Kelley Brothers Nurseries, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1962

140 N.L.R.B. 82 (N.L.R.B. 1962)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelly Brothers Nurseries, Inc. and Retail Store Employees Union
Local 345, AFL-CIO, Petitioner. Case No. 3-RC-2855. Decem-
ber 11, 1962
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 Salvatore J. Arrigo, 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 Petitioner seeks to represent a unit composed of all of the
employees at the Employer's Dansville, New York, establishment, in-
cluding shipping, packing, maintenance, truckdrivers, and all other
nonagricultural employees, but excluding office clerical employees,
guards, professional employees, and supervisors, as defined by the Act
and "any other employees excluded by statute." 1
The Employer is engaged in the growing and sale, both retail and
wholesale, of nursery stock. It is one of the largest producers of fruit
trees in the eastern part of the United States. Its main establishment
is located at Dansville, New York, and consists of a 40-acre tract of
land on which various warehouses are located. In addition, the Em-
ployer operates 14 farms, all of which are within a 5- or 6-mile radius
of Dansville. Seventy percent of the Employer's gross annual income
is derived from retail sales and 30 percent from wholesale sales. In
addition to growing nursery stock, the Employer also purchases var-
ious items for resale, which constitute about 28 percent of its gross
sales.
The Employer's operations vary throughout the year depending
upon the seasons. The spring season is from March 15 until June 1;
the growing and harvesting season is from June 1 until October 15;
the fall digging and shipping season is from October 15 until the first
part of December; the winter storage and shipping season is from
the first part of December until March 15.
During the spring shipping season the Employer utilizes the services
of three different groups of employees whom the Petitioner would in-
clude in the unit. The first consists of 30 regular full-time employees;
1 Although the petition includes "retail sales" employees in the requested unit, the
Petitioner stated at the hearing that it did not seek to represent those employees operat-
ing in the Employer's retail store.
140 NLRB No. 13.
KELLY BROTHERS NURSERIES, INC. 83
the second consists of 17 employees, designated by the Employer as
"three-season employees" because they work during the spring, sum-
mer, and fall; and during 1962, the third group consisted of 106 em-
ployees hired only for this spring shipping season. The 30 regular
full-time employees spend 50 percent of their time in the warehouse
where they wrap, pack, assemble, and ship orders of products grown
during the previous year, and 50 percent of their time in the fields
trimming trees, cutting tops, cultivating, and propagating. The 17
"three-season employees" and all but 28 of the 106 hired only for this
period similarly divide their time between warehouse and fieldwork.
These 28, all women, spend their entire working time in the warehouses
preparing orders for shipment. The entire group of 106 would custom-
arily be laid off on or before June 1, and a relatively small number of
them would then be rehired for the fall digging season.
From June 1 until October 15 the Employer's operations are entirely
in the fields and the warehouses are closed. The 30 regular full-time
employees and the 17 "three-season employees" spend all of their time
propagating, cultivating, spraying, budding, trimming trees, and per-
forming other related activities.
From October 15 until the first part of December, the 30 regular
full-time employees, the 17 "three-season employees," and a relatively
small number of employees (23 in 1961) rehired out of the group of 106
employees mentioned above, are engaged in digging nursery stock.
This digging continues as long as weather permits. From the middle
of November until the fall digging is completed, five or six regular full-
time employees are assigned to the warehouse where they unload the
trees that have been dug and place them in storage for the winter.
From December, after the fall digging season is over, until March
15, the only employees retained are the 30 regular full-time employees.
During this time, they are primarily engaged in grading, bundling,
and packing away products grown during the previous season. In ad-
dition, six of them spend some of their time receiving, grading, and
storing purchased products. Five or six employees also spend some
time in the fields, weather permitting, protecting the growing stock
from rabbit damage and engaging in general fieldwork such as trim-
ming and cutting tops.
The Employer contends, inter alia, that the employees in the unit
sought by the Petitioner are agricultural laborers within the meaning
of Section 2(3) of the Act and are, therefore, not subject to its pro-
visions. The Petitioner asserts that they are employees within the
meaning of the Act because they are not engaged in agriculture, but in
a separate commercial enterprise.
