Norton & McElroy Produce, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1961

133 N.L.R.B. 104 (N.L.R.B. 1961)

-104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices,
=the Trial Examiner will recommend that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Z . Fred Sprewell,
`Clarence Pope, Horace H . Noles, Marion D. Stone, and Tommie Lee Farmer. It
will be recommended that the Respondent offer Sprewell , Pope, Noles, and Stone
=immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges , and make all
,of the above employees whole for any loss of pay they may have suffered by reason
of Respondent 's discrimination against them , by payment to them of sums of money
equal to that which they normally would have earned as wages from the dates of dis-
crimination to the date of an offer of reinstatement , or to the dates of reinstatement
in the case of Farmer , less their net earnings during such period. Said backpay
shall be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
It has been found that from December 15 through 31, 1959, the Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act. It is also found that
-such conduct substantially and materially interfered with the employees ' free choice
at the election . Accordingly, it will be recommended that the election be set aside
and that a new election be held.
Upon the basis of the foregoing findings of fact , and upon the entire record in
-the case, I make the following:
CONCLUSIONS OF LAW
1. Southwire Company is engaged in commerce within the meaning of Section
-2(6) and (7) of the Act.
2. Local 613, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating against Z . Fred Sprewell , Clarence Pope , Horace H . Noles,
-Marion D . Stone, and Tommie Lee Farmer, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
4. By discharging Taylor Summerlin and Clyde W. Jordan the Respondent did not
engage in any unfair labor practice within the meaning of the Act.
5. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Norton & McElroy Produce, Inc. and Sales Drivers & Helpers,
Local 274, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
Petitioner. Case No. 28-RC--818 (formerly 21-RC-6888). Sep-
tember 12, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Daniel F. Gruender, hearing
officer. The hearing officer 's rulings made at the hearing are free
from prejudicial 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 McCulloch and Members Leedom and Fanning]
133 NLRB No. 2.
NORTON & McELROY PRODUCE, INC. 105
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 Employer seeks dismissal of the petition on the ground that
the employees sought are agricultural laborers. The Petitioner, in its
brief' to the Board, concedes that the employees' work is incidental,
to the Employer's farming operations insofar as the employees work
for the Employer on land which the Employer owns or leases and does
the planting and growing, and therefore, are agricultural laborers
within the meaning of the Fair Labor Standards Act 2 However, the
Petitioner contends that the employees sought are not agricultural,
laborers where the Employer does the harvesting, packing, and ship-
ping, and another party, which either owns or leases the land, does
the planting and growing. For reasons herein indicated, we agree,
with the position of the Petitioner.
The Employer is an Arizona corporation engaged in the business of
growing and shipping vegetables and fruits in Arizona and Cali-
fornia. In connection with the shipping of lettuce, the Employer
employs truckdrivers and stitchers, the employee classifications sought
by the Petitioner. The function of the stitchers is to drive onto a•
field in a truck loaded with unopened, flat cartons, stitch the cartons
together on the truck, and pass the cartons down to the field crew
to be packed with the harvested lettuce. The stitchers work all day on
the truck in the fields performing these functions. The truckdrivers-
drive onto the fields, pick up the packed cartons, and drive to a cool-
ing plant which may be as far as 20 miles away. Most of their driving
is over public roads. The drivers spend from 15 to 33 percent of their
time in the fields; the rest of the time is spent driving to and from a
cooling plant. Neither classification of employee engages in any other
activity.
