L. S. Hunn Packing Co.

In the Matter of L. S. HUNN, DOING BUSINESS AS L. S. HuNN PACK- ING CO. and CALIFORNIA STATE COUNCIL OF CANNERY UNIONS, A. F. of L. Case No. 00-C-1280.-Decided January 31, 1946 DECISION AND ORDER On May 23, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, a copy of which is attached hereto, finding that the employees alleged in the complaint to have been dis- criminatorily discharged on or about October 21, 1944, were "agricul- tural laborers," within the meaning of Section 2 (3) of the Act, and that therefore the Board is without jurisdiction with respect to these employees. The Trial Examiner accordingly recommended that the complaint be dismissed. Thereafter, California State Council of Cannery Unions, A. F. of L., and counsel for the Board filed exceptions to the Intermediate Report; and counsel for the Board filed a brief in support of his exceptions. The respondent filed a reply brief. No request for oral argument before the Board was made, and none was held. The Board has reviewed the rulings made by the Trial Exam- iner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recoimnendation of the Trial Examiner with respect to the jurisdictional issue.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the respondent, L. S. Hunn, doing business as L. S. Hunn Packing Co., Woodlake, Calif or- nia, be, and it hereby is, dismissed. L MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. Since we are dismissing the complaint on jurisdictional grounds, we find it unnecessary to consider the Trial Examiner 's findings and conclusion with respect to the merits of the complaint. 65 N. L R. B., No. 109. 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Wallace E. Royster, Esq., of San Francisco , Calif., for the Board. Mr. Alen Luscutoft, business representative, of 712 Twelfth Street , Sacramento, Calif., for the Union. William D. Crossland, Esq, of 636 Brix Building, Fresno, Calif., for the Respondent. STATEMENT OF THE CASE On a first amended charge filed March 12, 1945, by California State Council of Cannery Unions, A. F. of L., herein referred to as the Union, the National Labor Relations Board, herein called the Board, on March 13, 1945, by the Regional Director for the Twentieth Region ( San Francisco, California ), issued its complaint against L . S. Hunn, doing business as L. S. Hunn Packing Com- pany, at Woodlake, California, herein called Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with copies of the first amended charge and a notice of hearing were duly served upon the Union and the Respondent on March 13, 1945. Concerning unfair labor practices, the complaint alleges that on or about October 21, 1944, Respondent discharged 14 named employees and at all times since that date has refused to reinstate them or any of them because of their membership in and activities on behalf of the Union, and thereby has dis- criminated and is discriminating in regard to the hire and tenure of employment of said employees , discouraging membership of the employees of Respondent in any labor organization, and interfering with, restraining , and coercing his employees in-the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. Respondent duly filed his answer in which he denies, ( 1) that he was en- gaged in the business of packing or processing olives at a plant located at or near Woodlake, California, or any other plant or location, and (2 ), that in the course of his business he causes or ever has caused a substantial amount of materials to be purchased or delivered or transported in interstate commerce. The answer admits the discharge of the 14 persons named in the complaint on or about October 21, 1944, but denies all the allegations of the complaint pertaining to or alleging the commission of any unfair labor practice. The answer affirmatively alleges that the employees and each of them, referred to in the complaint were, at all times mentioned in the complaint , individuals employed as agricultural laborers within the meaning of Section 2 (3) of the Act; that Respondent is not engaged in commerce as defined in Section 2 (6) of the Act ; that he is not subject to the jurisdiction of the Board ; and that the Board is without jurisdiction over him or over the matters or things set out and alleged in the complaint. Pursuant to notice of hearing issued by the Regional Director and duly served upon the parties, a hearing on the complaint was held at Woodlake, California, and at Fresno, California, on April 19 and 20, respectively, 1945. before the undersigned, R. N. Denham , the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Union, and the $espondent ap- peared and were represented by counsel or by an official. All parties partici- pated in the hearing and were afforded full opportunity to be beard, to examine and cross-examine witnesses , and to present evidence pertinent to the issues. L. S. HUNN PACKING CO. 633 At the opening of the hearing, Respondent presented a motion to dismiss this proceeding on the ground that all the employees involved therein are agricultural workers within the meaning of Section 2 (3) of the Act and are exempt from the operation of the Act and that the Board is without jurisdiction over Respondent and the employees here involved. Disposition of the motion was suspended until all the facts could be developed. The motion is disposed of in this Intermediate Report. At the close of the taking of all testimony the motion of counsel for the Board to conform the pleadings to the proof with reference to the correction of names, dates, and other matters not material to the main issues involved, was granted without objection. Extended argument by counsel was made upon the record at the close of the hearing, and a memo- randum brief has been received from counsel for the Board. Upon the basis of the foregoing and on the entire record, after having heard and observed the witnesses and considered all the evidence offered and received, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, L S. Hunn, is engaged in the business of growing and marketing raw olives produced on approximately 480 acres of orchard land owned or con- trolled by him under lease in the vicinity of Woodlake, California. During the 1944-1945 season, Respondent produced on his own property a total of ap- proximately 1,160,230 pounds of olives, of which 576,230 pounds were sold for ultimate transport outside the State of California, and approximately 684,000 pounds were sold to firms or persons within the State of California. The true money