The Board's annual appropriation rider directs in effect that in de-
termining whether an employee is an agricultural laborer within the
681-492-63-vol. 140-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(3), it shall be guided by the definition set forth
in Section 3 (f) of the Fair Labor Standards Act.' That section states :
"Agriculture" includes farming in all its branches and among
other things includes the cultivation and tillage of the soil, dairy-
ing, the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities . . . the raising of live-
stock, bees, fur-bearing animals, or poultry, and practices .. .
performed by a farmer or on a farm as an incident to or in con-
junction with such farming operations, including preparation for
market, delivery to storage or to market or to carriers for
transportation.'
This broad definition encompasses two distinct types of activities
which have been classified as the "primary" and "secondary" defini-
tions of "agriculture." 4 The field operations herein clearly come
within the "primary" definition of "agriculture" which includes, "till-
age of the soil . . . the production, cultivation, growing, and harvest-
ing of any agricultural or horticultural commodities." The remain-
ing operations of the Employer with respect to its own produce, such
as loading and unloading, grading, placing in storage, wrapping,
packing, generally preparing products for shipping, and the trans-
portation of these products from the field to the warehouse come
within the "secondary" definition of "agriculture," as they are inci-
dental to and in conjunction with the Employer's farming Operations.'
As has been pointed out, however, 28 percent of the Employer's
gross annual income is derived from resale of items which it purchases
from other producers. Work performed on such purchased products
does not fall within the secondary definition of agriculture because
it is not performed by a farmer as an incident to or in conjunction
with his own farming operations or on a farm in conjunction with
the operations of that particular farm.6 When purchased products
are delivered to the Employer's warehouse they are intermingled
with its own produce. No effort is made to separate the purchased
items from those grown by the Employer or to segregate the em-
ployees in accord with whether they work on purchased or Employer-
grown stock. In view of such indiscriminate handling of both pur-
chased and Employer-grown items, we infer, and find, that all
warehouse employees spend part of their time working on purchased
materials. We have been administratively advised by the Depart-
ment of Labor that it considers all employees who work on mingled
stock to be engaged in covered employment. We note, moreover,
a The Sweetlake Land and Oil Company, Inc, 138 NLRB 155.
329 U.S.C. 203(f).
4 The Sweetlake Land and Oil Company, Inc , supra.
6Farmers Reservoir & Irrigation Co v. McComb, 337 U.S. 755, 763.
"Mitchell v. Huntsville Wholesale Nurseries , Inc„ 267 F. 2d 286, 290 ( C A. 5) (1959)
see also The Sweetlake Land and Oil Company, Inc, supra
KELLY BROTHERS NURSERIES, INC. 85
that the United States District Court for the Western District of
New York has entered an injunction against the Employer's violation
of the Fair Labor Standards Act "without contest."
Since the record shows that a substantial part of the Employer's
business consists of dealing in products purchased from others and
since we have found that all warehouse employees spend part of their
time working on such purchased products, we conclude that the em-
ployees sought herein are not "agricultural laborers" within the mean-
ing of Section 2(3) of the Act. Accordingly, we find that the Board
has jurisdiction herein and that a 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.'
The petition describes the unit sought as consisting of "All employees
at the Employer's Dansville, New York, establishment," with the usual
statutory exclusions. The Employer takes the position that the em-
ployees hired only for the spring and fall shipping seasons are casual
employees and should be excluded from the unit as described above.
The Petitioner seeks to include them. The Petitioner would exclude
Prideaux and Sauerbier as supervisors and the night watchman on the
ground that he is a guard. The Employer would include Prideaux
and Sauerbier, but takes no position as to the watchman.'
The record shows that of 75 employees who worked in the spring of
1961, 29 returned for the spring 1962 season. Of 23 employees who
worked in the fall 1961 season, 8 had also worked in the spring 1961
season. All these employees come from the immediate vicinity of the
Employer's operation and many return each season looking for work.
Although the Employer has no formal policy concerning recall, a
substantial portion of the employees do come back to work. While on
the job, these employees perform substantially the same work as the
other employees and do so under the same supervision. Under all the
circumstances, and particularly since the regularity of their employ-
ment indicates a relatively stabilized demand for, and dependence on,
such employees by the Employer and, likewise, a reliance on such em-
ployment by a substantial number of employees in the labor market
who return to the Employer's operation each season, we find that they
are seasonal employees who share sufficient interests in employment
' The record shows that all the employees spend either all or part of their time working
in the warehouse and that most of the employees perform agricultural labor in the fields
as well As we have found that all the employees perform a regular amount of non-
agricultural work, they are covered by the Act to the extent that they engage in non-
agricultural work. The Sweetlake Land and 0sl Company , Inc., supra ; 0laa Sugar
Company, Limited, 118 NLRB 1442.
