Grower-Shipper Vegetable Association of Central California

National Labor Relations Board - Board Decisions

Sep 15, 1942

43 N.L.R.B. 1389 (N.L.R.B. 1942)

In the Matter of GROWER-SHIPPER VEGETABLE ASSOCIATION OF CENTRAL
CALIFORNIA, ALLEN PACKING COMPANY, AMERICAN FRUIT GROWERS,
A. ARENA AND Co. LTD., F. V. BIRBECK, BRUCE CHURCH COMPANY,
M. H. EDMONDSON PACKING COMPANY, FARLEY FRUIT COMPANY, H.
P. GARIN COMPANY, W. B. GRAINGER PACKING COMPANY, GROWERS
PRODUCE DISPATCH, E. E. HARDEN PACKING COMPANY, HOLME &
SEIFERT, AL MASSERA COMPANY, RALPH E. MYERS COMPANY, MER-
RILL PACKING COMPANY, MISSION FARMS, K. R. NUTTING COMPANY,
PREMIER PRODUCE COMPANY, S. RIANDA PACKING COMPANY, SALINAS
VALLEY VEGETABLE EXCHANGE, SEARS BROS. & COMPANY, PETER A.
STOLICH, J. L. THOMPSON COMPANY, VERTIN-EDMONDS COMPANY,
W. & S. PACKING COMPANY, WATSONVILLE EXCHANGE, O. O. EATON,
E. H. SPIEGL, M. L. KALIGH & CO., ICE-KIST 'PACKING COMPANY,
T. O. TOMASELLO, TRACY-WALDRON COMPANY, LEVY-ZENTNER,
MUSANTE-PHILLIPS, INC., MAJOR DISTRIBUTING CODZPANY, LEWIS
PERVIN, JOHN CHURCH COMPANY, SALINAS CELERY DISTRIBUTORS
and FRESH FRUIT AND VEGETABLE WORKERS UNION LOCAL No. 78,
UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED WORKERS OF
AMERICA, AFFILIATED WITH TIIE CONGRESS OF I N D U S T R I A L
ORGANIZATIONS
Case No. R4147.-Decided September 15, 1942
Mr. Sidney L. Church, of Salinas, Calif., for the Association, Allen
Packing Company, American Fruit Growers, A. Arena and Co. Ltd.,
F. V. Birbeck, Bruce Church Company, Al. H. Edmondson Packing
Company, Farley, Fruit Company, H. P. Garin Company, W. B.
Grainger Packing Company, Growers Produce Dispatch, E. E.
Harden Packing Company, Holme & Seifert, Al Massera Company,
Ralph E. Myers Company, Merrill Packing Company, Mission Farms,
K. R. Nutting Company, Premier Produce Company, S. Rianda Pack-
ing Company, Salinas Valley Vegetable Exchange, Sears Bros. &
Company, Peter A. Stolich, J. L. Thompson Company, Vertin-
Edmonds Company, W. & S. Packing Company, Watsonville Ex-
change, O. O. Eaton, Levy-Zentner, and Musante-Phillips, Inc.
Wyckoff, Gardner eC Parker, by Mr. Phillip T. Boyle, of Watson'
Ville, Calif., for M. L. Kalich & Co.
Mr. J. T. Harrington, of Salinas, Calif., for E. H. Spiegl.
Gladstein, Grossman, Margolis cC Sawyer, by Mr. Norman Leonard,
of San Francisco, Calif., for the Union.
Mr. Oscar Geltman, of counsel to the Board.
Jurisdiction : vegetable packing industry
Investigation and Certification of Representatives : existence of question : em-
ployer-association's doubt as to -petitioner's representation ; employees of
44 N L R. B, No. 223. '
1389
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Companies which had shun down operations held temporarily laid off and
eligible to vote; election necessary.
Unit Appropriate for Collective Bargaining : industry-wide unit comprising
packing-shed employees of Companies which had authorized Association to
represent them;. supervisory and office employees and truck drivers excluded.
Definitions : packing-shed employees held not to be agricultural employees within
the meaning of the Act; employer bargaining association held to be an em-
ployer within the meaning of the Act.
