J. R. Simplot Produce Co.

National Labor Relations Board - Board Decisions

Apr 12, 1944

55 N.L.R.B. 1228 (N.L.R.B. 1944)

In the Matter of J. R. STti1PLOT, BURDELL Cul,ris, MRS. R. A. SIMPLOT,
AND JOHN D. SNOW, D/B/A J. R. SIMPLOT PRODUCE COMPANY, PAUL,
IDAHO; J. R. SIMPIOT, BURDELL CURTIS. MRS. R. A. SIMPLOT, AND
JOHN D. SNOW, D/B/A J. R. SIMPLOT PRODUCE COMPANY, DELCO,
IDAHO; CHARLES N. CAMPBELL AND FR 1NIi S. CAMPBELL, D/B/A C. N.
CAMPBELL PRODUCE COMPANY, BURLT^Y, IDAHO; CHARLES N. CAMPBELL
AND FRANK S. CAMPBELL, D/B/A C. N. CAMPBELL PRODUCE COMPANY,
RUPERT, IDAHO; L. L. CULBERTSON, RUPERT, IDAHO; J. R. SIMPLOT,
BURDELL CURTIS, MRS. R. A. SIMPLOT, AND JOT-IN D. SNOW, D/B/A
J. R. SIMPLOT PRODUCE COMPANY, RUPERT, IDAHO and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEUR'S, WAREHOUSEMEN,
AND HELPERS OF AMEP,TCA, LOCAL 483, AND JOINT COUNCIL 67, A. F.
OF L.
Cases rlWos . 19-R-124 to 19-R-1246, inebu .sAve, card 19-R-1269.-
Decided April 12, 1944
lllr. Eli Weston, of Boise, Idaho, for the Companies.
Messrs. F. T. Baldwin and T. H. Morris, of Boise, Idaho, and Mr.
Ray Jones, of Idaho Falls, Idaho, for the Union.
Mrs. Catherine 1V. Goldman, of Counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF TIIE CASE
Upon petitions duly filed by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo-
cal 483, and Joint Council 67, A. F. of L., herein called the Union, alleg-
ing that questions affecting commerce had arisen concerning the
representation of employees of J. R. Simplot, Burdell Curtis, Mrs.
R. A. Simplot, and John D. Snow, doing business as J. R. Simplot
Produce Company, at Paul, Declo, and Rupert, Idaho; of Charles
N. Campbell and Frank S. Campbell, doing business as C. N. Camp-
bell Produce Company, at Burley and Rupert, Idaho; and of L. L.
Culbertson, Rupert, Idaho; herein called the Companies, the Na-
tional Labor Relations Board provided for an appropriate consoli-
55 N L. R B, No. 223
1228
J. R. SIMPLOT PRODUCE COMPANY 1229
dated hearing upon due notice before Maurice M. Miller, Trial Ex-
aminer. Said hearing was held at Burley, Idaho, on February 11,
1944. The Companies and the Union appeared and participated. The
Companies moved to dismiss the petitions, and the Trial Examiner
referred the motions to the Board. For reasons stated hereinafter,
the motions are hereby denied. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
J. R. Simplot, Burdell Curtis, Mrs. R. A. Simplot, and John D.
Snow, doing business as J. R. Simplot Produce Company with its
main office at Burley, Idaho, are engaged within the State of Idaho
in the purchasing, packing, and distribution of potatoes and onions.
The Company maintains warehouses at Paul, Declo, and Rupert,
Idaho, its only operations involved in this proceeding. During the
1942-1943 season it shipped approximately 5,000 cars of potatoes, of
which approximately 3,500 cars were sent outside the State of Idaho.
It is anticipated that an equivalent amount will be distributed out-
side the State by the close of the present season. The Company
furnishes some potatoes to the Quartermaster's Market Center
Purchasing Office, at Idaho Falls, Idaho.