8 The night watchman is employed from January to June and works from 8 p in. to
6 am His duties include making rounds of the buildings , checking locks and doors,
preventing unauthorized persons from entering the property, watching for fires , and pre-
venting vandalism . This employee is clearly a guard and we shall exclude h im from
the unit
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions with the other employees to warrant their inclusion in the
unit. Accordingly, we shall include them.'
Prideaux is a plant propagator who spends 10 months of the year
working in the fields and greenhouses engaged in clearly agricultural
labor. One week is spent in the office drawing plans for customers
and answering mail. The balance of the year (approximately 7 weeks)
is spent in the warehouse grading shrubs. During 1961, he spent 1 day
a month and 1 full week acting as principal supervisor of the entire
operation because of the simultaneous absence of both Kelly brothers.
He also assigns employees to work in certain fields and moves them to
other fields when their jobs are completed. In doing so, he exercises
independent judgment. He is salaried, does not punch a clock, and
earns almost twice as much as the average earnings of the other em-
ployees. As he is a regular full-time employee who spends only 2
months of the year in nonagricultural work and as some of this 2-month
period is spent either in work outside the unit or in supervisory duties
within the unit, we find that he lacks a sufficient community of inter-
est with the employees in the unit. We shall, therefore, exclude him.lo
Sauerbier spends most of the year working in the fields as an agri-
cultural laborer. He also spends part of the year calling on potential
customers and attending trade shows and nursery meetings. During
the spring shipping season of approximately 21/2 months, he works in
the warehouse with 15 to 20 other employees packaging plants. While
doing so, he assigns work to the other employees, shifts them from one
operation to another, recommends individuals for overtime work,
which recommendations are normally accepted by the Employer, and
reports directly to one of the Kelly brothers. He receives a salary plus
commissions and does not punch a timeclock. As Sauerbier spends
none of his time doing unit work but devotes all his time either to
representing the Employer away from the operation, doing agricul-
tural work, or acting as a supervisor, we shall exclude him.L
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act :
All warehouse employees, including shipping, packing, and mainte-
nance employees, and truckdrivers employed by the Employer at its
Dansville, New York, warehouses, but excluding office clerical em-
ployees, professional employees, agricultural laborers, guards, night
watchmen, and supervisors as defined in the Act.
5. In accordance with the usual practice in seasonal operations of
this kind, the Board will direct that the election be held at or about
the approximate seasonal peak, on a date to be determined by the
U California Vegetable Concentrates, Inc., 137 NLRB 1779.
10 United States Gypsum Company, 127 NLRB 134.
11 Cf. The Great Western Sugar Company, 137 NLRB 551.
CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 87
Regional Director, among the employees in the appropriate unit who
are employed during the payroll period immediately preceding the
date of the issuance of the notice of election by the Regional Director.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
Cleveland Woolens, a Division of Burlington Industries, Inc. and
Textile Workers Union of America , AFL-CIO-CLC
Cleveland Woolens, a Division of Burlington Industries , Inc. and
Textile Workers Union of America , AFL-CIO-CLC, Petitioner.
Cases Nos. 10-CA-4859 and 10-RC-5068. December 12, 1962
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On August 22, 1962, Trial Examiner Joseph I. Nachman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8 (a) (1) of the Act and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. The Trial
Examiner also found that certain activities engaged in by the Respond-
ent created an atmosphere of fear and reprisal which interfered with
the employees' freedom of choice in the selection of a bargaining
representative in the election conducted in the above representation
proceeding,' and recommended setting aside that election and remand-
ing the case to the Regional Director for the Tenth Region to conduct
a new election at such time as he deems the circumstances permit the
free choice of a bargaining representative. Thereafter, the Respond-
ent and the Charging Party-Petitioner filed exceptions to the Inter-
mediate Report and briefs in support thereof.
The Board 2 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 Interme-
' Pursuant to a petition duly filed by the Petitioner an election was conducted on
November 16, 1961, which the Petitioner lost. Objections to conduct affecting the results
of the election were duly filed, and in due course a hearing was directed concerning objec-
tion No. 1, which is the substance of the representation case before us, and which was
consolidated with the instant unfair labor practice case.
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Leedom, Fanning, and Brown].
140 NLRB No. 5.