Brooksville Citrus Growers Association

BROOKSVILLE CITRUS GROWERS ASSOCIATION 707 department areas . constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act." 4. Since March 25, 1954, and at all times thereafter, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, and its Local 187, have been the exclusive representative of employees in the unit described above for the purposes of collective bargaining with respect to rates of pay, hours of work, and other conditions of employment. 5. By refusing on and after March 25, 1954, to bargain collectively with the aforesaid Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid unfair labor practice the Respondent is interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. The Respondent did not engage in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] Brooksville Citrus Growers Association and American Federa- tion of Labor, Petitioner. Case No. 10-RC-2979. May 10, 1955 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 Frank E. Hamilton, 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 Board finds : 1. The Employer is engaged in commerce within the meaning of the Act .2 2. The labor organization involved claims to represent certain em- ployees of the Employer 3 3. The Employer contends that the individuals involved in this proceeding - the packinghouse workers - are agricultural laborers within the meaning of Section 2 (3) of the Act and therefore that the Act does not apply to them. The Employer is a nonprofit cooperative association incorporated under the laws of the State of Florida. It is engaged in growing, harvesting, packing, and marketing fresh citrus fruit exclusively for 79 grower members who are located within a 15-mile radius of its 1 The Employer's request for oral argument is heyeby denied , as the record and the Employer's brief, in our opinion, adequately present the issues and the positions of the pa'rties. s The Employer annually sells and ships to customers outside the State of Florida prod- ucts valued at more than $200,000. 8 The Employer contends that the local which the Petitioner intends to establish to represent the employees involved is, not a labor organization within the meaning of the Act because it will be composed of "agricultural laborers." As hereinafter found, the packinghouse workers are not "agricultural laborers ." Accordingly, we find this contention to be without merit. 112 NLRB No. 93. 369028-56-vol. 112-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD packinghouse. It has two departments: (a) a production department made up of grove workers who plant, cultivate, fertilize, spray and prune trees , and also harvest the fruit when it matures; and (2) a packinghouse comprised of a separate group of workers who receive, wash, dry, polish, color, grade, size, pack, and load fruit for shipment. Each department is separately supervised. There is no appreciable interchange between workers in the two departments. At peak em- ployment, approximately 30 percent of the Employer's workers are employed in the packinghouse and 70 percent in the groves. Section 2 (3) of the Act excludes from the definition of "employee" any individual employed as an "agricultural laborer." By a rider to the Board's current appropriation act,' the Board is precluded from processing representation petitions involving agricultural laborers as defined in Section 3 (f) of the Fair Labor Standards Act of 1938.5 Section 3 (f) defines the term agriculture to include, inter alia: farming in all its branches and among other things . . . the cultivation and tillage of the soil, . . . production, cultivation, growing, and harvesting of any agricultural . .. 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 transportation to market. The individuals employed in the Employer's production department cultivate and harvest agricultural commodities. They are therefore agricultural laborers within the above definition. However, the pack- inghouse workers do not perform such duties, nor do they work on a farm. Accordingly, they are not agricultural laborers unless their employer is a "farmer." A cooperative association, whether in the corporate form or other- wise, is an entity separate and distinct from the members who compose it, and the individuals working for it are employees of that organiza- tion and not of the farmer members.6 The cooperative involved in this proceeding owns no land and raises no crops on its own account. It merely furnishes services to its member-growers who are the "farmers." "The work performed by a farmers' cooperative associa- tion is not work performed by a farmer but for farriers." I Accord- ingly, we find that the Employer is not a farmer within the meaning of Section 3 (f) of the Fair Labor Standards Act. As the work of the packinghouse employees is not in itself agricultural within the 4 67 Stat 257. 