D. W. Ferguson Co.

National Labor Relations Board - Board Decisions

Jan 25, 1954

107 N.L.R.B. 939 (N.L.R.B. 1954)

D. W FERGUSON COMPANY 939
which names both Greer and Thomas Personius as employers,
seeks a unit of potato -packing-shed employees in Greer's
sheds. Greer moved that the petition be dismissed as to him
upon the ground, inter alia, that he is not the employer of the
employees covered by the petition . Personius was not served
with the order consolidating cases and notice of representation
hearing until the day following the hearing and did not appear
either in person or by counsel at the hearing or at any other
stage of this proceeding.
The record shows that during the 1953 packing season Greer
engaged a labor contractor , Personius , to manage the packing-
shed operations , paying the contractor for his services a cer-
tain sum for each 100-weight bag of potatoes run through the
sheds. The contractor was wholly responsible for the shed
operations , Greer ' s authority being limited solely to lodging
complaints with the contractor if the work was not properly
performed . Greer neither hired nor exercised any authority
over the employees engaged in the potato -packing operations.
He did not pay them, nor carry them on his payroll , nor de-
termine their wages or other conditions of employment. Ac-
cordingly , we find that Greer is not the employer of the em-
ployees in the requested unit. As Personius was not timely
served with the order consolidating cases and notice of
representation hearing and did not appear at any stage of this
proceeding , we shall make no findings as to him. In view of
the foregoing , we shall dismiss in its entirety the petition in
Case No. 21 -RC-3328.
[The Board dismissed the petitions.]
D. W. FERGUSON COMPANY and HERB EIDENSHINK '
and UNITED FRESH FRUIT & VEGETABLE WORKERS,
LIU. NO. 78, CIO, Petitioner
W. C. HANDEL, H. C. KIRSCHENMANN, d/b/a KIRSCHENMANN
BROS., AND RALPH STONE and UNITED FRESH FRUIT &
VEGETABLE WORKERS, LIU. NO. 78, CIO, Petitioner
MARVIN E. BENDER AND DON STEWART and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU. NO. 78, CIO, Peti-
tioner
ZUCKERMAN POTATO COMPANY and UNITED FRESH FRUIT
& VEGETABLE WORKERS, LIU. NO. 78, CIO, Petitioner
W. C. HANDEL AND RALPH STONE and UNITED FRESH FRUIT
& VEGETABLE WORKERS, LIU. NO. 78, CIO , Petitioner
'The case names appear in the captions as amended at the hearings.
107 NLRB No. 188.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. A. CAMP FARM COMPANY AND GEORGE SMITH, d/b/a
SUNNY STATE PRODUCE COMPANY and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU. NO. 78, CIO, Pe-
titione r
ZACHARY & BOBST AND ROY GAY and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU. NO. 78, CIO, Peti-
tioner
MAZZIE FARMS AND THOMAS PERSONIUS and UNITED
FRESH FRUIT & VEGETABLE WORKERS, LIU. NO. 78, CIO,
Petitioner. Cases Nos . 21-RC-3108 , 21-RC-3109 , 21-RC-
3112 , 21-RC-3137 , 21-RC-3145 , 21-RC-3147 , 21-RC-3148,
and 21 -RC-3241 . January 25, 1954
DECISION AND ORDER
Upon separate petitions duly filed under Section 9 (c) of
the National Labor Relations Act, separate hearings were held
in the above -entitled cases2 before Jerome A. Reiner , hearing
officer , on June 15 through 19 and on June 22, 1953. Upon
their termination these separate hearings were adjourned.
On September 3, 1953, the Regional Director for the Twenty-
first Region issued his order consolidating cases and notice
of representation hearing in the above cases.3 Thereafter, on
September 21 and 22, a consolidated hearing was held in these
cases before Ben Grodsky , hearing officer . The hearing officer's
rulings made at the hearings are free from prejudicial error
and are hereby affirmed.
Cases Nos . 21-RC-3108, 3109, 3112 , 3137 , 3145, 3147, 3148
Upon the entire record in these cases , the Board finds:
1. D. W. Ferguson Company, W. C. Handel , H. C. Kirschen-
mann, Marvin E. Bender, Zuckerman Potato Company, and
Zachary & bubst are each engaged in the growing of potatoes.
