John C. Maurer & Sons

National Labor Relations Board - Board Decisions

Jun 22, 1960

127 N.L.R.B. 1459 (N.L.R.B. 1960)

JOHN C. MAURER & SONS 1459
Employer's other production and maintenance employees.2 As the
Petitioner has not made an adequate showing of interest in the overall
unit and as the unit it seeks is inappropriate, we shall dismiss the
petition.
[The Board dismissed the petition.]
2 Lily Tulip Cup Corporation , 124 NLRB 982.
B. F. Maurer, an individual doing business under the name and
style of John C. Maurer & Sons' and Local 78, United Pack-
inghouse Workers of America , AFL-CIO, Petitioner. Case
No. 20-RC-4014. June 22, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Albert Schneider, 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 certain em-
ployees of the Employer.
3. 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 grows celery on about 200 acres of farmland which
he owns or leases near Stockton, California. The Employer trans-
ports the celery by truck to a packing shed that he leases in Stockton,
a location ranging in distance from 3 to 16 miles from the farms. At
the packing shed, the celery is cleaned, sorted, and packed for sale.
The shed, about 23,000 square feet in area, contains equipment owned
or rented by the Employer and valued at approximately $10,000.
The packing season begins about October 15 of each year and ends
about March 15 of the following year. During the calendar year
ending December 31, 1959, the Employer packed about 150,000 crates
of celery with the assistance of 20 to 50 workers. The field operations
are supervised by a foreman of farm operations and the packing-shed
activities are supervised by a packing-shed superintendent. Separate
time and payroll records are kept for the two classes of workers, field
and packing-shed. The packing-shed employees work in the fields
1 The name of the Employer appears as corrected at the hearing.
127 NLRB No. 161.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
harvesting celery an estimated 35 percent of their working time; the
field employees work only on the farms.
Section 2(3) of the National Labor Relations Act excludes from
the definition of the term employee "any individual employed as an
agricultural laborer." Annually since 1946, Congress has added a
rider to the appropriation for the Board, providing that no part of
the appropriation "shall be ... used in connection with investiga-
tions, hearings, directives, or orders concerning bargaining units com-
posed of agricultural laborers as referred to in ... Section 3(f)" of
the Fair Labor Standards Act (29 USCA 203 (f)) 2
It is clear that this Employer is engaged in the single, indivisible
enterprise of growing celery and preparing it for market. Although
the Employer packs a small amount of celery grown by others, this
represented only 8 percent of its 1959 pack. We conclude, therefore,
that the Employer operates the packing shed "as an incident to or in
conjunction with" the "farming operations ," and not as a separate
commercial enterprise. In view of the foregoing, we find the packing-
shed workers here involved to be "agricultural laborers" within the
meaning of Section 2(3) of the National Labor Relations Act. In
certain circumstances, as indicated by the dissent herein, the Board
has found that packing-shed employees, when engaged in a separate
commercial enterprise, are not agricultural workers but are employees
within the meaning of the Act. However, where, as.here, the Em-
ployer packs its own produce, packs only a small amount of celery for
others, has only a modest packing-shed financial investment, and uti-
lizes its packing-shed employees for more than one-third of their
working time in harvesting operations on its farms, we have held such
packing-shed employees to be agricultural workers. Unlike our dis-
senting colleague, we do not regard our decision in this case as incon-
sistent with Board precedent.'
Accordingly, no question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9(c) (1) of the Act. We shall therefore dismiss the petition
herein.
[The Board dismissed the petition.]
2 That section reads, in pertinent part, as follows . ". .. agriculture includes farming
in all its branches and among other things includes . the production , cultivation, grow-
ing and harvesting of any agricultural . . . commodities . . . and any practices . . .
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 "
8 George Bianchi, et al., d/ b/a L. Bianchi & Son, 107 NLRB 864, K. Malofy d Son and
Roy Hart, 107 NLRB 943 ; ef. Maneja v. Waialua Agricultural Co., 349 U . S. 254 The
Cochran Co , Inc, case, 112 NLRB 1400 , relied on by the Petitioner is distinguishable.
There, unlike here, the farming operations were conducted by a partnership or joint venture
and the packing operation was carried on away from the farms by one of the partners or
joint partners in conjunction with a commission business The other cases adverted to by
the Petitioner are not deemed controlling here.
JOHN C. MAURER & SONS 1461
MEMBER JENKINS, dissenting :
