Wade & Paxton

National Labor Relations Board - Board Decisions

Apr 27, 1950

89 N.L.R.B. 829 (N.L.R.B. 1950)

In the Matter of 1117ADE & PAXTON,'- EMPLOYER and CITRUS, CANNERY
WORKERS AND FOOD PROCESSORS LOCAL UNION #24473, AMERICAN
FEDERATION OF LABOR, PETITIONER
Case No. 39-RC-155.-Decided April 27, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before James P. Wolf,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
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 Petitioner is a labor organization claiming to represent
employees of the Employer.3
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 seeks a unit of all production and maintenance
employees at the Employer's packing shed at Raymondville, Texas,
excluding office and clerical employees, professional employees, guards,
watchmen, and supervisors as defined in the Act. The Employer
1 The name of the Employer appears as corrected at the hearing.
2 The Employer moved to dismiss the petition , or defer action thereon, on the ground
that the general organizer of the AFL has no authority from Local #24473 to file the
petition herein . We find no merit in this contention as we are satisfied on the basis of the
record that he does possess such authority . Bordo Products Company, 83 NLRB 461;
Monte Alto Citrus Association, 83 NLRB 1132.
The hearing officer correctly ruled that the Employer could not question the Petitioner's
showing of interest . It is settled that such a showing is an administrative matter not
subject to attack . Delta Canning Company , Inc., 84 NLRB 839.
3 Through an inadvertence , copies of the AFL constitution and a Federal union constitu-
tion, although marked for identification , were not received in evidence . However, the
record shows that the Petitioner is a Federal Labor Union chartered by and directly
affiliated with the American Federation of Labor , and clearly is a labor organization within
the meaning of Section 2 (5) of the Act. See Delta Canning Company, Inc ., supra, and
Bordo Products Company, supra, which contain a finding to the same effect.
89 NLRB No. 97.
829
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved to dismiss the petition on the ground that the workers involved
herein are "agricultural laborers," and therefore are not "employees"
as defined in Section 2 (3) of the Act. The Employer argues that,
in any event, those workers who make tomato crates should be excluded
from the unit as employees of an independent contractor.
The Employer, a partnership composed of Herbert L. Wade, Jerry
Paxton, and G. F. McGee, is engaged in grading, cleaning,4 and pack-
i ng. fresh vegetables, over 75 percent of which it ships to points outside
the State. The shed at Raymondville, Texas, is the only operation
involved in this proceeding. All the vegetables packed by the Em-
ployer are purchased from local growers.5
Section 2 (3) of the National Labor Relations Act excludes from
the definition of the term employee "any individual employed as an
agricultural laborer." Congress, in the rider to the Board's current
Appropriation Act, has incorporated by reference the definition of
"agriculture" contained in Section 3 (f) of the Fair Labor Standards
Act of 1938. That definition is now controlling on the question of
whether particular employees are "agricultural laborers" within the
meaning of Section 2 (3) of the Act.
In support of its position that the workers involved herein are
"agricultural laborers," the Employer points to the fact that the
operations performed by its workers are confined to washing, grad-
ing, sorting, and preparing for market agricultural commodities.
It also argues that G. F. McGee; one of the partners of the Employer,
sells the latter all the vegetables grown on his farln, and that the
other two partners of. the Employer own or lease farm land on which
vegetables are grown.' The Board and the courts have held the agri-
cultural exemption inapplicable to employees working on commodi-
ties which are not grown by their own empldyer, whether or not the
operations performed result in changing the nature of the product
sold.7 The commodities G. F. McGee sells to the Employer are raised
on land owned by G. F. McGee as an individual and not by the Em-
ployer, which is a separate enterprise. And in the case of produce
grown by the Combs company, this company, too, is a business entity
Except tomatoes which are waxed rather than cleaned.
One of the growers is G. P. McGee, a partner and manager of the Employer, who
possesses a 380-acre farm, about half of which is devoted to raising vegetables that McGee
sells to the Employer.
Herbert L. Wade and Jerry Paxton, along with two other individuals-Lyle Estes and
J. C. McGee-are also members of a partnership constituting a similar packing and shipping
company whose shed is located at Combs, Texas. It appears that this company, which
makes purchases from growers in the Combs area, secures some of its produce from 200
to 400 acres of farm land it either leases or owns. The Raymondville and Combs sheds are
