Newday Seeds, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1944

55 N.L.R.B. 1049 (N.L.R.B. 1944)

In the Matter of NEWDAY SEEDS, INC. and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, LOCAE UNION 116, A. F. OF L.
Case No. 18-R-9 . Decided April 7, 1914
Mr. L. U. Stambaugh,, of Fargo , N. Dak., for the Company.
Messrs. N. E . Kragerud and J . M. O'Laughlin , of Fargo, N. Dak.,
for the Union.
Miss Fannie M. Boyls, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local Union
116, A. F. of L., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Newday Seeds, Inc., Fargo, North Dakota, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Francis X. Helgesen,
Trial Examiner. Said hearing was held at Fargo, North Dakota,
on February 11, 1944. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the close of the hearing the Company moved
to dismiss the Union's petition on the ground that the employees
claimed by the Union to be within the appropriate unit are agricultural
laborers. The Trial Examiner reserved ruling on this motion. For
reasons hereinafter stated, the motion is hereby denied. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
55 N. L. R B, No. 194.
1049
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Newday Seeds, Inc., is a North Dakota corporation, maintaining
its offices and its principal place of business in Fargo, North Dakota.
It is engaged in the growing, purchasing, processing, sale, and ship-t5 ,
ment of farm product seeds. Most of the seeds are purchased from
farmers who have already harvested the seeds and who, in some cases,
have also processed or partially processed them. In other cases, how-
ever, the Company buys or leases the matured crop or the seed-bearing
portion of it and employs local laborers who, with the assistance of
the Company's regular employees, harvest it. In addition, some of
the seed is obtained from contract growers who are partially financed
and supervised by the Company in the planting and harvesting
operations.
During the year 1943 the Company obtained its seed from several
sources in amounts approximately as follows: 10 percent from crops in
North Dakota, bought or leased, and harvested by the Company; 10
percent from contract growers in North Dakota; 25 percent from inde-
pendent growers in North Dakota (including about 1 percent bought
from the Company's president) ; 30 percent from growers or proc-
essors in Canada, and 25 percent from growers or processors in States
other than North Dakota. About 65 percent of the seed was sold and
shipped by the Company to farmers and retail stores located outside
North Dakota. Included in the 65 percent was approximately 5 per-
cent sold to the United States Government under lend-lease arrange-
ments with Russia. The total volume of business handled by the
Company in 1943 was valued at about $900,000.
In December 1949 the Company purchased a 525-acre farm near
Fargo on which it expects to produce between 5 and 10 percent of the
seed which it will process in 1944. Otherwise the sources of its seed
for 1944 are not expected to be materially different from the 1943
sources.
II. THE EMPLOYEES OF THE COMPANY
0
As noted above, the Company contends that the employees claimed
by the Union to be within the appropriate unit are agricultural
laborers. We find this contention to be without merit.
The employees whom the Union seeks to represent are only those
employed at the Company's processing plant in Fargo and do not
include any employees hired solely for planting or harvesting opera-
tions. The plant employees are employed for 8 months or more of
each year in the operation of various machinery used in the cleaning,
NEWDAY SEEDS, INC. 1051
blending, and other processing steps, in the maintenance and repair
of the machinery, in the operation of trucks owned by the Company,
in the repair of bags used in packaging of seeds, and in the packaging
and handling of the processed seeds for shipment. In addition, several
employees operate a threshing machine inside the plant for a short
time in the fall in connection with the threshing of blue grass.'
The work of processing seed at the Company's plant is somewhat
seasonable, the employment fluctuating between 18 and 21 workers
during the winter months, dropping to 8 or 12 during March, and to as
low as 5 to 7 during May and the summer months. During the summer
months there is very little work to be done at the plant and the 5 to 7
plant employees, who are retained on the Company's pay roll as a
nucleus with which to start operations and train new employees in the
fall, are given some farm work to do,-such as raking, threshing, driv-
ing trucks on the farms, and repairing and maintaining farm ma-
chinery and setting it up for operation. Some of these regular em-
ployees spend only about a week at farm work and others spend most
of the summer at it. All are paid the same scale of wages while in the
fields as while at the plant. They are also protected by Workmen's
Compensation Insurance for the entire year, notwithstanding the
fact that the Workmen's Compensation Law of the State of North
Dakota makes optional the carrying of such insurance on agricultural
laborers. The employees are also considered by the Company to be
subject to the Social Security and Wage and Hour laws of the United
States.
