Atlantic Commission Co., Inc.

In the Matter of ATLANTIC COMMISSION COMPANY, INC., EMPLOYER and CITRUS , CANNERY WORKERS , AND FOOD PROCESSORS , LOCAL UNION No. 24473, AFL, PETITIONER Case No. 39-RC-55.-Decided June 30, 19.49 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, a hearing was held before Charles Y. Latimer, 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 this case to a three-member panel [Chairman Herzog and Members Houston 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, affiliated with the Ameri- can Federation of Labor, claiming to represent employees of the Employer. 3. The Petitioner seeks a unit of all production employees at the Employer's packing shed in Donna, Texas. The Employer moved to dismiss the petition on the ground that the workers involved herein are `.agricultural laborers," and, therefore, not "employees" as defined.in the National Labor Relations Act.' The Employer is engaged in sorting, cleaning, packing, and shipping fresh vegetables from its packing sheds in Texas to several points out- side the State. The shed at Donna, Texas, is the only operation in- volved in this proceeding. All of the vegetables packed at the Donna' shed are purchased from local growers.' i The Employer also moved to dismiss the petition on grounds relating to the nature and adequacy of the Petitioner 's showing of interest . This contention is without merit. It is settled that the question of whether a petitioner has made a prima facie showing of interest is an administrative matter not subject to direct or collateral attack . Matter of Amos Molded Plastics, Division of Amos Thompson Corporation, 79 N. L. R. B. 201. L A small percentage (less than one-third of the total vegetables packed by the Employer) is bought as "growing crops" in nearby fields , the grower generally being required to care for the crops until maturity. 84 N. L. R. B., No. 102. 944 ATLANTIC COMMISSION COMPANY, INC. 945 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." Congress, in the rider to the Board's current ap- propriation Act, has incorporated by reference the definition of "agri- culture" contained in Section 3 (f) of the Fair Labor Standards Act of 1938. That definition 3 is now controlling on the question of whether particular employees are "agricultural laborers" within the meaning of Section 2 (3) of the Act.4 In support of its position that the workers involved herein are "agricultural laborers," the Employer points to the fact that the opera- tions performed merely involved the packing of farm products with- out in any way changing the form of the commodity. However, in interpreting the agricultural exemption under the Fair Labor Stand- ards Act, the courts have held this exemption inapplicable to employees working on commodities which are not grown by their own employer, whether or not the operations performed result in changing the nature of the product sold.5 The workers involved herein, in packing vege- tables purchased, but not grown, by their Employer, 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 Acts Accord- ingly, we shall deny the Employer's motion to dismiss the petition? We find that a question affecting commerce exists concerning the 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 following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: 3 The 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 Elliot t Sons Co., 78 N. L . R. B. 1078. See Walling v. Peacock Corp., 58 F. Supp. 880 (Dist. Ct , E. D. Wise, 1943 ), and cases cited therein. 6 See Matter of Salinas Valley Vegetable Exchange, et al., 82 N. L. It. B., 96. 7 The Employer relies on the Board's recent decision in Matter of Burnett t Burnett, et al, 82 N. L. R. B. 720, in support of its contention that the workers involved herein are "agricultural laborers." That case is clearly distinguishable on its facts from the instant situation In the Burnett case, unlike here, a substantial portion of the commodities packed in the sheds were grown in fields owned or leased by the employers themselves. Similarly, in N. L. R. B. v. Campbell, 159 F. ( 2d) 184 ( C. A. 5, 19471), also cited by the Employer, the employees involved therein packed only tomatoes grown on the employer 's own farm. 946 DECISIONS OF NATIONAI:• LABOR `itkLATIONS' BOARD All production employees at the' Employer's packing shed at Donna, Texas, excluding guards, watchmen,' office, clerical, professional and maintenance employees ,8 and supervisors 9 as defined in the Act. 5. Determination of representatives : The record shows that the work done at this shed is seasonal, usually running from November to April. The number of employees varies from about 30 at the beginning of the season to approximately 165 at the peak, which generally occurs in February. The parties have joined in requesting that, if an election is directed, it should be held some time during the peak of the season. To'hold the election during the peak of the season will obviously result in making the franchise available to the greatest number of employees. Under these circum- stances, we shall direct that the election be held at or about the peak of the next seasonal production period, on a date to be determined by the Regional Director, among the employees in the appropriate unit who are employed during the pay-roll period immediately preceding the date of the issuance of Notice of Election by the Regional Director io 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 Re- gional Director in accordance with the instructions set forth in para- graph numbered 5, above, under the direction and supervision of the Regional 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-Series 5, as amended, among the em- ployees in the unit found appropriate in paragraph numbered 4, above, who are employed during the pay-roll period immediately preceding the date of the issuance of Notice of Election by the Regional Director, a The one maintenance employee herein involved , unlike the production workers, is employed on a salary basis and does maintenance-work at all of the Employer's packing sheds in the area. The parties agreed to exclude this employee. 0 The operation of the shed is under the supervision of a manager , an assistant manager, one nonworking and two working foremen, and one timekeeper . As the record shows that each of these individuals is clothed with the authority to hire and fire, or to effectively recommend such action , they are hereby excluded from the unit. 10 Matter of Ballantine Produce Company, Inc., 81 N. L. R. B 629. ATLANTIC COMMISSION COMPANY, INC. 947 including employees who do not work during such pay-roll period be- cause 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 reinstated prior to the date of the election, to de= termine whether or not they desire to be represented, for purposes of collective bargaining, by Citrus, Cannery Workers, and Food Proc- essors, Local Union No. 24473, AFL.