Giffen, Inc.

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GIFFEN, INC. and UNITED FRESH FRUIT & VEGETABLE WORKERS, LIU #78, CIO, Petitioner PAUL GARBER AND JIM NEWNHAM, doing business as GARBER AND NEWNHAM and UNITED FRESH FRUIT & VEGETABLE WORKERS, LIU #78, CIO, Petitioner. Cases Nos. 20-RC-2270, 20-RC-2281, 20-RC-2273, and 20-RC- 2283. August 17, 1953 DECISION , ORDER, AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before LaFayette D. Mathews, Jr., hearing officer. The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. t Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three -member panel [ Members Houston , Styles, and Peterson] . Upon the entire record in these cases, the Board finds: 1. Giffen , Inc., herein called Giffen , a California corporation, is engaged in the growing of potatoes and other agricultural products at its ranch in Huron , California. During the year 1952, Giffen received in excess of $400 ,000 for the sale of its potatoes , most of which were sold to customers outside the State of California by a brokerage firm. The partnership of Garber and Newnham , herein called the Partnership, is a licensed labor contractor whose employees work in two packingsheds , where they wash the potatoes grown by Giffen, grade them , pack them in suitable bags, and prepare them for shipment to the consumer. During 1952 the Partnership re- ceived in excess of $90,000 from Giffen for these services. After the potatoes have been packed , they are placed in rail- road cars under the supervision of the brokerage firm which consigns the potatoes to out - of-State customers , receives payment from those customers , and remits the sales price to Giffen after deducting a fixed percentage in payment for its services . As the Partnership furnishes services valued in excess of $ 50,000 a year to the brokerage firm, which in turn handles goods destined for out - of-State shipment having a value of more than $ 25,000 a year , we find that the Partner- ship is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over its operations. 2 2. The labor organization involved claims to represent certain employees of the Employer. IAt the hearing, the Petitioner moved, without objection, to withdraw its petitions filed in Cases Nos . 20-RC-2280 and 20-RC-2282. The motion is hereby granted 2 See Hollow Tree Lumber Company, 91 NLRB 635. In view of our finding that the employees sought in the petitions filed herein are employees of the Partnership , we find it unnecessary to determine whether or not Giffen's activities fall within the Board 's jurisdictional criteria. 106 NLRB No. 38. GIFFEN, INC. 765 3. A question affecting commerce exists concerning the representation of employees of the Partnership within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: In Cases Nos. 20 -RC-2270 and 20-RC-2281, the Petitioner seeks a unit of all potato packing employees employed by Giffen at the packingsheds in Huron , California , known as the Giffen, Inc., shed and the Costa shed , excluding office clerical employees , watchmen , guards , and all supervisors as defined in the Act. In Cases Nos. 20 -RC-2273 and 20-RC-2283, the Petitioner requests a similar unit of employees except that it asserts that these individuals are employees of the Partner- ship. ' Giffen has moved to dismiss the petitions in which it is listed as an employer of the potato packing employees, con- tending (a) that the employees sought are employees of the Partnership , and not of Giffen, and (b) that these employees are agricultural employees not covered by the Act. The Partner- ship took no position with respect to these contentions. Giffen maintains several potato fields on its Huron ranch, where its employees dig potatoes . The potatoes are then loaded on trucks operated by employees of a trucking concern who convey the product to two packingsheds located on or near the Giffen ranch and assist in unloading the potatoes into the sheds. One of the sheds is owned by Giffen, while the other is owned by a firm or individual named Costa . Although Giffen owns some of the machinery and equipment located in both sheds, the bulk of the equipment is owned by an undisclosed company. Giffen pays for the water and electricity consumed in connec- tion with the operation of the sheds and provides the sacks into which the potatoes are packed for marketing. After the potatoes are packed , they are loaded into railway cars , appar- ently by Giffen personnel , at which point ownership and control over the product is transferred to the brokerage firm which markets the potatoes on a fixed -fee basis. For the past 3 years the Partnership has been retained under oral contract with Giffen to perform the packing opera- tions in the sheds. The record discloses that the Partnership is an independent labor contractor licensed by the State of California to engage in the business of furnishing farm labor, that it seeks out potato packing employees for work at the Giffen ranch , exercises the authority to hire and discharge them, determines their rates of pay, hours of work, and other working conditions , carries them on its payroll , makes deduc- tions from their pay for withholding taxes and unemployment insurance , and carries workmen ' s compensation insurance for them. Giffen , on the other hand, has no employees on its payroll 3The petitions in Cases Nos. 20-RC-2281 and 20-RC- 2273 sought a unit of the potato pack- ing employees of Giffen and the Partnership, respectively, at the Giffen shed. The petitions in Cases Nos. 20-RC-2270 and 20-RC-2283 sought a similar unit at the Costa shed. At the hearing, the Petitioner amended its petitions , without objection, so that the petitions filed against Giffen and the Partnership, respectively, sought overall units of potato packing em- ployees at both the Giffen and Costa sheds. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who work in either of the two sheds , nor does it exercise any supervisory or other authority over the packing shed employees. In view of the foregoing , and the entire record in these proceedings , we find that the Partnership is an independent contractor and the potato packing employees employed at the Giffen and Costa sheds are its employees .4 Accordingly, we shall dismiss the petitions filed with respect to Giffen. With respect to the contention that the potato packing em- ployees are agricultural employees exempt from the Act, the record reveals that these employees , approximately 100 in number , work exclusively in the sheds . Some operate washing machines which cleanse the potatoes . Others grade the potatoes as required under particular orders from customers. Still others pack the potatoes in bags provided for that purpose and sew the tops of the bags . There is no interchange of packing- shed and field employees. The Board has frequently stated that where employees are employed in an establishment of any employer which is operated as a "separate commercial enterprise ," and not merely as an incident to or in conjunction with its farming operations, such employees are not "agricultural laborers " but are "em- ployee s" within the meaning of the Act . 5 In view of the fact that the potato packing employees involved herein do not engage in farming operations , and are employees of the Partnership, which concededly does not engage in farming work , we find that they are "employees " engaged in a "separate commercial enterprise " and are not "agricultural laborers." 6 We find , in agreement with the parties , that all employees of Paul Garber and Jim Newnham , doing business as Garber and Newnham , employed in the packingsheds at Huron, California , known as the Giffen, Inc ., shed and the Costa shed, excluding office clerical employees , watchmen, guards , andall supervisors as defined in the Act, constitute aunit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. Determination of representatives: The record indicates that the potato packing operations at the Giffen , Inc., and Costa sheds are seasonal in nature, the season normally extending from June 1 to June 30 . However , there is no indication whether the potato packers perform other packing operations after the conclusion of the potato packing season, or whether any potato packing work is done after June 30. In view of the foregoing , we shall depart from our usual eligibility rule and direct that an election be conducted among the employees in the unit herein found appropriate at such time as the Regional Director determines that a representative num- 4See Lee E. Stine d/b/a Fairchild Cafeteria, 87 NLRB 667. s E g., D'Arrigo Bros. Co. of California, 93 NLRB 827; Imperial Garden Growers, 91 NLRB 1034. 6 Ibid MILCO UNDERGARMENT CO., INC. 767 ber of employees in the packingsheds are employed, and that a 30-day eligibility period immediately preceding the issuance of the notice of election by the Regional Director be selected. [The Board dismissed the petitions filed in Cases Nos. 20- RC-2270 and 20 -RC-2281.] [Text of Direction of Election omitted from publication.] MILCO UNDERGARMENT CO., INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 225, AFL and BLOOMSBURG INDEPENDENT GARMENT WORKERS' ASSOCIATION, Party to the Contract BLOOMSBURG BRAIDING CORPORATION and INTERNA- TIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 225, AFL and BLOOMSBURG INDEPENDENT GARMENT WORKERS' ASSOCIATION, Party to the Contract. Cases Nos. 4-CA-591 and 4-CA-605. August 18, 1953 DECISION AND ORDER On May 11, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in this proceeding , finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondent Milco had not engaged in certain other unfair labor practices and recommended dismissal as to them . Thereafter , both Respond- ents filed exceptions to the Intermediate Report and supporting briefs. The Board t has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.2 The rulings 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, Styles, and Peter - son]. 2On June 18, 1953, the Respondents filed a motion to reopen the record on the basis of newly discovered evidence, and also because of the Trial Examiner's refusal to permit cer- tain other pertinent evidence to be admitted. The movants assert that they have evidence that the incident of the paycheck and Blanche Gross' altercation with Marco Mitrani, president of Respondent Milco, took place before July 13, 1951, in the testimony which Blanch6 Gross gave under oath at a hearing before another governmental agency, and that such direct con- tradiction of testimony by the same witness, under oath, at two different hearings, destroys the probative value of any testimony given by her. They further assert that a refusal to grant this motion would deprive the Respondent of "constitutional rights under the rules of civil procedure, adopted by the Supreme Court of the United States pursuant to the Act of June 19, 1934, as amended, and would constitute reversible error." The Trial Examiner sustained the General Counsel's objection to the following question which company counsel sought to ask 106 NLRB No. 125.