The Sweetlake Land and Oil Co, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1962

138 N.L.R.B. 155 (N.L.R.B. 1962)

THE SWEETLAKE LAND AND' OIL COMPANY, INC. 155
result of being named in the charge and about the only purpose served by the old
charge was to give notice that they, together with other persons, were union members
or active in its behalf.
There remains for consideration the separate , but similar , conversations Walters
and Henry Scott had with Boyd during September 1961. The substance of these
conversations , as related by Walters and Scott , is that Boyd refused to reemploy
Walters or Bertie Scott because their names appeared in the old charge . On the other
band Boyd testified he told Walters and Scott he had no jobs available and when they
started lauding the Company and himself, Boyd queried if they felt that way why did
they file charges against him. Walters and Scott thereupon opined their unaware-
ness or ignorance of the contents of the charge . I was not favorably impressed by
the testimony of Walters and Henry Scott for it struck me they were simply trying
to bolster the case. Moreover , it seems highly improbable that Boyd would inform
Walters and Bertie Scott in June and July that he could not reemploy them because
he had no openings , as they conceded , and in September base his refusal to reemploy
them because their names appeared in the charge . I, therefore , accept and credit the
testimony of Boyd and find he did not make the statements attributed to him by
Walters and Henry Scott . Further, I attach no significance to Boyd's queries ad-
dressed to Walters and Scott concerning the filing of the charge for, if not invited
and appropriate under the circumstances , they were harmless .5
Boyd testified that Walters and Scott were employed exclusively as unitizer and
board layer , respectively , and the Company had no available jobs in these categories
during the period in question . It is true , of course , the Company reemployed Dupree
and Purvis about July 17, but they were employed as general utility workers , a posi-
tion which neither Walters nor Scott were qualified to fill. Walters and Scott did not
deny or challenge Boyd's testimony in their direct examination or as rebuttal wit-
nesses. Consequently , Boyd's testimony stands uncontradicted and I accept it.
Accordingly, I find the Company did not discriminatorily refuse to reemploy
or rehire Walters and Scott in violation of Section 8(a)(3), (4), and (1 ) of the Act.6
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent in failing to reemploy Carolyn Walters and Bertie Scott from
July 17, 1961, to April 12, 1962, has not engaged in unfair labor practices as alleged
in the complaint as amended within the meaning of Section 8(a)(3), (4), and (1)
of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of Law, I recom-
mend that the complaint be dismissed.
G Whitin Macha'nc Works. 32 NLRB 1123, 1129
9 N L R B. v. Cambria Clay Products Company , 215 F 2d 48 , 5G (C A. 6 ) ; NLRB V
Textile Machine Works , Inc, 214 F 2d 929 , 934 (C A 3 ) , Croscill Curtain Company and
Durham Drapery Company , Inc, 130 NLRB 1465; Western Lace & Line Co, d/b/a
Western Fishing Lines Company , 103
Inc., supra.
NLRB 1408 , 1464-146G See also , Adams Dairy,
The Sweetlake Land and Oil Company, Inc.' and Rice Workers
Local 300, Amalgamated Meat Cutters & Butcher Workmen
of N.A., AFL-CIO. Case No. 15-RC-2500. August 15, 1962
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 William W. Fox,
1 The name of the Employer appears as amended at the hearing
138 NLRB No 19.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act 2
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Petitioner seeks to represent a unit of individuals employed
at the Employer's rice drier and warehouse. The Employer contends
that these individuals are "agricultural laborers" excluded from cov-
erage of the Act.
The Employer raises rice and cattle for sale, and chickens for the
sale of eggs, and leases oil, mineral, and irrigation rights. In 1961,
75 percent of its revenue was received from the sale of rice, cattle,
and eggs; gross sales of rice , its principal commodity , amounted to
approximately $370,000.
The Employer owns 5,200 acres of ricelands in the vicinity of
Holmwood, about 15 miles from the Employer's headquarters at Lake
Charles, and farms 600 acres of this land itself, while 4,600 acres are
farmed by 36 tenant farmers under an arrangement whereby the
Employer receives 50 percent of each tenant's crop. The amount of
riceland which can be cultivated is controlled by the Department of
Agriculture. The entire acreage allotment is applied for in the name
of the Employer, which divides it among its tenants, each of whom
cultivates between 150 to 350 acres. The Employer furnishes the land,
seed, half the fertilizer, and water; the tenant furnishes the harvesting
machinery, half the fertilizer, and the labor. The Employer, whose
supervisors oversee the entire operation, determines varieties of rice
to be planted, the kind and quantity of fertilizer, irrigation, and
dusting with weed deterrents and insecticides, and the harvesting
schedules.
A tenant's rice is delivered undivided to the Employer's drier and
stored undivided in the Employer's warehouse, although a fee is
charged the tenant for drying his part of the rice and for storage
beyond 30 days. The tenant sells his share independently. If a tenant
loses his crop, he and the Employer do not reimburse each other.
