J. J. Crosetti Co.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. J. CROSETTI AND WARREN E. SCARBROUGH IN DIVIDU \LLY AND AS CO- P ARTNERS, D/B/A J. J. CROSETTI CO. and UNITED FRESH FRUIT & VEGETABLE WORKERS' UNION, L. I. U. No. 78, CIO, PETITIONER. Case No. 20-RC-1563. , February 21, 1952 Decision and Direction of Election Upon a petition duly filed, a hearing was held before David Karasick, nearing officer. The hearing officer's rulings Blade at the hearing are free from prejudical 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 Mein- hers Houston and Murdock]. _ Upon the entire record in this case, the Board finds: 1. The Employer operates a packing shed near Watsonville, Cali- fornia, where it packs for sale and shipment lettuce and tomatoes. During the year 1950, it packed and sold lettuce valued at $585,200, of which 95 percent was shipped to points outside the State of California. During the same period it packed and sold tomatoes valued at $297,900, of which 85 percent was shipped to points outside the State. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction.2 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Employer urges the dismissal of the petition on the ground that the employees concerned are agricultural laborers within the meaning of Section 2 (3) of the Act and Section 3 (f) of the Fair Labor Standards Act.3 ' The hearing officer refer red to the Board the Employer's motion to dismiss the petition on the grounds that ( 1) the Petitioner 's showing of interest submitted dining the 1951 packing season is not sufficient to warrant an election during the 1952 season because of the constant turnover of employees, and (2 ) the Board has no Jurisdiction in this case, as the employees involved are "agricultural laborers " We find no meat in the Employer's position As to (1 ) the Board has repeatedly held that the showing of interest is not litigable at the hearing , but is a matter to be determined by the Board in its administrative capacity. Kearney & Trecker Corp , 95 NLRB 1125 In seasonal operations such as those involved in the instant case , it is the Board 's policy to require a showing only among those employed in the unit at the time the petition is filed. Fruit vale Canning Company, 78 NLRB 152. See also Mount Whitney Lumber Company, 90 NLRB No. 84, unreported . For reasons given in paragraph 3 below , we find no merit if1 the Employer's second ground for dis- missal The Employer's motion to dismiss the petition is hereby denied. I Stanuslans Implement and Hat dwar e Company, Ltd , 91 NLRB 618 , Imperial Garden Gi owei s, 91 NLRB 1034. 'A rider to the Board's curient appiopiiations act makes the definition of "agriculture" contained in Section 3 (f) of the Fair Labor Standiuds Act of 1938 determinative as to the meaning of "agricultural laborer " as that team appears in Section 2 (3) of the National Labor Relations Act. 9S NLRB No. 42. J. J. CROSETTI Co. 269 The Employer operates a large packing shed in the town of Pajara,4 a half mile from Watsonville, California, where it packs lettuce and tomatoes during the packing seasons of these two vegetables .r, For its tomato pack the shed is equipped with a belt conveyor Brodex machine. Tomatoes are first separated, culled, and sorted by employees into greens and pinks or ripes. They are carried to the machine in hand trucks, dumped into the proper containers, and move down the conveyor belt for the operations of washing, rinsing, drying, brushing, waxing, wrapping, and packing. The filled containers are taken to a lidding press, and then are loaded in trucks for delivery to the railroad. Although the Employer produces 59 percent of the lettuce and 10 percent of the tomatoes packed in its sheds on farms owned and oper- ated by it, its packing operations are conducted as a separate com- mercial enterprise. The packing shed employees are separately super- vised and carried on a separate payroll. There is no interchange of these employees with those on the Employer's farms. The Employer appears to maintain a substantial separate investment in its packing shed and equipment. For these and other reasons, more fully stated in the Imperial Garden Growers 6 case, we find that the employees involved in this proceeding are not agricultural laborers, but are employees within the meaning of the National Labor Relations Act.7 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 parties agree that a unit consisting of all the employees engaged in packing and handling tomatoes at the Employer's shed is appropriate.8 The Petitioner, however, would exclude students During the 1951 tomato season, the Employer also leased an additional shed located in Watsonville, about it mile from its main shed, wheie it packed only tomatoes The Employer's witness testified that it was uncertain whether the Employer would lease this or any other additional shed for the 1952 tomato packing season. 6 The tomato season runs from August 1 to about October 15 or 20 The lettuce season runs from April to November 10. The lettuce and tomatoes, although packed in the same shed, are distinct operations, with different packing units foi each operation, located in different parts of the shed Each packing operation is conducted by a different gioup of employees, and is entuely independent of the other See footnote 2, sapie Impci ial Goi den Gv otioers, saps a , Ai ena-Nor tons. use., et al , 93 NLIIB 375. The Board has pieviously exercised lulisdiction over this Employer as a member of the Giower- Shippeis vegetable Association (Case No 20-BC-631, unreported) In that proceeding, the Board conducted a representation election an'.ong the Association's lettuce packing employees pursuant to a consent-election agreement executed in 1949 Before approving the consent agreement, the Board considered and determined the issue of employee status, finding that the employees involved were not agiicultuial laborers but were employees within the meaning of the Act 8 The Employers lettuce-packing employees aie at present represented by the Petitioner under an Association-wide contract with the Grow-ei-Shippers Vegetable Association Few among the Association's 60 members, however, pack tomatoes No more than 4 ha\e packed tomatoes in any single season, and during the most recent season only the Employer and one other m,eiuber were engaged in packing tomatoes. There is no liistoiy of bargaining as to the Employer 's tomato packing employees. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the tomato packing unit. The Employer contends that the stu- dents should be included. A large number of employees working on the tomato-packingopera- tion are high school and college students. A substantial number of them return from season to season. The high school students usually leave their employment to resume school about the 10th of Sep- tember. The college students work until about the 25th of Sep- tember, near the end of the packing season. A number of the col- lege students thereafter work on late afternoons and Saturdays until the very end of the season. The students usually begin to work early in the packing season. They receive the same rates, work the same hours, are subject to same conditions of employment as the other employees, and in general appear to possess interests in common with all the others engaged in the Employer's tomato-packing operations.9 We shall include them in the unit.10 We find that all employees employed in the handling and packing of tomatoes at the Employer's packing sheds at or near Watsonville, California, including students, but excluding office clerical employees, truck drivers, guards, all other employees, and all supervisors as de- fined in the Act, constitute a unit ' appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. As the Employer's packing-shed operations are seasonal in na- ture, we shall direct that the election be held at or about the approxi- mate seasonal peak, on a date to be determined by the Regional Direc- tor, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of notice of election by the Regional Director." [Text of Direction of Election omitted from publication in this volume.] 0 Unlike the Employer 's lettuce-packing employees, those engaged in packing tomatoes are drawn from local sources. 10 Cf. Gerber Products Company, 93 NLRB 1668 . See also National Torch Tip Company, 93 NLRB No. 61 ; National Cash Register Company, 95 NLRB 27. "Imperial Garden Growers, supra. CARBIDE & CARBON CHEMICALS DIvlsloN, UNION CARBIDE AND CAREON. CORPORATION a'nd INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL 320, AFL, PETITIONER. Cases Nos. 9-RC-1323 and 9-RC-1324. February 21, 190, Decision and Direction of Election Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 98 NLRB No. 41.