value of the olives involved is not shown in the record, other than as listed invoices indicate that the olives shipped outside the State of California totaled in value more than $75,000. The character of the business done by Respondent and the question as to whether it is wholly agricultural, or in part is a commercial operation, will be discussed in a subsequent portion of this Intermediate Report. -II THE ORGANIZATION INVOLVED California State Council of Cannery Unions, A. F. of L, is a labor organiza- tion admitting to membership employees in packing houses, canneries, de- hydrators, and in the freezing industry, and particularly admitting to membership employees of Respondent. III. THE STATUS OF THE EMPLOYEES WITHIN THE MEANING OF SECTION 2 (3) OF THE ACT Respondent contests the jurisdiction of the Board on the ground that he is a farmer and that the employees here involved are agricultural workers exempt from the jurisdiction of the Board under Section 2 (3) of the Act , Respondent owns or controls under lease, 480 acres of olive groves in the general vicinity of Woodlake, California. Annual production is approximately 600 tons of olives taken from the groves which he owns or operates under lease. His major operation is on his farm near Woodlake where he has erected a plant in which he expects, at some future date, to carry on a general food processing operation. This is a permanent brick and galvanized iron structure with over- all floor dimensions of 100 by 200 feet plus an open concrete platform of 100 by 140 feet. Some food handling equipment is stored in the building, but none, 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except as hereafter noted, has been installed for operation The building is not and never has been devoted to any use beyond that of storage, except for the performance of the operations which are here under consideration The only equipment in operation in the plant consists of a sorting belt, and an auto- matic grader over which the-olives pass after leaving the sorting belt, and drop into slots in accordance with their respective sizes, and thence into bins or boxes placed alongside. This equipment takes up one corner of the main build- ing. Except as otherwise noted, the employees here involved were employed at the sorting and grading operation above described. Respondent had no other employees except those working in the groves or about the farm as general handy men. Not all the olives produced are sorted and graded However, those that are so handled are brought to the sorting equipment from the field in the field boxes that have been filled by the pickers, and are dumped into a hopper which feeds the olives to the slowly moving sorting belt in a regulated flow. The duties of those working at the sorting belt are to cull out the olives that are bruised, rotten or misshapen and not of a commercial character, and also to remove stems from olives where the stems have been left on by the pickers This was the sole duty of the female employees herein conceived. After d1op- ping from the sorting belt to the grader, the separation into sizes or grades is automatic The olives are not again handled except to remove the filled boxes from the graders and either load them on trucks for local delivery or place them in brine filled barrels for distant delivery. The olive picking season is about 5 months long and ordinarily extends from sometime between September I and October 15 to March 1 or 15 During the,rest of the year, the routine farm work is carried on by a year-round crew When harvest time comes, the mem- bers of the year-round crew may be found picking, sorting, driving tractors or trucks, maintaining equipment, and generally making themselves useful wherever needed. The picking, however, is primarily clone by seasonal workers, some of whom are itinerant and others are residents in the vicinity of the groves The employees here involved consisted of nine women who, it was stipulated on the recoid, were employed on the sorting and grading operation when dis- charged In addition, five male employees are listed The record reflects the following as to their status and work: Robert Rippccoe began working for Respondent about September 1, 1944, as a handy man, doing whatever was to be done about the place This included driving trucks and tractors, cleaning up weeds, helping at the grader, and other miscellaneous work with no single assign- ment George Wagoner has been intermittently employed by Respondent from the fall of 1942 into the fall of 1944. He does not fall into the category of a "year round" employee but worked only when needed, which, as lie said was "most of the time." Wagoner was a handy man and general farm employee who worked at tractor driving, irrigating and various similar jobs, including dumping the field boxes of olives into the sorter bin and the boxes of graded olives into barrels. These latter he covered with brine and then closed the barrels. ,T. P. Rawlings started work for Respondent in September 1944 and did miscel- laneous jobs, mainly repairing field boxes and picking ladders until the sorting and grading operation had been under way about 3 days when he worked at the grader, removing the filled boxes of graded fruit. Walter L Davis was a newly hired man who drove tractors, cleaned up weeds, drove trucks and worked at the grading operation, removing the filled boxes of graded fruit Albert L Asinan was also a newly hired employee who did little if any work in the sorting and grading operation. His work was to patch boxes, haul them to the field, and do general handy man work in the field, occasionally going to the grader when a "fill in" man was needed All of these men appear to have been hired as general farm maintenance men, employed for the season to absorb the additional duties L. S. HUNN PACKING CO. 635 imposed by the harvest, part of which duties placed them, at times, in the sorting and grading operation when not otherwise employed at field work or maintenance of field equipment. None appears to have had any single continuous assignment Of the women here involved the record reflects that they are seasonal workers, all of whom reside in or near Woodlake. Five of them had worked for Respondent through one or more of the three preceding seasons, sometimes as pickers and someties at the sorting belt. On the Monday following the discharge here com- plained of, at least two of the women went to work for Respondent as pickets' There is no particular skill required in the sorting and grading operation. In