2 The Employer is a Louisiana corporation engaged , in the operation here involved, in
drying and storing rice which it sells in the hulls , after excess moisture has been removed,
to mills and brokers. In 1961, the Employer sold within the State rice valued at approxi-
mately $250 ,000 to the American Rice Growers Association , Holmwood Division The
Employer and the Petitioner stipulated that this division in the same year sold rice
valued in excess of $50,000 to customers located outside the State . Accordingly, we find
that the Employer is engaged in commerce within the meaning of the Act , and that it will
effectuate the policies of the Act to assert jurisdiction herein.
After the close of the hearing but prior to the execution of the above stipulation, the
Petitioner moved that the case be remanded if further jurisdictional evidence were deemed
necessary . As the evidence in the record on this matter is sufficient , we hereby deny the
Petitioner ' s motion
THE SWEETLAKE LAND AND OIL COMPANY, INC . 157
Rice as it comes from the fields contains approximately 22 percent
moisture but Department of Agriculture standards allow only 12 to
13 percent. In the past, the Employer's rice was cut by a binder, dried
in the fields for about 2 weeks, and then harvested with a separator.
Currently, its rice is cut "green," or undried, by a combine and arti-
ficially dried. This artificial drying process was developed for the
rice industry within the past 12 to 14 years. The drier, which is
operated by the Employer on its lands in Holmwood, consists of a
scale house where the "green" rice is delivered from the fields, and
one drier stand where excess moisture is removed. The Employer's
drier is used to dry rice which is cultivated by the Employer as well
as rice received by the Employer as rent for irrigation rights, and rice
cultivated by its tenant farmers.
The Employer also operates a warehouse in a building adjacent to
the drier.' The warehouse capacity is approximately 50,000 barrels of
rice; about 40,000 barrels are generally kept there at any one time. It
is used to store rice which has been cultivated by the Employer and its
tenants prior to sale as well as rice sold by the Employer to mills which
have not yet requested its delivery. The mills are charged a storage
fee.
The drier and warehouse operation is supervised by a superintendent
and generally has a crew of about 10. During the harvesting season,
which runs from about the middle of August until November, the
drier may run on a 24-hour basis, and a second shift is then added.
During this season , and occasionally at other times, three or four men
may be added. The Employer's superintendent testified that the work
of the drier and warehouse crew, which varies according to the time
of year,4 includes loading and unloading rice and fertilizer; "fanning"
the seed rice, which is the removal of foreign materials and treatment
with insecticides; cleaning and maintenance of the facilities and op-
eration of the equipment and machinery; raking the storage bins; and
aeration of the rice by operation of the aeration system and by con-
stant rotation of the rice between the drier and the warehouse. In
addition, these employees issue feed, fertilizer, and fencing and build-
ing materials from the warehouse for the operations of the Employer
or its tenant farmers.
Section 2(3) of the Act excludes from its coverage "any individual
employed as an agricultural laborer." The Board's annual appro-
priation rider directs in effect that in determining whether an em-
3 1t appears that the Employer has another warehouse , not here involved , at which it
carries on egg processing operations
* The Employer's president testified that the drier and warehouse operation is a 9-month
operation , and that for the remaining 3 months of the year the drier and warehouse crew
repairs fences and performs maintenance operations on the Employer's lands The super-
intendent testified about the work throughout every month of the year but did not advert
to this.
I
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee is an agricultural laborer, the Board shall be guided by the
,definition set forth in Section 3(f) of the Fair Labor Standards Act.
Moreover, it is the Board's policy to follow wherever possible the De-
partment of Labor's interpretation of that section 5
Section 3(f) defines "agriculture" as follows:
"Agriculture" includes farming in all its branches and among
other things includes the cultivation and tillage of the soil, dairy-
ing, the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities . . . the raising of live-
stock, bees, fur-bearing animals, or poultry, and practices .. .
performed by a farmer or on a farm as an incident to or in con-
junction with such farming operations, including preparation
for market, delivery to storage or to market or to carriers for
transportation.
As the drier and warehouse crew here involved is clearly not engaged
in direct farming operations such as are included in what has been
termed Section 3(f)'s "primary" definition of "agriculture,"' the
question remains whether they are engaged in activities which are in-
cluded in the "secondary" definition. In order to come within this
definition, the operation involved must be performed either by a
farmer as an incident to or in conjunction with his own farming
operations or on a farm in conjunction with the operations of that
particular farm.7 We have been administratively advised by the De-
partment of Labor that the rice drying and warehouse operation here
involved does not meet this requirement because, inter alia, it is per-
formed on rice in which both the Employer and its tenant farmers have
an interest. Moreover, the warehouse is also used to store rice sold
by the Employer to mills which have not yet requested its delivery.
