San Fernando Heights Lemon Association

In the Matter Of SAN FERNANDO HEIGHTS LEMON ASSOCIATION, EMPLOYER and FRUIT &- PRODUCE DRIVERS, WAREHOUSEMEN S-5 EMPLOYEES UNION, LOCAL 630, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER Case No. PI-R-3414.-Decided February 3, 1947 Ivan G. McDaniel, by Mr. George C. Lyon, of Los Angeles, Calif., for the Employer. Mr. Ken Weston, of Los Angeles, Calif., for the Petitioner. Mr. Robert J. Freehling, of counsel to the Board. DECISION ORDER AND DIRECTION OF SECOND ELECTION Upon a petition duly filed, the National Labor Relations Board, on July 24, 1946, conducted a prehearing election among the employees of the Employer in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that, of the approximately 56 eligible voters, 44 cast valid votes, of which 29 were for, and 15 against, the Petitioner. Thereafter, hearing in the case was held at Los Angeles, California, on October 10, 1946, before David Aaron, hearing officer. The hear- ing officer's rulings made ,tt the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER San Fernando Heights Lemon Association, a corporation organized under the Agricultural Code of the State of California and having 72 N. L. R. B., No. 70. 372 SAN FERNANDO HEIGHTS LEMON ASSOCIATION 373 its principal place of business in San Fernando, California, is a cooperative association engaged mainly in harvesting and packing lemons for its member growers. Its packing house, which is alone involved in this proceeding, is situated on a 3-acre plot located near the members' groves and performs such functions as washing, storing, grading and packing. The identity of the individual member's fruit is maintained throughout these processes, and, for the services ren- dered, each member is charged a pro-rata share of 'the Employer's operating expenses. During the period from November 1, 1945 to October 10, 1946, the Employer in the course of this operation packed and caused to be shipped lemons valued at about $500,000, of which approximately 50 percent represented shipments to points outside the State of California. We find that the Employer is engaged in commerce within the meaning of the National'Labor Relations Act. II. TIIE STATUS OF THE EMPLOYEES INVOLVED HEREIN At the hearing and in its brief, the Employer contended that the Board lacks jurisdiction over its packing house workers on the ground that they are "agricultural laborers" within the purview of the limi- tation attached to the Board's current Appropriations Act., The status under the National Labor Relations Act of workers en- gaged in similar packing house operations performed by cooperative associations has been considered in a number of Board and court deci- sions. Both the Board,2 and the courts," have uniformly held that such workers are "employees," and not "agricultural laborers," within the meaning of Section 2 (3) of the Act. As to the status of such i National Labor Relations Board Appropriations Act, 1947, Public Law 549, Ch. 672, 79th Cong, 1st Sess, approved July 26, 1946, contains the following proviso . . . . no part of the funds appropriated in this title shall be available to organize or assist in organizing agricultural laborers, or used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in Section 2 (3) of the Act of July 5, 1935 (49 Stat 450) [National Labor Relations Act] and as defined in Section 3 (f) of the Act of June 25, 1938 (52 Stat. 1060) [Fair Labor Standards Act of 19381 Section 2 (3) of the National Labor Relations Act provides that "the term `employee' shall not include any individual employed as an agricultural laborer . . 11 Section 3 (f) of the Fair Labor Standards Act of 1938, insofar as it is applicable to the instant case, reads as follows : "Agriculture" includes farming in all its branches and among other things includes the production, cultivation, growing, and harvesting of any agricultural or hor- ticultural 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 Saticoy Lemon Association, 28 N. L R. B. 1214, and Matter of Seaboard Lemon Association, 28 N L R B. 273 3 N L. R. B v Edinburg Citrus Association, 147"F. (2d) 353 (C. C. A 5), rev'g on other grounds 57 N. L R. B. 1145 ; Idaho Potato Growers v N. L. R B , 144 F (2d) 295 (C C A. 9), enf'g 48 N L R. B. 1084; cert. den 323 U S 769; and North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d) 76 (C. C. A. 9), enf'g 10 N. L. R. B. 1269; cert. den., 310 U S. 632 , reh. den. 311 U S 724 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers under the Fair Labor Stanch rds Act of 1938, the authorities indicate that they are not engaged in "agriculture" as defined in Section 3 (f) of that Act, inasmuch as a cooperative association is not "a farmer," nor are its packing facilities located "on a farm." 4 Accordingly, we find no merit in the Employer's contention that its packing house workers are "agricultural laborers" within the purview of the limitation attached to the Board's current Appropriations Act. III. THE ORGANIZATION INVOLVED The Petitioner ° is a labor organization, affiliated with the Ameri- can Federation of Labor, claiming to represent employees of the Employer. IV. