Mario Saikhon, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1986

278 N.L.R.B. 1289 (N.L.R.B. 1986)

MARIO SAIKHON, INC.
Mario Saikhon , Inc., Employer-Petitioner and
Fresh Fruit & Vegetable Workers Union, Local
P-78-B , affiliated with the United Food &
Commercial Workers Union, AFL-CIO, CLC
and United Farm Workers of America, AFL-
CIO. Cases 21-RM-2274 and 21-RM-2276
27 March 1986
DECISION ON REVIEW AND ORDER
REMANDING PROCEEDING
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
Upon petitions duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held on 21 December 1983 and 18 January 1984 in
the above-captioned proceeding . In a Decision and
Order dated 2 March 1984 the Acting Regional Di-
rector for Region 21 concluded that the petitioned-
for employees are exempt from coverage by the
Act because they are "agricultural laborers" within
the meaning of Section 2(3) and he dismissed the
petitions . Thereupon , in accordance with Section
102.67 of the Board 's Rules, the Employer/-
Petitioner filed a timely request for review of the
Acting Regional Director's decision . By telegraph-
ic order dated 23 May 1984 , the Board granted
review of the Acting Regional Director 's determi-
nation that the Board lacks jurisdiction over the
disputed employees . All parties to this proceeding
filed a brief on review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case and makes the following findings.
The Employer is a California corporation which
grows , harvests , packs, and ships broccoli , canta-
loupes, and other agricultural commodities grown
in the Imperial Valley of California. In addition to
harvesting and packing its own broccoli and canta-
loupes , the Employer harvests and packs broccoli
and cantaloupes grown by other farmers on prop-
erty it does not own. The Employer has a "joint
deal" with some of these farmers and merely does
the-packing for others. In the three most recent
broccoli-growing seasons and the four most recent
cantaloupe-growing seasons the Employer per-
formed over 50 percent of its cantaloupe and broc-
coli harvesting and packing for other growers.
Prior to late 1983, the Employer transported har-
vested broccoli and cantaloupes to an off-the-field
packing shed in Holtville , California, where the
cantaloupes were culled, . sorted by size, and
packed , and the broccoli were culled , secured in
bunches , and packed . In late 1983 the Employer
1289
stopped packing broccoli and cantaloupes in the
packing shed and began performing these oper-
ations out in the growing fields on field packing
machines.
The Employer has a contract with Local P-78-B
of the Fresh Fruit and Vegetable Workers which
recognizes Local P-78-B as the exclusive bargain-
ing representative of its packinghouse and lettuce-
vacuum-cooler employees. The parties stipulated
that Local P-78-B is a labor organization within
the meaning of the Act. The United Farm Workers
of America, AFL-CIO (UFW) has been certified
under the California Agricultural Labor Relations
Act as the exclusive bargaining representative for
all of the Employer 's agricultural employees, ex-
cluding off-the-farm packing shed and vacuum-
cooler plant employees . Both Unions sought recog-
nition from the Employer as bargaining representa-
tive of the employees who operate and work on
the field packing machines . In response , the Em-
ployer filed the instant RM petitions : one for the
cantaloupe field packing operation and one for the
broccoli field packing operation.'
When broccoli and cantaloupes were packed in
the shed , the Employer's employees would "cut"
the broccoli and "pick" the cantaloupes in the field
and put them in the back of a slow -moving truck
or onto a conveyor belt that deposited them in a
trailer drawn slowly by a tractor . The Employer's
drivers then hauled the produce from the field to
the shed and emptied it into a large "dumper." The
dumper automatically fed the produce onto a con-
veyor belt. On the broccoli line, "bunchers" gath-
ered loose broccoli into bunches of one of two
standard sizes and inserted each bunch into a ma-
chine that snapped a rubberband around it and
trimmed the stems . The bunchers put the bunched
broccoli on another conveyor belt from which it
was taken by "packers" who packed the bunches in
cardboard cartons according to size . The packers
rested the cartons being packed next to the con-
veyor belt on waist-high packing stands . Nearby,
"make-up" employees assembled the cardboard
cartons on a hot melt glue machine and put them
within reach of the packers. The packers put the
packed cartons on another conveyor where they
were filled with ice by "icers" and then sealed by a
"closer." The closer's primary responsibility was to
watch a stapling machine that automatically sealed
the cartons . If a seal did not hold, the closer would
I The cantaloupe petition seeks an election among field processing em-
ployees engaged in packing, closing , loading , and box making for canta-
loupes, machine operators , and trailer pullers. '
The broccoli petition seeks an election among field processing employ-
ees engaged in trimming , bunching, packing , closing , and loading of broc-
coli, machine operators, and trailer pullers.
278 NLRB No. 166
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seal the carton with a hand gun . "Set off" employ-
ees removed the sealed cartons from the conveyor
and stacked them on pallets . "Forklift loaders"
then moved the pallets onto a forklift carrier.
"Strappers" secured the palletized cartons with
plastic straps . Finished pallets were either loaded
directly onto a truck or sent to the cold room.
Once the produce was iced or cooled , it was taken
to market . The cantaloupe line operated in exactly
the same way, except that melons are not bunched.
