G. L. Webster Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 440 (N.L.R.B. 1961)

440 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Drivers, Warehousemen and Helpers , Local Union No. 745; General Drivers, Ware-
housemen and Helpers Local Union No. 968 ; and Chauffeurs , Teamsters and Helpers
Local Union No. 47, all affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent , are labor organ-
izations within the meaning of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4 By discharging some of its employees on November 7, 1958, January 6, 1959,
and January 15 and March 21 and 28, 1960, and withholding wage increases from
some of these employees because of their union activity or membership, Respondent
discriminated against them in regard to their hire and tenure of employment and the
terms and conditions of their employment , thereby discouraging membership in the
aforesaid Unions, in violation of Section 8(a)(3) and (1) of the Act.
5. By discharging Robert P. Lambert because he furnished information to the Gen-
eral Counsel, and testified on his behalf at the hearing in this proceeding held on
September 28, 1959, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(4) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
G. L. Webster Company, Incorporated ' and Local 822, affiliated
with the Teamsters, Chauffeurs, Warehousemen , Helpers, Mis-
cellaneous Brewery and Soft Drink Workers of America ,' Peti-
tioner. Case No. 5-RC-3410. September 26, 1961
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 Robert W. Knadler,
hearing 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 [Chairman McCulloch and Members Leedom and
Fanning].
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 Employer refused to stipulate that the Petitioner is a labor
organization as defined in the Act. As the Petitioner is an organiza-
tion which exists for the purpose of dealing with employers concern-
ing wages, hours of employment, and other working conditions, we
find that the Petitioner is a labor organization within the meaning of
Section 2 (5) of the Act.2
3. The Employer moved to dismiss the petition upon the ground
that the Board lacks jurisdiction of this proceeding because the in-
1 The names of the Employer and the Petitioner appear as amended at the hearing
Dove Manufacturing Company, 128 NLRB 778.
133 NLRB No. 45.
G. L. WEBSTER COMPANY, INCORPORATED 441
dividuals whom the Petitioner seeks to represent are "agricultural
laborers" and therefore specifically excluded from the definition of
"employee" contained in Section 2(3) of the Act.
The Employer is engaged in extensive farming operations in North-
ampton County, Virginia. It grows asparagus, tomatoes, and sweet
potatoes and thereafter processes and cans these vegetables in its proc-
essing or canning plant located on the farm. The workers in the
plant do no work on the farm itself although some farm laborers may
work in the canning plant when necessary.
The canning plant is made up of three buildings, referred to by the
Employer as rooms, separated from each other by openings 50 feet
in width for fire protection purposes. The grading and canning of
vegetables is done in one building, the processing or cooking in an-
other, and the labeling in a third. The canned produce is then loaded
onto trucks and hauled by tractor to warehouses where it is stored
under the custody of Lawrence Warehouse Company, -a field warehouse
organization.
Although there is no evidence of the Employer's dollar investment
in the cannery, it may be presumed from the description of the many
machines involved in the processing and canning operation that the
investment is a sizable one.
Section 2 (3) of the Act excludes from the definition of the term
employee "any individual employed as an agricultural laborer." The
Board's annual appropriation rider directs in effect that in determin-
ing whether an employee is an agricultural laborer, the Board shall
be guided by the definition set forth in Section 3(f) of the Fair
Labor Standards Act. Moreover, it is the Board's policy to follow
wherever possible the Department of Labor's interpretation of that
section?
Section 3(f) defines "agriculture" as including "any practices .. .
performed by a farmer or on a farm as an incident to or in conjunc-
tion with such farming operations, including preparation for mar-
ket . . ." The Department of Labor has stated : "... the fact that
a corporation is a farmer with respect to certain of its activities does
not necessarily mean that employees employed by it in its capacity as
the operator of a nonfarming enterprise would be within the agri-
cultural exemption. They would come within the exception only if
they were exclusively employed in the farming operations defined in
Section 3 (f) or in a practice performed as an incident to or in conjunc-
tion with such farming operations on such farms 4
Processing of farm products which requires extensive investment
in machinery, and involves changing the form of the farm product by
3 Snake River Trout Company , 129 NLRB 41; Olaa Sugar Company, Limited, 118
NLRB 1442.
