Clinton Foods, Inc.

CLINTON FOODS, INC. 85 sissippi Lime will continue to be assigned to the chalk plant, even after it is fully staffed, for the performance of nonrecurring tasks. Peerless Chalk is located about three-eights of a mile from Mississippi Chalk. It is adjacent to Peerless Lime, and its operations are integrated with those of Peerless Lime in virtually the same way as the operations of Mississippi Chalk are integrated with those of Mississippi Lime. Peerless Lime and Chalk are under different immediate supervision than Mississippi Lime and Chalk. While there is an interchange of employees between the Peerless Lime and Chalk plants, there is none between those plants and Mississippi Lime and Chalk. On the basis of all the foregoing, and the entire record, we find that Mississippi Chalk is essentially an extension of Mis- sissippi Lime's operation and that, therefore, the unit of Mississippi Chalk and Peerless Chalk employees4 proposed by the Petitioner is not appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.5 For that reason, apart from other considerations, we shall dismiss the petition. [The Board dismissed the petition.] Member Beeson took no part in the consideration of the above Decision and Order. 4 It is not contended, nor does the record show, that any of the employees involved are craftsmen. 5 Cf. Birdsboro Armorcast, Inc., 101 NLRB 22. 6 We therefore deem it unnecessary to pass upon the contract-bar issue raised by the Employer and the Intervenor. CLINTON FOODS, INC.and TEAMSTERS, CHAUFFEURS AND HELPERS LOCAL UNION NO. 79, INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL, Petitioner. Case No. 10-RC-2622. March 26, 1954 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 Allen Sinsheimer, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Boards finds: 1. The Employer is engaged in commerce within the meaning of the Act. 108 NLRB No. 16. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the rep- resentation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all truckdrivers at the Employer's Frostproof, Florida, operations, including "semi- drivers," but excluding "goat drivers." The Employer is in general agreement with the unit sought by the Petitioner but would exclude therefrom "goat-flat" drivers, upon the ground that they are agricultural employees and thus excluded under the Act. The Employer is a Delaware corporation engaged in the manufacture and distribution of food products. Its Florida division, of which the Frostproof operations here involved are a part, is engaged in the growing and processing of citrus products. The record discloses that there are three types of truckdrivers in the employ of the Employer. "Goat drivers" carry fruit from the groves to the roadside in vehicles known as ''goats ." At the roadside, the fruit is loaded into semi- trailers and hauled to the Employer's packinghouse or proc- essing plant by employees known as "semi -drivers." The third group of drivers, called "goat-flat drivers," operate "goats" or "flats." These drivers spend approximately two-thirds of their time, when working in Company-owned groves within a radius of 2 or 3 miles of the Employer's plant, hauling fruit directly from the groves to the plant in "flats." The balance of their time, when working at a greater distance from the plant, they carry fruit in "goats" only as far as the roadside. The "semi-drivers" and the "goat drivers" are separately supervised, whereas, the "goat-flat drivers" fall within the supervision of one or the other, depending on the type hauling they are performing at the time. In accord with the desires of the parties, we find that .'semi-drivers," who haul exclusively from the roadside to the plant, are industrial employees and included in the unit, and that "goat drivers," who haul exclusively from the groves to the roadside, are agricultural employees, and excluded from the coverage of the Act. Status of "goat-flat drivers": The Board in the past has held that insofar as an employee is engaged in operations which have been defined as agricultural, he is an agricultural laborer and hence excluded from operation of the Act. How- ever, the Board has limited this to the extent that when such an employee also works at nonagricultural employment he is an employee within the meaning of the Act and, therefore, entitled to its benefits.' The Board has applied this ruling to cases involving the transportation of farm commodities IPepeekeo Sugar Company, 59 NLRB 1532. CLINTON FOODS, INC. 87 and, accordingly, has held that truckdrivers, who divide their time between agricultural and nonagricultural employment, may properly be included in an appropriate unit, and bar- gained for by the bargaining representative with respect to that part of their activities which is not agricultural in character.2 The question for immediate determination is whether, apart from the driving of "flats" from the