Practice and Procedure : petition dismissed as to Companies not represented by
Association and among the employees of which petitioner had not made a
substantial showing.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF- THE CASE
Upon petition duly filed by Fresh Fruit and Vegetable Workers
Union Local No. 78, United Cannery, Agricultural, Packing and
Allied Workers of America, affiliated with the Congress of Industrial
Organizations, herein called the Union, alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Grower-Shipper Vegetable Association of Central Cali-
fornia, herein called the Association, and Allen Packing Company,
American Fruit Growers, A. Arena and Co. Ltd., F. V. Birbeck, Bruce
Church Company, M. H. Edmondson Packing Company, Farley Fruit
Company, H. P. Garin Company, W. B. Grainger Packing Company,
Growers Produce Dispatch, E. E. Harden Packing Company, Holme
& Seifert, Al Massera Company, Ralph E. Myers Company, Merrill
Packing Company, Mission Farms, K. R. Nutting Company, Premier
Produce Company, S. Rianda, Packing Company, Salinas Valley
Vegetable Exchange, Sears Bros. & Company,- Peter A. Stolich, J. L.
Thompson Company, Vertin-Edmonds Company, W. & S. Packing
Company, Watsonville Exchange, O. O. Eaton, E. H. Spiegl, M. L.
Kalich & Co., Ice-Kist Packing Company, T. O. Tomasello, and Tracy-
Waldron Company, engaged in business in the Salinas-Watsonville-
Hollister area in California, herein called the Companies, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Richard A. Perkins, Trial Examiner. Said hearing
was held at Salinas, California, on August 10, 11, and 12, 1942. The
Association, all of the Companies, except three who did not appear,'
The following Companies, although named in the amended petition and served with
notice of hearing, did not appear in the proceedings : Ice-Kist Packing Company, T O.
lomasello, and Tracy-Waldron Company.
GROWER -SHIPPER VEGETABLE ASSOCIATION, ET AL. - 1391
Musante-Phillips, Inc., Levy-Zentner,2 and the Union appeared, par-
ticipated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. During the course of the hearing the Companies moved
to dismiss the petition, on the grounds (1) that the workers here
involved are agricultural laborers and not employees within the mean-
ing of the Act, and (2) that the Union has failed to make a showing
substantial enough to warrant an election. For the reasons stated
below, the motion is denied. The Union moved to amend its petition
and amended petition by adding the names of four members of the
Association who had not been named therein.3 Since the Companies
are members of the Association and, as hereinafter set forth, have
been and are represented by the Association, the motion is hereby
granted. The Trial Examiner's rulings made, at the hearing are
free from prejudicial error and are hereby affirmed. Thereafter the
Association, certain Companies, and the Union filed briefs, which
the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATION AND THE COMPANIES
Grower-Shipper Vegetable Association of Central California is a
non-profit membership corporation, which has been authorized and
designated by its members and, certain non-members, hereinafter
named, to act as their representative for the purpose of collective bar-
gaining with their employees. As such representative, the Associa-
tion, on May 10, 1941, entered into a written contract covering wages,
hours, and working conditions with Packing House Employees Com-
mittee "as the representative for collective bargaining for all em-
ployees who are employed in the handling of vegetables in packing
houses in Monterey, Santa Cruz, and San Benito Counties," and con-
tinued to negotiate with the same employee group until'this proceed-
ing was commenced.
