Imperial Garden Growers

National Labor Relations Board - Board Decisions

Oct 18, 1950

91 N.L.R.B. 1034 (N.L.R.B. 1950)

In the Matter Of IMPERIAL GARDEN GROWERS, EMPLOYER and FRESH
FRUIT AND VEGETABLE WORKERS LOCAL UNION No. 78, INTERNA-
TIONAL UNION OF FOOD, TOBACCO, AGRICULTURAL AND ALLIED
WORKERS UNION OF AMERICA, PETITIONER
Case No. 21-RC-1183.-Decided October 18, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Eugene M. Purver,
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, a California corporation, is engaged in the grow-
ing, packing, and shipping of lettuce and melons at El Centro, Cali-
fornia. During the 1949-50 lettuce season, the Employer packed
approximately 300 carloads of lettuce, totalling approximately 100,000
crates, at an average value of $3.20 per crate and an approximate
total of $320,000. Approximately 95 percent of the lettuce was
shipped directly to points outside the State. During the 1949 melon
season, the Employer packed approximately 39,000 crates of melons,
at an average value of $2.30 per crate, or an approximate total value
of $90,000. Over 95 percent of the melons was shipped to points
outside the State.
We find that the Employer is engaged in commerce within the mean-
ing of the Act.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Employer contends that its packing shed employees, whom the
Petitioner here seeks to represent, are not "employees" within the
meaning of the Act, but are. "agricultural laborers" over whom the
Board may not assert jurisdiction.
The Employer operates a packing shed at El Centro, California, at
which, during a season which runs froln December of each year to the
1 The Board has previously found this Employer to be engaged in commerce within the
meaning of the Act. George G. Averill, et al., 13 NLRB 411.
91 NLRB No. 167.
1034
IMPERIALS GARDEN GROWERS 1035
following March, approximately 45 employees are engaged in pack-
ing lettuce. The Employer also sometimes packs melons at this shed,
during a season which runs from the middle of May through the
first few weeks in July.2 Most of the produce packed is grown by
the Employer on land owned by the officers of the corporation as
.individuals and leased by them to the corporation. Some of the
produce packed is grown by the Employer on land leased from indi-
viduals outside the corporation. In each instance the Employer per-
forms all the functions necessary in planting, cultivating, and har-
vesting crops,3- and pays the owners a fixed rental for the land.
The packing shed is a corrugated iron structure, 40 by 120 feet in
size, containing equipment that, together with the shed, is valued at
approximately $50,000. The Employer has constructed a spur track
from the main line of the railroad to its plant site at a cost of $3,000.
In connection with its packing operations, the Employer owns and
uses trucks and trailers of an undisclosed value.
The employees at the packing shed perform a number of different
tasks. For the purposes of packing lettuce, box makers prepare crates,
,and "liners"' put paper linings in them. "Bug drivers" pick up the
trailer loads of lettuce brought by truck drivers from the field, and
dump it at the beginning of a conveyor system. Within the shed, the
lettuce moves to the working place of employees who trim, pack, and
ice it, put lids on the filled crates, stamp and label the crates, and load
them into freight cars. "Car blowers" force crushed ice over the top
of the lettuce in the loaded cars. Though not all the same operations
are conducted in packing melons, the process is essentially the same
as that above described. Only the Employer's packing shed employ-
ees are involved in this proceeding. They are hired only for the let-
tuce or melon packing season, and all their work is performed at the
packing shed. They are paid the "going, rates" for packing shed
employees in the area.
The Employer bases its contention that its packing shed employees
are "agricultural laborers" principally upon the fact that the produce
packed by them is almost entirely grown by the Employer itself on
land either owned by its stockholders or leased from other individual
owners for this purpose. It points out that the only processing of
the produce consists of trimming, grading, washing or brushing, and
packing, and asserts that all these operations are merely incidental to
its agricultural operations. Thus it contends that this case falls
'In 1948 the Employer packed no melons . It packed melons at this shed, however, in
1949, and had approximately 80 acres of melons planted as of the , time of the hearing in
this casein March 1950.
