M.4
2. The labor organization involved claims to represent certain
employees of B & M.
3. B & M contends that the packing shed employees, whom the Peti-
tioner seeks to represent, are "agricultural laborers" and not "employ-
ees" within the meaning of the Act, and that, therefore, the Board has
no jurisdiction over such workers.
B & M grows the fruits and vegetables which are processed by the
packing shed employees. However, it maintains separate payrolls
for field and shed employees, and each group is under different super-
vision. There is little interchange between shed and field employees.
The shed represents a substantial investment by B & M.5 We find,
therefore, that the packing shed employees are employed in an oper-
ation constituting a separate commercial enterprise, and that they
are "employees" within the meaning of the Act .6
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of B & M within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find that all packing shed employees at B & M's Phoenix,,
Arizona, packing shed, excluding clerical employees, guards, and.
supervisors,' constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act s
5. In accordance with the usual practice in seasonal operations of
this kind, we will direct that the election be held at or about the
approximate seasonal peak, on a date to be determined by the Regional
Director, among the employees in the unit who are employed during
the payroll period immediately preceding the date of the issuance.
of the notice of election by the Regional Director.
[Text of Direction of Election omitted from publication in this:
volume.]
4 Stanitlaus Implement and Hardware Company, Limited , 91 NLRB 618.
5 The Employer estimated its investment in the shed and equipment at between $ 12,000,
and $15,000.
6 Arena-Norton, Inc., at at., 93 NLRB 375.
4 As the shed foreman exercises supervisory authority , we exclude him from the unit..
,Arena-Norton, Inc ., et at ., supra.