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affect ing commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. V. THE APPROPRIATE UNIT The parties agree generally that the appropriate unit should com- prise all seasonal and year-round employees at the Employer's San Fernando, California, packing house, excluding office employees and supervisors. The parties are in disagreement, however, as to the truck drivers whom the Petitioner would include in, and the Em- ployer would exclude from, the unit." The only evidence adduced at the hearing with respect to the truck drivers was a statement by the Employer's representative that it em- 4 See, e g, Walling v. McCracken County Peach Growers Ass'n., 50 F. Supp 900, where the court considered the status of individuals employed in packing operations performed by a cooperative peach growers association at a plant located apart from the groves, and, in holding that these individuals were not engaged in "agriculture" under the Fair Labor Standards Act of 1938, said The defendant association is a corporation , it is not a farmer , its employees are not all farmers ; its operations are not performed on a farm See also Redlands Foothills Groves, et at v Jacobs, et at., 30 F. Supp. 995 For adnun- istrative rulings to the same effect, see Wage and Hour 'Administrator's Interpretative Bulletin No °10, "Farmers' Cooperative Associations under the Fair Labor Standards Act of 1938," and Wage and Hour Administrator's Interpretative Bulletin No 14, "Exemption of Agriculture ; and on the exemptions for processing Agricultural Commodities The name of the Petitioner appears in the caption as amended at the hearing. 6 Before the prehearing election conducted herein, the part4es agreed that the truck drivers should be excluded from the unit, and, as a result, individuals in this classification did not participate in the election However, at the hearing, the Petitioner reversed its position as to the truck drivers, asserting that its agreement to exclude them bad been piemised on the mistaken belief that these individuals were directly employed by the growers, not by the Employer. SAN FERNANDO HEIGHTS LEMON ASSOCIATION 375 ploys from one to three such individuals, the number depending on the seasonal requirements. In its brief, the Employer argues, in effect, that although its truck drivers perform both agricultural and non- agricultural duties, their exclusion is warranted in view of the amount of time, allegedly in excess of 50 percent, spent by them in field work. We cannot agree with the Employer's position. The Employer con- cedes that the truck drivers are engaged in both agricultural and non-ab icultural functions. Under the Fair Labor Standards Act of 1938, it appears that an individual, in order to be exempt from the wage and hour provisions of that Act, as "employed in agriculture," 4 must spend his time in any particular workweek exclusively in agri- cultural employment." As to Board practice in like cases, we have customarily held that persons who divide their time between agricul- tural and non-agricultural pursuits are "employees" while perform- ing non-agricultural functions and, during such period, are entitled to the benefits of the Act.9 Accordingly, we shall include the truck drivers in the unit 10 and the Petitioner, if successful in the election hereinafter directed, is authorized to bargain for these employees with respect to that part of their activities which is non-agricultural in nature.11 We find that all seasonal and year-round employees at the Employ- er's San Fernando, California, packing house, including truck drivers, but excluding office employees and all supervisory employees with authority to hire, promote, discharge, discipline, 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. TILE DETERMINATION OF REPRESENTATIVES As indicated above, a prehearing election was conducted in substan- tially the unit found appropriate herein. At the hearing and in its brief, the Employer contended that the vote cast at the election was not representative of the employees in the appropriate unit princi- pally on the grounds that on the eligibility date and at the time of the ' Section 13a (6) of the Fair Labor Standards Act of 1938 exempts fioin the wage and hour provisions of that Act "any employee employed in agriculture " Cf. Walling v Peacock Corp , 58 F. Supp 880. See also, Wage and Hour Administra- tor's Interpretative Bulletin No 14, fn 4, supra. 0 Matter of Maut Pineapple Company, Limited, 60 N. L R. B. 401, and Matter of Pepeekeo Sagas Company, 59 N. L R B 1532. 