During the spring of 1961 the Employer shipped lettuce from five
different locations in Arizona (not including Yuma County, which is
excluded by stipulation of the parties), under, basically, three different
1 The brief is it composite brief , pertaining to subject matter in this case and also in
Cases Nos. 28-RC-842 , 28-RC-837 , 28-RC-835, 28-RC-833 , 28-RC-838, 28-RC-851,
28-RC-850, 28-RC-843, 28-RC-870, 28-RC-871, 28-RC--866, 28-RC-845, and 28-RC-847
The decision in those cases are in accordance with this decision and are not published
in NLRB volumes
2 Section 2(3) of the Labor-Management Relations Act excludes from its coverage "any
individual employed as an agricultural laborer " The Board's annual appropriation rider
requires the Board to follow the definition of the term "agricultural " contained in Sec-
tion 3 ( f) of the Fair Labor Standards Act That section defines agriculture as follows:
"'Agriculture ' Includes farming in all its branches and among other things includes the
cultivation and tillage of soil, dairying, the production, cultivation, growing, and harvest-
ing of any agricultural or horticultural commodities . and any practices . . . per-
formed by a farmer or on a farm as an incident to or in conjunction with such farming
operations .
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
types of economic arrangements . The first arrangement , on the Rala
Singh acreage, involved the owner of the land growing and cultivat-
ing the lettuce, and the Employer , who purchased one-half interest
in the crop , harvesting, shipping , and selling the crop at a fixed charge
of $0.85 per carton. The Employer also sent in some of its own em-
ployees to thin about 20 of the 160 acres on this farm . A variation of
this arrangement involved the Harquahala acreage, owned and farmed
by another party. The Employer paid this other party for its share
in the growing and labor costs. Each had one -half interest in the crop
and each harvested , shipped, and sold his own one-half interest. The
second arrangement involved the J . B. Ranch acreage , owned by Nor-
ton and McElroy as individuals 3 and cultivated under the name of
Westside Ranches. The Employer paid Westside Ranches cost ($300
per acre ) plus 20 percent for growing the lettuce . The Employer
harvested , shipped, and sold the lettuce . The third arrangement in-
volved the Aquila Farms, an operating company which did the
growing with its own employees on land owned by Eagle Farms, a
corporation . Three corporations , including the Employer herein,
owned one-third interests in both Aquila Farms and Eagle Farms.
Each partner -corporation harvested , shipped, and sold one-third of
the crop independently , and, after taking out costs, put the remaining
proceeds back into Aquila Farms which paid the bills . The three
partner-corporations then equally split the profits or losses . A similar
arrangement involved the Wilcox acreage, land owned by the Em-
ployer but leased to a partnership between the Employer and another
corporation . Some of the Employer's employees did some of the
hoeing and thinning . This spring the harvesting was done by
the other corporation , but in the fall both corporations will jointly
do the harvesting . Similar arrangements existed during the spring
and fall of 1960 and will exist during the fall of 1961 . The record
indicates that the planting and harvesting of lettuce in Arizona is a
seasonal industry, in operation during the spring and fall.
In varying degrees the Employer did some hoeing and thinning
on most of the above acreage in order to expedite harvesting and to
keep on some of its crew who otherwise would have been subject to
layoff at those particular times. The lettuce is shipped under label-
names belonging exclusively to the Employer and is marketed by the
Employer.
The pivotal question turns on whether the practices herein, i.e., the
stitching of the packing cartons and the hauling of the packed cartons
to the cooler , are performed "by a farmer or on a farm as an incident
to or in conjunction with such farming operations." 4
8 The record does not establish whether Norton and McElroy are the sole shareholders
of the Employer
4 The first part of the Section 3 (f) definition is not applicable since the employees in-
volved herein are not themselves engaged in farming activities See Farmers Reservoir f
Irrigation Company v McComb , Wage and Hour Administrator, 337 U S . 755, 763.
NORTON & McELROY PRODUCE, INC. 107
As previously interpreted by the Board and the Court of Appeals
for the Ninth Circuit, Section 2 (3) of the Act categorizes an employee.