The members of the Association, hereinafter named, and the other
non-member Companies herein, with one exception,' maintain packing
;beds in what is known as the Salinas-Watsonville-Hollister district,
in the Counties of Monterey, Santa Cruz, and San Benito, California;
where they pack and from which they ship lettuce, carrots, celery, and
broccoli. ,
2 Musante -Phillips, Inc , and Levy -Zentner were not named in the petition or amended
petition , but appeared at the hearing and by stipulation were made parties to the pro-
ceeding -
' These four Companies are • Major Distributing Company, Lewis Pervin, John Church
Company„and Salinas Celery Distributors
° There is no evidence that Ice-Kist Packing Company is engaged in the packing or
shipping of vegetables.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Almost all the lettuce and most of the other produce packed by the
Companies are shipped to points outside the State of California. The
following table shows the shipments' made by the Companies during
the periods indicated.,' -
Carloads shipped
Allen Packing Company-------------------------------------- 78
American Fruit Growers------------------------------ :-------- ,269
A :'Arena and Co. Ltd_________________________________________ 1050
F. V. Birbeck------------------------------------------------ 459
Bruce Church Company_______________________________________ 1789
M. H Edmondson Packing, Company ---- ---------------------- 23
Farley Fruit Company---------------------------------------- 693
H. P. Garin Company----------------------------------------- 1120
W: B Grainger Packing Company------------------------------ 1113
Growers Produce Dispatch------------------------------------ 468
E E Harden Packing Company ----------- -------------------- 828
Hohne & Seifert------------------------------------------------ 416
Al Massera Company----------------------- ----------- -- --_ 51
Ralph E. Myers Coinpany --------------------------------------- 2044
Merrill Packing Company ------------------------------------ 069
K R Nutting Company_______________________________________ 1194
Premier Produce Company------------------------------------ 154
S. Rianda' Packing Company---------------------------------- 652
Salinas Valley Vegetable Exchange---------------------------- 2262
Sears Bros. & Company--------------------------------------- 900 -
Peter A. Sfolich--------------------------------------------- 737
J. L. Thompson Company------------------------------------- 612
Vertin-Ednionds Company ------------------------------------ 1410
W. & S. Packing Company-------------- ---------------------- - 368
Watsonville Exchange---------------------------------------- 1396
0. 0. Eaton-------------------------------------------------- 571
E H Spiegl ---------------------------------------- 1000 (approx )
M. L Kalich & Co-------------------------------------------- 135
T 0 Tomasello---------------------------- ------------------- 100
Levy-Zeutner ------------------------------------------------ 195
Musante-Phillips, Inc----------------------------------------- 1659
Mission Farms ------------------------------------ 7 --------- 121
Tracy-Waldron Company -------- '----------------------------- 160
Major Distributing Company---------------------------------- 500 to 700
Salinas Celery Distributors ----------------------------------- 200 (approx
While there are no figures in the record as to shipments made
by Lewis Pervin and John Church Company, the record indicates
that they maintain packing sheds where they pack and from which
they ship vegetables, land that they, in common with other members,
of the Associatipn, ship most of the produce which they pack to all
parts of the United States.
s The record contains no figures as to shipments made by Ice - Kist Packing Company
Except as indicated , the figures of shipments refer to 1941
6 Figures refer to shipments in 1942
J
GROWER-SHIPPER VEGETABLE ASSOCIATION, ET AL. 1393
II. THE ORGANIZATION INVOLVED
Fresh Fruit and Vegetable Workers Union, Local No. 78, United
Cannery, Agricultural, Packing and Allied Workers of America, is
a labor,organization affiliated with the Congress of Industrial Organ-
izations, admitting, to membership all shed workers employed by
members of the Association and by the other Companies engaged in
the packing and shipping of lettuce, carrots, celery, and broccoli.7
III. THE APPLICATION OF THE ACT TO THE EMPLOYEES INVOLVED
The Companies contend that the packing-shed employees involved
herein are agricultural laborers, and are therefore excluded from the
operation of the Act.,
The record discloses that the packing of lettuce, carrots, celery,
and broccoli, although it follows immediately upon the field cutting,
is an entirely distinct process. Almost all of the packing sheds are
located in or near town, next to railroad sidings. The employees
who do the packing, with few exceptions, do that work only, and are
entirely distinct from the field employees Who cultivate and even-
tually cut the crops. The skills required in packing and in cultivating
are entirely different. The wage scales paid the two groups are also
different.
The vast majority of the Companies pack produce grown not only
by themselves but also by other growers. Some of the Companies
grow no crops, but pack only the produce of other growers.
It is thus clear that, the packing-shed employees here involved are
aot agricultural laborers within the meaning of the Act.,
IV. THE QUESTION CONCERNING REPRESENTATION
On May 20, 1942, the Union Wrote to the secretary manager of
the Association , stating that it represented a majority of the em-
ployees in the lettuce packing houses operated by members of the
Association , and requesting a meeting for the purpose of negotiating
an agreement covering wages , hours, and working conditions. At a
conference held 2' or 3 clays later , the Association's secretary -manager
7 Local 78 of the Union is the successor of racking House Employees Committee This
Committee, by vote taken June 7, 1942, and by another vote taken shortly thereafter,
voted to affiliate with Local 78, and on June 27, 1942, advised the Board and the Asso-
ciation that it no longer repiesented employees of the packing houses in the Salinas-
Watsonville-Hollister area, and that Local 78 had been chosen as its successor.
s Section 2 (3) of the Act'provides
The term "employee" . . . shall not include any individual employed as an agricul-
tural laborer . . .
