East Maui Irrigation Co., Ltd.

In the Matter of EAST MAUI IRRIGATION COMPANY, LTD. and PROC- ESSING, WAREHOUSE AND DISTRIBUTION WORKERS UNION, LOCAL 144, I. L. W. U., C. I. O. Case No. 23-R-42.Decided January 25,1945 Mr. Ryburn L. Hackler, for the Board. Stanley, Vitousek, Pratt & Winn, by Mr. Montgomery E. Winn, and Cllr, James P. Blaisdell, of Honolulu, T. H., for the Company. Messrs. Frank E. Thompson and Joseph Kaholokula, of Honolulu, T. H., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Processing, Warehouse and Distribu- tion Workers Union, Local 144, I. L. W. U., C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen con- cerning the representation of employees of East Maui Irrigation Com- pany, Ltd., Paia, Island of Maui, Territory of Hawaii, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Peter F. Ward, Trial Examiner. - Said hearing was held at Wailuku, Island of Maui, Ter- ritory of Hawaii, on November 20,1944. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the hearing the Company moved to dismiss the petition. The Trial Examiner reserved ruling thereon. The motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. , 60 N. L. R. B., No. 43. 211 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY East Maui Irrigation Company, Ltd., is a Hawaiian corporation operating an irrigation company which.serves two sugar plantations on the Island of Maui, Territory of Hawaii. The stock of the Com- pany is wholly owned by the two sugar plantations it services, and the water is apportioned in the same ratio as the stock ownership. All operating expenses of the Company are shared monthly by the two plantations. The officers of the Company are the same as those of the two sugar plantations. We find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. U. THE ORGANIZATION INVOLVED Processing, Warehouse and Distribution Workers Union, Local 144, I. L. W. U., is a labor organization affiliated with the Congress of Industrial Organizations; admitting to membership employees of the Company. III. THE EMPLOYEES The Company contends that the-employees involved herein are agri- cultural laborers and are therefore not "employees" within the mean- ing of Section 2 (3) of the Act. With reference to this contention we shall briefly describe the work of the employees in the operations of the Company. The Company collects water from the East Maui water sheds, of which sheds the Company owns or controls 25-percent and' the Terri- tory of Hawaii 75 percent. The water is collected and utilized by the Company under a series of licenses from the Territory of Hawaii. The Company services only two sugar plantations, and all water pass- ing to them is measured as it-leaves the Company's ditches and enters those of the sugar plantations. None of the employees involved herein exercises any control over the water after it is delivered to the planta- tion ditches. Approximately 40 percent of the water is used by the sugar plantations in operating two hydroelectric power stations. Electricity thus produced is used to operate two sugar mills, to light plantation towns and villages, and a quantity is sold to the city of Wailuku, Island of Maui, to supply the needs of the inhabitants of that municipality. The employees in dispute are engaged in survey- ing, exploring, concrete work, stone masonry, measuring water, col- lecting records of automatic devices, ditch tending, blacksmith- EAST MAUI IRRIGATION COMPANY, LTD. 213 ing, carpentry, core drilling, tuttle work, as mule men, and - as construction workers. None of the employees works on either of the two sugar plantations. The mere fact that employees are engaged in handling a product which is eventually used upon a farm does not in itself classify them as "agricultural laborers." It is our conclusion that the services which are performed by the employees involved herein are not "agricultural" in nature. We find that the employees employed by the Company are not em- ployed as "agricultural laborers" within the meaning of Section'2 (3) of the Act. IV. THE QUESTION CONCERNING REPRESENTATION During August 1944 the Union requested the Company to recognize it as the exclusive collective bargaining representative of the Com- pany's employees. The Company refused this request on the ground that the employees were "agricultural laborers" within the meaning of, the Act. A statement of an agent of the Board, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found to be appropriate." We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6),and (7) of the Act. V. THE APPROPRIATE UNIT The Union contends that all employees of the Company employed by it on its system located on the East Maui water shed, Island of Maui, Territory of Hawaii, excluding the manager, assistant manager, resident engineer, hydrographer, office engineer, surveyor, ditch over- seers, ditch -gang foremen, general construction foremen, gang f ore- men, stenographers, office clerks, draftsmen, and instrument men, con- stitgte an appropriate unit. As we have•noted above, the Company contends that its employees are agricultural laborers. Other than this, the Company made no objection to the unit described by the Union. Evidence introduced- at the hearing indicates that the em- ployees claimed- by the Union constitute a well defined homogeneous group. % We find that all employees of the Company employed by it on its system located on the East Maui water shed, Island -of Maui, Terri- tory of Hawaii, excluding stenographers, office clerks, draftsmen, in- strument men, resident engineer, hydrographer, office engineer, surveyor, manager, assistant manager, ditch overseers, ditch gang I The agent reported that the Union presented 38 membership application cards. There are approximately 50 employees in the appropriate unit. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen, general construction foremen, gang foremen, and any other supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning, representation which has arisen be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein,, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with East Maui Irri- gation Company, Ltd., Paia, Island, of Maui, Territory of Hawaii, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty- third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appro- priate in Section V, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including -employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Processing, Warehouse and Distribution Workers Union, Local 144, I. L. W. U., C. I. 0., for the purposes of collective bargaining. CHAIRMAN MILLIS took no part in the consideration of the above 'Decision and Direction of Election.