Burnett & Burnett

In the Matter of BURNETT & BURNETT, ICE KIST PACKING COMPANY, VESSEY & COMPANY, INC., RALPH E. MEYERS CO., SALINAS VALLEY VEGETABLE EXCHANGE, O'DWYER & M1:TZ PACKING Co., RITZ Dis- TRIBUTING 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 WORKERS UNION OF AMERICA, CIO, INTERVENOR Case Nos. 21-RC-666, 21-RC-676, 21-RC-677, 21-EC-683, 21-RC- 698, d1-RC-699, and 21-RC-700.-Decided April 4,1949 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 hereby affirmed.' 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.* 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-666 was filed on December 17, 1948; the petitions in Cases Nos. 21-RC-676 and 677 were filed on December 27,1948; the petition in Case No- 21-RC-683 was filed on January 10, 1949; and the petitions in Cases Nos . 21-RC-698, 699, and 700 were filed on January 27, 1949. All of the cases were consolidated on February 2, 1949, pursuant to Section 203 64 (b) of the National Labor Relations Board Rules and Regulations-Series 5, as amended '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 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 determi- nations reached herein, the intervention was not prejudicial. ' Chairman Herzog and Members Houston and Murdock. ' The Board has previously found employers performing identical operations in the same area to be engaged in commerce within the meaning of the Act See Matter of Growers- Shippers Labor Committee of Imperial Valley , 39 N. L. R. B. 754 ; Matter of George a. .4ver,ll, et al. 13 N L R B. 411. 82 N. L. R. B., No. 81. 720 BURNETT & BURNETT 721 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 packing shed workers, excluding watchmen, guards, clerical and professional employees, and supervisors as defined in the Act. The Employers are engaged in the growing, packing, and shipping ,of fresh fruits and vegetables in the Imperial Valley area of Cali- fornia. During the various packing seasons, these Employers hire individuals for the purpose of sorting and packing their products. A substantial portion of the commodities packed in the sheds are grown in fields owned or leased by the Employers involved herein, or are grown jointly by these Employers and other growers under partnership arrangements with such growers.' The products are taken from the fields to the respective packing sheds where 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 agri- 'cultural laborer." 5 In Matter of Salinas Valley Vegetable Exchange, et al.,6 we recently considered the applicability of this exclusion to packing shed workers employed under circumstances identical to those involved herein. For the reasons stated in that decision, we find the packing shed employees here involved to be "agricultural laborers" within the meaning of Section 2 (3) of the National Labor Relations Act. Accordingly, no question affecting commerce exists concerning the representation of employees of the Employers within the meaning of Section 9 (c) (1) of the Act, and, we shall, therefore, dismiss the petitions herein. ORDER IT IS IrEREBY ORDERED that the petitions filed in the instant proceed- ings be, and they hereby are, dismissed. 4 Approximately 50 percent of the produce packed by Ice Kist Packing Co. is purchased -as growing crops in the field and is subsequently matured ; harvested, packed, and shipped by this Employer. 6 The definition of "agricultural laborer " set forth in the Fair Labor Standards Act of 1938 has been incorporated by reference into the National Labor Relations Act by virtue of a rider to the Board's current appropriation Act. 6 82 N. L. R. B. 96 That case involved the employee status of fresh fruit and vegetable packing shed workers in the Salt River Valley area of Arizona.