3 The Employer also grows , or has grown , cotton, alfalfa , cabbages , sugar beets , grain,
and flax, but none of these products is handled at its packing shed.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the principle of the Board's Salinas Valley Vegetable Ex-
change 4 and Burnett d Burnett 5 decisions, and urges that the Board
dismiss this petition.
In a number of cases decided under the Wagner Acts before July
1946, the Board directed representation elections among the packing
shed employees of fruit or vegetable packers engaged in operations
similar to those of"the Empl6y.er.7 This continued to be the Board's
practice until, in July 1946, a rider to the Board's appropriation
required the Board to define "agriculture" as defined in Section 3 (f)
of the Fair Labor Standards Act." The Board then modified this
policy.9 Thus, although the Board continued to assert jurisdiction
over packing shed workers who were engaged in packing produce not
grown by their own employer,10 or where the processing materially
changed the product to enhance its market value," it ceased by 1948
to assert jurisdiction over packing shed workers where neither of these
factors was present.12
In the present case, we have reconsidered and reevaluated these later
decisions, and have considered the interpretation.of Section 3 (f) of
the Fair Labor Standards Act by the Wage and Hour Division of the
Department of Labor. The Wage and Hour Administration inter-
prets Section 3 (f) as follows :
. .. it is . . . clear from the legislative history of the Fair
Labor Standards Act and the reason for the agricultural exemp-
tion, based upon the definition of agriculture, that it was not
intended that activities which had assumed an industrial char-
acter should be included within the definition merely because the
product being processed came only from the farm of the employer.
4 82 NLRB 96.
5 82 NLRB 720.
6 The Wagner Act, 49 Stat . 449, excluded agricultural labor but did not define agriculture.
See Section 2 (3).
' See, for example , George G. Averill, et al., footnote 1, supra, in which the Board directed
elections among the packing shed employees of a number of enterprises engaged in packing
lettuce, including this very Employer.
S That rider has been included in the Board ' s appropriations since that time. Section 3
(f) of the Fair Labor Standards Act is in part as follows :
"Agriculture" includes farming in all its branches and among other things includes
the cultivation and. tillage of the soil , dairying , the production , cultivation , growing,
and harvesting of any agricultural or horticultural commodities . . . and any practice
. . . performed by a farmer or on a farm as an incident to or in conjunction with such
farming operations , including preparation for market , delivery to storage or to market
or to carriers for transportation to market . [ Emphasis supplied.]
See Di Giorgio Fruit Corporation , 80 NLRB 853, and the Salinas Valley and Burnett &
Burnett cases , supra.
10 Atlantic Commission Company , Inc., 84 NLRB 944.
11 Roberts Fig Company, 88 NLRB-1150.
12 See cases cited in footnote 9, supra.
IMPERIAL GARDEN GROWERS 1037
In order to apply the principles laid down in the cited cases
the Department has adopted several objective tests in distin-
guishing between a practice performed as- a distinct "nonfarm-
ing" enterprise handling, packing or processing agricultural or
horticultural commodities produced by the employer and one
which may properly be regarded as incidental to or in conjunc-
tion with the employer's'farming operations. The determination
must ultimately rest upon whether the complete factual picture
indicates that the practice is merely a subordinate and established
part of the farming operations (Interpretative Bulletin No. 14,
par. 10, 1949 WHM 33: 351). Factors to be considered in-
clude, among others, the size of the ordinary farming operations,
the investment in the enterprise as compared to that in the farm
operations, the amount of time spent by the farmer and his
employees in each of the activities, the extent to which the opera-
tions in question are performed by ordinary farm employees, the
degree of industrialization involved, the.-degree of separation
established by the employer between the two types of business
operations, and the type of product resulting from the operation
of the enterprise . . . it is usual in many such operations to hire
separate work forces for the packing operation, rather than to
use the ordinary farm laborers, and to pay such workers in accord-
ance with scales established for packing operations in commercial
packing houses, rather than at farm labor rates. Where these
and other factors indicate that the packing is performed as a
distinct and separate enterprise rather than as a subordinate and
established part of the employer's own farming operations, the
Department of Labor would not consider the activity to be one
defined as "agriculture" by Section 3 (f) of the Fair Labor Stand-
ards Act.13
We believe it to .be our duty to follow, whenever possible, the inter-
pretation of Section 3 (f) adopted by the Labor Department and its
Wage and Hour Division, as that agency, and not this Board, has
the responsibility and the experience of administering the Fair Labor
Standards Act. Viewing the present case in the light of the tests
suggested by the Wage and Hour Administrator, we find that this
record, although not complete in all detail, discloses that the Employer
maintains a plant in which there is a substantial investment in build-
's See letters from the Wage and Hour Administrator , and the Solicitor and Assistant
Solicitor of the Labor Department, set forth in Labor, Relations Reporter ( Wages and
Hours Section ) Vol. 25, No. 3 , November 14, 1949.