Animertcani. F'svct Growers, Inc, 10 N. L It. B. 316, 327, the Board adopted, as ,,.in adequate interpretation which may be applied to the term `agricultural laborer' as used in Section 2 (3) of the National Labor Relations Act," and has consistently followed, the definition contained in United States Treasury Depart- ment Regulation 90, Article 601 (1), published March 13, 1936, without, however, adhering to all the specific rulings which hate been made with respect to this definition by the Commissioner of Internal Revenue' This definition is also used in the Social Security Act, 49 Stat 620, Section 811 (b), and provides that the term includes all services performed- (a) By an employee, on a farm , in connection with the cultivation of the soil. the harvesting of crops . or the raising , feeding, or management of live- stock, bees and poultry, or (b) By an employee in donne( Lion with the processing of article from materials which were produced on a farm; also the packing , packaging, transportation , or marketing of those materials or articles Such services do not constitute "agricultural labor" however, unless they are performed by an employee of the owner or tenant of a farm on which the materials in their raw or natural state were produced and unless such processing, pack- ing, packaging, transportation , or marketing is carried on as an incident to ordinary farming operations as distinguished from manufacturing or com- mercial operations . This definition presupposes that the agricultural character of the work does not necessarily tetininate with the severance of the crop from the tree or ground, Star is Bi other s Nzrrscc i.es, et al . 40 N L It B. 1243, and also recognizes that "proc- essing, packing, packaging, transportation , or marketing" the crop, when done by the producer's own employees , may be "an incident to ordinary farming op- erations," and is not necessarily a part of it manufacturing or commercial op- eration In its decisions , the Board has recognized that such a distinction may and does exist , and in the case of Growci -Shopper Vegetable Association, supra, makes special reference to the application of the "tests " set out in the above definition. The question of agricultural exemptions has come before the Board on numer- ous occasions in both complaint and representation cases and in each instance, on considering the special circumstances involved , the tests of the above defi- nition have been invoked , either by direct reference , or by a process of ration- alization that leads back to the definition At no time has the Board announced ' The record indicates that probably four of the women and two of the men returned as pickers 2 Cf Noith Whittier Heights Citrus Association, 10 N L R B 1269, enf'd 109 F (2d) 76 (C C. A. 9) ; Grower-Shipper Vegetable Association of Central California, 15 N L R B. 322, enf'd 122 F. (2d) 368 (C. C A 9 ) (the court notes that jurisdiction is conceded and does not discuss the question This concession must have come after the Board decision It was in issue there ). Park Floral Co , 19 N. L. R B. 403. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandonment of the limitations therein defined. In North Whittier Heights Citrus Association, 109 F. (2d) 76, the court dwelled at length on the meaning of the term "agricultural laborer," in the light of the present day economic develop- ment of the "farm." The views of that court have been cited on numerous oc- casions, with approval, by the Board. There, the court emphasized this develop- ment by using as examples of the economic changes the time - when every detail of farming from plowing to delivering the produce to the consumer was done by the farmer and his "hired man," and the opposite condition evidenced in the facts of the case there under consid- eration, - when in the transition of citrus fruit growing from this independent action to the great industry of the present in which the fruit is passed from the individual grower through contract to a corporation for treatment in a pack- ing house owned and run by such corporation, to be delivered by this corpo- ration to an allied corporation for transportation and market. In dealing with the contentions of the Association in that case the court further observes: Petitioner maintains that the nature of the work is the true test. Perhaps it would more nearly conform to the true test to say that the "natare of the work modified by the custom of doing it determines whether the worker is or is not an agricultural laborer. [Italics supplied.] And then follows with : Petitioner argues that if each member of the non-profit cooperative corpora- tion that runs the packinghouse were to persona]]y'hire and direct those doing his own packing and sorting, the work would be agricultural and his em- ployees would be agricultural laborers ; that it follows, therefore, that in the case of the same members acting under a single organization to accom- plish the same result there can be no change in the nature of the work nor in the status of the persons doing it. The conclusion does not follow The factual change in the manner of accomplishing the same work is exactly what does change the status of those doing it. [Italics supplied ] In the American Fruit Co. case, supra, and in Grower-Shipper case, supra, the Board considered both factors that are set out in the foregoing. Those may be generally referred to as the lettuce packing cases. The facts were analogous to those in the citrus packing case of North Whittier Heights Citrus Assn. But in viewing the nature of the work, the high degree of specialized organization involved in carrying it on, the special skill of the packers and the fact that they, in effect, constituted a craft unto themselves, as well as the fact that practically none of the many concerns involved engaged in packing only their own production of lettuce with their own employees, the Board found that, 'not only were the tests not met, but the operation was wholly divorced from the farming operation and had translated itself into a large and highly organized commercial marketing business. In Idaho Potato Growers, et at, 48 N L R. B. 1084, enf'd 144 F. (2d) 295 (C. C A. 9), again the tests were not met, for the workers were employees'of associations and dealers, and not of the farmers 'on whose'potatoes the graders worked In its most recent case dealing with the subject, Pepcekeo Sugar Co . et al., 59 N. L. R. B. 1532, the Board found itself confronted by practically the entire sugar industry of Hawaii, made up of