I cannot agree with my colleagues in denying an election to the
packing-shed employees.
The Employer operates a packing shed for packing celery in down-
town Stockton, California. At this location, adjacent to the Santa Fe
Railroad, it conducts its packing in assembly line fashion with a
separate work force and with equipment valued at about $10,000. The
packing shed is about 3 to 23 miles from the farms where the celery
is grown. The Employer also does packing for two other growers
who grow the celery on their own lands and with their own employees
and equipment. The packing shed is operated for a substantial
period of time, i.e., from about October 15 to about March 15, with an
employee complement ranging from 20 to 50 at the peak of the season.
There is a clear dichotomy between the farm employees and the
packing-shed employees. The packing-shed employees have their own
separate supervision, being supervised by a packing-shed superin-
tendent; they are carried on a separate payroll. They are paid $1.15
to $1.25 an hour in contrast to the planting and harvesting employees
on the farm who are paid $1 an hour.
In a long line of cases in which the facts were substantially similar
to these, the Board has held that packing-shed operations under these
circumstances constituted a separate commercial enterprise separate
and apart from the Employer's farming operations and that the
employees were therefore not agricultural employees.' I have every
reason to believe that my colleagues are aware of these cases. None-
theless, they have chosen to single out from among the precedents,
decisions issued both before and after the cases cited in their opinion,
two decisions which deviated from the mainstream of Board decisional
policy and which, significantly enough, involve packing operations
of 6 weeks and a month's duration, respectively. An analysis of the
entire body of precedent, however, makes it clear that where, as here,
the packing-shed operations are substantial and are carried on for a
period of 6 months throughout the year as a completely separate
operation, under separate supervision, on their own individual payroll,
the determination, if it is to be governed by past decisions, must neces-
sarily result in the finding that these employees are not agricultural
and are therefore entitled to a representation election under the Act.
Indeed, if there is any inconsistency between the cases my colleagues
rely on and all the rest, I see no logical reason for singling out as
*Albert Rossi, d/b/a Al Rossi Produce Company, 103 NLRB 750; J. J. Crosetti, et al.,
d/b/a J. J. Crosetts Co., 98 NLRB 268; D'Arrigo Bros. Co. of California, 93 NLRB 827;
Colorado River Farms, et al., 99 NLRB 160, 162; Antle Carrots, Inc ., 110 NLRB 741, 742;
Holme d Seifert and Grower -Shipper Vegetable Association of Central California, 102
NLRB 347, 355 ; Nephi Processing Plant, Inc., 107 NLRB 647; Danny Danenberg, 103
NLRB 714; Cochran Co., Inc ., 112 NLRB 1400, 1406 ; Waldo Rohnert Company, 120
NLRB 152.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
citation for support the two that appear to depart from precedent
without a stated reason or rationale, and to disregard the long line
of established policy which, as I have already indicated, existed before
and continued in force thereafter.
L. B. Woods, L. J. Reischman, C. D. Dofflemeyer & G. W. Ewing,
d/b/a Breckenridge Gasoline Company and Local 4-245, Oil,
Chemical and Atomic Workers International Union, AFL-
CIO and Oil, Chemical, and Atomic Workers International
Union, AFL-CIO and R . D. Minnich and B . W. Dellinger.
Cases Nos. 16-CA-1018, 16-CA-1089, 16-CA-1167, and 16-CA-
1168. June 24, 1960
DECISION AND ORDER
On September 28, 1959, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report together with a supporting
brief.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case,2 and finds merit in certain of the Respondent's exceptions. Ac-
cordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent
herewith.
1. We agree with the Trial Examiner that the wage increase
granted unilaterally by the Respondent close to the date of the elec-
tion in March 1957 constituted a violation of Section 8(a) (1) of
the Act.
1 The Respondent has requested oral argument . This request is hereby denied because
the record and the exceptions and brief adequately present the issues and the positions of
the parties.
2 The Charging Parties have moved that the Board refrain from considering the Re-
spondent 's exceptions and supporting brief as they were not duly served with copies
thereof. The record indicates that representatives of the General Counsel and the
Respondent made appearances at the hearing. No appearances were made for the Charg-
ing Parties . The Respondent timely served the General Counsel with the exceptions and
brief. Subsequent to this motion the Charging Parties were also served wtih copies of
the exceptions and supporting briefs. As the General Counsel was timely served and as
the Respondent's error was not prejudicial to the -Charging Parties, we hereby dismiss
their motions.
127 NLRB No. 176.