Produce Magic

National Labor Relations Board - Board Decisions

Aug 16, 1993

311 N.L.R.B. 1277 (N.L.R.B. 1993)

1277
311 NLRB No. 173
PRODUCE MAGIC
1 The only issue on review is whether the Regional Director erred
in finding that the Employer’s employees are not agricultural labor-
ers, but rather, are statutory employees within the meaning of Sec.
2(3) of the Act (except to the extent they spend time performing cut-
ter work).
2 In denying review, the Board has considered the amici curiae
briefs submitted by the California Agriculture Labor Relations
Board, General Teamsters Local 690, and Bud Antle, Inc., d/b/a Bud
of California, as well as the motion for administrative notice sub-
mitted by the California Agriculture Labor Relations Board, and the
various responses filed.
Produce Magic, Inc. and United Farmworkers of
America, AFL–CIO. Case 32–RM–696
August 16, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the Union’s request for review of the Regional Direc-
tor’s Decision and Order, pertinent portions of which
are attached.1 The request for review is denied, as it
raises no substantial issues warranting review.2
In denying review, the Board notes that the Regional
Director found that the cutter-packers, who perform
both agricultural and nonagricultural work, were em-
ployees within the meaning of the Act because they
perform a ‘‘regular’’ amount of nonagricultural work,
and are covered by the Act with respect to that portion
of their work that is nonagricultural. However, the
Board stated in Camsco Produce Co., 297 NLRB 905,
908 fn. 18 (1990), that where employees perform both
primary agricultural and nonagricultural work, the
proper focus is whether the nonagricultural work is
‘‘substantial.’’ In the instant case, it is undisputed that
the cutter-packers spend 50 percent of their time per-
forming nonagricultural work—an amount that is
‘‘substantial.’’
Accordingly, we affirm the Regional Director’s find-
ings, as well as his dismissal of the petition as failing
to raise a question concerning representation.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND ORDER
The Business of the Employer
The Employer is a California corporation which had its in-
ception in 1984. It is a ‘‘custom harvesting’’ company which
has business arrangements with three different companies:
Fresh Choice Produce, Inc.; Merrill Farms; and Fresh Ex-
press. The formal name of Fresh Express appears from the
record evidence to be Fresh Co., the name on a contract
which was introduced into evidence and which formed the
basis for all subsequent examination by counsel for both par-
ties. Each year the Employer enters into a new contract with
these entities. These contracts encompass the harvesting of
lettuce by the Employer, including romaine, red leaf, green
leaf, butter, and radicchio. Also harvested are endive, esca-
role, and bok choy Napa.
Under the contractual arrangement with Merrill Farms, the
Employer agrees to grow, harvest, pack, and haul the crop
to Merrill Farms’ cooler. Merrill Farms has obligated itself
to be the shipper, responsible for shipping the product from
the cooler and has the right to market the crop under any
label, whether its own or others.
Fresh Choice also has the right under its contract with the
Employer to market the Employer’s crops and performs all
the work of receiving, icing, cooling, storing, loading, dis-
tributing, and selling the crops.
Thus, under its agreement with Fresh Choice, the Em-
ployer is identified as, and has the rights and obligations of,
the ‘‘Grower.’’ The Employer, however, has arranged with
Major Farms, Pryor Farms, Silva Farms, and S&S Farms to
do the actual growing/cultivation under the terms of a ‘‘joint
deal.’’ Under the written agreements with these latter enti-
ties, the Employer advances some of the growing costs for
the growing and possesses an ownership interest in the crop
based on the percentage it contributes to the overall growing
costs. Onto this the Employer assesses a packing charge
which is deducted from the total selling price. This agree-
ment involves approximately 1000 acres.
Under the Employer’s ‘‘Farming Marketing’’ agreement
with Merrill Farms, the Employer is identified as the ‘‘Grow-
er’’ but also retains Major Farms and Guidotti Brothers to
perform the actual growing/cultivation. The same financial
arrangements apply as in the Fresh Choice situation. Ap-
proximately 300 acres are involved.
The Employer itself grows no crops and owns no real
property in California.
The foregoing arrangements are contrasted with the Em-
ployer’s harvesting/grower agreement with Fresh Co. The
Employer is retained to harvest, pack, and haul lettuce grown
by Fresh Co. The growing/cultivation under this latter agree-
ment is itself performed, parenthetically, by Bruce Church.