large corporations, individually owning thousands of acres of sugar plantations together with railroads for trans- porting the cane to the mills, irrigation systems, mills, and miscellaneous main- tenance facilities. "Sugar plantations in Hawaii are complex, highly mecha- L. S. HUNN PACKING CO. 637 nized, carefully organized and operated as large scale business enterprises " The plantation owners were claiming agricultural exemption for all their employees in every category from field hands to the handlers of the finished product. In disposing of the claims of exemption, the Board engages in broad general language to apply to that situation, and cites the North Whittier Heights case in support of the proposition that:- Although the term "agricultural laborer" is not defined in the Act, its meaning is not obscure. The guide post is the ordinary meaning of the phrase, that stemming from common usage and common understanding The term "agri- cultural laborer," as commonly understood, refers to a person employed on a farm in the cultivation of the soil, including the harvesting of crops and the rearing and management of livestock. Following this, the Board then applies it to the operations of the sugar com- panies and emphasizes the absurdity of regarding locomotive engineers, con- ductors, brakemen, engine oilers, machinists, welders, bricklayers, toolroom clerks, etc. as agricultural laborers. Admittedly, those engaged in the actual growing and harvesting of the cane, and loading it on trucks or cars for transpor- tation to the mill are agricultural laborers, and the Board so found But the business of the sugar companies is the manufacture of sugar It is essentially commercial. The moment the cane starts toward the grower's mill, it enters the commercial process and continues so through the grinding, melting, and all other operations that eventually convert it into the raw sugars that are the objective of the grower-manufacturer Such being the case, there is only one point where the cut-off can take place in that industry. That is the point des- ignated by this Board. It is in conformity with all the tests of the definition. The objectives of the employer, the relation of the agricultural produce, i e., the raw cane, to the finished stigars, and the nature of the work done in manufac- turing the sugars, are repugnant to the proposition that anything done after the cane is first loaded out of the fields, is agricultural in character. The decision in the Pcpeeaeo case was designed to fit that case. The general language used by the Board and its approval of the reasoning of the court in the North Whittier Heights case, are in line with that decision, and (1o not indicate that the Board has abandoned the definition of "agricultural labor" above quoted, by eliminating its paragraph (9) and thus abruptly terminating the applicability of the exemp- tion with the severance of the crop from the soil Until such abandonment and modification are clearly indicated, it would seem proper to adhere to the definition and the rule that, "the nature of the work, modified by the custom of doing it, determines whether the worker is or is not an agricultural laborer." - The instant case is readily distinguishable from any of those in which deci- sions have been rendered by the Board or by the courts Respondent is primarily a grower of olives. His product is totally inedible and he engages in no operation or process that converts it into a consumable food product What handling he does is not designed to fit the product for its ultimate distribution and sale His employees meet the test of handling only the products grown by their employer The sole question is whether the sorting and grading of the olives by the grower's own employees, and on his premises, in order to fit them into the available market for raw olives, is incident to the growing and harvesting of them In my opinion, it is Fundamentally, marketing a crop is an essential incident to producing it Whether the work done to process the crop or convert it into a marketable com- modity is agricultural or commercial, depends on the nature of the work done, modified by the custom of doing it If the processing or packing is an integral 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of ordinary production or farming operations , and is an essential step before the product can be marketed in normal outlets , it retains its agricultural charac- teristic. Stark Brothers Nurseries , et al.. supra.; Lsiidstroni. Hatcheries, 49 N. L. R. B 776. If, on the other hand, the processing, packing, packaging, transporting and marketing are parts of a comprehensive, highly organized , specialized and integrated processing , manufacturing or sales operation or business , as in Tovi ca Packing Company, 12 N. L R B. 106.3 ; Pepeekeo Sugar Co., supra; and in the lettuce, citrus and potato cases, the agricultural status of those who handle or deal with the crop ceases when it has been severed from the ground and turned over by the harvesters to those who are to carry the processing and marketing oper- ations through to completion - This Respondent, like all other growers of olives in his vicinity , had five out- lets through which his crop could be disposed of: (1) By having them milled for the production of oil This was usually done at a cooperative mill for the account of the grower ; ( 2) By selling in bulk . "orchard run," to a dealer who would glade them and resell by grades This method may be adopted when the grower has no grading facilities , where the quantity involved does not justify grading, where labor is not at hand for grading , or where, for some other reason such "orchard run" sale seems desirable , ( 3) By selling to a dealer or, processor by grades On that score, the uncontroverted testimony of Ilunn is as follows Most olives are purchased on a graded basis from the grower The grower either takes the olives to a cooperative and has them graded or has his own sorting belt or grades them in some manner, and they are generally sold on a graded basis , so much per ton in each size (4) Olives destined for ultimate delivery at a distant point where they are to be processed, are placed in barrels after having been graded, and covered with brine for purposes of preservation ; ( 5) Fully ripe and shrivelled olives are first placed in a bin and covered with salt foi about 3 weeks They are then run through a shakes to rid them of the salt , sprayed with olive oil and placed in kegs for shipment to the processor . Neither of these last two