Davis Grain Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 319 (N.L.R.B. 1973)

DAVIS GRAIN CORPORATION 319
Davis Grain Corporation and Local 49 , International
Chemical Workers Union, AFL-CIO, Petitioner.
Case 5-RC-8197
April 30, 1973
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, KENNEDY , AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Donald J. Salins of
the National Labor Relations Board. Following the
hearing, and pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations
and Statements of Procedure, Series 8, as amended,
this case was transferred to the National Labor Rela-
tions Board for decision. Thereafter, the Employer
filed a brief, which has been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.'
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. The Employer contends that it does not employ
production workers, that it operates a "country eleva-
tor" and employs only agricultural laborers within the
meaning of Section 3(f) of the Fair Labor Standards
Act, and therefore no question concerning representa-
tion of employees exists within the meaning of Sec-
tions 9(c)(1) and 2(6) and (7) of the Act.
The Employer is engaged in the operation of grain
elevators located in Chesapeake and Virginia Beach,
Virginia. Only the Chesapeake facility is involved
herein. It purchases, distributes, and stores grains ob-
tained from area farmers, including corn, wheat, bar-
ley, and other grains. The Employer buys
approximately 95 percent of its grain from local farm-
i Although the Employer refused to stipulate that it is engaged in com-
merce within the meaning of the Act , it did admit at the hearing that it is
a Virginia corporation engaged in the operation of a country grain elevator
which purchases , and distributes grain , including but not limited to corn,
wheat, barley, and other grain , and that it annually sells and ships such
products of a value in excess of $50,000 directly to points located outside the
Commonwealth of Virginia . Accordingly, we find that the Employer is en-
gaged in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein
ers who are located within a radius of 10-15 miles.
The Employer has a storage capacity of approximate-
ly 850,000 bushels. Nearly 90 percent of the grain
purchased is shipped by the Employer in its own
barge to export elevators in Norfolk, Virginia. Al-
though the Employer buys nearly all of its grain, it
also has approximately 2,000 acres of seed grain
grown under contract with farmers. Also, the Employ-
er takes in seed grain'from the farmers which it cleans
and returns to them on a trade basis when they are
ready to plant. The Employer does not process grain,
and it is not engaged in farming nor does it own farm
land. The grain arrives in bulk and is shipped out in
bulk. The farmers pick and shell the grain on the farm
and bring it to the elevator. The Employer owns only
a few trucks and does very little trucking.
Located near the elevators are two truck dumpers.
The farmers' trucks drive on to the truck dumpers
where the grain is weighed, sampled and graded, ac-
cording to U.S. Department of Agriculture standards,
to determine the value of the grain. The trucks are
emptied by a device which picks up the entire truck
and dumps its contents into a pit. The grain is stored
according to grade, and a substantial part of the grain
is sold shortly after it is bought by the Employer. The
remainder of the grain is stored for sale and shipment
after the harvest season. The grain is shipped by truck,
rail, and barge. While in storage, the grain is dried by
fans to avoid spoilage. The wheat harvest occurs be-
tween June 10 and July 4, the corn harvest between
August 15 and October 1, and the soybean harvest
between mid-October and mid-December.
Some farmers bring grain in to be stored until they
are ready to feed their livestock later in the year. The
Employer charges a fee for storing the grain. There
are some farmers who farm in cooperation with the
Employer pursuant to a contract under which the
Employer supplies the farmer with seed. All grain
stored for farmers is commingled with the other grain.
One practice engaged in by the Employer is called a
trade, and involves the Employer's storing of a certain
amount of grain seed 'for farmers who receive a por-
tion of the seed when they are ready to plant. No
money is exchanged. Approximately 5 to 10 percent
of the Employer's total sales income is derived out of
the seed operation.
