L and A Investment Corp. of Arizona

National Labor Relations Board - Board Decisions

Dec 17, 1975

221 N.L.R.B. 1206 (N.L.R.B. 1975)

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L and A Investment Corporation of Arizona and Fresh
Fruit & Vegetable Workers, Local P-78-B, Amal-
gamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO. Case 21-RC-13628
December 17, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer John A.
Rust on April 8, 1974. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, this case
was transferred to the National Labor Relations
Board for decision by direction of the Regional
Director for Region 21. Both parties waived the filing
of briefs at the hearing.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They 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 and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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 Petitioner seeks to represent a unit of six
workers at the Employer's storage facility in El
Centro, California. The Employer contends that
these individuals are "agricultural laborers" exempt
from the Act's coverage by virtue of the definition of
"employee" contained in Section 2(3) of the Act.'
The Employer is an Arizona corporation engaged
in the growing and wholesale marketing of green
onions and miscellaneous other fruits and vegetables.
All produce is grown on approximately 1,600 acres of
land in Baja California, Mexico. The Employer does
not lease or own any land for the growing of corps,
t Sec . 2(3) exempts from the definition of "employee" "any individual
employed as an agricultural laborer.
2 29USC §205(f)
but contracts with four Mexican citizens who lease
the land in their names. The four ranchers are paid a
fixed salary plus commission by the Employer, which
also provides advisors and supervision and pays all
seed, supply, and labor costs in connection with
growing and harvesting the produce.
Following completion of harvesting operations, the
produce is transported to a packing shed known as
Kilometer 43. The packing shed is independently
owned, and commercially prepares and packages
produce grown on farms other than those leased by
the Employer, as well as for the latter. None of the
packing shed workers located at Kilometer 43 is
employed by the Employer. These workers ice and
box the Employer's produce for shipment to the
United States. It is then trucked by Mexican
common carrier to the Employer's marketing facility
in El Centro, California, where the employees in the
proposed unit unload the boxes and temporarily
store them in refrigeration units. Within a period of I
to 2 days, these employees then reload the refrigerat-
ed produce onto the trucks of buyers for shipment to
retail outlets.
Section 2(3) of the Act expressly excludes from the
definition of "employee" any individual employed as
an agricultural laborer. Annually, since 1946, Con-
gress has added a rider to the Board's annual
appropriation measure which, in effect, directs the
Board to be guided by the definition of "agriculture"
provided in section 3(f) of the Fair Labor Standards
Act2 in determining whether an individual is
employed as an "agricultural laborer" within the
meaning of Section 2(3) of the Act. The Board has
frequently stated that it was its policy to consider the
interpretation of section 3(f) adopted by the Depart-
ment of Labor in view of that agency's responsibility
and experience in administering the FLSA.3 Section
3(f) of the FLSA reads, in pertinent part, as follows:
... agriculture includes farming in all its
branches and among other things includes .. .
the production, cultivation, growing and harvest-
ing 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 operation, including preparation for
market or to carriers for transportation to market.
The employees located at the Employer's El Centro
marketing facility are not engaged in direct farming
operations of the type enumerated in the "primary"
definition of "agriculture." The question then is
3 Jack Frost, Inc, 201 NLRB 659, 660 (1973), McAnally Enterprise, Inc,
152 NLRB 527, 529 (1965)
221 NLRB No. 199
L AND A INVESTMENT CORP. ' OF ARIZONA 1207
whether they are engaged in-activities included in the
"secondary" definition of there term.4 The determi-
nation requires that the character of the particular
function be evaluated to determine whether it is
performed for a 'farmer or on a farm, and, if it is,
whether it is part of the agricultural activity or a
distinct business activity. The totality, of the situation
controls, and not the application of isolated factors
or tests.5
No practices performed on agricultural commodi-
ties are exempted by virtue of section 3(f) of the
FLSA unless performed by a farmer or on a -farm.
The Employer asserts it is a farmer: However, the
Employer - does not lease or own any land for the
growing of crops, but instead contracts with four
Mexican ranchers who lease land in their names .6
Under these 'contracts, the farmers are paid on a
commission basis presumably based upon the yield
and quality of the crops. The Employer provides all
supplies and financing in -connection -with the
growing of crops. The four ranchers, however,
conduct the growing operations. They are given
weekly advances to meet expenses incurred in
connection with harvesting, growing, and packing.
Regulations issued by the Department of Labor
provide that where commodities are grown under
contract with a person who provides a farm market,
contributes counsel and advice, makes cash ad-
vances, and otherwise assists the grower who actually
produces the crops, it is the grower and not the
person with whom he contracts who is the farmer
with respect to that crop.? This is true even though
