Green Giant Co.

National Labor Relations Board - Board Decisions

Mar 29, 1976

223 N.L.R.B. 377 (N.L.R.B. 1976)

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 and