Crown Crest Fruit Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1950

90 N.L.R.B. 422 (N.L.R.B. 1950)

In the Matter of CROWN CREST FRUIT CORPORATION, EMPLOYER, and
DRIED FRUIT, NUT PACKERS, DEHYDRATOR WAREHOUSEMEN'S UNION
LOCAL 616, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETI-
TIONER
Case No. 00-RC-696.-Decided June 19, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing in this matter was held before
Robert V. Magor, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case the Board finds :
1. The Employer operates a packing shed in Sanger, California,
where it packs fresh fruits and grapes for sale and shipment. During
the year 1949, the Employer packed, sold, and shipped more than
7,200,000 pounds of such fruits and grapes, for which it received the
sum of $399,000. All of these fruits and grapes were grown and de-
livered to the Employer's packing shed from various points within the
State. All the Employer's shipments were made to points out of the
State.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.'
2. The labor organization involved claims to represent employees of
the Employer.
3. The question concerning representation :
The Employer contends that its packing shed employees, whom the
Petitioner seeks to represent, are "agricultural laborers' within the
meaning of Section 2 (3) of the National Labor Relations Act and
Section 3 (f) of the Fair Labor Standards Act of 1938, and therefore
are not "employees" over whom the Board may assert jurisdiction in
this proceeding.2
' Delta Cooperative Compress, 86 NLRB 649.
Section 2 ( 3) of the National Labor Relations Act provides :
The term "employee" shall include any employee ... but shall not include any indi-
vidual employed as an agricultural laborer....
A rider to the Board's current appropriations act makes the definition of "agriculture"
contained in Section 3 (f) of the Fair Labor Standards Act of 1938 determinative as to
90 NLRB No. 74.
422
CROWN CREST FRUIT CORPORATION 423,
Of the more than 7,200;000 pounds of fresh fruits and grapes that
the Employer sold and shipped during the year 1949, only 569,300
pounds of the grapes or less than 8 percent, were from the Employer's
own vinegrove, which is located about 5 miles from its packing shed.
The bulk of the Employer's fruits and grapes were obtained under the
following contractual arrangements with other growers : 1,120,000
pounds were purchased from growers under "on the vine" contracts,.
under which the Employer agreed either to buy the produce at the
time it was ready for market or to handle it for the account of the
grower, whichever should be satisfactory to the grower; more than
5,529,000 pounds were purchased under contracts whereby the Em-
ployer agreed to pay the grower only for such produce as passed
the United States grading requirements and was "packed out" for ship-
ment from the Employer's packing shed. About 5 to 6 percent of the
Employer's produce was purchased directly from other growers, with-
out any prior contractual arrangements, after the crop had matured.
An additional 13,000 to 15,000 pounds of produce was brought by farm-
ers and sold to the Employer at its packing shed.
Under its "on the vine" and "pack out" contracts with other growers,.
the Employer undertakes to furnish the services necessary to mature-
and gather the crops, such as pruning, cultivating and irrigating the
grounds, girdling the vines,' and harvesting. For these services the-
Employer engages State licensed contractors who hire their own help
and do the necessary cultivating and harvesting work.3 The Em-
ployer pays these contractors for their services on account of the-
growers on whose groves they furnish such services, and later deducts
such payments or advances from the price it pays for the fruits and
grapes. Because of its contractual arrangements with other growers,
the Employer asserts that it produces the bulk of its produce "as a
farmer," and that its packing shed activities are performed as an
the meaning of "agricultural laborer" as that term appears in Section 2 (3) of the Act-
above quoted. Section 3 (f) of the FLSA is as follows :
Agriculture includes farming in all its branches and among other things includes.
the cultivation and tillage of the soil, dairying, the production, cultivation, grow-
ing and harvesting of any agricultural or horticultural commodities (including com-
modities defined as agricultural commodities under Section 15 (g) of the Agricultural'
Marketing Act as amended), the raising of live stock, bees, fur-bearing animals, or
poultry, and any practice (including any forestry or lumbering operations) performed'
by a farmer or on a farm as an incident to or in conjunction with such farming oper-
ations, including preparation for market, delivery to storage or to market or to carriers
for transportation to market.
The Employer employs three " field men," who generally oversee the work of these sub-
contractors, and who retain authority to discharge any worker hired by the subcontractors.
None of the packing shed employees involved in this case works in the fields, either in.
the Employer's vineyard or in the groves of other growers whose produce the Employer has
contracted to purchase.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident to its farming operations and are therefore exempted from
the provisions of the Act and the Fair Labor Standards Act.4
The courts have held that the exemptions from the Fair Labor
Standards Act must be strictly construed. Thus in Phillips v.
Walling,,, the Supreme Court said :
The Fair Labor Standards Act was designed "to extend the
frontiers of social progress" by "insuring to all our able-bodied
working men and women a fair day's pay for a fair day's work."
Message of the President to Congress, May 24, 1934. Any exemp-
tion from such humanitarian and remedial legislation must there-
fore be narrowly construed, giving due regard to the plain mean-
ing of statutory language and the intent of Congress. To extend
an exemption to other than those plainly and unmistakably
within its terms and spirit is to abuse the interpretative process
and to frustrate the announced will of the people..