treatments is a part of contributing to the edibility of the olives, but both are for the purpose of preserving the fruit during transit and reasonable storage' Respondent utilized all five types of marketing his crop; about 40 percent of it in hiine : 5 percent as greeked olives ; 18 percent to the mills of oil ; and the rest was said locally , mostly ungiaded , to dealers in California With a market for raw olives demanding graded fruit, the processing necessary to meet that demand is an incident to his ordinary disposition of the crop It is not a manufacturing or highly indus- trialized enterprise and contributes nothing except to permit of normal disposi- tion of the fruit The recoil reflects that this was the custom of the growers and was based on the demands of the buyer dealers or processors It is true , he might have taken all his olives to the mill to be pressed for oil, or he might have sold his crop "orchard run," but that is not the way the crops are customarily disposed of Custom cannot be ignored , nor should the grower be forced to change his status in order to market his produce in the usual and ordinary outlets, so long as lie retains his place as a grower and does not expand over into the field of manufacture or commercial operations This is not unlike the farmer with his hay or his wheat . If he has a baling crew come in from outside and bale his hay, those men are on a commercial or industrial enterprise , but if he has hay-baling 3 The brine shipment is a war measure due to lack of refrigeration space Normally the graded olives are shipped dry but under refrigeration The salt treatment-known as "greeking" applies only to fully ripe olives and appears to be standard for that type of fruit . Without it they would soon mold and spoil L. S. HUNN PACKING CO. 639 equipment on his farm and has his own men do the baling, little question would be raised about the exempt status of the workers' Since Respondent did no processing beyond that incident to making his crop marketable and was not engaged in a manufacturing or commercial operation in so doing, it is found that the employees here involved, were employees of Respondent engaged in sorting and grading inatei ml In the raw or natural state produced by Respondent; and that such sorting and grading operations were carried on as an incident of Respondent's orduiaiy olive growing operations On the basis of the foregoing facts and upon all the record herein the undersigned makes the following: CONCLUSION OF LAW 1 That California State Council of Cannery Workers, A F of L,,is a labor organization within the meaning of Section 2 (5) of the Act 2. That the employees alleged in the complaint to have been discrinunatorily discharged on or about October 21, were in fact agricultural laborers within the meaning of Section 2 (3) of the Act and are exempt from the provisions of the Act, and that therefore the Boaid is without jurisdiction over Respondent or any of the employees so described in the complaint RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint herein be dismissed" I In the 1943-1944 season, Respondent bought olivestroni other glowers and sorted and graded them along with his own It was admitted that this constituted a commer- cial venture and that the sorteis and giaders were not agiicultural workers In 1943- 1944, Respondent made pay-ioll deductions for Unemploi nient Compensation, Social Security and Income Max of his sorting and grading employees because of that For 1944-1945 season he sought and obtained rulings from all these agencies that no deduc- rions should be made if lie confined his operations to his own crops, since the employees would then be regarded as "agiicultural laborers" and exempt. 5In the summer of 1944, Respondent airanged to snake some experiments to determine the cost of packing processed olives in glass darn tor distribution to the public Ile made a tormal application to the War Labor hoesd for wage ceilings to cover the various opera- tions involved in the processing and packing of olives ton ultimate consumption and then piocured several barrels of his own ohs es to be processed el,ewlieie and ieturned to him foi experimental packing At the beginning of 1944-1945 picking season, Respondent encountered difficulty in getting his olives picked with the result that the supply of olives to be handled at the sorting belt was only a small fraction of normal production Rather than send the sorteis home after 2 hours or so of work, Respondent had them fill in their time by carrying out the experimental packing of the processed olives in the basement of ]its building This experiment was carried on intermittently for 2 weeks or so on the otherwise idle time (if the goiters and eventually demonstrated that the cost of handling the olives would he out of proportion to the ceiling price allowed Respondent by the OPA, with the result that the experimental packing was abandoned with the release of the employees here involved while there Ras no particular stipulation on that score, this activity on the part of the employees was apparently regarded by all parties , including counsel for the Board and the Respondent, as a temporary arrangement not representing the normal activities of the employees here involved and not to be considered as a part of their regular employment in the determination of the question as to whether they are agricultural laborers In view of this. the writer has proceeded, pursuant to the stipula- tion of the parties read into the record "that as to all but Robert Rippecoe, George Wagoner, J V Rawlings, Walter L Davis, and Albert L Asman, these mdniduals were working in the grading operation," to determine the status of these employees solely upon their employment in the grading operation For the information of the Board , since the Intermediate Report embodies a recom- mendation of dismissal for lack of jurisdiction and consequently the merits of the com- plaint are not in issue at this stage, there is attached hereto as Appendix A, a rSsunih of findings of fact concerning the merits , offered as they would have been set out in the Inter- mediate Report had there been occasion to formally make such findings Any Conclusions of Law or Recommendations are intentionally omitted therein. 