Instead , "sorters" would grade , cull, and wax the
melons before they reached the packers . The pack-
ers sorted the melons into one or more of five
standard sizes and packed only melons of the same
size in each carton . Bunchers , sorters, and packers
were all expected to "cull" unacceptable broccoli
and cantaloupes . Employees tossed culled produce
onto a "cull belt." There were approximately 75
employees on the cantaloupe line and 60 employees
on the broccoli line.
The Employer's field packing machines are long
platforms mounted on wheels about 30 inches
above the ground. Broccoli-bunching machines and
packing stands like those used in the shed are af-
fixed to the platforms . Each field packing machine
is assigned one supervisor and a crew of approxi-
mately ' 17 to 20 employees . The crew includes the
employees who actually cut the broccoli and pick
the cantaloupes . The "cutters" and "pickers" walk
through the fields and sever the crop from the
ground exactly as before . The field packing ma-
chines are slowly drawn through the fields along-
side or slightly ahead of the cutters and pickers by
tractor . The cutters toss the broccoli onto a shal-
low, shelf-like bin attached to the packing machine.
The pickers either roll the cantaloupes down
chutes extending from the sides of the packing ma-
chine or place them in a bin on the end of the ma-
chine . The produce is then packed by employees
standing on the field packing machines.
On a broccoli machine , "buncher/packers" size
the broccoli , insert it in the bunching machines,
and pack the bunches in cardboard cartons. On a
cantaloupe machine, "sorter-packers" grade and
sort the melons and pack them in boxes . The pack-
ers on the field packing machines toss culls back
into the field instead of placing them on a cull belt.
An employee riding on the platform or on a nearby
truck assembles the boxes by folding them togeth-
er, rather than using a glueing machine as did the
make-up employees in the shed . Sometimes the
packers will assemble the boxes themselves. A
"closer" places the packed boxes on a skid running
along the opposite side of the platform from the
packers and seals the boxes with a hand-held staple
gun like the one used when necessary by the-closer
in the shed . The closer then rolls the sealed boxes
down another skid that reaches from the platform
into the bed of a truck moving alongside or onto a
trailer attached to the packing machine itself. A
"loader" lifts the boxes from the skid and stacks
them on pallets just as the "set off" employees did
in the shed . Generally , two or three employees are
assigned to strap the palletized boxes. When a
truck or trailer is full of boxed produce , it is taken
to the shed . There , the palletized boxes are run
through a machine that ices a whole pallet at one
time.
Under normal circumstances , packing machine
employees do not interchange with cutters. Broc-
coli packing machine employees may fill in as cut-
ters, however , if a cutter crew is a few employees
short or cutting is too slow to maintain work for
the usual eight-employee packer crews. Similarly,
cantaloupe packers pick cantaloupes on infrequent
occasions . The Acting Regional Director found,
without contradiction, that "employees who work
on the field packing machines trimming , sorting,
culling , bunching , packing , and closing, perform es-
sentially the same functions that were performed
by the packing shed employees."
Section 2(3) of the Act excludes from the defini-
tion of "employee" any individual employed as an
agricultural laborer . Since 1947 Congress has
added a rider to the annual appropriation act for
the Board, in essence directing it to apply the defi-
nition of agriculture contained in Section 3(f) of
the Fair Labor Standards Act, 29 U.S.C.A. §
203(b) (FLSA), when determining whether an indi-
vidual is an agricultural laborer . It is the Board's
policy to be guided in this regard by the interpreta-
tion of Section 3(f) adopted by the Department of
Labor. McAnally Enterprise, 152 NLRB 526, 529
(1965).
Section 3 (f) provides in pertinent part:
"Agriculture" includes farming in all its
branches and among other things includes the
cultivation and the tillage of the soil, dairying,
the production, cultivation, growing , and har-
vesting 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, in-
cluding preparation for market , delivery to
storage or to market or to carriers for trans-
portation to market.
In Farmers Reservoir & Irrigation Co. v. McComb,
337 U.S. 755, 762-763 (1949), the Supreme Court
identified two distinct branches of this definition:
First, there is the primary meaning . Agricul-
ture includes farming in all its branches. Cer-
MARIO SAIKHON, INC. 1291
tain specific practices such as cultivation and
tillage of the soil, dairying, etc. are listed as
being included in the primary meaning.
Second, there is the broader meaning. Agricul-
ture is defined to include things other than
farming as so illustrated. It includes any prac-
tices, whether or not themselves farming prac-
tices, which are performed either by a farmer
or on a farm, incidently to or in conjunction
with "such" farming operations.
We agree with the Acting Regional Director's
conclusion that the field packing employees are not
engaged in agriculture within the broader second-
ary meaning. As noted, more than half of the Em-
ployer's broccoli and cantaloupe harvesting and
packing is performed for other growers. Under
Board law, employees will not be found exempt ag-
ricultural employees under the secondary definition
when, as here, a regular or substantial portion of
their work effort is directed towards hauling or
processing the crops of a grower other than the
grower by whom they are employed. Employer
Members of Grower-Shipper Vegetable Assn. of Cen-
tral California, 230 NLRB 1011, 1014-1015 (1977).