Accordingly, the drier and warehouse operation is not performed as an
incident to or in conjunction with the operations of a particular
farmer or farm. We find, therefore, that the employees sought herein
are not "agricultural laborers" within the meaning of Section 2(3)
of the Act." Accordingly, we find that the Board has jurisdiction
herein, and that a question affecting commerce exists concerning the
5G. L. Webster Company, Incorporated, 133 NLRB 440.
6 Farmers Reservoir & Irrigation Co v. McComb , 337 U . S. 755, 762.
z Farmers Reservoir & Irrigation Co v McComb , supra, at 767 ; Mitchell v Hunt, 263
F. 2d 913, 917 (C A. 5) ; NLRB. v. Olaa Sugar Company, Limited et al, 242 F. 2d 714,
718 (C A . 9) ; Mitchell v Huntsville Wholesale Nurseries , Inc, 267 F . 2d 286 , 290 (C A. 5) ;
Bowie v. Gonzalez, 117 F. 2d 11 , 18 (CA. 1) ; Armour Ches -Peake, et al ., 120 NLRB 681,
footnote 2.
6 As noted above, the record is in conflict as to whether these employees spend 3 months
of the year repairing fences and performing maintenance operations on the Employer's
lands, some of which work may be agricultural As it has been found, however, that in
any event they perform a regular amount of nonagricultural work , they are covered by
the Act with respect to their work which is nonagricultural. Waldo Ro7inert Co., 136
NLRB 89.
D
THE SWEETLAKE LAND AND OIL COMPANY, INC. 159
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 petition describes the unit sought as consisting of "All regu-
lar production and maintenance employees" employed at the rice drier
and warehouse, excluding "Office clerical employees, technical em-
ployees,' professional employees, foremen, watchmen and/or guards
and supervisors as defined in the Act." There is no bargaining history.
The Petitioner at the hearing sought the exclusion of the weigher on
the ground that he was a supervisor, and of the clerk on the ground
that he was a "clerical" employee, but, in its brief filed after the hear-
ing, argued for exclusion of both as supervisors. The Employer did
not contest the appropriateness of the proposed unit but requested
Board determination of the unit placement of the weigher and the
clerk.
The weigher, who is licensed by the State as a weigher, spends all
his time during the harvesting season weighing rice; during the rest
of the year, he spends about 25 percent of his time weighing seed
rice,10 and the remainder performing the same functions as those of
the rest of the drier and warehouse crew. He earns $1.40 an hour,
while the rest of the crew, with the exception of the clerk, are paid
either $1.15 or $1.25 an hour. He also performs incidental chores for
the superintendent, reports to him on the activities of the crew, and
directs them in accordance with the superintendent's instructions. He
does not have authority responsibly to direct the crew, nor to exer-
cise any of the other statutory indicia of supervisory status.
Although the Employer's main office staff is located at its head-
quarters in Lake Charles, the clerk here involved works in an office at
the drier and warehouse location. He receives a monthly salary, and
maintains all the warehouse records, including records of the crew's
time. He makes suggestions to the superintendent with regard to hire,
but does not effectively recommend hire. He also transmits the super-
intendent's instructions to the men, but does not responsibly direct
them. It further appears that he goes into the warehouse area both
to transmit the superintendent's instructions and to accompany in-
spectors who check on warehouse operations.
The superintendent testified that while the weigher and the clerk
may be left in charge of the drier and warehouse operation in his
absence, they do not make independent decisions during such times
but await his return. We find, based on the entire record, that the
clerk is a plant clerical employee, and that neither he nor the weigher
is a supervisor within the meaning of the Act. Accordingly, we shall
include both of them in the unit.
6 As the record does not indicate that there are any technical employees , we shall not
determine the unit placement of this category.
10 It appears that lie also at times weighs cattle for shipment.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act:
All production and maintenance employees at the Employer's
Holmwood, Louisiana, rice drier and warehouse, including the weigher
and clerk, but excluding all office clerical employees, professional
employees, guards, watchmen, foremen, and all other supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
Electrical Workers Union Local 38, International Brotherhood
of Electrical Workers, AFL-CIO and Hoertz Electric Mainte-
nance Co . Case No. 8-CC-138. August 16, 1962
DECISION AND ORDER
On May 9, 1962, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that Elec-
trical Workers Union Local 38, International Brotherhood of Elec-
trical Workers, AFL-CIO, hereinafter called the Respondent or the
IBEW, had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief and Hoertz Electric Main-
tenance Co., the Charging Party, hereinafter called Hoertz, filed a
memorandum in support of the Intermediate Report.
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 [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent with the
decision herein.
The Trial Examiner found that the Respondent violated Section
8(b) (4) (ii) (B) by the totality of its conduct which, in effect, threat-
138 NLRB No. 17.