Hershey Estates

National Labor Relations Board - Board Decisions

Jun 23, 1955

112 N.L.R.B. 1300 (N.L.R.B. 1955)

1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hershey Estates and Bakery and Confectionary Workers Inter-
national Union of America , Local 464, A. F. of L., Petitioner.
Case No. 4-RC-2583. June 23,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Seymour X. Alsher, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. The alleged question concerning representation :
For 11 years the Employer has recognized the Petitioner as the
exclusive bargaining representative of a unit of all its employees.
However, the Employer, now for the first time, would exclude from
this unit all employees assigned to the garden and greenhouse divi-
sion. It is the Employer's contention that these employees are "agri-
cultural laborers" within the meaning of Section 2 (3) of the Act,
and therefore not employees within the meaning of the Act. Both
parties agree that the only appropriate unit is an overall unit, either
including or excluding the garden and greenhouse employees. The
Employer concedes that the Petitioner represents a majority of its
employees in the garden and greenhouse division. Neither party
requests an election. Thus, should the Board find the employees in
the garden and greenhouse division not to be "agricultural laborers,"
the Employer has agreed to recognize the Petitioner as their bargain-
ing representative. The sole question for determination, therefore, is
whether the employees in the garden and greenhouse division are
"agricultural laborers." 1
The Employer owns and operates service, mercantile and recrea-
tional facilities in Hershey, Pennsylvania. These facilities, which are
divided for operational purposes into 18 administrative divisions, are
staffed by approximately 870 employees.
i Section 2 (3) of the Labor Management Relations Act, 1947, excludes from the defini-
tion of "employee " any individual employed as an "agricultural laborer."
By a rider to the National Labor Relations Board Appropriation Act of 1955 , 68 Stat.
434, the Board is precluded from processing representation cases involving "agricultural
laborers" as defined in Section 3 (f) of the Fair Labor Standards Act of 1938.
Section 3 (f) of the Fair Labor Standards Act of 1938 , 52 Stat. 1060, defines "agricul-
ture" as "farming in all its branches and among other things , includes . . the produc-
tion, cultivation , growing , and harvesting of any agricultural or horticultural com-
modities . . .
112 NLRB No. 164.
HERSHEY ESTATES 1301
The garden and greenhouse division has 35 permanently assigned
employees. It consists of 2 grower-designers; 2 assistant grower-
designers; 2 night laborers; 1 delivery truckdriver; 11 section men;
15 laborers; 1 utility man; and 1 cemetery man. These employees op-
erate a greenhouse and nursery ; they are also responsible for the main-
tenance of a rose garden, hotel grounds, a park, a stadium, a baseball
diamond, a cemetery, an apartment house district, and other areas
throughout the town of Hershey. They also regularly clear the
streets of leaves and debris, operate snow removal equipment, and help
decorate the town for Christmas and other special events. Tender
plants that must have controlled temperatures and ventilation are
grown in the greenhouse. The more hardy plants, such as trees,
shrubs, and evergreens, that do not need special protection are grown
in the nursery. Greenhouse and nursery products are sold to indi-
vidual customers and are also used on the Employer's properties. So
that nursery stock may be retailed and wholesaled, the nursery has
been inspected and licensed by the Pennsylvania Department of Agri-
culture. The rose garden is maintained as a community attraction;
the hotel grounds, with their formal and rock gardens, are adjuncts to
a hotel; the park, stadium and baseball diamond are recreational fa-
cilities; and the cemetery is used as the community burial ground.
It is apparent from the foregoing that only the greenhouse and
nursery produce agricultural products as marketable items. While it
is true that the maintenance of the rose garden, hotel grounds, park,
cemetery, and other areas throughout the town includes planting and
cultivating of agricultural products, the work in these areas is per-
formed either to enhance another mercantile enterprise, to decorate a
recreational facility, or to create a civic attraction or facility. It is
not performed to produce a marketable agricultural product. We
find, therefore, that the greenhouse and nursery operations are the only
agricultural operations engaged in by the garden and greenhouse
division.2
We now turn to the question of which employees, if any, in the
Garden and Greenhouse Division are "agricultural laborers." This
determination may best be accomplished by a consideration of the em-
ployee classifications in the garden and greenhouse division.
Grower-designers and assistants, night laborers and delivery truck
driver: The grower-designers and their assistants, the night laborers,
and the delivery truckdriver are assigned exclusively to the green-
house. The grower-designers and their assistants prepare and care for
the soil and plants, cut flowers, and harvest greenhouse crops. A por-
tion of their time is also devoted to selling greenhouse products. The
night laborers check to see that the proper ventilation and temperature
is maintained in the various compartments in the greenhouse. A