10 The Petitioner customarily represents truck dtivers, and the Board, under similar cir- cuinstances, despite the disagreement of the parties, has included truck drivers in units of packing house employees Matter of Orange Belt F? tut Distributors, 69 N. L R. B 489; of Matter of Maui Pineapple Company, Limited, fn 9, supra 11 The Employer' s request , in its brief , to reopen the record to receive additional evidence on the nature of the truck diiveis' duties is accordingly denied Chairman Herzog dissents to the denial of this motion and, on the present state of the law and the record, would exclude the truck drivers from the unit. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election only half the packing house operations were still in progress, and that the number of employees who participated in the election constituted a small proportion of those employed during the peak period of the 1945-46 season. The Employer's business of harvesting and packing lemons is a seasonal enterprise extending approximately from November to July. During the months from November to May, the fruit is picked, and concurrently, all packing house functions, including washing, storing, grading and packing, are performed. By June and July, the harvest- ing has been completed and during these months the Employer's pack- ing house operations are limited to grading and packing. Thereafter, mainly plant maintenance work is performed. With particular reference to the packing house operations, the washing and storing functions are essentially distinct from those of grading and packing. Thus, washing and storing involves the fol- lowing procedures : The newly picked fruit is dumped into washing tubs, from which it is conveyed by belts to "washers" who sort the lemons by,color and place them in storage boxes. The "storers" then move the filled boxes to the storage room, where the fruit is permitted to ripen for a period of several months. Thereafter, the grading and packing processes are performed, i. e., the fruit is graded manually into various classes, after which it is conveyed to packing employees who wrap the lemons according to size and pack them in boxes for shipment. The washing and storing functions cease with the end of the harvesting period and only a limited number of "washers" and "storers" are retained to work in the grading and packing processes. The Employer's peak employment for the 1945-46 season was reached in February and part of March, 1946, when 113 names ap- peared on the Employer's pay rolls. By June 29, 1946, the eligibility date established for the prehearing election, only grading and packing operations were being performed and there were approximately 56 eligible employees on the Employer's pay roll; of these, 44 were still working on July 24, 1946, the election date, and all cast ballots. Sev- eral days later, the number of employees dropped to 13, which represents the approximate number of the Employer's year-round employees. It is apparent from the foregoing that the petition was filed 12 and the prehearing election conducted several months after the employ- ment peak for the 1945-46 season had been passed, and at a time when the employee complement had diminished substantially. More- over, the record supports the Employer's contention that only half the normal packing house functions were being performed on the eligibility date and at the time of the election. Under these circum- 12 The Petitioner did not invoke the Board 's jurisdiction until May 21, 1946. SAN FERNANDO HEIGHTS LEMON ASSOCIATION 377 stances, we are of the opinion that the vote cast was not representa- tive,13 and we shall direct that the election be set aside. Furthermore, we shall direct that a new election be conducted during the 1946-47 season on an exact 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 election. ORDER AND DIRECTION OF SECOND ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with San Fernando Heights Lemon Association, San Fernando, California, it is hereby ordered that the prehearing election conducted on July 24, 1946, among the packing house employees of the San Fernando Heights Lemon Association, San Fernando, California, be, and the same hereby is, vacated and set aside; and it is hereby DIRECTED that a second election by secret ballot shall be conducted on a date to be determined by the Regional Director under the direc- tion and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the em- ployees in the unit found appropriate in Section IT, above, who are employed during the pay-roll period immediately preceding the date of the election, including employees who do not work during said pay- roll period because they are 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 those em- ployees who, between the pay-roll period and the date of the election, have quit or been discharged 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 Fruit & Produce Drivers, Ware- housemen & Employees Union, Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, for the purposes of collective bargaining. 13 Cf. Matter of North Whittier Heights Citrus Association, 63 N. L. R. B. 240.