in the position of the truckdrivers in the instant case, as an agricul-
tural laborer to the extent he is engaged in regularly hauling farm
produce for his employer from his employer's own farm, but not an
agricultural laborer to the extent he regularly hauls the produce for
his employer from an independent grower's farm.' The conclusion
that a driver hauling from a farm other than his employer's is not an
agricultural laborer applies also when his employer has undertaken
to do the harvesting for the grower.' The rationale which supports
this interpretation is that where a driver engages in hauling, itself a
nonfarming task, for an employer who himself grows and cultivates
the produce hauled, then the hauling is incidental to or in conjunction
with such farming operations, but where a driver hauls for an em-
ployer engaged in shipping and selling, nonfarming operations, his
work is incidental to those operations and the second portion of the
Section 3(f) definition is not applicable. If his employer ships from
his own farms, but also from other growers' farms, the driver is not
an agricultural laborer to the extent he regularly hauls from the
independent growers' farms. Even where the shipper engages in
some incidental farm practices on a grower's farm, his drivers would
not thereby be converted into employees engaged in work incidental
to or in conjunction with these farm operations rather than to the
employer's primary operation, shipping and marketing. The same
distinction applies to a stitcher, who also is performing a nonfarm
task. When he stitches cartons for his employer who is not the grower
of the produce, his work is incidental to the shipping operations of
his employer, not the operations of the grower.' Although the stitcher
works "on a farm," his work must be incidental to farming operations
in order to qualify for the agricultural exclusion.'
The truckdrivers and stitchers in the instant case are agricultural
laborers and subject to the Section 2(3) exclusion only to the extent
that they are employed by a farmer in work incidental to or in con-
junction with such farming operations. We cannot hold under any
of the economic arrangements herein that the Employer is a "farmer."
In all the arrangements the Employer either invested in a crop culti-
vated by another or, together with other parties, set up a separate en-
tity which, with its own employees, cultivated the crop. Those em-
5 N L R B. v . Olaa Sugar Company, Ltd, et al, 242 F. 2d 714, mod. 114 NLRB 670,
supp order in 118 NLRB 1442; see also Waldo Rohnert Company, 120 NLRB 152, 154
0 Olaa Sugar Company, Ltd , et at. 114 NLRB 670, 684, et seq. ( This portion of the
case was not modified )
7 In Grower-Shipper Vegetable Association of Central California , et al, 107 NLRB 953,
stitchers were found to be agricultural laborers . The significant fact which determined
that finding was that they worked for their employers on their employers ' own farms
8 Farmers Reservoir of Irrigation Company v . DlcComh, Wage and Hour Administrator,
337 U S 755 , 766, footnote 15
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed by the shipper, in the shipping operation, are not employed in
the farming operation, which is independent, even though the shipping
operation has invested in, or owns a share in, the farming operation e
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit.
We find that all truckdrivers and stitchers'e employed by the Em-
ployer in Arizona, except in Yuma County, excluding all office cleri-
cal employees, watchmen, guards, and supervisors as defined in the
Act, constitute an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act."
5. In accordance with the usual practice in seasonal operations of
this kind, the Board will direct that the election be held at or about
the approximate seasonal peak, on a date to be determined by the Re-
gional Director, among the employees in the appropriate unit who
are employed during the payroll period immediately preceding the
date of the issuance of the notice of election by the Regional Director.
[Text of Direction of Election omitted from publication.]
9 Id., p. 768; cf. Lucas County Farm Bureau, etc., 128 NLRB 458, enfd. 289 F. 2d 844
(C.A. 6).
i° The petition was amended at the hearing to delete the classification of "gluers."
u The parties are in agreement as to the composition of the unit . However, in its
composite brief ( see footnote 1) the Petitioner makes the alternative contention that a
multlemployer unit would be appropriate . There is no bargaining history for the em-
ployees of the Employer in the geographical area covered by the instant petition and the
Employer objects to such a unit in its composite brief. Accordingly, a single-employer
unit is found appropriate.
Straits Aggregate & Equipment Corp . and Rogers City Cement
Products, Inc.' and United Stone and Allied Products Work-
ers of America, AFL-CIO-CLC, Petitioner. Case No. 7-RC-
4868. September 13, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before James P. Kurtz, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial 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 McCulloch and Members Rodgers and
Leedom].
' The petition was amended at the hearing to include Rogers City Cement Products
Inc., hereinafter called Rogers , as an Employer.
133 NLRB No. 17.