The Employer does not advance growing costs to Bruce
Church. The Employer is compensated by Fresh Co. based
on a price per carton or container. The Employer advances
no money for the harvesting operations at Fresh Co. Ap-
proximately 350 acres are harvested under this agreement.
Thus, approximately 1300 of the 1650 total acres har-
vested—about 79 percent—involves lettuce grown under the
‘‘joint deal’’ arrangements. The Employer has no ownership
interest in the lettuce grown on the remaining 350 acres.
Although the record does not specify their nature, the
record reveals that the Employer has ‘‘operations’’ in the
State of Arizona from late November to late March in the
Yuma area. From late March to late November, the Em-
ployer performs harvest operations in the Monterey County
area as described above.
The Harvesting Operations of the Employer
The United Farmworkers’ ALKB petition seeks ‘‘all field
employees.’’ The record here reveals that the Employer em-
ploys 60–70 cutter-packers, 8–10 closers, 10–12 loaders, and
4 water persons. Cutter-packers spend 50 percent of their
time as cutters who sever the growing crop from the ground
and the other 50 percent as packers. Supervision of the field
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crew is accomplished by the harvesting foreman and the
driver-stitchers.
The function of the cutter is to sever the vegetable heads
from the ground, trim the heads, and arrange them in rows.
The packer then packs the heads in a cardboard carton. In
some operations, the heads are placed directly into the car-
ton, while in others, they are first placed in plastic bags. The
packer may pull off a leaf from the head with his hands and
discard it; he does not use a knife. The closer then staples
the carton, in the event the carton utilized requires this; if
the carton does not require staples, the packer merely closes
the carton. The loader takes the closed cartons and loads
them onto a truck bed.
The cutter-packers normally work in a ‘‘trio,’’ consisting
of two cutters and one packer. The Employer has 4 crews
varying in size from 15 to 30. When bagging is required, the
packer performs the bagging operation in which the packer
either ‘‘single bags’’ each head of lettuce or bags six heads
of lettuce into one bag. In such circumstances, the trio may
consist of two persons bagging and only one doing the cut-
ting.
Under normal operations, the cutter works about 10–15
feet from the packer, the object being to pack the product as
soon as possible after it is cut.
Usually, if the cartons require stapling, two closers are as-
signed to a crew. Approximately 25 percent of the cartons
used by the Employer require stapling. Under such oper-
ations, the closer works 10–15 feet from the cutter-packers.
The cartons are delivered to the field unassembled and are
removed from the truck and distributed in the field by the
driver-stitcher, the cutter packer, or the closer. The cartons
are assembled in the field by the cutter, packer, or closer.
Loaders pick up the packed carton in the field and load it
onto a truck or stack the cartons so that they can be loaded
more easily onto a truck.
Lettuce packed directly into a carton is termed a ‘‘naked
pack.’’ When lettuce is bagged in what the Employer terms
a ‘‘special operation,’’ ‘‘sleeving’’ is accomplished by means
of one member of a trio wearing a harness or ‘‘sleeve’’ into
which the severed and trimmed lettuce is placed and bagged
by another member. Sometimes, cutters decide to come back
and ‘‘sleeve’’ the lettuce. In that event, the third person puts
the ‘‘bagged lettuce’’ into the carton. The actual configura-
tion is predicated on what the crew determines will result in
the greatest packing efficiency, because the crew is paid by
the carton. The water person, who is not directly involved in
this arrangement, is paid by the hour. This person sprinkles
the lettuce before and after it is packed in the carton, uti-
lizing a portable water tank. Sleeving and naked pack oper-
ations may be done at the same time on the same field. Cut-
ter-packers and closers generally earn less than loaders.
The Employer is licensed as a labor contractor with the
U.S. Department of Labor, pursuant to the provisions of the
Agricultural Worker Protection Act, as well as by the State
of California.
Analysis and Conclusions
Section 2(3) of the Act excludes from the definition of
‘‘employee’’ any individual employed as an agricultural la-
borer. Since 1947, Congress has added an annual rider to the
Board’s appropriation measure directing it to apply the defi-
nition of agriculture set forth in Section 3(f) of the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA), in de-
termining whether an individual is an agricultural laborer.
The Board’s policy is to be guided in this regard by the in-
terpretation of Section 3(f) of the FLSA adopted by the De-
partment of Labor.
Section 3(f) provides in relevant part:
’’Agriculture’’ includes farming in all its branches and
among other things includes the cultivation and tillage
of the soil, dairying, the production, cultivation, grow-
ing and harvesting of any agricultural . . . commodities
. . . and any practice . . . 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 trans-
portation to market.