In interpreting the agricultural exemption in the Fair Labor Stand-
ards Act, the courts have held that "Where an employer's business
regularly involves the handling of commodities grown by others, those
activities are not a practice incidental to farming, even though the
handling and processing of his own grown commodities would be
incidental to his farming operations." 6 The Board likewise has held
that employees engaged in packing produce purchased, but not grown,
by their employer, are engaged in a commercial, rather than a farm-
ing, operation.? The Board has also held, on the other hand, that the
agricultural exemption is applicable to employees of a packing shed,
not situated on a farm, but where a substantial portion of the com-
modities packed were grown in fields owned or leased by the employer
itself 8
The precise issue presented by the facts of the present case has not
heretofore been considered by the Board .9 Here approximately 90
percent of the Employer's produce is not grown in fields owned or
leased by it, but is procured under contractual arrangements with other
4 It may be noted that "preparation for market " such as the packing of fresh fruits and
vegetables involved in the case , is not specifically "agriculture" unless it is "performed
as an incident to or in conjunction with such farming operations . . . See the
definition of "agriculture " in footnote 2, supra. Compare also Sections 13 (a) (10) and
7 (c) of the Fair Labor Standards Act.
4324 U. S . 490 (1945).
6 Walling v . Peacock Corporation , 58 F. Supp . 880 (E . D. Wis. 1943 ) ; see also Bowie v.
Gonzalez, 117 F. 2d 11 (C. A. 1, 1941), cited with approval in Farmers Reservoir & Irri-
gation Co. v. McComb , 337 U. S . 755 ; Calaf v. Gonzalez , 127 F. 2d 934 (C. A. 1. 1942).
'Atlantic Commission Company; Inc ., 84 NLRB 944 . See also Roberts Fig Company,
S8 NLRB 1150.
8 Burnett & Burnett, et al., 82 NLRB 720. See also Salinas Valley Vegetable Exchange,
et al., 82 NLRB 96.
O As hereinafter set forth , we regard the facts in the present case to be distinguishable
from those in the cases cited in footnote 8, supra.
CROWN C'R'EST FRUIT CORPORATION 425
growers whereby the Employer undertakes to provide the necessary
services for maturing and harvesting the crop, and purchases the
produce at a price determined either by its value on the vine at ma-
turity, or by the value of that. portion which is packed, after the
elimination of culls.
In the light of the entire record in this case, we believe that the
workers in the Employer's packing shed are not within the agricul-
tural exemption. The packing shed is situated near a railroad siding
in the village of Sanger,- California, and thus is not "on a farm." to
Nor is the packing of produce in the Employer's packing shed per-
formed merely as "an incident to or in conjunction with" such farm-
ing operations as those in which it is itself directly engaged.':' Rather
we believe that the operation of the Employer's packing shed is in
fact part of an independent commercial enterprise consisting essen-
tially of the buying, packing, and reselling of fruits and grapes. The
proportion of produce from the Employer's own vineyard repre-
sented in the total packing shed operation and the location of the
packing shed approximately 5 miles from the Employer's own vine-
yard, make it clear that the packing of produce at the shed is not
merely an incident to the operation of this vineyard.
As for the produce packed by the Employer under the "on the
.vine" and "pack out" contracts described above, they are neither
packed "on a farm" nor "by a farmer" "as an incident to or in con-
junction with such farming operations," within the meaning of the
applicable definition. The lands of the growers from whom the Em-
ployer purchases the produce are likewise situated at various distances
from the shed. We do not believe that the Employer is a "farmer"
by virtue of the arrangements he makes with the growers. The record
indicates that these contracts cover only a year's crop, and are entered
into shortly before the start of each growing season. Their nature is
such as to suggest that they are essentially a device for enabling the
Employer to assist the growers by providing finances and procuring
the labor necessary to mature and harvest their crops-as incident to
the Employer's business of buying and packing fruit for resale, rather
than as a seperate farming enterprise in itself. In any event, the
packing is not merely incidental to whatever farming operations are
involved.12 The Employer conducts the business of its packing shed
as a separate operation, using employees who are hired by it directly '13-
10 See footnote 2, supra.
11 Ibid.
"The fact that the Employer purchases some produce that has already been matured,
or has been matured and harvested, tends also to confirm this view.
As noted above, the Employer engages licensed contractors who hire the labor used
on the farms of other growers with whom the Emplo=er has contracts to purchase their
crops. Those laborers are not involved in this proceeding.
•426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who work only at the tasks involved in packing and shipping
fruit.
Upon the entire record, we find that the total packing shed opera-
tions of the Employer are not performed "on a farm" or "by a farmer"
as an incident to or in conjunction with his own farming operations.
Accordingly we find that the workers in the Employer's packing shed
are not "agricultural laborers" but are employees within the meaning
of the Act.14
A question affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's
:Sanger, California, packing shed, including the truck driver,15 but
excluding office and clerical employees, the box maker and his help-
ers;16 watchmen, and all supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
"See Di Giorgia Fruit Corporation, 80 NLRB 853; L. Maxey, Inc., 78 NLRB 525;
William G. Elliott & Sons Company, 78 NLRB 1078. See also "Exemption of Agriculture,"
Interpretative Bulletin No. 14, Wage and Hour Division, United States Department of
Labor.
16 The Petitioner seeks to include, and the Employer to exclude, the truck driver. This
employee carries the empty boxes from the Employer's packing shed to the vinegroves and
orchards, and the boxes full of produce back to the packing shed. Thus, the truck driver
supplies the packing shed employees with the produce which they cull and pack. We find
that he is not an "agricultural laborer," but an employee entitled to the benefits of the
Act. American Fruit Growers, Incorporated, 75 NLRB 1157. As the nature of his work,
and his interests, appear to be aligned with those of the packing shed workers, we shall
include him in the unit. See Calaf v. Gonzales, supra.
16 The parties agree that the box maker is an independent contractor who, together with
.the helpers he employs, should be excluded.
CROWN CREST FRUIT CORPORATION 427
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Dried Fruit, Nut Packers, Dehydrator Warehousemen's Union
Local 616, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL.