Green Giant Co.Download PDFNational Labor Relations Board - Board DecisionsMar 29, 1976223 N.L.R.B. 377 (N.L.R.B. 1976) Copy Citation GREEN GIANT COMPANY Green Giant Company and General Drivers Local No. 487, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America. Cases 18-CA-4118, 18-CA-4161, and 18-CA-4198 March 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 11, 1974, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and supporting briefs. 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 considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent's plant in Glencoe, Minnesota, is en- gaged in the canning and freezing of peas and sweet corn. The Glencoe facility consists of two separate departments: (1) the plant department which proc- esses, warehouses, and ships the peas and sweet corn, and (2) the agricultural department which has the responsibility for procuring the peas and sweet corn. The Administrative Law Judge found that Re- spondent was a farmer with respect to the activities of its agricultural department and that employees in the agricultural department were exempt from the Act as agricultural employees. With respect to a me- chanic in the agricultural department, James Sarff, the Administrative Law Judge found an 8(a)(4) viola- tion on the ground that he had been denied a sched- uled merit increase and was subsequently discharged as a result of a statement he gave to a Board investi- gator; and violations of Section 8(a)(1) in unlawful interrrogation, threats, and a reprimand concerning the use of the farm shop bulletin board and of Sec- tion 8(a)(3) in the denial of a scheduled merit in- crease and his unlawful discharge. The Administra- tive Law Judge also found a violation of Section 8(a)(3) and (1) in the discriminatory discharge of Hu- bert Schermann, a mechanic in the plant department, after he participated in a renewal of the Union's or- ganizational activities. We disagree with the Administrative Law Judge's 377 holding that Respondent is a farmer in connection with any of the operations involved in this proceed- ing, his finding of an 8(a)(4) violation resulting from Sarff's statement to a Board investigator, and his findings of 8(a)(3) and (1) violations in the discharges of Sarff and Schermann. We find violations of Sec- tion 8(a)(1) in the discriminatory denial of the use of the farm shop bulletin board for the use of prounion literature and the incidents flowing therefrom, and a violation of Section 8(a)(3) in the withholding of a scheduled merit increase from Sarff. I. AGRICULTURAL EXEMPTION The functions of Respondent's agricultural depart- ment at the Glencoe plant with respect to the grow- ing and harvesting of crops are governed by con- tracts with the growers. Under these contracts, the individual growers plant seeds supplied by Respon- dent on their own lands, cultivate the crops, and as- sume the risk of loss for crop failure. Respondent determines the time of planting and harvesting and the need for weed and insect control, and performs any required spraying. Citing Waldo Rohnert Co. v. N. L. R. B., 322 F.2d 46 (C.A. 9, 1963), in -which farmer status was denied, the Administrative Law Judge stated that on the basis of its relationship to the crops prior to harvest, Respondent could not be considered a farmer. Relying on the fact that Respondent was responsible for harvesting the crops, however, he held Respondent to be a "farmer" in its agricultural department activities with the result that employees in that department are not protected by the Act. We are of the view that Respondent's harvesting crops is not an appropriate basis for distinguishing the Waldo Rohnert Co. case. Since 1947 Congress has attached riders to the Board's annual appropriations which, in effect, make the definition of agriculture in Section 3(f) of the Fair Labor Standards Act applica- ble in determining who is an "agricultural laborer" under Section 2(3) of the National Labor Relations Act. Accordingly, "the Board gives great weight to the interpretation of section 3(f) by the Department of Labor ...." Adams Egg Products, Inc., 190 NLRB 280 (1971). Under the interpretations of the Department of Labor, however, the fact that an em- ployer engages in the harvesting of an agricultural commodity does not constitute it a "farmer." Section 780.131 of the Department of Labor's official inter- pretations of the Fair Labor Standards Act provides as follows: It does not necessarily follow, however, that any employer is a "farmer" simply because he en- gages in some actual farming operations of the type specified in section 3(f). Thus, one who 223 NLRB No. 37 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merely harvests a crop of agricultural commodi- ties is not a "farmer" although his employees who actually do the harvesting are employed in "agriculture" in those weeks when exclusively so engaged. As a general rule, a farmer performs his farming operations on land owned, leased, or controlled by him and devoted to his own use. The mere fact, therefore, that an employer har- vests a growing crop, even under a partnership agreement pursuant to which he provides credit, advisory or other services, is not generally con- sidered to be sufficient to qualify the employer so engaged as a "farmer." Such an employer would stand, in packing or handling the prod- uct, in the same relationship to the produce as if it were from the fields or groves of an indepen- dent grower. [29 C.F.R. §780.131 (1974).] Under this interpretation, therefore, Respondent is not a "farmer" by virtue of its harvesting and other activities in relation to the peas and corn raised on the lands of the growers (see N.L.R.B. v. Bayside En- terprises, 527 F.2d 436 (C.A. 1, 1975)) and the work of its agricultural department employees in the repair and maintenance of harvesting equipment was not performed by a farmer or on a farm as an incident to farming operations. Sarff, therefore, was not an agri- cultural laborer during the off-pack season and was entitled to the protection of our Act. 11. IDENTIFICATION OF SARFF AND SCHERMANN WITH CONCERTED ACTIVITIES Sarff and Schermann had been active in concerted activities among the Glencoe plant employees for a number of years. As early as the summer of 1969 Respondent's employees engaged in a work stoppage in order to obtain higher wages. Each department at the Glencoe facility selected two spokesmen to nego- tiate with Respondent, and Schermann was one of the two selected by the factory maintenance mechan- ics. As a result of these negotiations, an across-the- board increase of approximately 30 cents per hour was granted to all employees at the Glencoe plant. There were no further extensive concerted activities until about June 1973 when the Christian Labor As- sociation initiated an organizational campaign and representation proceedings in which the Union in- volved in the present case intervened. Schermann first supported the Christian Labor Association but later shifted his support to the Union. During this campaign Schermann, as well as a few other employ- ees, wore at work on his shirt sleeves union insignia reading "Vote Teamsters" and had numerous meet- ings with union representatives. A consent election was held on July 20 which was lost by both unions. Following the election the union organizer main- tained contact with a committee of Glencoe employ- ees which included Sarff and Schermann and met with the committee on a number of occasions. Under date of January 25, 1974, the Union renewed its or- ganizational activities by sending a letter to Glencoe plant employees, enclosing an authorization card and inviting them to sign up with the Union. Early in the following week the union organizer met with Scher- mann at Schermann's home where he signed an au- thorization card. Thereafter Schermann discussed the Union with employees at the plant during coffee breaks and lunch. Sarff also signed a new authoriza- tion card shortly after the January 24 letter. The sup- port of Sarff and Schermann for the Union was open and well known to employees. During the management meeting with employees on January 31, the plant supervisor explained to the warehouse employees that a wage survey was in pro- gress but that a general wage increase , which the em- ployees had expected, would not be forthcoming in the immediate future. Thereupon, within hearing range of supervisory personnel, one of the employees stated, "If we don't get a merit raise, we will have to go see Hubert." The only Hubert employed at the Glencoe plant at that time was Schermann. Scher- mann was discharged on the next working day which was February 4. Sarff, who was well aware of Schermann's activity in support of the Union, protested Schermann's dis- charge in a meeting with the farm shop supervisor on February 14. On the morning of February 21, Sarff posted on the bulletin board in the farm shop a docu- ment which commented on benefits recently negoti- ated by the Union for cannery workers in California. Shortly thereafter this document was removed, and that afternoon Sarff was summoned to a meeting in the office of the plant superintendent at which one supervisor mentioned an employee complaint about Sarff's "talking about the Union all the time" and another supervisor stated that Sarff had approached an employee on four different occasions and "both- ered him about signing a union authorization card." At this meeting Sarff reaffirmed his belief in the Union and the employees' need for a union. On February 25, Sarff again met with the agricul- tural plant superintendent who showed him what he had written concerning the previous interview and, among other things, recalled that he and Sarff had discussed the Union. About the latter part of March Sarff was advised that he was not receiving a merit increase on April 1. About the middle of April Sarff had further contact with union organizers and ar- GREEN GIANT COMPANY 379 ranged for another union meeting on, April 25. A leaflet concerning the meeting, which Sarff attended, was distributed at the gate by union organizers. On May 13, shortly after an altercation with another em- ployee, he was discharged. III. VIOLATIONS INVOLVING SARFF Since we have concluded that Respondent was not a farmer, the Act's exemption for agricultural labor- ers is inapplicable to Sarff's employment in the agri- cultural department at Respondent 's Glencoe plant. With respect to Sarff, the complaint alleged: (1) vio- lations of Section 8(a)(1) arising out of his posting of a document on the farm shop bulletin board, Respondent's removal of the document, and his in- terrogation and criticism at a meeting with supervi- sors shortly thereafter; (2) violations of Section 8(a)(3) based on the denial of a scheduled merit wage increase on March 25 and his discharge on May 13; and (3) a violation of Section 8(a)(4) based on claimed discrimination against Sarff because he gave information to a Board agent concerning questions arising under the Act. A. Posting of Notice on Bulletin Board On the morning of February 21, Sarff posted a document on the farm shop bulletin board which commented on benefits recently negotiated by the Union for cannery workers in California. There was on the bulletin board at the time a newspaper clip- ping concerning four officials of the Union who had allegedly been indicted for fraud. The bulletin board was regularly used by employees for posting various types of notices and there does not appear to have been any prior restriction on its use. Shortly thereaf- ter the document posted by Sarff was removed. That afternoon Sarff was requested to attend a meeting of several supervisory officials in the agricultural superintendent's office. At this meeting Sarff was criticized for poor production. This criticism was not based on an analysis of production records and ap- pears to have been contrary to the information con- tained in those records. Moreover, the two other me- chanics in Sarff's group do not appear to have been criticized. Sarff was also criticized for his attitude and for group discussions going on in the plant, and was advised that employees had complained about his talking about the Union all the time and bother- ing an employee on four different occasions to sign a union authorization card. He was further told that prounion material would not be tolerated on compa- ny bulletin boards although the antiunion item con- cerning the union officials was permitted to remain posted. He was advised that a written report of the meeting would be prepared and placed in his person- nel file. This meeting lasted almost 4 hours. On Feb- ruary 25, the agricultural superintendent met with Sarff again and showed him the report that had been prepared of the previous meeting for placement in his file. The removal of prounion literature from the farm shop bulletin board while antiunion literature was permitted to remain, the reprimand. of Sarff for post- ing it, and the admonition to Sarff not to post any- thing without prior permission, despite the fact the bulletin board had been in general use without re- striction, constituted a violation of Section 8(a)(1). The notice to Sarff, against the background of this reprimand and warning and a discussion of his other union activities, that a report would be placed in his file concerning poor farm shop production and the other matters discussed at the meeting, constituted a further violation of Section 8(a)(1). B. Denial to Sarff of Scheduled Merit Wage Increase Early in January 1974 the farm shopw supervisor submitted budget figures to the agricultural superin- tendent and forecast in his best judgment that Sarff would get a maximum merit increase of 19 cents per hour . On February 28, 1 week after the bulletin board incident and S4rff's reprimand and warning in connection therewith and 3 days after the meeting concerning the related written report , the farm shop supervisor met with the agricultural superintendent concerning the merit increases scheduled for April 1 and recommended that Sarff be given a minimum increase . The agricultural superintendent stated that Sarff should not be given any merit increase because he had not performed meritoriously and an increase could not be justified . On:March 25 the farm shop supervisor informed Sarff that he would not be re- ceiving the merit wage increase that had previously been scheduled for him. The denial to Sarff , a few days after the unlawful reprimand and the bulletin board incident , of a merit wage . increase which had previously been included in budget estimates and was recommended by his farm shop supervisor indicates a violation of Section 8(a)(3) and we so find. The Administrative Law Judge's suggestion , however , that the increase was withheld because Sarff gave a statement to a Board agent cannot be sustained . The Administrative Law Judge found that as of March 1 the agricultural su- perintendent had decided not to give Sarff a merit increase . Sarff 's statement to the Board agent, how- ever , was not given until March 6. Obviously, the decision on March 1 to deny Sarff a merit increase could not have been based on his statement to the Board on March 6. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discharge of Sarff On May 8 Sarff was involved in an incident with another employee , Don Arndt . As Arndt was walk- ing by Sarff carrying an engine head , the latter made a derogatory remark in vulgar language concerning Arndt's work . Thereupon Arndt struck Sarff a num- ber of blows . Upon a further comment by Sarff, Arndt struck him again . The agricultural superinten- dent investigated the incident and called in all the mechanics to ascertain what had occurred . Arndt ad- mitted the assault, stated he knew he was wrong but would probably do the same thing under similar provocation, and added he was sorry he had struck Sarff and was willing to apologize to him. When Respondent 's supervisory officials , in an attempt to smooth over the incident , requested Sarff to come into the office to accept Arndt 's apology, Sarff re- fused , stating that he did not want to be in the same room with Arndt, that he would not accept an