In Farmers Reservoir & Irrigation Co. v. McComb, 337
U.S. 755, 762–763 (1949), the Supreme Court set forth two
distinct branches of this definition:
First, there is the primary meaning. Agriculture includes
farming in all its branches. Certain 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. Agriculture is de-
fined to include things other than farming as so illus-
trated. It includes any practices, whether or not them-
selves farming practices, which are performed either by
a farmer or on a farm, incidently to or in conjunction
with ‘‘such’’ farming operations.
Relying on the Department of Labor regulation (29 CFR
§ 780.141) interpreting the phrase ‘‘such farming operations’’
from Section 3(f) of the FLSA, the Board has determined
that the handling of crops does not constitute agriculture
within the broader secondary meaning of that term if any
amount of the crops regularly handled by the workers in
question are grown by a grower other than the entity by
whom they are employed. Camsco Produce Co., 297 NLRB
905, 908 (1990). The record in the instant proceeding reveals
that the Employer does not cultivate any crops but instead
provides harvesting and other services either to a grower or
pursuant to ‘‘joint deals.’’ In as much as the lettuce handled
by the workers in issue here is not grown by the Employer,
I find that the handling of that lettuce does not constitute
secondary agriculture.
Given the above finding, the workers in question constitute
agricultural laborers only if their functions constitute some
form of primary agriculture—such as ‘‘harvesting’’ lettuce.
In this regard, the Department of Labor defines ‘‘harvesting’’
within the meaning of Section 3(f) of the Fair Labor Stand-
ard Act, as follows:
The term ‘‘harvesting’’ . . . includes all operations cus-
tomarily performed in connection with the removal of
the crops by the farmer from their growing position
. . . . ‘‘Harvesting’’ does not extend to operations sub-
sequent to or unconnected with the actual process
whereby agricultural or horticultural commodities are
severed from their attachment to the soil or otherwise
reduced to possession . . . while transportation to a
concentration point on the farm may be included, ‘‘har-
1279PRODUCE MAGIC
vesting’’ never extends to transportation or other oper-
ations off the farm. [29 CFR §§ 780.118(a) and (b).]
As observed by the Board in Mario Saikhon, Inc., 278
NLRB 1289, 1291 (1986), in determining whether a worker
is engaged in primary agriculture, it is necessary to focus on
the nature of the work, and not the identity and purpose of
the employer.
In Mario Saikhon, supra, 278 NLRB at 1291–1292, the
Board held that persons who trimmed, sorted, culled,
bunched, packed, and closed cartons of broccoli and canta-
loupes in the fields, performing the same tasks that are per-
formed in commercial packing sheds off of the farm, were
not engaged in primary agriculture solely by virtue of the
fact that they performed their functions in the open air in the
field itself in close proximity to the employees who actually
severed the crop from the ground and in one continuous op-
eration with the picking or cutting function. Noting that
‘‘harvesting’’ can extend to activities performed in the field
in connection with transporting severed crops to a central
collection point (citing Allied Mills, 96 NLRB 369 (1951)),
the Board held that the field packing operation did not con-
stitute such an activity. Thus, the Board concluded that al-
though the individuals who severed the crop from the ground
were engaged in primary agriculture—that is, ‘‘harvesting’’
those engaged in the subsequent trimming, sorting, culling,
bunching, packing, and carton closing operation were not.
Similarly, in Employer Members of Grower-Shipper Vege-
table Assn., 230 NLRB 1011 (1977), the Board found that
various drivers, stitchers, and folders involved in a ‘‘naked
pack’’ field operation were statutory employees.
In the instant case, the record establishes that the workers
in question take unassembled cartons from a stack loaded on
a truck and distribute them in rows in the field. Boxes are
either snapped or stapled shut after being packed. Lettuce
which has been severed from the ground is watered by water
persons both before and after it is packed in cartons. Packed
and closed cartons are loaded onto a truck which is driven
through the field. In accord with the decisions in Mario
Saikhon, supra, and Grower-Shipper, supra, I find that the
work of loaders, water persons, staplers, and drivers plainly
does not constitute primary agriculture.
This leaves for determination the status of cutter-packers.
The act of severing the lettuce from the ground plainly is
‘‘harvesting’’ and, therefore, those who perform this work
are agricultural laborers while they are doing so. The video-
tape introduced into evidence reveals that the cutter both sev-
ers the lettuce and trims off any excess from the bottom.