4 35 WHM 370.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cooking and canning, as here, is not incidental to farming but is a,
separate industrial enterprise which happens to be performed on a
farm.' Congress did not intend to exclude employees engaged in such
operations from the protection of the Acts We find that individuals
engaged in various aspects of the canning operations are not "agri-
cultural laborers" 7 but are employees within the meaning of Section
2(3) of the Act. Accordingly, we deny the motion to dismiss the
petition.
We further find that a question affecting commerce exists concern-
ing the representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) of the Act.
4. The Petitioner seeks to represent a unit of employees engaged in
the labeling and warehouse operations. The Employer moved to
dismiss the petition on the ground that the employees sought by the
Petitioner do not constitute an appropriate bargaining unit.
As stated, the canning plant is made up of three buildings, each
separated from the other for fire protection purposes by approxi-
mately 50 feet. The grading and canning of vegetables is done in one
building, the processing or cooking in another, and the labeling in a
third. The canned produce is then loaded on trucks, brought to a
warehouse next to the plant which is under the custody of Lawrence
Warehouse Company, a field warehousing organization, and stored
therein.
All the Employer's employees are relatively unskilled and are paid
on an hourly basis. They have the same working conditions and re-
ceive identical benefits. Employees throughout the plant are inter-
changed when need arises.
In view of the proximity of the buildings, the integration of opera-
tions, and the interrelation of interests among employees, we find
that only a unit embracing all employees engaged in the canning
processing, labeling, and warehousing operations is appropriate.'
The Employer further contends that the petition should be dis-
missed because all the employees in the canning plant are seasonal
employees.
The Employer operates its plant on an annual basis but does the
bulk of its processing in the period from April to November. At the
5 Maneja v Waialua Agricultural Co, Ltd., 349 U S. 254 ; Bowie v Gonzalez , 117 F 2d'
11 (C.A. 1) ; Di Giorgio Fruit Corporation, 80 NLRB 853.
881 Congressional Record 7876, 78818
7In its brief , the Employer cites several cases which it contends stand for the proposi-
tion that processing plant employees are "agricultural laborers " However, these cases,
are distinguishable from the case before us In George Bianchi , et at, d / b/a L Bianchi &
Son, 107 NLRB 864; K Malofy & Son and Ray Hart, 107 NLRB 943; N L R.B. v.
John W Campbell, Inc, 159 F 2d 184; and Mitchell v Hornbnckle, 155 F Supp 205,
the employees in question worked not in processing plants but in packingsheds where
produce was merely washed, graded , and packed In Walling v. Rocklin, 132 F 2d 3
(CA 8), the employees were packers and clerks in a florist shop connected with a
greenhouse.
8J R Simplot Co, Food Processing Division, Heyburn Operations, 130 NLRB 47.
LAKE CATHERINE FOOTWEAR, INC. 443
hearing, the Employer testified that it has no permanent employees
and no policy of recalling employees who have been laid off, but it
also stated that its plant workers come from surrounding farms in the
area and are not migratory laborers. The seasonal nature of their
employment does not deprive the canning plant employees of their
right to the processes of collective bargaining. We find that they
constitute an appropriate unit for collective bargaining purposes .9
Accordingly, we deny the motion to dismiss the petition.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees at the Employer's Northampton County, Virginia,
cannery, who are engaged in canning, processing, and labeling opera-
tions, including loaders, tractor operators, and fork-lift operators, but
excluding guards and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
B California Spray- Chemical Corporation , 91 NLRB 897.
Lake Catherine Footwear , Inc. and United Shoe Workers of
America, AFL-CIO, Petitioner . C(L. e No. 26-RC-1519. Sep-
tember 27, 1961
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued on January
31, 1961,1 an election by secret ballot was conducted on March 2, 1961,
under the direction and supervision of the Regional Director for the
Twenty-sixth Region in the unit found appropriate by the Board.
Upon the conclusion of the balloting the parties were furnished with
a tally of ballots which showed that of approximately 215 eligible
voters, 208 cast ballots, of which 99 were for, and 108 against, the
Petitioner, and 1 ballot was challenged. The number of challenged
ballots was insufficient to affect the election results. Thereafter, the
Petitioner filed timely objections to conduct affecting the results of
the election.
After an investigation, the Regional Director on April 7, 1961,
issued his report on objections, in which he recommended that ob-
jections Nos. 6 and 7 be overruled, that objections Nos. 1, 2, 3, 4, and
5 be sustained, and that the election be set aside and a second election
directed. The Employer filed timely exceptions to the Regional
Director's report.
1 Not published in NLRB volumes.
133 NLRB No. 74.