Roberts Fig Co.

National Labor Relations Board - Board Decisions

Mar 16, 1950

88 N.L.R.B. 1150 (N.L.R.B. 1950)

In the Matter of NEWELL E. ROBERTS, D/B/A ROBERTS FIG COMPANY,
EMPLOYER and DRIED FRUIT, NUT PACKERS, DEHYDRATOR WARE-
HOUSEMEN'S UNION No. 616, INTERNATIONAL BROTHERHOOD OE TEAM-
STERS, AFL, PETITIONER
Case No. W-RC-697.Decided March 16, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Robert V.
Magor, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A 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.
4. The Petitioner requests that we find appropriate a unit con-
sisting of all production and maintenance employees at the Employer's
packing house at Fresno, California, excluding guards, office em-
ployees, professional employees, and supervisors within the meaning
of the amended Act. The Employer contends the Board lacks juris-
diction over the workers at its plant inasmuch as those employees
are "agricultural laborers" and are therefore not within the definition
1 At the hearing , the Employer moved to dismiss the petition on the ground that the
Petitioner was picketing the property of the Company for the purpose of coercing the
employees in the exercise of the privileges granted to employees under Section 7 of the
National Labor Relations Act, as amended . This motion was referred to the Board by
the hearing officer and is hereby denied.
88 NLRB No. 208.
1150
ROBERTS FIG COMPANY 1151
of "employee" set forth in Section 2 (3) of the Act. The Employer
also argues that, in any event, only those employees working in the
packing house preparing the produce for market should be included
in the unit.
The Employer is engaged in the growing and packing of figs and
operates only at the location concerned herein. Approximately 68
percent of the figs handled by the Employer during the previous year
was raised on land owned or leased by the Employer who performed
all the necessary irrigation, pruning, and cultivation.2 The remaining
portion of the crop was either purchased from other growers or han-
dled as an accommodation to other packers. The groves producing
the figs are located within an 8-mile radius of the Employer's center
of operations and packing plant.
The figs, after they have been gathered from the groves, are trucked
to the drying yard. This drying yard occupies 6 acres of a 10-acre
fenced plot which also contains a packing house, grading shed, sorting
shed, garage, shop, and storage facilities. After the figs have dried
in the sun for a period of from 2 to 4 days, they are sorted in the
drying yard to remove culls from the saleable fruit. They are then
stored in bins and fumigated to eliminate infestation. Upon removal
from the bins, the figs are inspected by a State inspector and graded.
The grading, which requires a processor's license, is done in the grad-
ing shed with mechanical devices. The boxes of figs are finally re-
moved to the packing house where they are washed, steamed under
pressure or sliced, and then boxed or ground to a paste for use in
bakeries. In the first 11 months of 1949, the Employer produced
$143,700 worth of fig paste, and shipped $24,700 worth of figs in
packages and bags which needed no repackaging before sale to the
ultimate consumer. During the same period, $76,650 worth of figs
were shipped in bulk cartons for repackaging.
Section 2 (3) of the National Labor Relations Act excludes from
the definition of the term "employee" workers who are "agricultural
laborers." By a rider to the Board's current appropriation act, the
definition of "agriculture" contained in Section 3 (f) of the Fair
Labor Standards Act of 1938 has been made controlling upon our
determinations as to whether or not particular employees are "agri-
cultural laborers." 3 Applying this definition, we have held that the
2 Of the 1,840,000 pounds of figs handled during the year 1949, approximately 1,232,400,
pounds were grown on land owned or leased by the Employer. Four hundred and fourteen
thousand pounds were grown by W. E. Roberts, the father of the Employer, who retained)
title to the fruit and dried, sorted, and fumigated the figs before delivery to the Employer's.
plant. W. E. Roberts is not financially connected with the Employer's firm. The remainder
of the crop was purchased on the tree or after harvesting with the exception of 52,000
pounds handled for another packer.
2 See lVilliami H. Elliott d Sons Co., 78 NLRB 1078.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exemption is not applicable to employees working on commodities
which are not grown by their own employer 4 We have also held that
where the nature of the product sold has been materially changed
to enhance its market value, the operations involved are commercial
rather than agricultural.' In the situation now before us, all opera-
tions performed by the Employer prior to the testing of the stored
figs for infestation are commonly performed on farms engaged in the
production of that fruit. On the other hand, it is clear that testing,
grading, washing, steaming, grinding, and packaging of figs such as
