L. Bianchi & Son

National Labor Relations Board - Board Decisions

Jan 14, 1954

107 N.L.R.B. 864 (N.L.R.B. 1954)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE V
Seniority Seniority rights for employees shall prevail. Seniority shall be broken
only by discharge, voluntary quit, or more than a two-year lay-off. In
Section 1 the event of a lay-off, an employee so laid off shall be given two-weeks'
notice of recall mailed to his last known address In the event the employee
fails to make himself available for work at the end of said two weeks, he
shall lose all seniority rights under this Agreement A list of employees
arranged in the order of their seniority shall be posted in a conspicuous
place at their place of employment Stewards shall be granted super-
seniority for purposes of lay-off and rehire only, if requested by the
Local Union within thirty (30) days after the effective date of this agree-
ment, but only one steward shall have super-seniority for purposes of
lay-off Any controversy over the seniority standing of any employee
on this list shall be referred to the Union for settlement. Such determina-
tion shall be made without regard to whether the employees involved are
members or not members of a Union
Section 2 The Employer shall not require, as a condition of continued employment,
that an employee purchase truck, tractor and/or tractor and trailer or
other vehicular equipment.
Section 3 (a) All runs and new positions are subject to seniority and shall be posted for
bids Posting shall be at a conspicuous place so that all eligible employees
will receive notice of the vacancy, run or position open for bid, and such
posting of bids shall be made not more than once each calendar year,
unless mutually agreed upon Peddle runs shall not be subject to bidding
Past practice shall prevail in bidding on peddle runs
(b) When it becomes necessary to reduce the working force, the last man
hired shall be laid off first, and when the force is again increased, the
men are to be returned to work in the reverse order in which they are
laid off
Section 4 (a) In the event that the Employer absorbs the business of another private,
contract or common carrier, or is a party to a merger of lines, the
seniority of the employees absorbed or affected thereby shall be determined
by the Union or Unions having jurisdiction over said employees Such
determination shall be made without regard to whether the employees
involved are members or not members of a Union
(b) If the minimum wage, hour and working conditions in the company ab-
sorbed differ from those minimums set forth in this Agreement, the
higher of the two shall remain in effect for the men so absorbed
Section 5 The Union reserves the right to cut the seniority board when the average
weekly earnings fall to $75 or less This is not to be construed as im-
posing a limitation on earnings
GEORGE BIANCHI AND LOUIS BIANCHI, d/ b/ a L. BIANCHI
& SON and UNITED FRESH FRUIT & VEGETABLE WORKERS
LOCAL INDUSTRIAL UNION NO. 78, CIO, Petitioner. Case
No. 20-RC- 2340. January 14, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before David E.
107 NLRB No 161
L. BIANCHI & SON 865
Davis, 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 employees 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 "em-
ployees" within the meaning of the Act, but are "agricultural
laborers" over whom the Board may not assert jurisdiction.
The Employer, a family partnership, grows tomatoes on
some 80 acres of land it leases in Merced, California, and
trucks them to a packing shed it leases 16 miles away, where
it cleans, sorts, and packs them for sale. The father, Louis
Bianchi, owns the packing shed individually and leases it
to the partnership. This shed, which is 60 by 40 feet with
a roof and cement platform, contains equipment owned by
the partnership and valued at approximately $8,000.
The packing season is some 6 weeks long, about June 15
to August 1. During the fiscal year ending August 1, 1953,
the Employer packed 43-45 carloads of tomatoes with the
assistance of about 20 to 25 workers. About 4 of the workers
are brought in from the Employer's farm. One partner,
Louis Bianchi, supervises the field operations; his son, the
other partner, oversees the packing shed activities. Separate
time and payroll records are kept for the two classes of
workers, field and packing shed.
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 investigations, hearings, directives, or
orders concerning bargaining units composed of agricultural
laborers as referred to in . . . Section 3 (f)" of the Fair Labor
Standards Act (29 U.S.C.A. 203 (f)).'
It is clear that this Employer is engaged in the single,
indivisible enterprise of growing the tomatoes and preparing
them for market. Although the Employer also packs a small
amount of tomatoes grown by others, this represented less
than 5 percent of its current, and about 2 percent of the pre-
ceding, pack. We conclude, therefore, that the Employer
'That section , so far as here pertinent , reads as follows : " . agriculture includes
farming in all its branches and among other things includes ... the production, cultivation,
growing 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."
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operates the packing shed "as an incident to or in conjunc-
tion with" its 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.2
Accordingly, no question affecting commerce exists con-
cerning the representation of employees of the Employer
within the meaning of Section 9 (c) (1) of the Act, and we
shall dismiss the petition herein.
(The Board dismissed the petition.]
2 See Dofflemyer v, N. L. R. B., 206 F . 2d 813 (C. A. 9).
CONE MILLS CORPORATION (TABARDREY PLANT) and
LOCAL UNION 295, UNITED TEXTILE WORKERS OF
AMERICA, AFL, Petitioner . Case No . 11-RC-416. Jan-
uary 14, 1954
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election' issued
in this proceeding on November 5, 1952, a runoff election
by secret ballot was conducted on December 10, 1952, under
the direction and supervision of the Regional Director for the
Eleventh Region, among employees in the unit found appropriate
by the Board. Following the election, a tally of ballots was
furnished the parties. The tally shows that 399 ballots were
cast in the election of which 197 were for the Petitioner,
195 were against the Petitioner, 4 were void, and 3 were
challenged. As the challenged ballots were sufficient in number
to affect the results of the election, the Regional Director
investigated the eligibility of those individuals who wgre
challenged. Thereafter, on March 2, 1953, the Regional
Director is sued a report on challenges in which he recommended
that the challenges be overruled and that the ballots be opened
and counted.
On March 15 and 16, respectively, the Employer and the
Petitioner filed exceptions to the report on challenges and,
on March 18, the Petitioner filed a motion to strike the Em-
ployer's exceptions. On April 14, 1953, the Board issued an
Order denying the motion and directing a hearing on the
challenged ballots. Pursuant to this Order, a hearing was
held before Jerold B. Sindler, hearing officer, at which the
Employer and the Petitioner appeared and participated. On
August 3, 1953, the hearing officer issued and caused to be
'Not reported in printed volumes of Board Decisions.
107 NLRB No. 159.