Stark Brothers Nurseries and Orchards Co.

National Labor Relations Board - Board Decisions

May 11, 1942

40 N.L.R.B. 1243 (N.L.R.B. 1942)

In the Matter Of STARK BROTHERS NURSERIES AND ORCHARDS COMPANY,
A CORPORATION and LOCAL INDUSTRIAL UNION No. 1129, AFFILIATED
WITH THE C. I. O.
Case No. C-2045.Decided, May 11, 1942
Jurisdiction : nursery industry.
Unfair Labor Practices
Collective Biargaining: charges of, dismissed, where the request to bargain was
made for a unit consisting substantially of agricultural laborers who are not
employees within the meaning of Section 8 (3) of the Act.
Practice and Procedure : complaint dismissed.
Definitions : nursery employees held to be agricultural laborers within the
meaning of Section 2 (3) of the Act.
Mr. Jack G. Evans, for the Board.
Mr. Alden A. Stockard, of St. Louis, Mo., Mr. Gregory C. Stockard,
of Jefferson City, Mo., and Mr. Edmund M. Toland, of Washington,
D. C., for the respondent.
Mr. Joseph Dernoncourt, of St. Louis, Mo., and Mr.'Eugene Cotton,
of Washington, D. C., for the Union.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on July 10, 1941, by Local Industrial Union
No. 1129, affiliated with the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Acting Regional Director for the Fourteenth'
Region (St. Louis, Missouri), issued its complaint dated November 12,
1941, against Stark Brothers Nurseries and Orchards Company, a cor-
poration,' Louisiana, Missouri, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1) and
'Incorrectly designated in the complaint and notice of hearing as Staik Brothers Nuisery
and Orchards Company, a corporation.'
40 N. L. R. B., No. 221.
1243
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notices of hearing thereon,2 were duly served upon the re-
spondent and the Union. -
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent, about June 25, 1941, refused to bar-
gain collectively with the Union which, on and since that date, has
been the exclusive representative of the respondent's employees in an
appropriate unit consisting of all the production and maintenance
employees of the respondent at its Louisiana nursery, excluding super-
.visory, clerical, and office employees; and that thereby the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7.of the Act. On November 24,
1941, the respondent filed its answer wherein it admitted certain allega-
tions with respect to its business, but denied that it had engaged in
any unfair labor practices. It further asserted that the Board was
without jurisdiction in this case because (1) the respondent's opera-
tions do not affect commerce; (2) the respondent's employees are agri-
cultural laborers within the meaning of Section 2 (3) of the Act; and
(3) the Act and the proceedings of the Board are violative of the
Federal Constitution.
Pursuant to notice, a hearing was held on November 24 and 25, 1941,
at Louisiana, Missouri, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and the Union by a repre-
sentative. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the commence-
ment of the hearing the respondent filed a motion, to dismiss. the
complaint on the grounds (1) that the complaint did not state facts
sufficient to show any violation'of the Act; (2) that the respondent's
employees are agricultural laborers within -the meaning of Section 2
(3) of the Act; and (3) that the Act and the proceedings of the Board
are violative of Articles I, II, and III, and the Fifth, Sixth, and Eighth
Amendments of the Constitution of the United States. This motion
was renewed at the close of the Board's case and again, at the close
of the hearing. The Trial Examiner each time reserved ruling, on the
motion, but denied it in his Intermediate Report. During the course
of the hearing, the Trial Examiner made rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed all the rulings of the Trial Examiner and finds that no preju-
2 The notice of hearing attached to the complaint named St Louis, Missouri, as the place
of the hearing On November 18, 1941, the Regional Director ordered that the hearing
be held at Louisiana, Missouri Notices of the change in the place of the hearing were duly
served•upon'the parties.
STARK BROTHERS NURSERIES AND ORCHARDS COMPANY 1245
dicial errors were committed. Except as noted below, the rulings are
hereby affirmed.
On January 2, 1942, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, wherein he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce,, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist from its unfair
labor practices, that upon request. it bargain collectively with the
Union, and that it take certain other affirmative action designed to
effectuate the policies of the Act.