Charles N. Campbell and Frank S. Campbell, doing business as
C. N. Campbell Produce Company, and L. L. Culbertson, are en-
gaged at Burley and Rupert, Idaho, in operations similar to those
of J. R. Simplot Produce Company.'
We find that the Companies are engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE OI{GANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 483, and Joint Council 67,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Companies.
' At the hearing C. N. Campbell Produce Company and L L Culbertson stipulated that
their operations were substantially similar in nature to those of J R Simplot Produce
Company
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE EMPLOYEES , WITHIN THE MEANING OF SECTION 2 (3) OF THE ACT
The Companies contend that the workers involved in this proceed-
ing are beyond the jurisdiction of the Board because (1) they are
agricultural employees,2 and (2) they are independent contractors or
employees of independent contractors.
In the conduct of their businesses the Companies purchase from
growers quantities of unsorted potatoes, which are then separated,
sorted, and packed by. seasonal workers known as sorters, who are
engaged solely in the grading operation. They work in crews at
sorting machines generally owned by the Companles,3 performing
their duties either in the Companies' warehouses or in the growers'
cellars. They possess a certain degree of skill and experience, and
tend to return to the work each season.
It appears that the sorters prepare agricultural products for dis-
tribution, and are in no way engaged in the planting or cultivation of
such products nor in services incident to ordinary farming operations.
Their work begins after the crops are harvested, and does not add
to or change the nature of the produce. Their services contribute
to the process of distribution and not the process of growth. We find,
therefore, that the workers are not agricultural laborers,4 and that
they are employees within the meaning of Section 2 (3) of the Act.5
Each crew of sorters has a head sorter, who the Companies contend
are independent contractors and employers of the sorters. There is
no arrangement between the Companies and the head sorters whereby
the latter contract to perform certain work and accept responsibility
for the completion of the project. The head sorters, first contacted
through the Companies' warehouse managers, merely hire the sorters,
assemble the crews, and direct their activity. The Companies' ware-
house managers assign the crews to their work and transfer them at
their discretion. Growers who desire that a particular crew sort
their potatoes, make requests of these managers and complain to them
if they are dissatisfied with the work of the crews assigned to them
and are unable to adjust their complaints through the head sorters.
Federal and State inspection authorities report errors in grading
2 Section 2 ( 3) of the National Labor Relations Act excludes agricultural laborers from
the term "employee " as defined in that section , and, consequently , from the jurisdiction of
the Board
8 Although a few head sorters and growers own such machinery , it appears to be the
practice for the Companies to furnish this equipment , which is of a specialized character
and not suited to any other use on a farm.
* The record indicates that Local Selective Service Boards have informed the workers
who were granted draft deferments as agricultural laborers , that their deferments will
expire in March 1944, unless they return to farm labor.
6 See Matter of Grower-Shipper Vegetable Association, 43 N. L . R. B. 1389; Matter of
Bauske, 38 N. L. R. B. 435, and cases cited therein.
J. R. SIMPLOT PRODUCE COMPANY 1231
to the Companies, which communicate them to the head sorters or
to the crews. The Companies pay the individual sorters by separate
checks, computing their wages on a piece-work basis from weekly
time reports 6 compiled by the head sorters. The head sorters are
paid upon the same basis as the sorters, but at a slightly higher rate.
From the above facts, we are of the opinion that the head sorters
are not independent contractors and that they and their crew mem-
bers are employees of the Companies. The sorting operation is an
integral part of the Companies' business of purchasing and shipping
potatoes; the Companies furnish the equipment and facilities for
carrying out the operation; they exercise control over the assignment
and location of work; they handle complaints in regard to the quality
of work performed. These factors, together with the manner of pay-
ment, convince us, and we find, that the relationship between the Com-
panies and the sorters is that of employer and employee.
IV. THE QUESTIONS CONCERNING REPRESENTATION
In October 1943 the Union began organizational activity among
the employees involved. It requested and was refused recognition at
C. N. Campbell Produce Company, and then attempted unsuccessfully
to reach an agreement with all the Companies upon an industry-wide
basis. Thereafter it filed the petitions in the present proceeding.