apolo- gy, and that he would see Arndt in court . On May 13 Sarff was advised that he was discharged because he could not get along with his fellow employees and had been insubordinate in refusing the request of his supervisors to appear in their office to accept Arndt's apology. The General Counsel claims that Respondent's reasons for discharging Sarff are pretextual and that the real motivation was Sarff 's prounion activities and his statement to a Board agent . He argued that Arndt was the aggressor and that it was strange for the victim of the assault rather than the aggressor to be disciplined . Sarff, however, had experienced pre- vious difficulties in getting along with other employ- ees. On May 9, other agricultural mechanics dis- cussed the problems of working with Sarff and one of them advised the agricultural superintendent that if Sarff was not transferred the mechanics would not report for work the following Monday, May 13. On May 13 the agricultural superintendent advised Sarff of his discharge. The General Counsel has not sustained his burden of establishing that Sarff was discharged for union activities or because of his statement to the Board agent . His discharge on May 13 was more than 2 months after his statement to the Board agent and most of his union activities. It occurred after a seri- ous altercation at the plant which was provoked by Sarff . Although Sarff was not the aggressor in the assault which followed , the agricultural mechanics made clear to Respondent that they did not want to work with Sarff . In the circumstances, we conclude that the reasons for his discharge were not pretextual and were unrelated to his union activities and state- ment to the Board agent. IV. DISCHARGE OF SCHERMANN Schermann was discharged on February 4, which was the first day after a management meeting with employees on January 31 at which an employee re- marked within hearing distance of several superviso- ry officials that they would see Hubert if they did not receive a pay raise. The General Counsel contends that Schermann's discharge was swift retaliation fol- lowing the renewal of the union organizational cam- paign on January 24 and the remark on January 31 which identified Schermann with prior concerted ac- tion for a wage increase. Respondent claims that Schermann's termination was the result of poor work performance and was unrelated to his union activities . It points out that earlier in January he was assigned to repair a radia- tor and that supervisory officials claimed he was tak- ing too long on the job. On January 30 and 31, Scher- mann and a junior mechanic began work on a project in which they were to line a tile drainpipe with a steel pipe. At the end of the second day prog- ress on the work was minimal. During the second day, Thursday, the plant superintendent passed through the working area five times and observed progress. On two occasions later in the afternoon he found no one at the pipe project. Because the project was not proceeding with sufficient expedition the plant superintendent discussed the situation with other supervisory officials and reviewed the person- nel files. The plant production manager stated that the problem of Schermann 's lack of performance was nothing new. In March 1973 Schermann had been denied a merit increase because of unsatisfactory work performance. The plant superintendent then decided to terminate Schermann and so advised other supervisory officials, who agreed with his deci- sion . On the next workday, Monday, February 4, Schermann was called into the plant superintendent's office and was advised that he and other supervisors had observed that his work performance was unsatis- factory, that he had been warned about his poor per- formance in the past, but had not improved, that the plant superintendent had observed his dilatory work on the pipe project at the end of the previous week, and that he was being terminated.. Schermann did not dispute the statements concerning his work but merely requested that he be given another chance which was refused. Schermann had been employed by the Respondent for 12 years and had received numerous awards for suggestions for improving op- erations at the plant. Between December 1967 and January 1973 he had received eight awards totaling $245. In January 1972 he was commended for having done an excellent job in instructing employees at an- . GREEN GIANT COMPANY 381 other plant on the use of a new machine. The Administrative Law Judge found that Scher- mann was discriminatorily discharged "after he par- ticipated in a renewal of the union's organizational activities." He found it difficult to believe that a longtime employee "who had been consistently com- mended for his work performance and had received a substantial number of monetary awards in conse- quence thereof, would for no apparent reason be- come inattentive to and careless in performing his work." The Administrative Law Judge also accepted the argument of General Counsel that the excessive amount of time spent on the installation of the steel drainpipe was not the real reason for Schermann's discharge because Schermann's helper, who was not discharged, testified that it took him and another em- ployee more than a week to complete the work. The fact that Schermann was discharged on the first workday after another employee had stated in the presence of management officials that they would see him if an anticipated raise was not forthcoming strongly suggests that the discharge was motivated by this poignant reminder of Schermann 's identification with concerted activities and his previous success in this connection. The employee's remark, however, coincided in time with Schermann's poor work per- formance on the steel drainage pipe job the same day. There is no question concerning the coincidence of these two events nor Respondent's dissatisfaction with Schermann's progress on the job. His assistant on the job, a junior mechanic, acknowledged that they were "goofing off." The fact that it took other employees more than a week to complete the job does not gainsay the fact that Schermann's perfor- mance was unsatisfactory during the 2 days he worked on it. Respondent's complaint was not that he did not complete the job in 2 days but that he was not devoting sufficient time to his work. When in- formed that his poor performance was the reason for his discharge, Schermann did not question the char- acterization of his work but only asked that he be given another chance. Although Schermann's numerous awards for effi- ciency suggestions from 1967 to 1973 are evidence of a conscientious employee, the record is clear that in the 2 years prior to his termination he had been repri- manded on a number of occasions for not working up to his ability and had been passed over for merit wage increases. It is conceivable, of course , that the renewal of the union organization campaign and the reliance of employees on Schermann prompted the discharge decision rather than some lesser form of discipline. But the preponderance of evidence indi- cates that he was discharged for unsatisfactory work rather than for union activities. Accordingly, we re- verse the Administrative Law Judge's finding that Schermann was discriminatorily discharged. CONCLUSIONS OF LAW 1. Green Giant Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By reprimanding James Sarff concerning the posting of a notice on the bulletin board, by denying the use of the. bulletin board for union notices on a discriminatory basis, and by criticizing Sarff's work at the time he was reprimanded for posting a pro- union notice on the bulletin board, Respondent vio- lated Section 8(a)(1) of the Act. 3. By denying a merit increase to James Sarff on March 25, 1974, Respondent violated Section 8(a)(3) and (1) of the Act. 4. Respondent did not violate the Act in any other respect. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent Green Giant Compa- ny, Glencoe, Minnesota, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Denying the use of the company bulletin board for the posting of union literature on a dis- criminatory basis or reprimanding employees for posting union literature on the bulletin board. (b) Criticizing the work of employees as a result of their union activities. (c) Denying merit wage increases to employees be- cause of their union activities. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Make James W. Sarff whole for any loss sus- tained by him by reason of discriminatory denial of a merit wage increase. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its premises at Glencoe , Minnesota, copies of the attached notice marked "Appendix." ' Copies of said notice , on forms provided by the Re- gional Director for Region 18, after being duly signed by the Respondent's representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.- APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminatorily deny the use of the company bulletin board for the posting of union literature , or reprimand employees for posting union literature on the bulletin board. WE WILL NOT criticize the work of employees as a result of their union activities. WE WILL NOT deny merit wage increases to employees because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed in Section 7 of the Act. WE WILL make James W. Sarff whole for any pay he lost as a result of a discriminatorily de- nied merit wage increase. All our employees are free to become , remain, or refrain from becoming or remaining members of the above-named Union or any other labor organization. GREEN GIANT COMPANY DECISION STATEMENT OF THE CASE IvAR H . PETERSON , Administrative Law Judge : This case was heard before me in Glencoe , Minnesota , on 6 days beginning June 11, 1974, and concluding on July 18, upon the consolidated complaint issued by the Regional Direc- tor for Region 18 on June 4, based on charges filed by General Drivers Local No . 487, affiliated with Internation- al Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , herein called the Union , against Green Giant Company , herein called the Respondent, al- leging that the Respondent had engaged in conduct viola- tive of Sections 8(a)(1), (3), and (4) and 2(6) and (7) of the National Labor Relations Act, as amended . In its answer, filed on May 21 , the Respondent admitted certain allega- tions of the complaint and denied others . The principal contention of the Respondent is that the Board lacks juris- diction over it for the reason that the Respondent is en- gaged in producing , marketing , and selling processed vege- tables and other commodities and that the individual alleged in the complaint to have been discriminated against was employed as an agricultural laborer within the mean- ing of Section 2(3) of the Act and, consequently, that the Board lacked jurisdiction to entertain the charge. On or about June 4, the Respondent filed a motion for summary judgment , supported by an affidavit and brief . Counsel for the General Counsel filed an opposition thereto and, on June 6, Associate Chief Administrative Law Judge Schneider denied the Respondent 's motion without preju- dice to its renewal at a later appropriate time in view of the fact that the motion appeared to involve disputed ques- tions of fact that could best be resolved following hearing. Under date of June 14 I postponed the hearing "until some mutually agreeable date following July 1, 1974 ." Inasmuch as the parties were unable to reach agreement on a date for resumption of the hearing , I directed that it resume on July 16. Upon the basis of the entire record in the case, including careful study of the briefs filed herein on or about Septem- ber 3 , and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , a Delaware corporation, maintains its principal office and place of business in LeSueur , Minneso- ta, and a facility in Glencoe , which is the only operation involved in this proceeding , where it is engaged in the pro- cessing, sale, and distribution of food and food products. The Respondent admits and I find that during the last cal- endar year, a representative period , it purchased and caused to be transported and delivered to its Glencoe facil- ity goods and materials valued in excess of $50 ,000, in ex- cess of which $50,000 worth were transported and deliv- ered to that facility from points located outside the State. During the same period the Respondent processed, sold, and distributed at its Glencoe operation products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from that facility directly to points located outside the State of Minnesota . I find it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act . It is further admitted and I find that the Union is GREEN GIANT COMPANY 383 a labor organization within the meaning of Section 2(5) of the Act. The following individuals , at the times relevant , occupy the positions following their names and during that period were supervisors and/or agents within the meaning of the Act: I Michael T . Carmody-regional plant production man- ager ; Lowell E . Randgaard-Glencoe plant engineer; Clar- ence F . Schwarz-Glencoe maintenance supervisor; George E. Sedivy-special project consultant ; Larry L. Mathias-Glencoe personnel supervisor ; Donald ' Houch- in-Glencoe• assistant personnel manager ; Roy -M. Nel- son-Glencoe plant superintendent ; K. Joseph Pavelec- agricultural superintendent ; Erwin Debner-farm shop foreman ; and Wayne F. Proehl-factory foreman. The Respondent contends that , with respect to alleged discriminatee Sarff , his work on the Respondent's harvest- ing equipment was performed as an incident to and in con- junction with the Respondent's harvesting operation and, therefore , the Board lacks jurisdiction with respect to the alleged violations concerning him inasmuch as he is an "agricultural laborer" and not an "employee " within the meaning of the Act . It becomes necessary , therefore, to resolve this question before considering the merits of his termination. In determining what constitutes an "agricultural labor- er," the Board is in substantial part bound by the definition set forth in Section 3(f) of the Fair Labor Standards Act, which provides , in relevant part , that the term "agricul- ture" includes "any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations . . . ." In Farmers Reservoir & Irriga- tion Company v. McComb, 337 U.S. 755 ( 1949), the Su- preme Court held that this definition embraces both "pri- mary" and "secondary" agricultural activities. The former consists of those specifically mentioned in the definition, whereas the "secondary" activities include "any practices, whether or not themselves farming practices , which are preformed either by a farmer on a farm , incidently to or in conjunction with `such ' farming operations . . . ." It seems clear that Sarff was not engaged in any work encompassed within the primary meaning of the term "agriculture," as the time he spent in the fields during the harvest season was devoted solely to the maintenance of the harvesting machinery and not to the actual harvesting operations. Ac- cordingly, analysis must be focused upon the secondary interpretation of the term . In other words, we must exam- ine the Respondent's status or the location of the work performed , and the nature of the employment and its con- nection with the Respondent's operations. As stated in'the affidavit of K. Joseph Pavelec , agricul- tural superintendent at the Glencoe plant , and the testimo- ny of Donald Johnson , a farm shop employee and also a contractor, the Respondent's sweet corn and pea acreage contracts control the relationship between the growers and the Respondent and, therefore , are the primary means by which the Respondent obtains its raw products . These con 1 The Respondent admitted that Proehl was its factory foreman but de- nied that he was a supervisor during that part of the year when the Glencoe plant is not engaged in the processing of peas and corn. - - tra&ts provide that the individual growers plant, on their own land, the seed supplied by the Respondent. They. culti- vate the crops andCopy with citationCopy as parenthetical citation