Comer Produce Co.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HORACE E. COMER, FLOYD B . PERRY AND PAUL WUBBOLDING, D/B/A COMER PRODUCE CO., AND DON. M . BROWN AND KEMPER MARLEY, D/B/A B & M FARMS, AND RAY HUMPHREY ' and UNITED FRESH FRUIT & VEGETABLE WORKERS, L. I. U. 78, CIO, PETITIONER. Cash No. 21-RC-1826. July 25,1951 ' Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Ben Grodsky, hear- ing'officer. 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. In 1938, Comer Produce Company, herein called Corner, and B & M Farms, herein called B & M, formed a partnership in which B & M had charge of the farming operations where fruits and vege- tables were grown, and Comer operated the packing shed where the fruits and vegetables were packed and shipped. It appears that in ] 943 the partnership was dissolved, and B & M took over control of i he packing shed operations as well as the farming operations, and Comer became sales agent for B & M2 B & M leases the shed in which packing operations are carried on, pays industrial compensation in- surance premiums for the shed employees, and owns most of the facil- ities in the shed.3 Humphrey is employed by B & M as foreman of the packing shed employees. Although Comer conducts its activi- ties as sales agent in one end of the shed and makes out payroll checks for the shed employees, the checks are paid out of B & M funds. Accordingly, we find, contrary to the Petitioner's contentions, that Comer and Humphrey are not employers of the packing shed em- ployees, and that B & M is the sole employer of those employees. We -will, therefore, grant the motions to dismiss the petition as to Comer and Humphrey. During 1950, B & M sold fruits and vegetables valued in excess of $800,000, of which more than 95 percent was shipped out of State. ' The Employers ' names appear as set forth in the amended petition filed by the Petitioner on April 2, 1951. 2 The record is not clear as to when Comer ceased to operate the packing shed, but it is clear that Comer presently has no supervision or control of the shed operations or any of the shed employees. 8 The lidding machine is still owned by Comer, but is kept in repair by B & M. 95 NLRB No. 69. COMER PRODUCE CO. 543 As B & M during 1950 was engaged in producing goods destined for out-of-State shipment valued in excess of $25,000, we find, contrary to B & M's contentions, that its operations affect commerce within the meaning of the Act, and that it will effectuate the purposes of the, Act to assert jurisdiction over B & M.4 2. The labor organization involved claims to represent certain employees of B & M. 3. B & M contends that the packing shed employees, whom the Peti- tioner seeks to represent, are "agricultural laborers" and not "employ- ees" within the meaning of the Act, and that, therefore, the Board has no jurisdiction over such workers. B & M grows the fruits and vegetables which are processed by the packing shed employees. However, it maintains separate payrolls for field and shed employees, and each group is under different super- vision. There is little interchange between shed and field employees. The shed represents a substantial investment by B & M.5 We find, therefore, that the packing shed employees are employed in an oper- ation constituting a separate commercial enterprise, and that they are "employees" within the meaning of the Act .6 Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of B & M within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that all packing shed employees at B & M's Phoenix,, Arizona, packing shed, excluding clerical employees, guards, and. supervisors,' constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act s 5. In accordance with the usual practice in seasonal operations of this kind, we will direct that the election be held at or about the approximate seasonal peak, on a date to be determined by the Regional Director, among the employees in the unit who are employed during the payroll period immediately preceding the date of the issuance. of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication in this: volume.] 4 Stanitlaus Implement and Hardware Company, Limited, 91 NLRB 618. 5 The Employer estimated its investment in the shed and equipment at between $12,000, and $15,000. 6 Arena-Norton, Inc., at at., 93 NLRB 375. 4 As the shed foreman exercises supervisory authority , we exclude him from the unit.. ,Arena-Norton, Inc., et at., supra.