conducted as two different enterprises ; on those infrequent occasions when the Employer
needs additional commodities, they are bought from the Combs company.
6 See footnote 5, supra.
7 See Atlantic Commission Company, Inc ., 84 NLRB 944, and cases cited therein.
WADE & PAXTON 831
that is totally distinct from the Employer in Raymondville. Thus,
the workers involved herein pack vegetables purchased, but not
grown, by their own Employer, and therefore they are engaged in a
commercial, rather than a farming, operation. Such individuals
are not "agricultural laborers" within 'the meaning of the National
Labor Relations Act, and are entitled to the benefits of the Act.
Accordingly, we shall deny the Employer's motion to dismiss the
petition.
There remains for consideration the question whether the workers
making tomato crates are employees of an independent contractor
and as such should be excluded from the unit. During the tomato
season, the Employer has a contractual arrangement with one indi-
vidual, herein called the tomato crate chief, regarding the making
of tomato crates for which he is paid every Saturday on the basis of
a certain amount per crate. The tomato crate chief in turn hires,
pays, and also has authority to discharge, about five or six workers
whose duties include making and labeling crates as well as "lidding"
and loading them on railroad cars or trucks after the other shed
employees pack the tomatoes in the crates. The crates are made in
the packing shed and the materials therefor are provided by the
Employer. As the Employer's requirements vary from day to day,
the shed foreman gives instructions to the crate makers on the amount
of work to be done. And when the shed foreman or the manager
observes "anything going wrong," he directs the attention of the
tomato crate chief to the error and tells him how the work should
be performed.
Upon the above facts, particularly the close integration of the
functions of the tomato crate makers with those of the other shed
employees, the use by the tomato crate chief of the Employer's
materials and premises, and the Employer's control over the tomato
crate operations, we find that the tomato crate chief is not an inde-
pendent contractor but a supervisor of the Employer and that the
tomato crate makers are employees of the Employer.' We shall
therefore include the latter in the unit.
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All production and mainte-
nance employees of the Employer's packing shed at Raymondville,
Texas, including tomato crate makers and cabbage crate makers,9 but
8 Singer Manufacturing Co. v. Rahn, 132 U. S. 518 ; Alexander Brothers Lumber Com-
pany. Inc., 78 NL$B 1099.
D The parties are in agreement as to the inclusion in the unit of the cabbage crate makers
who are hired , supervised , and paid directly bx the Employer.
6
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding purchasing agents, bookkeeper-weigher, office and clerical
employees, guards, watchmen, tomato crate chief, shed foreman io
and all other supervisors as defined by the Act.
5. The Employer's operations, which are seasonal in nature, start
in November or December and continue through June. At the be-
ginning of the season, the Employer employs approximately 25 em-
ployees. Peak employment is reached early in June when there are
approximately 75 to 80 employees at work. The Employer requests
that, if an election is directed, it should be held during the peak of the
season. To hold the election during the peak of the season will ob-
viously result in making the franchise available to the greatest number
of employees. Under these circumstances, we agree' with the Em-
ployer and shall direct that the election be held at or about the peak
of the season, on a date to be determined by the Regional Director,
among the employees in the appropriate unit who are employed during
the payroll period immediately preceding the date of the issuance of
Notice of Election by the Regional Director."
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted on a date to be selected by the Regional
Director in accordance with the instructions set forth in paragraph
numbered 5, above, under the direction and supervision of the Re-
gional 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 are employed dur-
ing the payroll period immediately preceding the date of issuance
of Notice of Election by the Regional Director, including employees
who do not work during such payroll period because they are ill or
on vacation or temporarily laid off, but excluding those employees who
thereafter quit or' are discharged for cause and are not rehired or re-
instated 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 the purposes of collective bar-
gaining, by Citrus, Cannery Workers and Food Processors Local
Union #24473, American Federation of Labor.
10 The Employer requests and the Petitioner does not oppose the specific exclusion of
purchasing agents, bookkeeper-weigher, and the shed foreman who are not listed in the
proposed unit of the Petitioner.
1 3 Atlantic Commission Company, Inc., supra.
C