6.52 Stat 1060 °FarIne,s Reservoir & Irrigation v McComb, 337 U S 755 , 768; Wells Dairies Coopera- tive, 107 NLRB 1445, Inteipretive Bulletin of the Administrator , Wage and Hour Divi- sion, Depaituient of Labor , 29 Code of Fed. Reg 1947 Supp , Sec. 780 82. Interpretive Bulletin of the Administrator , Wage and Ilour Division , Depaitment of _.Labor, supra. BROOKSVILLE CITRUS GROWERS ASSOCIATION 709 ,definition of Section 3 (f) of the Fair Labor Standards Act, and as it is not "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations," we find that the packing- house workers are not "agricultural laborers" and are therefore within the coverage of the Act. Accordingly, we find that a question affecting commerce exists con- cerning 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 Petitioner seeks to represent the packinghouse workers in a separate unit. The Employer contends that the unit should also in- 'elude its production department workers who are employed to work in the groves. The Petitioner is neutral. As noted above, the workers in the production department are "agricultural laborers" and are therefore outside the coverage of the Act. Accordingly, we shall ex- ,elude them. Contrary to the Employer, the Petitioner would exclude the pack- inghouse foreman (large unit) as a supervisor. This individual keeps the fruit running into the bins evenly, keeps the fruit pulled down to prevent it from running over the bins, checks to see that the packers pack the fruit correctly, gets bags, and checks to see that the correct number of bags are being packed. Except for occasional times when he temporarily takes the place of the house foreman when the latter is absent because of sickness or some other emergency, he does not direct the work of any employees. Because it appears that the pack- inghouse foreman (large unit) acts only sporadically in a supervisory capacity, we find that he is not a supervisor and include him in the unit.8 The parties leave to the Board's discretion the question of the in- elusion or exclusion of two individuals employed as shipping clerks. These employees load fruit and work in an office located on the pack- inghouse floor. They are supervised by the house foreman, whereas the general office employees are supervised by the general manager. As the shipping clerks are plant clerical employees, we shall include them in the unit. We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All production and maintenance employees ° at the Employer's Brooksville, Florida, packinghouse, including shipping clerks and ir, in night watchmen,10 but excluding agricultural laborers, office clerical employees, guards, and supervisors as defined in the Act. n Coastal Plywood <C Timber Company, 102 NLRB 300 at 303 9 As found above, this includes the packinghouse foreman ( large unit) ]U The parties agree that two individuals denominated night watchmen should be in- eluded in the unit These individuals spend all their working time operating the coloring rooms , receiving and trucking fiuit , and doing cleaning work. We find that they are not guards and therefore include them in the unit. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Employer leaves the time of any election directed herein to the determination of the Board. The Petitioner contends that an elec- tion should be conducted during the Employer's April to June season. The record shows that the Employer's main season commences about the middle of October and lasts until the middle or latter part of February. This is followed by a Valencia season which commences in April or May and lasts until the middle of May or June. During the Valencia season the Employer usually employs about.50 percent of its peak packinghouse employee complement. Because of crop and weather conditions and State law, it appears that packing during the Valencia season will be curtailed materially this year. On the basis of these facts, in accordance with the Board's usual policy with respect to seasonal industries, we shall direct that an election be held at or about the peak of the Employer's October to March season on a date to be determined by the Regional Director for the Tenth Region, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] MEMBER RODGERS took no part in the consideration of the above De- cision and Direction of Election. Greenberg Mercantile Corp. and Retail Clerks International As- sociation, AFL, Local 219, Petitioner. Case No. 14-RC-2593. May11,1955 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 Walter A. Werner, 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 Board finds : 1. The Employer operates a chain of 31 retail apparel stores in the States of Missouri, Illinois, Indiana, and Kentucky. Twenty of the stores are located in Illinois. The present proceeding involves only the Greenville, Illinois, store. The Employer has its principal office and warehouse in St. Louis, Missouri. During 1953, it shipped to its Illinois stores from the St. Louis warehouse merchandise valued at approximately $2,500,000; in addition, merchandise valued at about $800,000 was shipped to the Illinois stores from other out-of-State sources. 112 NLRB No. 99.