See Matter of Bruce Church Company and Fresh Fruit and Vegetable il7orl ers Union,
Local 78, C. 1 C , 38'N L R B 1401, and cases therein cited.
481039-42-vol. 43-88
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned the Union's claim that it represented a majority of the
employees, and stated that he deemed an election conducted by the
Board to be necessary.
A report prepared by the Board's Field Examiner, and introduced
in evidence at the hearing, and a statement made at the hearing by
the Trial Examiner indicate that the Union represents a substantial
number of employees of members of the Association, hereinafter
named in Appendix A, and of A. Arena and Co. Ltd. and Salinas
Valley Vegetable -Exchange, hereinafter named in Appendix B, in
the unit hereinafter found appropriate.lo
We find that a question affecting commerce has arisen concerning
the representation of employees of the members of the Association,
hereinafter named in Appendix A, and of the other Companies, here-
inafter named in Appendix B, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNIT
- The Union contends that all. employees, excluding supervisory and
office personnel and truck drivers, who work in connection with the -
packing of - lettuce, carrots, celery, and broccoli, in and around the
fresh fruit and vegetable packing houses of all' employers in the
Salinas-Watsonville-Hollister area in California, who are engaged
in packing these vegetables, constitute an appropriate unit for the
purposes of collective bargaining. In the alternative, it contends that
if the employees of certain employers cannot properly be included in
the unit, the unit should consist of employees pf the members of the
Association, and of such other firms as have authorized the Association
to represent them.
The Association and all the Companies that appeared, with the ex-
ception of the Kalich and Spiegl Companies, agree that an industry-
wide unit is appropriate, but contend that truck drivers should be
included within the unit, and that employees of employers who have
discontinued business or operations should not be included in the unit.
M. L. Kalich & Co. and E. H. Spiegl contend that the industry-wide
unit is not appropriate, and that the employees of each employer
separately constitute an appropriate unit.
"The Union submitted to the Field Examiner and the Tnal Examiner , respectively, a
certified copy of its membership roster as of June 15, 1942 , bearing names of 517 persons
whose names appear on the June 15 and the June 20, 1942, pay rolls of the Companies
whose employees ale hereinafter,found to constitute an appropriate unit The total num-
ber of employees whose names appear on pay lolls submitted by the Companies ( not all of
whom submitted their pay -roll figures) in said unit is 2,210 The figures for the Kalich
and Spiegl Companies , submitted to the Field Examiner , are not included in the foregoing,
and figures representing the number of truck drivels employed by the Companies are
similarly excluded.
GROWER-SHIPPER VEGETABLE ASSOCIATION, ET AL. 1395_
The Association was organized in 1934 or 1935, and has since that
time represented its members, as well as certain other Companies, in
negotiations with employee groups. Prior to entering into such nego-
tiations, it is the practice of the Association to receive authorizations
from members and non-members to represent them, the authorizations
generally being given at meetings called for the purpose by the Asso-
ciation, and attended by both members and non-members. The
Association was authorized and designated by both its members and
certain non-members to represent them in connection with the negoti-
ating of and entering into a contract, referred to hereinabove, made
on May 10, 1941, between the Association and the predecessor of the
Union; 11 and since the making of that contract, the Association, pur-
suant to authorizations and designations to represent them which it
received from its members and from A. Arena and Co. Ltd. and Salinas
Valley Vegetable Exchange, non-members of the Association, con-
tinued to negotiate with the predecessor of the"Union up to the tine
this proceeding was commenced.
We find that employees of members of the Association and of the
employers that have authorized the Association to represent them,
namely, A. Arena and Co. Ltd. and Salinas Valley Vegetable Ex-
change, may appropriately constitute a unit. We. shall also include
in the unit employees of employers who were not actually engaged in
operations at the time of the hearing, since the record shows that the
employers, upon, resumption of operations, rehire many of their
previous employees.