2 See Di Giorgio Fruit Corporation , 80 NLRB 853 , pp 855-857.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minor portion of their time is also devoted to miscellaneous janitorial
duties. The principal job of the delivery truckdriver is to deliver
to customers horticultural products grown in the greenhouse; he also
devotes a part of his time to watering and fertilizing the plants in the
greenhouse. Accordingly, we find that the grower-designers and their
assistants, the night laborers and the delivery truckdriver are engaged
in the production of a marketable horticultural commodity in an agri-
cultural operation and are, therefore, "agricultural laborers." I The
Board has recently held that employees who divide their time between
agricultural and nonagricultural activities, spending a substantial part
of their time in performing agricultural duties, will be considered
"agricultural laborers" and excluded from units of employees cov-
ered by the Act.4 Accordingly, the fact that these employees may de-
vote a small portion of their time to nonagricultural duties, does not
affect their status as "agricultural laborers."
Section man: Employees with gardening experience are designated
section men and assigned to certain specified areas of the Hershey
Estates. Thus, there are section inen assigned to work exclusively
during the growing season in the rose garden, on the hotel grounds,
in the park, in the stadium, on the baseball diamond, and in the apart-
ment house area. In addition, one section roan is regularly assigned
to work exclusively in the nursery. In view of these assignments, we
find that the section man assigned to the nursery is the only employee
in this group engaged in an agricultural operation. As this section
man is responsible for the care and condition of all the plants in the
nursery, we further find that he is engaged in the production of a
marketable horticultural commodity and is therefore an "agricultural
laborer." 5
Laborers: The laborers are assigned to a labor pool and do not
have permanent assignments. When a section man or a grower-
designer in the greenhouse needs extra help laborers may be detailed
from the pool. Although it thus appears that laborers are from time
to time assigned to the greenhouse and nursery, the record is silent
regarding the identity of the laborers thus assigned, the extent of
their assignments, and the specific duties they perform. On this state
of the record, we therefore find that the laborers are not "agricultural
laborers" within the Act's meaning.
Utility mzan: The record shows only that the utility man drives a
truck throughout the garden and greenhouse division, transporting
such items as soil, fertilizer, plants, shrubs, trees, and refuse; and that
he spends a minor part of his time in assisting section men. From these
3 William H. Elliott S Sons Company, 78 NLRB 1078 ; Seattle Wholesale Florists Asso-
ciation. 92 NLRB 1186, Walling v Rocklin, 132 F 2d 3 (C A 8)
6 Clinton Foods, Inc, 1Q8 NLRB 85 at p 87, Antle Cap i ots, Inc, 110 NLRB 741
5 See cases cited in footnotes 2, 3, and 4, and Stark Bp others Nurseries and Orchards
Company, 40 NLRB 1243, 1249.
ZIP-O-LOG VENEER, INC. 1303
facts we are unable to ascertain whether the utility man performs
duties connected with the greenhouse and nursery operations, or with
the other operations of the division. On this state of the record, we
therefore find that the utility man is not an "agricultural laborer."
Cemetery man: The cemetery man devotes all his time to the care
of the cemetery grounds and to grave and foundation digging. We
accordingly find that he is not an "agricultural laborer." 6
As it appears that the Employer does not question the majority
status of the Petitioner, and as it appears further that neither party
desires an election, we find that no question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the
Act. Accordingly, we shall dismiss the petition.'
[The Board dismissed the petition.]
See cases cited in footnotes 2, 3, and 4
Humble Pipeline Company, Southern Division, 107 NLRB 892 at p. 894.
Zip -O-Log Veneer, Inc. and Veneer Employees Group, Petitioner.
Case No. 36-RC-1105. June 23, 1955
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before E. G. Strumpf, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Intervenor contends that its contract is a bar to an election
among the employees in 1 of the 2 plants sought herein by the Peti-
tioner. The contract in question became effective on April 1, 1953,
and provides that it shall remain in effect until April 1, 1956. As the
contract has already been in effect for more than 2 years, and as there
was no showing of an industry practice of 3-year contracts, we find,
1 The hearing officer referred to the Board the motion of Local 5-246, International
Woodworkers of America , CIO, herein called the Intervenor , to dismiss the petition on the
grounds that there is a contract bar and that the unit sought is inappropriate . For the
reasons given s nfra , this motion is hereby denied
2 The parties stipulated that the Intervenor is a labor organization within the meaning
of the Act, but the Intervenor refused to enter into such a stipulation with respect to the
Petitioner . We find that the Petitioner was organized for the purpose of bargaining collec-
tively on behalf of the employees of the Employer, and that it is therefore a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
112 NLRB No 166