On January 31, 1942, the respondent filed its exceptions to the Inter-
mediate Report, and it later requested permission to argue orally
before the Board. Permission to make oral argument as amici curiae
was also requested by the American Farm Bureau Federation; the
National Grange; the International Apple Association; R. A. Trovat-
ten, Commissioner of Agriculture, Dairy, and Food of the State of
Minnesota and President of the National Association of Commissioners,
Secretaries, and Directors of Agriculture; the National Council of
Farmer Cooperatives; and The Association, Southern Commissioners
of Agriculture. The Board granted such permission to the National
Grange, the American Farm Bureau Federation, and the International
Apple Association, and denied it as to the others. The Board granted
to all those requesting it, however, permission to file briefs, and briefs
were received from R. A. Trovatten, Commissioner of Agriculture,
Dairy, and Food of the State of Minnesota and President of the Na-
tional Association of Commissioners, Secretaries, and Directors of
Agriculture; The Association, Southern Commissioners of Agricul-
ture; and National Council of Farmer Cooperatives.
Pursuant to notice duly served upon all parties, a hearing for the
purposes of oral argument was held before the Board in Washington,
D. C., on March 3, 1942. The respondent and the Union were repre-
sented by counsel, and the National Grange, the American Farm
Bureau Federation, and the International Apple Association by their
representatives. All participated in the hearing. On March 16 and
27, 1942, pursuant to permission granted by the Board at the hearing
for oral argument, the respondent and the Union respectively, filed
briefs, and on April 6, 1942, the respondent filed a reply brief. The
Board has considered the respondent's exceptions and the briefs which
have been filed and, insofar as the exceptions are consistent with the
findings, conclusions, and order set forth below, finds merit in them.
On March 24, 1942, the respondent, the Union, and an attorney for
the Board entered into a stipulation making certain corrections in the
transcript of testimony, and making apart of the official record in this
matter agreed statement of facts concerning the number of the re-
1246 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD.
spondent 's employees , and concerning certain postal regulations apply-
ing to the respondent. The Board hereby orders that the stipulation
and the agreed statement of facts be made a part of the record , and that
the transcript be corrected in accordance with the stipulation.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I 1. THE BUSINESS OF THE RESPONDENT
Stark Brothers Nurseries and Orchards Company is a Missouri
corporation , organized in 1889, and has its principal office and place of
business near Louisiana , Missouri . It is engaged in the production,
sale, and distribution of fruit trees , berry and vegetable plants, and
ornamental nursery stock . It operates branch nurseries at Rockport,
Illinois; 3 Porum and Stegler, Oklahoma; Farmington, Arkansas;
Marionville , Missouri ; and Dansville , New York. The principal
property is the nursery near Louisiana , Missouri . Only the respond-
ent's nurseries at Louisiana, Missouri , and Rockport , Illinois, are in-
volved here. They are herein called Louisiana and Rockport,
respectively . Louisiana and Rockport are approximately 7 miles
apart.
During the period from June 1940 to June 1941, the respondent
received at Louisiana 402,000 cherry seedlings; 147,200 pear seedlings;
249,500 plum seedlings ; 5,000 apple seedlings ; and 86,470 ornamental
stock plants, to be planted and grown. It also received 768,000 apple
trees and 14,850 quince trees, previously grown on its properties at
other places . Approximately 95 percent of the above items was re-
ceived from points outside the State of Missouri . During the same
period the respondent shipped to its customers approximately 2,200,-
000 trees and items of nursery stock, of which 90 percent was shipped
to customers outside the State of Missouri.
At Louisiana the respondent utilizes over 600 acres of land, of
which if owns all but about 90 acres . Located on its land are its
office building, a print shop, a box factory, a blacksmith shop, a storage
cellar, packing sheds which cover about 3 acres , and a spur track of
the Chicago and Alton Railroad, with loading facilities. Of the laird
utilized by the respondent , about 135 acres are used to produce rye,
oats, clover, soybeans, turnips, cowpeas, hay, and timothy; about 310
are devoted to pasturage for mules used by the respondent in its
operations; approximately 139 acres are used as orchards and for the
growing and propagating of fruit trees ; and some 15 acres are used
for the production of ornamental nursery stock and vegetable plants.