679100-46-v of 63-42 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective July 12, 1944, as amended, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. It N DENHAM, Trial Examiner. Dated May 23, 1945. APPENDIX A Basic findings of facts on merits In the Intermediate Report to which this appendix is attached the writer has recommended that the complaint be dismissed on jurisdictional grounds. For the information of the Board, the following is a resume of the facts developed during the course of the hearing as they pertain to the merits of the complaint L. S Hunn owns or controls by lease, some 4S0 acres of olive groves in the general vicinity of Woodlake, California. His acquisition of these substantial holdings has been comparatively recent, and it has only been since 1941 or 1942 that he has had facilities to sort and grade olives on his own premises His activities prior to that year are not reflected in the record. Normally he now produces about 600 tons of olives on his own lands during each year These are picked beginning about October 1 and extending into March. The harvest has two peaks, one occurring in November and one in February. Ordinarily, most of the olives are marketed by grade, which, under normal conditions will require 16 to 18 persons on the sorting belt, together with some temporary men and 10 or 12 of the year round farm employees who work at farm equipment maintenance, trucking, or driving tractors or in the plant where the sorting is being carried on, or wherever they may be needed. The persons employed at the sorting belt are temporary female workers, who reside in the vicinity of Woodlake, and, dur- ing the season usually work approximately 48 hours per week exclusively on the sorting and grading operations. During the harvest season, ordinarily there are a few men, likewise temporary, who do odd jobs around the farm, and in the sorting and grading shed. Their work is intermittent and interchangeable In the sorting and grading, their work usually consists of handling the boxes of olives as they come from the field or as they are filled at the grader All the employees here involved are in the "temporary" class and some of them have worked with the Respondent, either as pickers or sorters, or both, each season since be began his substantial production operation. ' Others were employed for the first time in 1944. The volume and steadiness of the employment of those engaged in the sorting and grading operation obviously depend upon the operation of the pickers in the groves and the flow of fruit from them. In the season of 1942-1943, with approxi- L. S. HUNN PACKING CO. 641 mately 16 women on the sorting belt, Respondent consumed approximately 13,000 women hours. In the 1943-1944 season, he consumed approximately 14,000 women hours. During these two previous seasons, ample pickers apparently, were avail- able and the flow of fruit constant. At the opening of the 1944-1945 season, how- ever, Respondent was unable to obtain an adequate number of pickers and experi- enced much difficulty in obtaining a constant or substantial flow of fruit from the groves because of the intermittent work stoppages of such pickers as were there and their recurrent demands for progressive increases in pay rates This is reflected in the fact that the cost of picking the 1944-1945 crop advanced approxi- mately $60 per ton over the picking cost of the previous year. Due to his inability to obtain pickers. Respondent lost approximately 15 percent of his 1944-1945 crop where normally there is no loss. This uncertainty as to picking reflected itself in irregularity and shortage of employment for those on the sorting and grading operation to the extent that in the 1944-1945 season, Respon- dent consumed only approximately 3.700 women hours as against 14,000 in the previous year. In early October 1944, at the beginning of the 1944-1945 season, Respondent initially hired a normal sized sorting and grading crew and the usual number of men as general workers, that would correspond to ordinary requirements at that early part of the season. Almost from the start, Respondent found his sorting and grading operations held up because of his difficulties with the pickers, with the result that the sorting and grading crew, instead of having the usual 8 hours of work each day, found itself with only 2 or 3 hours of sorting and grading work per day. In the summer of 1944 Respondent had attempted to make plans to extend his operations from the growing of olives to processing and packaging them for ultimate consumption He applied to WLB for a determination of wages in the processing operation, and to the OPA for ceiling prices on whatever he might produce : and, having obtained a statement of ceiling prices, planned to do some experimental work, or "test runs," to determine whether he could process and pack olives and sell them within the allowed ceiling. Anticipating this possible change, he had held over some of his 1943-1944 crop, and had them processed in a California processing plant. He set up temporary equipment in the basement of his Woodlake building, with which to carry on his tests as to the cost of loose packing those olives in glass jars, and lidding and labelling them Some very small amount of this was done in the summer of 1944. but when it was discovered that the 1944-1945 sorting and grading crew could be kept busy at their regular work only-a few hours per day, Respondent kept them employed in their otherwise idle time, at the experimental packing, rather than send them home each day after a few hours of sorting and grading. In fact, by the second week in October, the overstaffed condition of his crew led him to dismiss a number of them because of lack of fruit for sorting. Those who remained were the 9 women here involved and the five men who spent some time, when not engaged elsewhere, at the grading operation or in the packing work above referred to. These 14 were the only temporary employees, other than pickers and field workers, left in Respondent's employ on October 20, 1944. At that time, with the reduced force, the women were spending about half of their time at the sorting belt and the rest of it packing. The men were spending even less in the grading shed and worked at the packing only when they had no outside work to do. The only other employees were the picking crew and about 12 year round employees who worked at miscellaneous jobs as directed from time to time by the farm foreman 0 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 20, 1944, Respondent was away from the Woodlake place all day and did not return until the latter part of the evening At noon of that day, while the temporary workers were eating their lunch, Alen Luscutoff, business repre- sentative of the Union, approached them and solicited their signatures