As an adjunct to their farming operations , each of them
either owns or rents packing sheds where its potatoes are
washed, graded, and bagged for shipment. The shed operations
are not , however , handled by the growers , but rather by labor
2 There was no separate hearing held in Case No . 21-RC- 3241
3K. Malofy R, Son and Ray Hart, 21-RC - 3138 , Mettler Ranch Packing Shed and California
Potato Growers , 21-RC-3160 , and E M H Mettler & Sons and California Potato Growers,
21-RC-3188 , were consolidated with the above cases in the Regional Director's order and
notice of September 3, 1953. Full hearing was had on these cases both at separate hearings
and at the consolidated hearing However, as these three cases raise important issues not
presented in the other cases, they are hereby severed for purposes of decision . See Sams
Motor Sales , Incorporated , 83 NLRB 660
D. W FERGUSON COMPANY 941
contractors , who are specially engaged through oral contracts
to manage the packing operations . These contractors are,
respectively , Herb Eidenshink , Ralph Stone ,4 Don Stewart,
James King , George Smith d/b/a Sunny State Produce Company,
and Roy Gay.
The petitions in these cases seek separate units of shed
employees engaged in the packing operations . The growers
moved that the petitions be dismissed as to each of them
upon the ground , inter alias that they are not the employers
of the employees in the requested units.
The labor contractors are each licensed by the State of
California to supply labor for packing-shed operations and
are paid by the growers a lump sum based on the number
of bags of potatoes they run through the sheds . The con-
tractors hire , discipline , supervise , and discharge the packing
employees , carry them on their payrolls , determine their
rates of pay and other conditions of employment, and they
alone pay the wages of these employees and make certain
deductions from their pay, such as withholding taxes. The
growers for their part have no employees in the sheds
engaged in packing potatoes ,5 and exercise no authority over
the packing employees . Their authority in the shed is limited
primarily to informing the contractors in a general way what
they want done--e.g. , what grades to pack and where to stack
the bagged potatoes --and to complaining to the contractors if
the work is not properly performed.
In view of the foregoing and upon the whole record in these
cases, we find that the contractors are independent contractors
within the meaning of the Act and that they, and not the growers,
are the employers of the employees in the requested units e
2. The record shows that the growers are engaged in
commerce within the meaning of the Act and that they annually
ship in commerce potatoes in excess of $25,000in value. How-
ever , with respect to the labor contractors , there is no showing
that any of them supplied services in the value of $ 50,000 to
firms or individuals over whom the Board would assert
jurisdiction. In a number of instances there is a complete
absence of evidence on this question; while, in others, the
4Ralph Stone is the labor contractor for both W. C. Handel and H C Kirschenmann at
their jointly owned shed in Edison , California ( Case No. 21-RC-3109) and for W C Handel
alone at its rented shed at Shafter , California (Case No. 21 - RC-3145).
5 The record sho :vs that certain of the growers have offices in the packing sheds How-
ever, the employees working in these offices are not concerned with the packing operations.
In Case No 21-RC-3112 there is a limited transfer of workers between the potato fields
and the shed. However, such transfers are temporary , lasting only until more help can be
hired. Usually not more than 2 or 3 employees are involved . Insofar as the record indicates,
the employees, on being transferred to the shed , are placed under the complete control of
the contractor. We do not believe that this limited , temporary transfer of employees ma-
terially affects the relationship otherwise existing between the grower , the contractor, and
the packing- shed workers.
6Giffen, Inc., 106 NLRB 764.
337593 0 - 55 - 61
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showing made falls substantially short of the minimum of
$50,000 established by the Board as a requisite for the
assertion of its jurisdiction in cases suchas these. Under such
circumstances , we find that it will not effectuate the policies of
the Act to assert our jurisdiction over the contractors.?
In view of the foregoing , we shall dismiss in their entirety
the petitions in these seven cases.