A statement of the Field Examiner, introduced into evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the units hereinafter found appropriate.7
6 The evidence reveals that J. R. Simplot Produce Company furnishes printed time sheets
for such reports , bearing the name of the Company
I The Field Examiner reported that the Union submitted membership applications and
authorizations showing the following representation in the appropriatee units:
Employer
Number
of em-
ployees
in unit
Number
of desig-
nations
submitted
Number of
designa-
t1ons, the
names of
which ap-
pear on pay
roll
Date of pay
roll checked
Date of
designa-
trons
J. R Simplot Produce Company, Paul,
Idaho ________________________________ 7 8 6 Jan 8,1944 Oct. 1943
J. R. Simplot Produce Company,
Declo, Idaho_________________________ 21 11 11 Jan. 8,1944 Nov 1943
C N Campbell Produce Company, JOct 1943
Idaho________________________
21 14 9 Dec 3,1943
Dec 1943I e
C N Campbell Produce Company,
Rupert, Idaho________________________ 20 12 11 Dec 3, 1943 Nov. 1943
L L Culbertson, Rupert, Idaho______ 9 12 6 Jan 8, 1944 Nov 1943
J. R Simplot Produce Company, JOct 1943
Rupert, Idaho ____________----------- _
24
fI 9
8 Jan 8,1944
lNov 1943
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that questions affecting commerce have arisen concerning
the representation of employees of the Companies , within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNITS
The Union desires the establishment of a separate unlit at each
of the operations involved herein. It contends that each of these
units should include sorters, head sorters, warehousemen, truck driv-
ers, and helpers, exclusive of clerical and supervisory employees. The
Companies agree that if elections are to be conducted the units re-
quested are appropriate with the exception of the inclusion of the
head sorters. The Companies contend that the head sorters should
be excluded as supervisory employees.
The head sorters work along with the sorter crews, but as indicated
above, they direct their work and hire their members. They also
exercise the authority to discharge, and possess the power to disci-
pline. We find that head sorters fall within our customary definition
of supervisory employees, and, accordingly, we shall exclude them
from the appropriate units.
We find that sorters, warehousemen, truck drivers and helpers, of
J. R. Simplot Produce Company, at Paul, Declo, and Rupert, Idaho,
respectively, excluding clerical employees, head sorters, and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or
effectively recommend such action, constitute separate units appro-
priate for the purposes of collective bargaining -within the meaning
of Section 9 (b) of the Act.
We find that sorters, warehousemen, truck drivers and helpers, of
C. N. Campbell Produce Company, at Burley and Rupert, Idaho, re-
spectively, excluding clerical employees, head sorters, and all other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees or effec-
tively recommend such action, constitute separate units appropriate
for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
We find that sorters, warehousemen, truck drivers and helpers, of
L. L. Culbertson, Rupert, Idaho, excluding clerical employees, head
sorters, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
J. R. SIMPLOT PRODUCE COMPANY 1233
VI. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction.
The Union requests that its name appear on the ballots as Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 483, and Joint Council 67, A. F. of L.
The request is hereby granted.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act , and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bar gaining with J. R. Simplot,
Burdell Curtis , Mrs. R. A. Simplot, and John D. Snow, doing business
as J. R. Simplot Produce Company , at Paul , Declo, and Rupert, Idaho,
Charles N. Campbell and Frank S. Campbell , doing business as C. N.
Campbell Produce Company , at Burley and Rupert, Idaho, and L. L.
Culbertson , Rupert, Idaho, elections by secret ballot shall be con-
ducted 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 Director for the Nineteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Ar-
ticle III, Sections 10 and 11, of said Rules and Regulations among
the employees in the units 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 dur-
ing said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls , but ex-
cluding employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elections,
to determine whether or not they desire to be represented by Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local 483 , and Joint Council 67, affiliated with
the American Federation of Labor , for the purpose of collective
bargaining.
578129-44-vol. 55-79