I
3 Also refereed to as Atlas, Illinois , in the record.
STARK BROTHERS NURSERIES AND ORCHARDS COMPANY 1247
At Rockport, the respondent owns 140 acres of land, of which 95 acres
are used for the growing of fruit trees, and 45 acres for corn. Crops
are rotated on'the land from time to time. All the items named above
depend upon the elements of nature for their growth and maturity
without artificial assistance except for the regular care and cultivation,
that such crops require. Except for the fruit trees, ornamental nur
sery stock, and vegetable plants, the crops produced are used as cover
crops, or for packing and feeding purposes, and are ordinarily wholly
utilized by the respondent in the course of its operations gat Louisiana
and Rockport. At times the respondent supplements its supply of
these items by purchase; and at other times, having a surplus above its
own actual needs, may sell its surplus.
In July 1941, the respondent employed 128 persons at Louisiana,
and 50 persons at Rockport.
II. THE ORGANIZATION INVOLVED
Local Industrial Union No. 1129 is a labor organization affiliated
with the Congress of Industrial Organizations, and admits to member-
ship employees of the respondent.
III. THE ALLEGED REFUSAL TO BARGAIN
The complaint alleged that all the production and maintenance
employees of the respondent "at the Louisiana nursery," 4 excluding
supervisory, clerical, and office employees, constitute a unit appropriate
for the purposes of collective bargaining The record shows that on
July 16, 1911, the respondent refused the Union's request for recogni-
tion as the exclusive bargaining representative of the employees in-the
above unit, on the ground that the employees involved were "agricul-
tural laborers," and as such not protected by the Act.5
The respondent handles and sells large quantities of apple trees.
The record shows that few or none of these are grown at Louisiana;
apple seedlings, having been grafted and treated at Louisiana, are sent
out to the respondent's other properties and there grown for a period
of about 2 years, whereupon they are uprooted and brought back to
Louisiana for sale and shipment from that point. Starting about the
middle of November of every year, the respondent's employees are
4 The respondent, early in the hearing, objected to the admission of evidence concerning
the respondent 's operations at Rockport , on the ground that such evidence was outside the
scope of the complaint Counsel for the Board thereupon stated that the general term
"the Louisiana Nursery" was used in the complaint to include the respondent 's Rockport
operations , and we so treat it foi the purposes of this Decision.
Section 2 (3) of the Act provides :
The term "employee" . . shall not include any individual employed as an agricul-
tural laborer , or in the domestic service of any family or person at his home, or any
individual employed by his parent or spouse
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in unloading and storing in the packing houses young apple
and other fruit trees which have thus been grown at and shipped from
other of the respondent's nurseries to the Louisiana nursery. Later,
during December and January, some 35 or 40'employees are engaged in
cutting scions from trees growing at the Louisiana nursery and graft-
ing the scions onto apple seedlings in the respondent's grafting rooms.
The seedlings in large numbers are then packed in boxes and later
shipped to the respondent's other properties to be planted.
The spring packing season, during which the respondent packs and
ships to its customers the apple trees and' other items which have
been ordered, starts about the first of February and continues for at
least 2 months. The work performed by the employees during this
period, like that of grafting and wrapping seedlings, takes place
indoors in the packing sheds, and consists of filling and checking
customers' orders, labeling, bundling, packing, and shipping.
After the end of the spring packing season, and starting sometime
in April, employees work in the open fields, planting, layering, fer-
tilizing, cultivating, and weeding. During this period some 30 or
40 men are engaged until about the middle of June in cutting off
suckers from trees which were budded the year before.
From the first of July through September a crew of about 60 men
is engaged in budding peach, plum, apricot, cherry, and pear trees.
The crews are divided into nubbers, budders, and-wrappers. The
nubbers precede the budders down a row of young trees, and strip the
leaves from the trees which are to be budded. The budder then makes
an incision on the young tree and inserts a bud from a patented variety.
The wrapper follows the budder and wraps above and below the bud
to hold it in place. Budding, as well as the grafting mentioned above,
is a process requiring practice and skill, and the men employed at
these operations earn from 25 to 75 cents more a day than other
employees of the respondent.
Employees not engaged in budding during this period are kept at
work haying, threshing, weeding, cleaning out the respondent's sheds,
breaking up excelsior, and doing other work which may be needed
about the respondent's properties. During September and October
the employees are also engaged in pruning the young-trees. The fall
packing season starts about the first or middle of October and con-
tinues into the middle of November when the young trees from other
nurseries start coming in again. The work performed by the em-
ployees at this time is similar to that performed during the spring
packing season.
