Michigan Mushroom Co.Download PDFNational Labor Relations Board - Board DecisionsJul 5, 195090 N.L.R.B. 774 (N.L.R.B. 1950) Copy Citation In the Matter of MICHIGAN MuSHROO31 COMPANY, EMPLOYER and CONGRESS OF INDUSTRIAL ORGANIZATIONS, PETITIONER Case No. 7-RC-848.-Decided July 5, 1950 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Cecil Pearl, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. 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 employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner contends that all production and maintenance em- ployees at the Employer's Niles, Michigan, operations, excluding office and clerical employees, truck drivers, professional employees, the spawner, and supervisors, constitute an appropriate bargaining unit. The Employer contends that the employees sought by the Petitioner in this proceeding are "agricultural laborers" within the meaning of Section 2 (3) of the Act, and are, therefore, not to be included in any bargaining unit found appropriate by the Board. The Employer is primarily engaged in the growing and sale of mushrooms in an area known as The Michigan Mushroom Farms, just outside the city limits of Niles, Michigan. Its properties consist of 46 acres of land, on which mushrooms are grown, packed, and canned; and a "dirt farm," approximately 2 miles distant.' Mushrooms are 1 On this dirt farm , the Employer has raised straw for its own use. 90 NLRB No. 119. 774 MICHIGAN MUSHROOM COMPANY 775' not grown in this area out of doors for commercial purposes, but only where temperature and moisture can be controlled. The Employer's mushrooms are not a seasonal crop, but are grown the year around.. Its 40 growing houses, made of tile and wood, are artificially heated in winter and artificially cooled in summer. Fresh mushrooms can nor- mally be transported with proper refrigeration in a marketable condi- tion within a radius of 100 miles 2 During the summer months, how- ever, because heat brings discoloration and easy spoilage, the Em- ployer's principal customers, such as chain stores and hotels, stop or cut down on their orders for fresh mushrooms. Manure is the principal growing medium for mushrooms. It is, brought to the area of the Employer's growing houses by truck and rail- road. Employees, classified by the Employer as farm laborers, pre- pare a compost made of manure, earth, straw, fertilizer, and gypsum,. which they place on a concrete slab 8 to 10 inches thick, located about 500 feet from the growing houses. They bring the compost, when properly matured, a process which takes from 3 to 23 days, to the grow- ing houses by truck. There are about 8 tiers of benches or trays, 40 by 80 to 100 feet long, on each side of the center aisle of a growing house. These benches serve as the growing beds for mushrooms. Employees spread the compost evenly in the benches to a depth of 6 inches. As the decomposition of the compost advances, its temperature decreases from between 130 and 145 degrees to about 80 degrees. The compost is then sown with mushroom spawn made by the Employer from cul- tures. After a period of 10 to 20 days, a layer of dirt brought from the dirt farm is placed and spread on top of the compost. The beds are watered and aired, and cooled or heated as the season requires. Mushrooms appear in the form of pin points in from 7 to 21 days. During the growing season, the beds are inspected and watered. Fungicides, sprays, and mechanical devices are used to combat the at- tacks of insects, pests, diseases, worms, flies, moles, etc., to which the mushroom crop is generally subject. As the mushrooms mature, they are picked by hand. Periodic flushes of mushrooms are harvested every 6 or 8 days. A mushroom bed continues to bear from 2 to 4 months. The exhausted compost and dirt is then shoveled out from the benches and carried off by truck to a dumping area on the premises. The benches are refilled with new compost, and the growing processes are repeated, each new cycle covering approximately 100 to 120 days. Mushrooms are picked, sorted, and packed by hand. Certain types of mushrooms and parts cannot be sold fresh. Mushrooms that are 2 Because of the Employer 's location , Its fresh mushroom market Includes the area of Chicago. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD white, large , and well shaped are selected and packed in baskets and cartons for marketing as fresh mushrooms . During the year ending October 31, 1949, the Employer grew on its premises over 1,000,000 pounds of mushrooms. Its total sales during this period amounted to $1,173,000. Over the year period , fresh mushrooms furnished ap- proximately 25 percent of the Employer 's total sales. To prevent the immediate spoilage of mushrooms which cannot be sold fresh , and as a means to reach more distant markets, the Employer cans mushrooms which it cannot sell fresh, and soft mushrooms, fully opened mushrooms , mushrooms defective in size and shape, and mush- room parts and stems . Canning with only water added is the usual treatment for buttons , sliced buttons, and mushroom pieces and stems. This type of canning represents 50 percent of the Employer 's total sales for the year. Other mushrooms and parts , which cannot be thus utilized , are mixed with other ingredients and