Seed differs from grain in that seed is high quality
grain that has been tested and has good germination
qualities. After cleaning, the seed is bagged and stored
in the warehouse on pallets. The Employer has an
automatic bagging scale. The seed is packed in 1-
bushel paper bags which are sewed up by a sewing
machine. After the bags are sewed they are stacked 48
to a pallet. All this occurs at harvest time or soon
thereafter. The seed is stored until the farmers come
203 NLRB No. 41
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pick it up. The Employer also performs some cus-
tom cleaning of seed for the farmers who wish to have
their own seed cleaned and packaged. Less than 1
percent of the Employer's revenue is derived from
farmers who store their grain. The Employer mixes
seed that is not sold for seed with the bulk grain in the
bins.
The Employer acts as an agent for the sale of small
amounts of fertilizer, which it does not handle or keep
in stock. It also sells small amounts of insecticides,
fungicides, and weed killers. The warehouse foreman
and outside salesmen sell most of these products. The
Employer also sells small amounts of field seed or
grass, clover, and sorghum which are needed to re-
store cropland. The Employer sells wheat to flour
mills and livestock feed to feed manufacturers, locat-
ed outside the Commonwealth. It employs 12 to 15
employees during harvest season but maintains a
smaller work force the rest of the year. For nearly 11
months of the year the Employer works one shift from
8 a.m. until 4:30 p.m. or until farmers get through with
their deliveries. During the busiest month, the shift
splits up into a night and day operation. The Employ-
er pays its employees overtime after 40 hours and pays
the $1.60 Federal minimum wage, or better. Its pay
scale ranges from $1.75 to $2.35 per hour .2
The Employer contends that it is a "country" grain
elevator as defined in the Interpretative Bulletin'
published by the Secretary of Labor, and that there-
fore its employees are agricultural laborers within the
meaning of the Interpretative Bulletin.4
The Employer also contends that in any event em-
ployees of a country elevator, as herein , are engaged
in agriculture whether or not the particular country
elevator employs more than five employees, and are
therefore not exempt from the minimum wage, over-
time, or child labor requirements of the Fair Labor
Standards Act.
Section 2(3) of the Act excludes from its coverage
"any individual employed as an agricultural laborer."
The Board's annual appropriation rider directs in ef-
fect that in determining whether an employee is an
agricultural laborer within the meaning of Section
2(3) of the Act, the Board shall be guided by the
definition set forth in Section 3(f) of the Fair Labor
Standards Acts which states in part:
2 The present Federal minimum wage for farm workers is $I 30 per hour
3 29 CFR 780, "Exemptions Applicable to Agriculture Processing of Agri-
cultural Commodities, and Related Subjects" Under the Fair Labor Stan-
dards Act of 1938 , as amended
4 At the hearing, the parties agreed that for the purpose of having the
respective sections as part of the record the copy of the Interpretative Bulletin
would be marked and offered into evidence as a Joint Exhibit of the parties,
with specific reference to Sec 780.600, which appears under subpart G, p.
53, entitled "Employment by Small Country Elevators Within Area of Pro-
duction , Exemption from Minimum Wage and Overtime Pay Requirements
Under Section 13(a)(I7) "
"Agriculture" includes farming in all its branches
and among other things includes the . . . produc-
tion . . . growing, and harvesting of any agricul-
tural or horticultural commodities . . . the
raising of livestock, bees, fur-bearing animals, or
poultry, and practices . . . performed by a farm-
er or on a farm as an incident to or in conjunction
with such farming operations, including prepara-
tion for market, delivery to storage or to market
or to carriers for transportation.
The Board, where necessary, has consistently fol-
lowed the Department of Labor's interpretation of
Section 3(f).
The record shows that the Employer's operations
do not come within the definition of "primary" agri-
culture under Section 3(f) as set forth in Section 780.
113 of the Department of Labor's Interpretative Bul-
letin. Included in the "primary" meaning are certain
specific farming operations such as cultivation and
tillage of the soil, dairying, the production, cultiva-
tion, growing, and harvesting of any agricultural or
horticultural commodities, and the raising of live-
stock, bees, fur-bearing animals , or poultry.