The exclusions of certain groups in Section 2 (3) of the Act are
occupational exclusions, dependent upon the nature of the work per-
formed by the employees involved. In construing the term "agri-
cultural laborer" in Section 2 (3) we have found that the exclusion
`STARK BROTHERS NURSERIES AND ORCHARDS COMPANY 1249
did not cover persons employed as lettuce packers who performed no
work in the fields,6 persons who were employed solely as fruit packers
in a packing house operated by a cooperative fruit growers association,T
or employees in a walnut shelling plant who had no contact with the
grower or with the farms on which the walnuts were grown .§ We
found, in these cases, that the employees involved were engaged in
clearly commercial or industrial work, despite the fact that the busi-
ness of some of the employers was in part agricultural.
We are now confronted with the question whether employees. of a
nursery engaged in the occupations we have described above, fall
within the definition of "agricultural laborers." As the facts recited
above disclose, most of the respondent's employees perform a variety
of tasks customarily regarded as agricultural. They plant, fertilize,
cultivate, and harvest crops in the open fields under natural condi-
tions. While the grafting, budding, and other work closely related
to the propagation of fruit trees is performed on a large scale and, in a
scientific manner, it is nonetheless a familiar agricultural pursuit,
essential to the uniform reproduction of desired varieties of stock.
Except for a few, men employed continuously in the print. shop, vir-
tually all the employees devote substantial portions of their time to
the duties directly connected with the growing of crops and nursery
stock.
We are of the opinion that while the conduct of a nursery such as
the, respondent's is both a commercial and an agricultural operation,
the employees here involved are agricultural laborers within ;the mean-
ing of the Act. ,In this regard, it is to be pointed out that nursery
employees have consistently been held to be agricultural laborers under
the Fair Labor Standards Act 9 as administered by the, Wage and Hour
Division of the Department of Labor. That Division construed the
term "employed in agriculture" to include "employees of a nursery
who are engaged in . . . sowing seeds and otherwise propagating fruit,
nut, vegetable and ornamental plants -or trees,'and shrubs,' vines and
flowers . . . planting, cultivating, watering, spraying, fertilizing,
pruning, bracing, and feeding the growing crop" or; in "Handling,
9 Matter of , American Fruit Growers , Inc., et al and Fruit & .Vegetable Workers Sub-Local
of #191, UCAPAWA, C. I 0, 10 N L R B 316; Matter of Grower -Shipper Vegetable
Association of Central California , and Fruit and Vegetable Workers' Union of California,
. No 18211, et al, 15 N. L R B 32 , enf'd in N L R B V Grower-Shipper Vegetable Ass'n.
of. Central California, et al, 122 F (2d) 968 (C C A. 9)
4 Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers
Union, Local No 21090 , 10 N L R B 1269 , enf'd in North Whittier Heights Citrus Ass'n.
v N L R B, 109 F. (2d) 76 (C. C A 9).
$Matter of California Walnut Growers Associat i on and Walnut Workers Union, Local 92
of United Cannery, Agricultural , Packing and Allied Workers of America , 1S N L. R. B.
493.
6 Section 13 (a) (6 ) of the Fair Labor Standards Act exempts from both the wage and
hour provisions "any employee employed in agriculture."
455771-42-vol 40-79
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
wrapping, packaging and grading" nursery stock produced by the
employer.10
The Union contends that the respondent's business is a "commercial"
enterprise, consisting primarily of the Nation-wide distribution and
marketing of trees and shrubs; and it argues that the operations of the
individual employees, although some of them might ordinarily be con-
sidered agricultural in nature, are not controlling since they are merely
incidental to the carrying on of a commercial enterprise. As we have
said, however, the exemption is an employee occupational exemption.
In support of its contention; the Union cites the 'Tovrea Packing
Company case,11 involving feed lot and feed mill workers employed
by a meat-packing firm who were held not 'to be agricultural laborers.
The Tovrea case, however, is not controlling here, since the work of the
employees there involved was not essentially agricultural in nature.