on cards designating the California State Council of Cannery Unions, A. F of L, to repre- sent them for purposes of collective bargaining. Apparently all the temporary workers then present signed these designations This was Luscutoff's first visit to the plant and on that clay he did not speak to any of the supervisory employees or any person connected with the plant, other than the temporary employees whose naives he acquired on the designation blanks He was, however, observed by the bookkeeper, Oscar Witt. On the morning of October 20, the sorting and grading groups, consisting of nine women and some of the temporary men employees heretofore referred to, worked at the sorting and grading operation for 2 or 3 hours and at about 10 o'clock, when there were no more olives to sort or grade, were directed to go to the basement and busy themselves on the packing operation It was at noon of this day when they signed the Union's designation cards. At about 3 o'clock in the afternoon, the barrel of processed olives upon which they were working was exhausted, and the farm foreman, Archie Martin, told them to stop work and go home Some question was raised as to whether they should come back the next morning Witt, who was also helping with the packing operation, said he would go into the office and find out whether they were to come back He did so, and atter,a few minutes, returned and told them they were to return the next morning as usual. That evening, Martin and Hunn were together for a short time talking about business matters but no mention was made of laying off the employees the next morning, nor was any mention made of the union activities which had taken place (luring the day Martin testified, and there is nothing to controvert it, that he knew nothing of any union activities at the shed at the time, and did not learn of them until the next morning, when one of the laid off men told him as Mai tin handed him his check This statement by Martin is credited Hunn also stated that he knew nothing of the union activities but-chat on the evening of October 20 Witt had told him of Luscutoff's visit at the plant Hunn's testimony on this was: A I hadn't seen him (Luscutoff) until after October 21. Q. I think you did say Mr. Witt, who was working for the warehouse company some time or other mentioned a union man had been around A Yes, he mentioned it to me, but I bad never bothered, I was busy with pickers at that time Q. Do you recall whether he mentioned it to you before or after the lay off? A. It was on Friday, I imagine. The day before the lay off There is nothing to indicate that Witt had any knowledge as to'how many of the temporary employees had signed designation cards with the Union, nor does the record reflect what Witt told Hunn, beyond the single statement by Hunn above quoted On the morning of Saturday, October 21, that being the regular pay day, all the temporary employees assembled at the plant expecting to go to work, but found their time cards were not in the rack They accordingly waited for developments and for their regular pay checks. After a short time, Hunn came out of the office and-handed all the women their checks, covering payment in-full up to the time they had stopped work on the preceding day He also had checks for persons who had worked other parts of the week and who were not present. These he gave to those who could deliver them to the proper payees, and in this manner closed out the entire list of temporary employees. The checks for the five L. S. HUNN PACKING CO. 643 temporary men employees were handed to Martin who was instructed to give them to the men indicated and to "make the lay-off" This lay-off marked the perma- nent abandonment of the canning operation and eliminated all the temporary employees on the farm at that time except picking crews. The only other em- ployees remaining were some 10 or 12 permanent year round employees. There is no evidence that up to this time, Respondent had indicated any antipathy toward any labor organization or any apparent opposition to his employees' join- ing labor organizations. When paying the final checks on the morning of October 21, Hunn volunteered no information as to the reason for the lay-off beyond saying, "That is all", and no one asked any questions except as hereinafter noted They all knew, how- ever, of the difficulties he was having getting his olives picked and from their own work experience, were familiar with the fact that only a small quantity of olives were available for sorting and that conditions were abnormal At the time of the lay-off, Laura Kelley, one of the women who had taken some processed olives home a day or two before, had the money with her to pay for them. After getting her check, she approached Hunn and told him she wanted to pay for the olives According to her testimony, after telling Hunn this, she told him also that they were sorry "the way things had happened," and Hunn's reply v as that he "didn't like to be stabbed in the back " On further examination Mrs Kelley testified : Q What we want to know, and this is very important, just as nearly as you can tell us the conversation that you had with Mr. Hunn on that after- noon about this lay-off A. Well, we were talking about the Union and I told him- Q. (Interposing.) Who A. Mr Hunn and I. After I had told him I was sorry. Q Then who first mentioned the Union? A Well, I don't know, probably I did, I don't remember. But anyway I told him' I didn't know much about the Union, but I knew my husband was a strong union man and he said his father was a union man. Q Who said that? A Mr Hunn Q Said his father was? A And he had no objection to the Union, that he liked the Union, but he felt that every one should have a right to do as they pleased Q. Was there anything said further than that9 A. Well, not that I can recall Another witness, Eliza Simmons, testified that when she received her check on the morning of October 21, Hunn also gave her a check for her daughter who had worked a short time (luring the previous week, but that the check was in a wrong amount and that she went to Hunn and asked him to have it corrected. Her testimony was: So I said to Mr. Hunn, "Mr Hunn, what is the reason for this?" He said "you know the reason" then he said, "Well, this is just anotheri stab in the back to me" Of course, he was sore, and didn't want any more argument and with that I left the building That was all that was said. Hunn's testimony concerning the Kelley incident is as follows: Well, she made-I believe she made the statement. that this is the reason of the lay-off, it is, due to us signing with the Union Of course, that came as a shock to me, because I hadn't given it any thought and I said, "Absolutely not." I said, "You signed or some of them signed for a union" she said "Yes". 