Thus, the issue in this proceeding is whether the
Employer's operations come within the "secondary"
meaning of agriculture as defined by the Department
of Labor. The definition of "secondary" agriculture
includes the practices, whether or not they are farm-
ing practices, which are performed either by a farmer
or on a farm as an incident to or in conjunction with
those farming operations.'
Although, as contended by the Employer, country
elevators appear to be exempt from the minimum
wage and overtime pay requirements under Section
13(a)(l7) of the Fair Labor Standards Act, as set forth
in Sections 780.600 to 780.624 of the Interpretative
Bulletin , we note that such exemption is limited to
small country elevators employing no more than five
employees in such operations.' One of the basic re-
quirements for exemption of country elevator em-
ployees is that an employer can employ no more than
five employees in its operations.' This as well as the
other listed requirements must be met in order for the
exemption to apply. Also, the burden is on the em-
ployer who asserts the exemption to show that the
5 29 U.S C 203(f)
6 The Interpretative Bulletin reads
Section 780 113 "Primary" and "Secondary" agriculture under section
3(f)
(C) Then there is the secondary meaning of the term The second
branch includes operations other then those which fall within the prima-
ry meaning of the term It includes any practices , whether or not they
are themselves farming practices, which are performed either by a farm-
er or on a farm as an incident to or in conjunction with "such " farming
operations ( Farmers Reservoir Co, v McComb, 337 U.S. 755; NLRB v.
Olaa Sugar Co, 242 F 2d 7141C.A. 91, Maneja v Waialua, 349 U S 254)
7 Sec 780 601
Sec 780 603
DAVIS GRAIN CORPORATION 321
exemption in Section 13(a)(17) of the Fair Labor
Standards Act applies. The Interpretative Bulletin
also points out that the typical country elevator is
small, it employs one to two employees, and the stor-
age capacity averages from 15,000 to 50,000 bushels.
As the record shows that the Employer employs 12
to 15 employees, it is clear that it employs a number
in excess of the "not more than five employees" limi-
tation necessary to qualify under the country elevator
exemption to the Fair Labor Standards Act. In addi-
tion, the Employer has failed to meet its burden of
showing that, at any time during the year, it employs
not more than five employees. The fact that the
Employer's storage capacity is in excess of 80,000
bushels further indicates that it is not a small country
elevator as contemplated by the exemption to the Fair
Labor Standards Act.
As the Employer does not qualify for the special
exemption accorded country elevators in the Interpre-
tative Bulletin published by the Secretary of Labor, it
necessarily follows that the Employer's employees are
not agricultural laborers within the meaning of Sec-
tion 2(3) of the Act.' Nor can the Employer success-
fully claim that it falls within the "secondary"
definition of agriculture. The record shows that the
Employer's operations do not involve farming, nor
does the Employer perform any work on a farm as an
incident to or in conjunction with farming operations.
As almost all of the grain purchased or stored by the
Employer is delivered to the elevators by trucks
owned and driven by farmers, as the Employer does
not plant or harvest grain, and as it does not perform
any services on farm land for itself or for farmers, we
conclude that the employees sought herein are not
"agricultural laborers" within the meaning of Section
2(3) of the Act.10
Accordingly, we find that a question affecting com-
merce exists concerning the representation of certain
employees within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The appropriate unit: There is no history of col-
lective bargaining for the employees sought to be rep-
resented herein.