The record does not show that at the time of the hearing M. L. Kalich
& Co., E. H. Spiegl, Ice-Kist Packing Company, T. 0. Tomasello,
and Tracy-Waldron Company either were members of the Association
or had, authorized it to represent them. There is no substantial show-
ing of representation by the petitioner among employees of these Com-
panies. We shall accordingly dismiss the petition for investigation
and certification of representatives as to employees of these Companies.
The Companies employ truck drivers who are engaged in transport-
ing vegetables from the fields to the packing sheds. It appears that
the Union has not organized truck drivers, and a representative of the'
Union testified that truck drivers were excluded from the unit sought
because of their eligibility to membership in another labor organiza-
tion and because of the petitioner's desire to avoid jurisdictional con-
flict. - The record shows that the duties of truck drivers differ in the
main from those of the packing-shed employees. Under these circum-
stances, and in accordance with our practice in similar cases, we shall
exclude the truck drivers from the unit.
"In this contract , which covered wages, hours , and working conditions, the Association
was designated as "the employer." - It is clear, and we find, that the Association is an
.empiover, within the meaning of Section 2 (2) of the Act, of the employees here involved
1396 DECISIONS OF NATIONAL, LABOR-RELATIONS BOARD
We find that all employees, excluding supervisory and office em-
ployees and truck drivers, who work in connection with the packing
of lettuce, carrots, celery, and broccoli, in and around the fresh fruit
and vegetable packing houses of the members of the Grower-Shipper
Vegetable Association of Central California, listed in Appendix A,
and of the Companies listed in Appendix B, which have authorized
the Association to represent them, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
vI. THE DETERMINATION OF REPRFSENTAT1VES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit, who were employed during the pay-
roll period immediately preceding 12 the date of our Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with the Companies.
listed in Appendices A and B engaged in the packing of lettuce, car:-
,rots, celery, and broccoli in the Salinas-Watsonville-Hollister area in
California, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this,
Direction, under the direction and supervision of the Regional Di-
rector for the Twentieth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tion 9, of said Rules and Regulations, among the employees of the
Companies in the unit found appropriate in Section V, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work. during
.said pay-roll period because they were ill or on vacation or in the
active military service or training of the United States, or temporarily,
"As we have found above , employees of Companies that may not be operating at the
r present time, but \1hich continue to maintain packing sheds and will operate in the future,
are included in the unit with respect to such Companies that may not be operating 'at
the time of the election , the appropriate pay roll will be the one immediately preceding
the shut-down, and the employees laid off as a result of the cessation of operations shall
be eligible to vote as employees temporarily laid off
GROWER-SHIPPER VEGETABLE ASSOCIATION, ET AL. 1397
laid off, but excluding employees who have since quit or been dis-
charged for cause, to determine whether or not said employees desire
to be represented by, Fresh Fruit and Vegetable Workers Union, Local
No. 78, United Cannery, Agricultural, Packing and Allied Workers
of America, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining.
ORDER
IT IS HEREBY ORDERED that the petition be, and it hereby is, disn7issed,
insofar as it alleges that a question affecting commerce has arisen
concerning the representation of employees of M. • L. Kalich & Co.,
E. H. Spiegl, Ice-Kist Packing Company, T. O. Tomasello, and
Tracy-Waldron Company.
MR. WM. M. LEISERsoN took no part in the consideration of the above
Decision, Direction of Election, and Order.
APPENDIX A
Allen Packing Company
American Fruit Growers
F. V. Birbeck
Bruce Church Company
M. H. Edmondson Packing
Company
Farley Fruit Company
H. P. Garin Company
W. B. Grainger Packing
Company
Growers Produce Dispatch
E. E. Harden Packing
Company
Holme & Seifert
Al Massera Company
Ralph E. Myers Company
Merrill,Packing Company
Mission Farris ' '
K. R. Nutting Company
Premier Produce Company
8. Rianda Packing Company
Sears Bros. & Company
Peter A. Stolich
J. L. Thompson Company
Vertin-Edmonds Company
W. & S. Packing Company
Watsonville Exchange
O. O. Eaton
Levy-Zentner
Musante-Phillips, Inc.
Major Distributing Company
Lewis Pervin
John Church Company
Salinas Celery Distributors
APPENDIX B
A. Arena and Co. Ltd. Salinas Valley Vegetable
Exchange