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "Well, that i,s alright " She said. "Well. I thought"-these are not the exact words, but something to it-"so." I said, "No, I have no objection to any union, because I have always more or less favored the union." She made the statement her husband was a union man. I remarked back and said, "My father is also a union man ; in fact, one of the originators of the A. F. of L. in California ; the one that originally started the bricklayers union in California." The foi egoing was in answer to questions put to Hunn by the Trial Examiner, Previously he had described the eonveisation witlii Mrs Simmons in substan- tially the same manner that Mrs Simmons had. told of it, but stated that he was unable to recall making any statement either to Simmons or Kelley in which he made reference to a "stab in the back". The foregoing constitutes the entire direct evidence relied on by Boatd's counsel to show that the October 21st lay off was discriminatory. Following the lay-off, at least two of the women, both of whom had worked for Respondent in previous seasons, went to work the following Monday in Respond- ent's grove picking olives These two transferred from the grove back to the sorting and grading operations in February and continued in that operation until the close of the season. None of the others returned to work for the Respondent nor did any'of them request to be again employed.' Following the lay-off, all sorting and grading operations ceased and did not resume again until after November 1st when they were picked up in a very small way and carried on by Hunn, his wife, and other members of his family, with the assistance of two or three women who, as old time employees from previous years, had made applications for jobs, and had been hired. Thereafter and through much of the rest of the season, Hunn never had more than four or five women working on the sorting and grading operations The record does not indicate that he replaced any of the men He did not send for the discharged employees to return, and none of them applied for work, except as pickers as above set out, but hired former employees as they made applications for jobs. Hunn explained that the difficulty over picking was general in the industry during the 1944-1945 season, and that a number of the sorting and grading opera- tions as well as processing plants were closed down because of it;.that many of the growers shipped their olives to a commercial grading plant in order to consolidate shipments, whereas in normal times he would have made up com- plete loads of graded olives at his own plant; that he also shipped something in the neighborhood of 100 tons to the mill for pressing into oil, and as an over- all result, did not put more than 25 percent of the normal amount of olives over his own sorting table. The foregoing fairly recites all the pertinent facts, and, beyond commenting on matters of credibility and plausibility of recitals, the writer draws no con- clusions of law and makes no recommendations. The entire basis for any claim that the discharges of October 21, 1944, were discriminatory, lies in the timing, and on whatever credence may be given the testimony of Kelley and Simmons, that on the day of the discharges, Bunn made the statement that he had been "stabbed in the back." Respondent denies that the discharges were discriminatory and gives as his reason for the lay-off and resultant shut down, that he had determined from his "test run" experiments, that he could not pack olives under his 0 P A. 'Although questions addressed by Board counsel to Hunn, while on the witness stand, indicated that four of the women and two of the men Involved In the lay-off Immediately returned to Respondent's employ as pickers, the record affirmatively shows only that two of the women did so These two were witnesses and testified as to their respective actions only. L. S. HUNN PACKING CO. 645 ceiling, in competition with others, and so abandoned the packing work ; that he could not afford to run his grader only a'few hours per day; that all growers were having similar difficulty, and that he determined to have his olives go through a commercial grading plant and from that point, make up loads with others, for sale to points within trucking distance ; that he and his family could grade the small amount that would come through under this plan and that he therefore simply had no further use for the temporary help. Actually, very little was done during November and December, although one or two women were hired to help out, most of whatever grading was clone, being done by Hunn and members of his family. The circumstances are such as to give substantial weight to his reason for the lay-off Its proximity to the signing of the union cards is not explained, but the writer is inclined to the belief that this timing was coinci- dental. The conditions in the industry in general and at Respondent's plant in particular, were such that a substantial reduction, if not a total elimination, of the sorting and grading crew was indicated at the time. It would have been poor business to have retained them. As to discriminatory intent, the only evidence of that is the "stabbed in back" testimony of Kelley and Simmons. In view of the rest of the conversation between Hunn and Kelley, in which, they both agree, he expressed approval of labor unions and rather boastfully told of his father's leading role in establish- ing A. F. L in California and assured Kelley he believed everyone should do as he pleased about joining a union, it is difficult to reconcile these views with any idea that if Hunn mentioned "a stab in the back," (I cannot find that he did) he was referring to the action of the employees in interesting themselves in the Union. This is especially true since he obviously knew nothing more than Witt had told him and Witt had no information other than that a union man had visited with the employees and that he had, seen them signing some kind of papers. In view of the operational difficulties he was having, which made it impossible to adequately use his sorting and grading crew in October, and his conversation with Kelley, I am unable to find that the discharges were motivated by any factor other than business reasons.