Salinas Valley Vegetable Exchange

In the Matter of SALINAS VALLEY VEGETABLE EXOHANGE, O. R. RECKER PACKING CO., SMITH VEGETABLE COMPANY, AND FLOYD N. SMITH COMPANY, EMPLOYERS and FRESH FRUIT AND VEGETABLE WORKERS, LOCAL UNION No. 912, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. OF L., PETITIONER and FRESH FRUIT AND VEGETABLE WORKERS UNION, LOCAL 78, FOOD, TOBACCO, AGRICULTURAL AND ALLIED WORK- ERS UNION OF AMERICA, CIO, INTERVENOR Case Nos. 31-RC--654, 21RC-667, 21-RC-668, and 21-RC-669.- Decided March. 1.5, 1949 DECISION AND ORDER Upon petitions duly filed and consolidated,' a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are here 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 these cases to a three-man panel consisting of the undersigned Board Members. * Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the National Labor Relations Act.3 ' The petition in Case No. 21-RC-654 was filed on December 6, 1948, and the petitions in Cases Nos . 21-RC-667, 668, and 669 were filed on December 17, 1948. All of the cases were consolidated on January 10, 1949, pursuant to Section 203 64 (b) of the National Labor Relations Board's Rules and Regulations-Series 5, as amended 2 At the outset of the hearing, the Intervenor , who has not complied with Section 9 (h) of the Act , moved to intervene on the basis of alleged currently existing contracts with the Employers herein involved . Over the Petitioner 's objection , the motion was granted. The record indicates some doubt as to whether the Intervenor 's contractual interest was in fact current at the time of the hearing. We find it unnecessary to resolve this issue. In view of the determinations reached herein , the intervention was not prejudicial. ' Chairman Herzog and Members Houston and Murdock. 8 The Board has previously found these Employers to be engaged in commerce within the meaning of the Act. See, Matter of Arena-Norton Co ., et ai., 62 N. L. R. B. 1070; 60 N. L. It. B. 1166. 82 N. L. R. B., No. 6. 96 SALINAS VALLEY VEGETABLE EXCHANGE 97 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent employees of the Employers. 3. The Petitioner seeks a unit consisting of "all shed workers, in- cluding trimmers, packers, icers, car loaders and unloaders, labelers, floor help, crate liners and lidders." 4 The Employers are engaged in the growing, packing, and market- ing of lettuce, melons, and other fresh fruits and vegetables in the Salt River Valley area of Arizona. During the various packing sea- sons, these Employers employ persons for the purpose of sorting and packing their products. At least 95 percent of the commodities packed in the sheds are grown in fields owned or leased by the Employers .5 The products are transported from the fields to the respective pack- ing sheds in equipment either owned or rented by each Employer. There, they are cleaned, sorted, packed, and loaded into cars for shipment to market. Section 2 (3) of the National Labor Relations Act excludes from the definition of the term employee "any individual employed as an agricultural laborer." The Board has previously held that employees performing duties, similar to those involved in this case, for the Employers involved herein were not "agricultural laborers" within the meaning of Section 2 (3) of the Act.6 However, when these earlier cases were decided by the Board, the definition of "agricultural la- borer" set forth in the Fair Labor Standards Act of 1938 had not been incorporated by reference into the National Labor Relations Act 7 That definition, under the rider to the Board's current appro- priation Act, is now controlling on the question of whether particular employees are "agricultural laborers" within the meaning of Section 2 (3) of the Act." In interpreting the agricultural exemption under the Fair Labor Standards Act, the courts have held such exemption applicable to employees engaged in performing operations which relate to com- modities grown by the employer concerned, while holding the exemp- 4 An alternative unit sought by the Petitioner is limited to all shed workers engaged in packing lettuce only. The Floyd N. Smith Co. packs only products which it has grown itself. The record shows that the remaining Employers customarily pack their own grown products, only arranging to pack products grown by others in the event that their own produce is inade- quate to meet marketing requirements or to keep their packing shed crews working. See footnote 3, supra. 7 That definition, insofar as applicable here , reads as follows : . "agriculture" includes farming in all its branches and among other things includes . . . the production, cultivation, growing and harvesting of any agricul- tural . . . commodities . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations , including preparation for market, delivery to storage or to market or to carriers for transpor- tation to market. " Matter of Elliott A Sons Co., 78 N. L. R. B. 1078. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion inapplicable to employees working on commodities grown by others.9 In the recent Di Giorgio case,10 this Board recognized that practices such as packing products grown on the Employer's own farm are performed as an incident to or in conjunction with farming opera- tions as defined in the agricultural exemption,l1 because such practices are generally necessary for the disposal of farm products 12 We there indicated that "when fruit is sold in its raw state and the only process- ing involved consists of boxing or crating it in order to ship it to market, the operation retains its agricultural aspect." In view of the foregoing, it is clear that the packing shed employees here involved, in packing produce grown on their Employers' own fields preparatory to shipment to market, render services that are an ordinary incident to farming operations. Accordingly, we find such employees to be "agricultural laborers" within the meaning of the National Labor Relations Act and we shall dismiss the petitions herein. ORDER IT IS HEREBY ORDERED that the petitions filed in the instant proceed- ings be, and they are, dismissed. 9Walling v. Peacock Corp., 58 Fed Supp. 880 (Dist. Ct., E. D Wise., 1943), and cases cited therein. 19 Matter of Di Giorgio Fruit Corp., 80 N. L. R. B . 853. In that case, the Board held that employees engaged in juicing and processing fruit and canning the juices were not "agricultural laborers" inasmuch as these operations were not necessary to prepare the fruit for market in the normal course of business , but, rather, were performed "to change the nature of the product and thereby increase its value for purposes of sale." ss See footnote, 7, supra. 12 See N. L. R. B. v. Campbell, 159 F. (2d) 184 (C. A. 5, 1947 ), where the Court, in holding that employees of a packing house who packed only tomatoes grown on the Employer's own farm were agricultural laborers, said : Congress, as well as this Court has recognized that the packing and preparing of agricultural products for the market is a necessary incident to any agricultural operation , for no farmer, dependent upon that which he produces to sustain his opera- tions, could long exist if he could not market that which he produces , and so long as the operation of washing, packing and preparing for market by the employees of a farmer is on that only which he has produced on his farm, it is a necessary incident to farming and is agricultural labor. See also, Lee Wilson tf Co. v. U. S., 171 F. 2d 503 (C. A. 8, 1948).