The Company concedes that the processing and sale of seeds is a
well recognized commercial enterprise in the Northwest. It is clear
that the operations of the Company are primarily industrial and
commercial. The fact that the Company now owns a farm from
which it expects to secure from 5 to 10 percent of the seeds which
it will process this year, and the fact that it has in the past obtained
and will continue to obtain some of the seeds from farms leased by
it or operated under contracts with growers does not deprive the
Board of jurisdiction over its plant employees.z
During the major portion of the year when these employees are en-
gaged in the seed-processing operations, their work is clearly an in-
cident to the industrial and commercial activities of the Company,
I The fact that an employee operates a threshing machine , does not , of course make him
an agricultural employee, for it is well recognized that threshing may be "a business or
industrial pursuit in and of itself , entirely separate and independent of farming." In Re
Boyer, 65 Ind App 40S, 117 N E. 507 ; Hart-Parr Co. v . Barl leg, et at., 231 F 913
(C C. A. 8 ) ; North Whlttaer Heights Citrus Assn . v. N. L. R. B, 109 F. (2d) 76
-(C. C. A. 9).
'Matter of Jameson Company , 25 N L R . B. 64; Matter of H. J. Heinz Company, 49
N. L. R. B. 573.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and they are therefore entitled to the benefits of the Act.' However,
during that period an employee is working on a farm, he is an agri-
cultural employee and, as such, is excluded f rom the bargaining unit
hereinafter found to be appropriate .4
This division of the employees' time between plant and agricul-
tural work raises a question as to the scope of a labor organization's
authority to represent the employees who, unquestionably, during
the major portion of year belong within an appropriate bargaining
unit. The requirement of the Act (Sec. 8 (5) and 9 (a)) that em-
ployees must constitute an appropriate bargaining unit before an em-
ployer is obliged to bargain with the representative chosen by a ma-
jority of them correlatively implies that the scope of authority which
the employees may confer upon their majority representative is limited
to those matters which affect their interests in the appropriate unit.
The Union, therefore, if chosen by a majority of the employees as
their representative, will be authorized to represent them only on
matters affecting their interests as plant employees and not on matters
affecting their interests solely as agricultural employees .5
III. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffers, Warehousemen
& Helpers of America, Local Union 116, affiliated with the American
Federation of Labor, is a labor organization admitting to member-
ship employees of the Company.
IV. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
proves to the satisfaction of the Company that it is entitled to such
recognition.
During the hearing, the Union submitted its authorization cards to
the Trial Examiner who, after checking the cards against the Com-
pany's pay roll of February 11, 1944, stated that the check indicated
that the Union represents a substantial number of employees in the
unit hereinafter found appropriate .13
s Cf. North Whittier Heights Citrus Assn. v. N. L. If. B., 109 F. ( 2d) 76 (C. C. A. 9) ;
Butter of Goo G. Averill, et al, 13 N. L . R. B. 411 ; Matter of Tovrea Packing Company, a
corporation, 12 N L R . B. 1063; Matter of California Walnut Growers Associattion, 18
N. L. R. B. 493.
4 Matter of H. J. Heinz Company , 49 N. L. It. B. 573.
5 Matter of Edward C. Fiedler, et al., 55 N. L R. B. 678
6 The Trial Examiner reported that the Union submitted 21 authorization cards, all of
which bore apparently genuine original signatures ; that the names of 11 persons appearing
on the cards were listed on the Company 's pay roll of February 11, 1944, which contained
the names of 21 employees in the appropriate unit; and that the cards were dated Decem-
ber 1943 and January 1944.
0
NEWDAY SEEDS, INC. 1053
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company,' within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNIT
In its petition, the Union contended that the Company's truck driv-
ers, warehousemen, millmen, and helpers, excluding supervisory help
with the right to discharge other employees, and office help, constitute
a unit appropriate for the purposes of collective bargaining. The
Company refused to take any position with respect to the proper unit,
except that it was an issue for the Board to decide.
The Company's employees are not classified into the categories
named in the Union's petition, but its production and maintenance
employees perform the duties ordinarily performed by employees
so designated. It is clear from the record that the Union seeks to
represent all of the Company's Fargo plant employees, excluding
supervisory and clerical employees.
We find that all employees of the Company employed at its Fargo
plant, excluding clerical employees and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such ac-
tion, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Union requested that the pay roll of February 11, 1944, serve
as the basis for determining eligibility of employees to vote. How-
ever, the record discloses no valid reason for departing from our usual
practice of selecting a current pay-roll date.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Newday Seeds,
Inc-., Fargo, North Dakota, an election by secret ballot shall be
1054 DECISIONS OF NATIONAL LABOR RELATIO NS BOARD
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Eighteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section V, above, who
were employed during the pay-roll period immediately preceding the
(late of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Local Union 116, A. F. of L., for the purposes of
collective bargaining.