See also, "Exemption of Agriculture ; and on the "Exemptions for Processing Agricultural
Commodities ," Interpretative Bulletin No. 14, Wage and Hour Division , United States
Department of Labor.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and equipment, and in which the Employer conducts an extensive
packing operation. The Employer employs a completely separate
labor force to work in its packing shed, who perform no functions in
connection with the planting, cultivating, or harvesting of crops,
and who are paid in accordance with the wage scales paid by other
packers in the area to their packing. shed employees. We conclude,
therefore, that the Employer's packing shed is operated as a separate
commercial enterprise, and not merely "as an incident to or in con-
junction with" its farming operations.14 We find accordingly that the
employees in. the Employer's packing shed are not "-ag icultural la-
borers," but are "employees" within the meaning of the Act.15
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks to represent a unit consisting of all the Em-
ployer's packing shed employees engaged in the packing and handling
of lettuce and melons,, including the checker,16 but excluding truck
drivers, farm tractor operators, field employees, office, clerical, and
professional employees, guards, and supervisors. The Petitioner
14 See footnote 8, supra.
The legislative history of the rider to the Board ' s Appropriations Act shown that in 1946
the House adopted a proposed amendment to the Board 's appropriations , tying together the
Wagner Act' s exclusion of agricultural labor and the definition of agriculture contained in
the Social Security Act. This was similar , in its application of the Social Security defini-
tion , to a rider to the War Labor Board 's appropriations for the preceding year , originating
in the House and later accepted by the Senate . The purpose was to exclude packing shed
and processing employees from the exercise of the Board ' s jurisdiction . The Senate refused,
however, to accept such a rider to the National Labor Relations Board 's appropriation.
After several weeks of unresolved disagreement , it was agreed in conference to recommend
substitution of the Fair Labor Standards definition for that in the Social Security Act.
Senate debate on acceptance of this revision ( Cong. Rec.-Senate, July 26. 1946, pp. 9514-
9515) discloses the Senate ' s concurrence to have been on the premise that the revision
substantially met the objections earlier raised on the Senate floor to the Social Security
definition , and involved no more than the possibility of minor changes in the Board's
existing practice and procedure.
15 The Board reached a similar conclusion in Grower-Shipper Vegetable Association of
Southern California, Case No. 20-RC-631. In that case all parties having agreed to a
consent election , the Board after hearing oral argument , approved the holding of such an
election by its Regional Director . No formal decision was issued in that case.
Like the Wage and Hour Administrator , we rely on the decisions of the courts cited in
the correspondence above referred to. Among those are Bowie v. Gonzales , 117 F. 2d 11
( C. A. 1), cited with approval in Farmers Reservoir & Irrigation Co. v. McComb , 337 U. S.
755 ; and Calaf v. Gonzalez, 127 F. 2d 934 (C. A. 1). The contrary case of N. L. R. B. v.
John W. Campbell, Inc., 159 F . 2d 184 ( C. A. 5, 1947 ), is distinguishable . The original
Board order there sought to be enforced was based on an interpretation of Section 2 (3)
before it was made dependent on the Fair Labor Standards definition . The court, in re-
jecting the Board's interpretation , relied principally on the definition of "agricultural
labor" appearing in the Social Security Act, 49 Stat . 642, as amended in 53 Stat. 1396,
rather. than the Fair Labor Standards definition.