Case No. 21 -RC-3241
Upon the entire record in this case , the Board finds:
1. The Petitioner seeks a unit of packing - shed workers
employed at 2 sheds in Chino, California . Mazzie Farms,
1 of the 2 named Employers , moved for dismissal of the
petition as to it upon the ground that it is not the employer
of the employees in the requested unit . Mazzie Farms owns the
2 sheds that are covered by the petition. It does not, however,
operate the sheds either itself or through a contractor.
During the 1953 packing season, it rented its sheds to the
Independent Potato Company , which in turn hired a labor
contractor to manage the packing operations . Mazzie Farms
owns none of the potatoes run through the sheds . It does, how-
ever , purchase for resale , as do other regular buyers, a part
of the potatoes processed in the sheds, but only after they have
been washed, graded , and bagged for shipment and marketing.
It is clear from the - foregoing , and we so find, that Mazzie
Farms is not the employer of the packing-shed workers in
the requested unit.
2. Thomas Personius , also named in the petition as the
Employer of the employees in the proposed unit, was engaged
by the Independent Potato Company to operate the packing sheds
during the 1953 season . There is, however , no evidence in
the record as to commerce facts or any other material
matters concerning Personius ' operations as a labor con-
tractor, and thus there is no basis for our making any findings
with respect to Personius.
In view of the foregoing , we shall dismiss in its entirety
the petition in this case.
[The Board dismissed the petitions.]
Member Murdock , concurring in part and dissenting in part:
I concur in the finding that the independent contractors are
the employers of the packing - shed employees involved in these
cases, for the reasons set forth in the decision.
I also concur in the dismissal of the petition in Case No.
21 -RC-3241 for the reasons stated in the decision.
?Thomas Bulen McCormack, 107 NLRB 606; Giffen, Inc., supra; Chairman Farmer and
Member Rodgers concur in the refusal to assert jurisdiction in these cases but are not
to be deemed thereby as agreeing with the Board's present jurisdictional standards.
K. MALOFY & SON AND RAY HART 943
I dissent, however, from the dismissal of the petitions in
Cases Nos. 21-RC-3108, 3109, 3112, 3137, 3145, 3147, and
3148, because the record shows that each of the Employers in
these cases is engaged in handling or processing goods
destined for shipment out-of-State in the value of $25,000
or more. I would therefore find, for the reasons stated in my
dissenting opinion in the McCormack case, supra, that their
operations individually exert sufficient impact on commerce to
warrant the assertion of jurisdiction over each of them.
K. MALOFY & SON AND RAY HART 1 and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU NO. 78, CIO,
Petitioner . Case No . 21-RC-3138. January 26, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held in this case on June
18, 1953, before Jerome A. Reiner, hearing officer. At its
termination,, the hearing was adjourned. On September 3, 1953,
the Regional Director for the Twenty-first Region issued his
order consolidating cases and notice of representation hearing
in D. W. Ferguson Co., et al.2 in which the instant case was
consolidated for hearing with 10 other cases. On September
21 and 22 the consolidated hearing was held before Ben Grodsky,
hearing officer. Thereafter, the Board having duly considered
the matter, it issued its Decision and Order in D. W. Ferguson
Company, et al. in which, inter alia, it severed the instant
case3 for purposes of decisionfromthe consolidated proceeding
upon the ground that it raised important issues not present in
the other cases . The hearing officers' rulings made at the hear-
ings are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. K. Malofy & Sono is engaged in commerce within the
meaning of the Act.
2. The petition in this case seeks a unit of packing-shed
employees. Malofy moved that the petition be dismissed on the
ground that the shed workers are "agricultural laborers" and
not "employees" within the meaning of Section 2 (3) of the Act
and that, therefore, the Board has no jurisdiction over them.
Malofy is a partnership composed of K. Malofy and his son,
G. Malofy. It owns approximately 1,100 acres in 8 separate
parcels in Kern County, California, where it grows cotton,
1 The petition was amended at the hearing to include Ray Hart as an employer.
2107 NLRB 939.
31n its Decision the Board also severed Mettler Ranch Packing Shed, 21-RC-3160, and
E. M. H. Mettler & Sons, 21-RC-3188.
4Hereinafter called Malofy.
107 NLRB No. 201.