made into sauces and soups. Canned sauces and soups represent approximately 22.5 percent of the Employer's yearly sales . In addition to these mushroom prod- ucts, the Employer cans asparagus furnished by local growers, and the sale of this canned asparagus represents 2.5 percent of the Employer's sales during the year. The Employer grows, packs , cans, and stores its mushrooms on its own premises . Approximately half of the 102 employees whom the Petitioner seeks to represent are the employees classified by the Em- ployer as "farm laborers ," who prepare the compost , fill and tend the mushroom beds , plant the spawn and cultivate its growth , and pick and sort the fresh mushrooms . Designated as fillers, casers , emptiers, grubbers , and pickers and general farm laborers , according to their principal work , they interchange with one another as the varying de- mands on their time require. Other employees on the Employer's farm properties include a crane operator, who, inter alia, moves and lifts the compost and dirt for the growing houses; and certain main- tenance, warehouse , and cannery employees . The maintenance em- ployees, 13 in number , include the carpenter who makes and maintains the wooden benches that constitute the mushroom beds and repairs the growing houses and other buildings on the Employer 's properties; and the various mechanical workers, who keep in running operation the trucks, crane, and other machines ; maintain the air -conditioning system for heating and cooling the growing houses ; and operate the boiler and the powerhouse for the Employer 's general use. In addition to these maintenance employees , there are approximately 31 employees who work in the cannery and 7 who are warehouse employees. In the Great Western Mushroom Company case ,3 we found that s Great Western Mushroom Company, 27 NLRB 352 , 358, and cases cited therein. Cf. Knaust Brothers, Inc., 36 NLRB 915; Indiana Mushroom Corp., 60 NLRB 1065. MICHIGAN MUSHROOM COMPANY 777 employees engaged in the cultivation of mushrooms in growing houses under artificial conditions, such as the employees generally classified by the Employer herein as "farm laborers," were not "agricultural laborers" within the meaning of Section 2 (3) of the Act. When this case was decided in 1940, however, the definition of "agricultural laborers" set forth in the Fair Labor Standards Act of 1938 had not been incorporated by reference into the National Labor Relations Act.4 That definition, however, under the rider to the Board's current appro- priation act, is now controlling on the question of whether particular employees are "agricultural laborers" within the meaning of Section 2 (3) of the Act. We have held, since that rider was adopted, that employees performing functions similar to those performed by those of the Employer's employees who grow and cultivate the mushrooms are "agricultural laborers." 5 Such a result is consistent with the interpretation of the definition which has been made by the agency administering the Fair Labor Standards Acts We therefore find that employees of the Employer engaged in the growing and cultiva- tion of mushrooms on its properties at Niles, Michigan, are "agricul- tural laborers" within the meaning of Section 2 (3) of the Act. These employees, as noted above, constitute a very large proportion of the employees in the over-all and only unit sought by the Petitioner herein.7 As they are agricultural laborers within the meaning of the Act and may not be included in any unit of employees found appro- priate by the Board, we find that the proposed unit is not appropriate for bargaining purposes. For this reason, we shall dismiss the petition filed herein. ORDER IT IS HEREBY ORDERLD that the petition herein be, and it hereby is, dismissed. ' This definition in Section 3 (f) of the Fair Labor Standards Act, insofar as applicable here, reads as follows : "Agriculture " includes farming in all its branches and among other things includes . . . the production , cultivation , growing, and harvesting of any agricultural or horticultural commodities . . . and any practices . . . performed by a farmer or on a farm including preparation for market , delivery to storage or to market or to carriers for transportation to market. William H. Elliot & Sons Company, 78 NLRB 1078 , and cases cited therein. 6Interpretive Bulletin No . 14 of the Wage and Hour Division of the United States De- partment of Labor , in construing Section 3 ( f) of the Fair Labor Standards Act, provides in part as follows : 5 (d) Some commodities , such as , mushrooms , flowers, and seeds , instead of being grown in open fields, are frequently grown in enclosed houses, greenhouses, or hot beds . As long as the commodities are agricultural or horticultural , their produc- tion, cultivation , growing , and harvesting fall within the exemption , whether they are grown in enclosed houses or in the open field. ' The Petitioner in this proceeding indicated at the hearing that it does not seek to represent the cannery and warehouse employees separately from those we have found are "agricultural laborers ." We make no finding herein as to whether the cannery or ware. house employees are "agricultural laborers." 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