Insofar as they are inconsistent herewith , the Board 's Salinas Valley Vegetable. Exchange
and Burnett & Burnett decisions , supra, are hereby overruled.
16 The checker is a plant clerical employee who keeps the "count " of packed crates as
they pass down the line and lists the credits to the individuals who have packed them.
IMPERIALS GARDEN GROWERS 1039
would include in the unit not only the employees in the Employer's
El Centro, California, .packing shed, but also the packing shed em-
ployees of an enterprise operated by the Employer's three stock-
holders, as a partnership, at Mendota, California.17 As an alternative,
the Petitioner seeks to represent separate units of lettuce packing
employees and melon packing employees, including in each unit both
the El Centro and Mendota operations. The Employer would limit
the unit to employees engaged in packing lettuce at El Centro, and
would also exclude box makers from the unit.
The Employer's president, A. S. Pilibos, testified that its corporate
stock is entirely owned by himself, his brother, and his sister, who
also are officers of the corporation. These three persons, as a partner-
ship,18 operate a packing shed at Mendota, California, approximately
480 miles north of the El Centro operation. The corporate and part-
nership operations are conducted as separate business enterprises.
The only history of bargaining disclosed by the record is that which
was conducted by the Petitioner with the corporation for the El Centro
employees.19 In view of the geographical separation of the two pack-
ing sheds, their operation as separate business enterprises, and the
apparent absence of any history of bargaining for the two operations
as a single unit, we shall not include the Mendota packing shed em-
ployees in the unit with those at El Centro. Moreover, as the Peti-
tioner has made no specific showing of interest among the employees
.at the Mendota packing shed, and as the Piliboses have not been made
parties, served with notice, or entered their appearance in this pro-
ceeding, we shall not direct an election among the partnership's
Mendota employees.
As to the extent of the unit among the El Centro employees, although
the Employer contends that it should be limited to workers in the
lettuce packing season and that box makers should be excluded, the
Employer offered no reasons in support of these positions. In the
absence of any compelling reason to the contrary, we believe that the
17 In its petition the Petitioner mentioned only the Employer ' s El Centro operation. For
the first time at the hearing , the Petitioner sought to add the Mendota employees , moving to
amend the petition to include them in the unit. The Employer moved to dismiss the peti-
tion on the ground that the Petitioner was thus seeking to include employees of a separate
employer not named in the petition . The hearing officer referred both motions to the Board.
As it does not appear that any party will be prejudiced thereby, we shall grant the amend-
ment, and deny the motion to dismiss . For reasons hereinafter stated , however, we shall
not direct an election among the employees of the Mendota enterprise.
1e This partnership was referred to in the record as the "Pilibos and Philibos" partnership.
19 In George G. Averill, et at., 20 NLRB 101, the Board certified the Petitioner for lettuce
packing employees of-the Employer 's packing shed which was . then located at Heber, Cali-
fornia , about 7 miles south of El Centro. The Petitioner bargained for those employees for
a number of years thereafter, including several years following the removal , in 1942, of the
packing shed from Heber to El Centro . The record also shows a contract with the Peti-
tioner executed in April 1949 by the corporation , covering its melon packing employees.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit should include all workers in the Employer's racking shed at
El Centro, regardless of the season in which they work. As the box
makers appear to be employees of the Employer, and as they work
at a task which is essentially a part of the packing shed operations,
we shall include them in the unit.
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act:
All employees of the Employer at its El Centro, California, pack-
ing shed, including the checker, but excluding. truck drivers, farm
tractor operators, field employees, office and clerical employees, pro-
fessional employees, guards, and all supervisors as defined in the Act.
5. The determination of representatives :
As the Employer's packing shed operations are seasonal in nature,
we shall direct that the election be held at or about the approximate
seasonal peak, on a date to be determined by the Regional Director,
among the employees in the appropriate unit who are employed during
the payroll period immediately preceding the date of the issuance of
notice of election by the Regional Director.20
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.