The Petitioner seeks to represent a unit of all pro-
duction and maintenance employees, including in-
spectors and warehouse foreman, located at the
Employer's Chesapeake, Virginia, location, but ex-
cluding all office clerical employees, guards, and su-
pervisors as defined in the Act." The Petitioner claims
9 We need not pass on the Employer's contentions that employees of
"country" grain elevators employing five or fewer employees are agricultural
employees within the meaning of the Act, though we note that if this were
so it would not appear to have been necessary for Congress to have provided
a specific exemption from the operation of the minimum wage and hours
provisions of the FLSA, as amended
10 Kelly Brothers Nurseries, Inc, 140 NLRB 82
there are nine employees in the unit it seeks. The
Employer contends that it does not employ any pro-
duction workers; that it employs 13 agricultural la-
borers, excluding supervisors and outside salesmen,
and that therefore the unit sought is inappropriate.
The record reveals that all of the employees sought
by the Petitioner herein perform virtually all of the
various jobs required in the operation of the grain
elevator, including loading, unloading, bagging,
cleaning, painting , and construction of new equip-
ment and facilities ; that the Employer does not classi-
fy its employees into specific job categories; and that
all employees, including the president of the Employ-
er, perform a variety of tasks and transfer to the vari-
ous jobs according to the Employer's needs.
Based on all the facts revealed by the record includ-
ing our finding above that the Employer's employees
are not agricultural laborers within the meaning of
Section 3(f) of the Fair Labor Standards Act and are
therefore employees within the meaning of Section
2(3) of the Act, we find that the unit sought by the
Petitioner is an appropriate unit.
There remains the issue of the status of the follow-
ing employees, which the Petitioner would include in
the unit, and which the Employer would exclude as-
sertedly because they are supervisors.12
The Employer contends that Charles Taylor is a
warehouse foreman who is in charge of cleaning and
bagging seed grain, that he has from one to five men
working under him, and that his recommendations as
to hiring, firing, promotion, and demotion are given
great weight by the Employer. However, the record
shows that Taylor has never made any recommenda-
tions as to discharge or wage increase and he has
never been notified by the Employer that he has such
authority, the plant superintendent is nearly always
present when Taylor is working, and Taylor receives
the same benefits as the other employees. Although
Taylor receives higher pay than some of the employ-
ees with whom he works, the record shows that he
performs the same or similar work tasks and that he
is paid on the same hourly basis.
On the basis of the foregoing, we find that Taylor
does not have authority to hire, fire, discipline, pro-
mote, or otherwise change the terms and conditions of
employment of any unit employee or effectively rec-
ommend such actions, and is not a supervisor within
the meaning of Section 2(11) of the Act. Accordingly,
we include him in the unit.
The Employer would exclude James Shaw, a grain
inspector and weigh master. He grades the grain, de-
cides its value, records this information on paper, and
11 The unit description appears as amended at the hearing.
12 The parties stipulated that Jessee C. Bell, the plant superintendent, is a
supervisor, and that the Employer's two outside salesmen are not in the unit.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sends it to the president to assist him in determining
the purchase price of the grain. With the assistance of
one or two helpers, he operates the big truck dumper.
The record shows that Shaw has never recommended
a wage increase or the discharge of any employee.
Moreover, Shaw is hourly paid and receives the same
fringe benefits as the other employees. We find that
Shaw does not possess any of the indicia of superviso-
ry authority, and we shall include him in the unit.
The Employer would also exclude Calvin Gregory,
the night superintendent. He has one or two helpers,
he operates the equipment which transfers grain from
one bin to another, and he loads barges during the
period of the corn harvest. The record shows that
Gregory does not have a helper at all times, and, after
the corn harvest, he paints, repairs, and performs oth-
er maintenance work. The Employer never told Greg-
ory that he was the night superintendent or that he has
authority to recommend discharge, discipline, or a
wage increase. Moreover, Gregory works nights dur-
ing the corn harvest season only, a period lasting only
4 weeks. The remainder of the year Gregory works
with the other employees. We find that Gregory is not
a supervisor within the meaning of the Act, and,
therefore , we shall include him in the unit.
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees in-
cluding grain inspector, warehouse foreman, and
night superintendent at the Employer's Chesa-
peake , Virginia , location , excluding all office
clerical employees, guards, and supervisors as de-
fined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]