We do not agree, however, with the Acting Re-
gional Director's conclusion that the employees at
issue are agricultural laborers within the primary
definition because they are engaged in "harvest-
ing."
The Department of Labor defines "harvesting"
as used in Section 3(f) of the FLSA as follows:
"Harvesting" . . . includes all operations cus-
tomarily performed in connection with the re-
moval of the crops by the farmer from their
growing position. . . . Examples include the
cutting of grain, the picking of fruit, the strip-
ping of bluegrass seed, and the digging up of
shrubs and trees grown in a nursery. Employ-
ees engaged on a plantation in gathering sugar-
cane as soon as it has been cut, loading it, and
transporting it to a concentration point on the
farm are engaged in "Harvesting" . . . . "Har-
vesting" does not extend to operations subse-
quent to and unconnected with the actual
process whereby agricultural or horticultural
commodities are severed from their attachment
to the soil or otherwise reduced to possession
29 CFR § 780.11 (a) and (b). In determining
whether an employee is engaged in primary agri-
culture, we must consider the nature of the work,
and not the identity or purpose of the employer, to
be controlling. See Drummond Coal Co., 249
NLRB 1017 (1980). The Board has held that em-
ployees who sort and pack produce in an off-the-
farm packing shed are not engaged in direct farm-
ing operations of the type enumerated in the pri-
mary definition of agriculture. D'Arrigo Bros. Co.,
171 NLRB 22, 23 (1968). Accordingly, the question
presented by the facts before us is whether these
functions become primary when they are per-
formed in the open air in the field itself in close
proximity to the employees who actually sever the
crop from the ground and in one continuous oper-
ation with the picking or cutting function. Upon
careful consideration, we conclude that they do
not.
It is true, as the UFW points out, that the defini-
tion of "harvesting" is not limited to the act of sev-
ering the crop from the soil, but can extend to
other activities performed in the field in connection
with transporting severed crops to a central collec-
tion point. The Board has held, in accord with the
Labor Department's interpretation, that "harvest-
ing" encompasses the activities of employees who
gather and load on-trucks crops purchased by their
employer already severed and stacked in the farm-
ers' fields. Allied Mills, 96 NLRB 369 (1951). We
do not, however, conclude that the disputed em-
ployees are not agricultural laborers simply because
their duties do not entail severing the crop from
the soil.' Rather, we conclude that the definition of
harvesting cannot be stretched to encompass the
packing operation now that it is performed in the
field because moving it to the field has not changed
the nature of the work.
Although packing the cantaloupes and broccoli
in the field has eliminated the need for employees
to collect the raw crops for transportation to the
shed, it has not changed the essential functions of
the packing employees. We cannot find by analogy
to the gathering of severed crops that the packing
operation is now part of the actual process where-
by the crops are severed.or otherwise reduced to
possession. The gathering of crops is a natural ex-
tension of severing the crops from the soil and
therefore can be reasonably characterized as part
of a single process whereby crops are reduced to
possession. The culling, sorting by size, bunching,
and packing of crops, on the other hand, is an op-
eration demonstrably different in kind and distinct
from severing the crops from the soil that achieves
more than merely reducing the crops to possession.
The packing operation may now be performed in
close proximity to and coordination with the cut-
ting and picking employees, but it is no more a part
of the cutting and picking operation than it was
when performed in .the shed.. i
Accordingly, although the field packing oper-
ation could be characterized as preparation for
market within the secondary definition of agricul-
ture, not applicable here for the reasons stated
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, we conclude that it does not constitute
"harvesting" within the primary definition. This
conclusion is in accord with our determination in
Rod McLellan Co., 172 NLRB 1458, 1460 ( 1968),
that the grading and packing of flowers grown ex-
clusively by the employer fell within the second-
ary, rather than the primary, definition of agricul-
ture. We further conclude, therefore, that the em-
ployees engaged in the field packing operation are
employees and not agricultural laborers within the
meaning of the Act and that the Board has jurisdic-
tion over them. That some of these employees oc-
casionally fill in as cutters or pickers does not
compel a different result . Employees who perform
any regular amount of nonagricultural work are
covered by the Act with respect to the part of
their work that is nonagricultural . Olaa Sugar Co.,
118 NLRB 1442 (1957). Accordingly, we shall re-
instate the petitions.
Local P-78-B argues that if the employees at
issue are found to be employees within the meaning
of the Act, the Board should find that they are
covered by the contract between Local P-78-B
and the Employer and that the contract bars the
Employer 's petitions . The Employer contends that
the disputed employees are not an accretion to the
packinghouse unit covered by the contract. Also,
the Employer and Local P-78-B differ slightly on
the composition of the appropriate unit should an
election be ordered . The Acting Regional Director
did not reach these issues because he dismissed the
petitions for lack of jurisdiction . We shall therefore
remand this case to the Regional Director of
Region 21 to resolve these issues and to take any
other appropriate action consistent with this Deci-
sion and Order.
ORDER
The petitions are reinstated and the case is re-
manded to the Regional Director for Region 21 for
further appropriate proceedings consistent with this
decision.