the contract gives title to the crop at all times to the
contractor and confers on him the right to supervise
the growing operations.8
Thus, since the Employer does not actually engage
in growing operations, there is a substantial question
as to whether it is a farmer within the meaning of
section 3(f) of the FLSA. We do not decide this issue,
however, since we find that even if the employer is a
farmer the employees in the petitioned-for unit are
not engaged in an agricultural activity.
The secondary definition of agriculture contained
in section 3(f) is intended to exempt operations
which precede delivery to market and which are
performed on farm commodities to prepare them for
market. The Department of Labor has, in its
Interpretative Bulletins, taken the position that
"delivery to market" refers to the initial journey of
the farmer's products from the farm to a distributing
agency, wholesaler, or processor.9 In the instant case,
4 Farmers Reservoir & Irrigation Co v. McComb, Wage and Hour
Administrator, 337 U.S 755, 762 (1949).
5 Jack Frost, Inc, supra at 660, and McAnally Enterprise, supra at 530
6 The conclusion that the Employer does not own or lease cropland is
not altered by the fact that the Employer's arrangement with these ranchers
may have resulted from an effort to conform to Mexican law which prevents
it is clear that all operations performed by the
employees which Petitioner seeks to represent occur'
subsequent to "delivery to market" as that term has
been interpreted by the Department of Labor, since
all packing, sorting, - and icing of the produce
previously has, been performed by an independent
Mexican packing house and the produce has been
transported by Mexican common carrier ' to the
United States prior to handling by the, employees
here in dispute'. At its El Centro location the
Employer merely receives and processes sales orders
and'makes delivery to its various customers, who in'
turn deliver the prepacked- produce to retail outlets:
Thus, we conclude- that the Employer is engaged at
its El Centro facility in the wholesale distribution of
vegetable produce, a wholly commercial operation.
Consequently, since the employees in the proposed
unit perform operations only at that facility, we
conclude that the work performed by them, i.e., the
loading, handling, and reloading of prepacked
produce, is not performed "as an incident to or in
conjunction with farming operations. " to Therefore,
we find that the Employer's loading and storage
workers are employees within the meaning of the Act
and that a question affecting commerce exists
concerning their representation.
4, The appropriate unit: The parties stipulated
that in the event the employees herein were found
not to be agricultural laborers within the meaning of
section 3(f) of the Fair Labor Standards Act, and
were therefore employees within the meaning of
Section 2(3) of the Act, the unit sought by the
Petitioner is an appropriate unit. We so find.
There remains in issue , however, the unit place-
ment of two part-time employees and Foreman Jim
Puyot. The Employer contends that these employees
should be excluded from the unit while Petitioner
contends they should be included.
Each of the two part-time employees in dispute has
worked at the Employer's storage facility approxi-
mately 3 months. Both average 15 to 20 hours of
work per week and are paid the same wages as other
employees. In addition, both perform the same
loading, stacking, and unloading functions as other
employees. Under these circumstances, we find no
basis for excluding these employees from the request-
ed unit.
The parties also disagree as to the supervisory
status of Foreman Jim Puyot. Puyot was hired as a
a foreigner from owning or leasing land in Mexico.
7 See 29 CFR 780.141; Mitchell v Huntsville Wholesale Nurseries, Inc,
267 F 2d 286 (CA 5, 1959)
8 29 CFR 780.149
9 29 CFR 780.154.
10 See Jack Frost, Inc., supra
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman . at the Employer's storage facility by
Supervisor Robert 'Gong.11 Puyot has worked for the
Employer for approximately 6 months. His primary
duties include picking up manifests from Gong,
directing the loading of produce onto buyers' trucks,
checking the number of loaded boxes against the
manifest, and returning the manifest to his supervisor
with his signature and notations of time of loading
and number of boxes loaded. He rarely performs
loading work and receives 25 cents an hour more
than other employees. On occasions when employees
seek permission to leave, the job, it is Puyot who
grants and approves time off. In addition, Puyot
approves overtime and calls in additional part-time
help based on his determination of what 'the
workload, requires. According to Supervisor Gong,
Puyot retains the ,authority to hire, fire, and disci-
pline, although neither Puyot nor Gong has had
occasion to fire any employee.
In light of the foregoing facts, we find that Puyot is
a supervisor within the meaning of the Act. In so
finding, we place particular reliance on the fact that
Puyot independently calls in additional help in case
of an increased workload, grants time off, and
approves overtime. Accordingly, we shall exclude
him from the unit. -
We find the following .employees of L and A
Investment Corporation of Arizona Constitute a unit
appropriate for the purposes of collective -bargaining
within the meaning of Section 9(b) of the Act:
All employees engaged in the loading, unloading,
and handling of green onions and miscellaneous
fruits and vegetables at the Employer's El Centro,
California, location, excluding office clericals,
guards, and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
u The parties stipulated that Gong is a supervisor within the meaning of
the Act