groves to the roadside, a clearly agricultural operation, the "flat drivers" are engaged in nonagricultural work when they drive directly from the groves to the plant. The Board has, in the past, customarily found such operation to be nonagricultural in character.I However, we believe that a contrary conclusion is warranted upon the basis of the present record. In arriving at this conclusion, we note that in hauling directly from the groves to the plant, never at a distance of more than 2 or 3 miles from the groves, the "flat drivers" spend a substantial part of their time on the farm property. We also note that the operation is conducted by and for the benefit of the Employer who admittedly is engaged in a farming operation. Under the circumstances, particularly in view of the proximity of the groves to the processing plant, we are of the opinion that the driving of the "flats" with fruit from the groves to the plant is directly related to the marketing of such fruit by the grower thereof. Such operation is, there- fore, "a practice performed by a farmer . . . as an incident to or in conjunction with, such farming operations ." 4 Because the "flat drivers" here involved perform only agricultural functions, we find that they are "agricultural laborers" who are specifically excluded from the Act and must therefore be excluded from the unit. Apart from the foregoing rationale, we believe that the "flat drivers" should, for another reason, be excluded from the unit. As noted above, it is clearly established by the record that the "flat drivers" spend at least one-third of their time driving trucks whose operation , being confined to the farm, constitutes a completely agricultural function. In an analogous situation where the individuals concerned spent one-fourth of their time performing the duties of "guard" (a category which, like that of "agricultural laborers," is a statutory exclusion ), the Board, in a recent case,5 con- sidered the issue as to whether individuals working part time in the excluded category could be included in the production 2 L. Maxcy, Inc., 78 NLRB 525. 3See L. Maxcy, Inc., supra, and cased cited therein. 4Section 3 of the Fair Labor Standards Act, by which we must be governed, and Section 2 (3) of the Statute we administer, defines the term agriculture to include, inter alia, "the cultivation and tillage of the soil. . . cultivating, growing and harvesting of any agricultural or horticultural commodities . . . the raising of livestock . . . and any practice performed by a farmer or on a farm as an incident to or in conjunction with, such farming operations." 5 Walterboro Manufacturing Corporation, 106 NLRB 1383. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and maintenance unit . In that case , the Board decided that such individuals must be regarded as falling within the statutory exclusion , although they spent less than half their working time in the excluded category . We believe that the policy which prompted our decision in the Walterboro case, noted above, is equally applicable to a category that is excluded by statute from the definition of "employee " under the Act.' Ac- cordingly , even assuming arguendo that the employees herein involved are partly engaged in a nonagricultural work, we find that those employees who divide their time between agricultural and nonagricultural employment must, to the extent that they' spend a substantial part of their time in an agricultural function , be deemed agricultural laborers within the meaning of the Act and are, therefore , to be excluded from the unit. We find that all truckdrivers at the Employer ' s Frostproof, Florida, operations , including " semi-drivers ," but excluding "goat drivers ," " goat-flat drivers ," office clerical em- ployees, professional employees , administrative employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 6 This analogy was relied upon by the Board in the Walterboro case wherein the Board referred to its similar treatment of part-time supervisors. The practice of excluding in- dividuals who spend a substantial part of their time in supervisory duties is clearly es- tablished. See The Texas Company, 85 NLRB 1211; Phillips Petroleum Company, 97 NLRB 67, 69; Hampton Roads Broadcasting Corporation, 98 NLRB 1090, 1091; Hampton Roads Broadcasting Corporation, 100 NLRB 238, 240. 7 To the extent that they are inconsistent with this decision, past Board cases holding that truckdrivers dividing their time between agricultural and nonagricultural employment are deemed to be within the unit found appropriate, are hereby overruled. ENDICOTT-JOHNSON CORPORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS, A.F. OF L. Case No. 3-CA-571. March 29, 1954 DECISION AND ORDER On September 15, 1953, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices , and recommending that it 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 the Re- 108 NLRB No. 23.