Their duties did not relate to the planting, cultivation, or harvesting
of crops; but rather to the temporary care of 'animals awaiting
slaughter: Their work was carried on as an incident to and in connec-
tion with a clearly commercial enterprise .12
The Union further argues that the respondent's employees are not
"agricultural laborers" for the reason that under the test laid down by
,the Circuit Court of Appeals for the Ninth Circuit in the North
Whittier Heights case 13 the need of these employees for collective
bargaining is fully as great as' th at of' the packing house workers held
covered by the Act in that case. We'recognize that the employees here
involved are ih'serious'need of collective bargaining," and that, in view
of the large-scale operations of the respondent, a labor dispute such as
has here occurred 15 will burden and obstruct commerce. The provi-
sions of Section 2 (3) of the Act, are plain, however, that the exclu-
sions therein are employee exclusions. We are of the opinion, more-
10 "Interprefative Bulletin 'No 14 , of the Wage and Hour Division , Department of Labor,
On the Exemption of Agriculture ; and on , the Exemptions for Processing Agricultural
Commodities ," issued August 21, 1939
'IN. L. R B v. Tovrea Packing Co, 111 F. (2d) 626 ( C. C A 9 ), cert . den. 311 U. S
668, enf 'g as mod . Matter of Tovrea Packing Company, a corporation and Amalgamated
Meat Cutters and Butcher Workmen of North America , Local No. 818, 12 N. L. R B. 1063
12 We recognize the difficulty in determining in certain cases whether the employee is
engaged in an essentially agricultural operation or is performing work only incidentally
agricultural and primarily commercial Many employees in the instant case are plainly
engaged in work relating directly to the cultivating of a crop and hence are agricultural
laborer s.
ii North Whittier Heights Citrus Association v N L R B, 109 F. ( 2d) 76 ( C C A 9),
cert. den 310 U S. 632, reh den 311 U S 724 , enf'g Matter of, North Whittier Heights
Citrus Association and Citrus Packing House Woi kern Union , Local No 21091, 10 N. L R B
1269 The Court observed that it was reasonable to suppose that Congress exempted agri-
cultural workers , domestic workers , and persons employed by their families from the oper-
ation of the Act because the number of employees , and hence the need for collective bar-
gaining , in most cases involving such employees , would be small
34 See Report of U S. Senate Committee on Education and Labor (No 1150 ) pp 7, 14,
33, 37-38.
16 The record shows that on July 18, 1941 , all but about 40_of the respondent 's employees
struck ; work was not resumed until July 29, 1941
STARK BROTHERS NURSERIES AND ORCHARDS COMPANY 1251
over, that the controlling fact in construing the term "agricultural
laborer" is the essential character of the work, performed, which, as
we have stated, is here primarily connected with the growing of crops
and nursery stock.l" We are accordingly constrained to find that the
exclusion of "agricultural laborers" in Section 2'(3) of -the Act applies
to an indeterminate number of the respondent's employees involved
in this case and that the Board, therefore, is .without jurisdiction to
include such workers in a unit for the purposes of collective bargaining.
Since the request to bargain was made for a unit consisting sub-
stantially of workers who are not employees within the meaning of
Section 2 (3) of the Act, we find that the respondent has not refused
to bargain collectively within the meaning of Section 8 (5) of the
Act. The complaint did not allege that the respondent had engaged
in any unfair labor practices other than by its refusal to bargain with
the Union as the exclusive representative of the employees in the unit
alleged to be appropriate. Since the- respondent has not engaged in
any-unfair labor practices, we shall dismiss the complaint.
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent, Stark Brothers Nurseries and
Oi;chards'Company, Louisiana, , Missouri,' constitute a continuous:flow
of trade, traffic, and commerce among the several States, within the
meaning of Section 2 (6) of the Act.
2. Local Industrial Union No. 1129, affiliated with the C. I. 0., is a
labor organization `within the meaning of Section 2 (5) of the Act.
3. The respondent has not refused to bargain collectively with the
Union as the exclusive bargaining representative of its employees in
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that the complaint against the respondent, Stark Broth-
ers Nurseries.and Orchards Company, Louisiana, Missouri, be, and it
hereby is, dismissed.
16 It should be pointed out that the employees actually involved in the North Whittier
Heights case were engaged solely in work in the employer 's packing house . The Court .there-
stated : "It should be understood that this proceeding concerns packing house workers
and packing house work solely, and that there are here no facts as to picking the fruit nor
as to any treatment of the orchard " Svpra, footnote 13, 109 F ( 2d) at 81