are done herein by the Employer are generally performed by com-
mercial establishments and not by the growers themselves. Further-
more, they involved to some extent a material change in the product
through steaming and mashing. Finally, we note that an appreciable
portion of the crop processed by the Employer is grown by others.
Under these circumstances, we find that the employees at the Em-
ployer's packing house are not exempted from the provisions of the
Act as coming within the definition of "agricultural laborers." 6
The Petitioner requests that all production and maintenance em-
ployees who do any work on the figs from the time the fruit is taken
from storage should be included in the unit. The Employer, however,
contends that only employees engaged in processing the figs after they
have been graded should be included. Most, if not all, of the em-
ployees at the Employer's operations work in the packing house for
a portion of their time. Twelve or thirteen women and six men work
more or less permanently in that location and during the peak season,
from September to November, additional personnel are hired for the
packing house. Five employees normally work in the grading shed.
The Employer also assigns four of his most experienced employees to
truck driving duties when necessary. These drivers take the figs from
the groves to the drying yard 7 and from the packing house to a rail-
road siding. The packing house is under the supervision of a foreman
and a forelady. The drying yard and sorting shed have a separate
supervisor and a fourth individual is in charge of washing and steam-
ing operations in the packing house. The grading shed, which is con-
nected to the packing house by a roof, is jointly supervised by the
1 See Atlantic Commission Company, Inc., 84 NLRB 944, and cases cited therein.
6 See Wm. P. McDonald Corporation, 83 NLRB 427, and cases cited therein.
° See cases cited in footnotes 4 and 5 , supra . The Employer relies upon our decision in
X • S. Hunn, d/b/a L. S. Hunn Packing Co., 65 NLRB 631, to sustain his contentions. We
find the Hunn case clearly distinguishable for the employer therein handled only his own
,crop and did no processing other than normally done by farmers in the olive industry.
I We believe that the drivers, while engaged in transporting fruit from the groves to the
drying yard, are performing work of an "agricultural" nature, and therefore may not be
represented for that portion of their duties.
ROBERTS FIG COMPANY 1153
foreman in the packing house and the drying yard. All supervisors
have the authority to hire or discharge or effectively recommend such
action. The Employer has one clerical employee working in the office
who does no production work.
The record indicates that there is no clear line of demarcation herein
between employees working in the fields at admittedly agricultural
labor and those engaged in the packing house. The Employer, to
maintain an even level of employment, shifts individual employees as
needed from one job to another. We have previously held, however,
that employees dividing their time between agricultural and nonagri-
cultural employment may be represented by a union as to that part
of their work which is not agricultural in character.' The only ques-
tion remaining is, therefore, whether work done in the grading shed
is agricultural. While the majority of small fig farmers do not do
their own grading, there are apparently instances in which such grad-
ing is done on a farm without further processing. However, in the
instant case, the grading appears to be preliminary to further treat-
ment of the figs in the packing house. Accordingly, we believe that
the employees of the Employer may be represented for that portion
of their work done in the grading shed.
We find that a unit of all production and maintenance employees of
the Employer working in the packing house, including employees
working in the grading shed, but excluding office employees, pro-
fessional employees, guards, and all supervisors within the meaning of
the amended Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30 days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Region in which this case was heard,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations, among the employees in the unit found
appropriate in paragraph numbered 4, above, who were employed
during the payroll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said payroll period because they were ill or on vacation or temporarily
laid off, but excluding those employees who have since quit or been
8 See L. Maxcy, Inc., 78 NLRB 525, and cases cited therein.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for cause and have not been rehired or reinstated prior
to the date of the election, and also excluding employees on strike who
are not entitled to reinstatement , to determine whether or not they
desire to be represented , for purposes of collective bargaining,-by
Dried Fruit, Nut Packers, Dehydrator Warehousemen's Union No. 616,
International Brotherhood of Teamsters, AFL.