This work accounts for 50 percent of each cutter-packer’s
workday. The remainder of each cutter-packer’s day is spent
in the packing function. Approximately 25 percent of pack-
ing is comprised of ‘‘sleeving,’’ wherein the packer wraps
the lettuce head before inserting the head into a carton. Such
work, I find, is analogous to traditional packing operations
which, as in Mario Saikhon, supra, and Grower-Shippers,
supra, is performed in the field but, nevertheless, does not
constitute primary agriculture.
The record establishes that approximately 75 percent of
the Employer’s packing operation is comprised of ‘‘naked
pack’’ operations, wherein the packer may have occasion to
‘‘trim’’ by hand excess or dead leaves before inserting the
lettuce heads directly into the carton. This trimming and
packing function is precisely the kind of activity which the
Board found did not constitute primary agriculture in Mario
Saikhon, supra, and Grower-Shipper, supra, and I so find
here.
On brief, United Farmworkers argues that harvesting and
packing is a single operation. Citing Allied Mills, 96 NLRB
369 (1951), United Farmworkers contends that the Employ-
er’s field packing operation is analogous to gathering the let-
tuce to a concentration point attendant to reducing the lettuce
to a state of possession. However, I find that the packing op-
eration is in the nature of activity subsequent to, and
unconnected with, the actual process of serving the crop. See
Mario Saikhon, supra, and Grower-Shipper, supra.
The Farmworkers further contend that, because the cutter-
packer members of the trios alternately perform both cutting
and packing work, the work of the trio should be treated like
work accomplished as a single, cohesive unit engaged in har-
vesting work. In this regard, I find that the Board’s decision
in Olaa Sugar Co., 118 NLRB 1442 (1957), is dispositive.
There, the Board set forth the following rule regarding its ju-
risdiction over employees who perform both agricultural and
nonagricultural work (118 NLRB at 1443):
We now announce the rule that employees who perform
any regular amount of non-agricultural work are cov-
ered by the Act with respect to that portion of the work
which is non-agricultural.
Accord: Mario Saikhon, supra, 278 NLRB at 1292.
Thus, to the extent that cutter-packers perform work other
than severing crops from the ground, I find that they are em-
ployees within the meaning of the Act while performing such
functions.
Finally, United Farmworkers raises a policy question about
whether the Board, in construing the term agricultural labor-
ers,’’ should construe that term narrowly, so as to afford the
maximum degree of coverage under the Act, or broadly, so
as to minimize the Board’s intrusion on the jurisdiction of
state agencies such as the California Agricultural Labor Rela-
tions Board. First, as discussed by the Board in its decision
in Camsco Produce Co., supra, 297 NLRB at 908–909 fn.
19, it appears from the legislative history that Congress in-
tended that the term ‘‘agricultural laborer’’ be narrowly con-
strued by the Board because, in choosing between a proposed
rider which would have defined that term broadly, as in the
Social Security Act Amendments of 1939, and the present
definition, Congress, after heated debate and sharp conflict,
chose the latter. Thus, consistent with Congressional policy,
the Board has construed the exemption as including all pri-
mary agricultural practices but only those secondary agricul-
tural practices which are performed by a farmer simply in
order to prepare its own products for market. To the extent
that modern agricultural business practices have departed
from this ‘‘traditional model,’’ and the farmer no longer pre-
pares its own products for market, it was the intent of Con-
gress to extend coverage of the Act to individuals engaged
in activities other than primary agriculture. Camsco Produce
Co., supra, 297 NLRB at 908.
Finally, in enacting the Act, it was the intention of Con-
gress to implement a uniform national labor policy which
would confer the same rights and benefits and impose the
same duties and obligations on all employees and employers
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affecting commerce throughout these United States. Although
Section 10(a) of the Act empowers the Board to cede juris-
diction to state agencies in certain circumstances, the Board
has not seen fit to cede jurisdiction to the California Agricul-
tural Labor Relations Board and, I find, to do so would do
violence to the Congressional policy of maintaining a uni-
form national labor policy.
ORDER
With the exception of the time spent performing cutter
work, which constitutes ‘‘harvesting,’’ I find that the Em-
ployer’s employees are not agricultural laborers and, there-
fore, fall within the definition of employees in Section 2(3)
of the Act. Accordingly, inasmuch as United Farmworkers
makes no claim to represent any statutory employees, the pe-
tition here is dismissed as failing to raise a question con-
cerning representation.