Columbiana Seed Co.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that objection No. 2 be overruled. We therefore shall adopt his recommendation in this connection. Objection No. 3 The Petitioner asserts that the Employer, by conducting an outing for employees 3 days before the election at which employees were afforded free entertainment, food, and drink, improperly influenced the outcome of the election. The Regional Director's investigation disclosed that this affair constituted the 18th annual outing held by the Employer for its employees. At the previous outings, the Em- ployer made available to each employee tickets valued at $1.50 for the purchase of food and drink. As a result of a request made by an employees' outing committee on April 12, 1957, some 3 months before the election, the Employer increased the value of the tickets to $2.50. The Regional Director concluded that this increase, having been de- cided upon long before the determination of the date for the second election, had a possible influence too insignificant, speculative, and remote to justify setting the election aside. We concur in his con- clusion and adopt his recommendation that the Petitioner's objection No. 3 be overruled. Having overruled the Petitioner's objections to the second election conducted in this proceeding, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, and that the said Union is not the exclusive representative of the employees in the unit heretofore found appropriate.] CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con- sideration of the above Supplemental Decision and Certification of Results of Election. Columbiana Seed Company and Local Union No. 525, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Petitioner. Case No. 14-RC- 3136. November 18,1957 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 Joseph H. Solien, hearing 119 NLRB No. 66. COLUMBIANA SEED COMPANY 561 ,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. The labor organization involved claims to represent certain employees of the Employer. . 3. The Employer moves the dismissal of the petition on the ground that the corn seed-processing employees sought by the Petitioner are agricultural laborers and are therefore exempt from the Act. Al- ternatively, the Employer contends that in the event the Board finds seed-processing work to be nonagricultural labor, the employees per- forming such duties should nevertheless be regarded as agricultural laborers under the Clinton Foods decision 2 because they spend the greater amount of their time on other tasks that are clearly agricul- tural in nature. The Employer, a family corporation, rents from various members of the family, who own 4,000 acres of land, about 1,600 acres for the purpose of raising seed corn.' In addition, the Employer leases about 10,000 acres of land from farmers who plant seed corn furnished by the Employer and in turn receive a percentage of the sale price of the seed corn as well as any rejected seed corn which is known as market corn. After the corn is harvested, it is taken to seed-processing plants or buildings, which are also called cribs, located on the family land. Some of the plants that are in most frequent use have such machinery as shellers, graders, dryers, and sewing machines to aid employees in their tasks of shelling, cleaning, grading, packing, and shipping seed corn. To perform this work, the Employer has 47 employees who for the most part are year-round employees. As of the time of the hearing, January 2, 1957, there were also 8 seasonal employees, who are generally called back from year to year, and 7 temporary employees who may be rehired by the Employer during the following season. The record indicates that employees spend varying amounts of time in seed-processing work and devote the balance of their time to such jobs as planting, harvesting, feeding livestock, baling hay, stor- ing corn and other crops, and repairing farm buildings. Thus, Olga C. Best, the Employer's secretary-treasurer, provided estimates re- I The Employer does not concede that the Petitioner made a 30-percent showing of in- terest in support of its petition. The sufficiency of a petitioner's showing of interest is an administrative matter not subject to litigation. We are administratively satisfied that the Petitioner's showing of interest is adequate. 0. D. Jennings & Company, 68 NLRB 516. 2 Clinton Foods, Inc., 108 NLRB 85. 3 The remaining 2,400 acres of family land are used by the Company for the cultivation ,of other crops and raising livestock. 476321--58-vol. 119-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD garding some of the employees. During the course of the year pre- ceding the hearing, 14 of the regular employees devoted the following amounts of time to seed-processing tasks : 4 for 1 month, 2 for 2 months, 3 for 4 or 5 months, 1 for 6 months, 3 for 7 or 8 months, and 1 for 11 months. At a later point in her testimony, Best explained that employees assigned to the seed plants actually were engaged in seed-processing work for about 60 to 70 percent of their time as they were also engaged during the same period in clearly agricultural activities on an intermittent basis. As for the 8 seasonal employees, Best indicated that during the season of their employment, a period extending from 4 to 6 months and occasionally longer, they spent most of their time in the processing plants. Finally, 3 or 4 employees drive the Employer's trucks from October to mid-May and spend no more than 3 or 4 months of that time hauling seed corn and other products. Section 2 (3) of the National Labor Relations Act excludes from its coverage "any individual employed as an agricultural laborer." The Board's annual appropriation rider requires the Board to follow the definition of the term "agricultural" contained in section 3 (f) of the Fair Labor Standards Act,4 and it is the Board's policy to give great weight to the interpretation of the section made by the Wage and Hour Division of the United States Department of Labor.5 In this connection, the Employer stated at the hearing that the Wage and Hour Division of the United States Department of Labor, after hear- ing and examination of the Company's records at the Department's Springfield, Illinois, office on an unspecified date, gave a "verbal" rul- ing that all employees other than office employees were exempt from the Fair Labor Standards Act as agricultural employees. We are now administratively advised by the Wage and Hour and Public Contracts Divisions of the United States Department of Labor that the Com- pany was informed that its processing-plant employees were not agri- cultural employees within the meaning of section 13 (a) (6) of the Fair Labor Standards Act, which embodies the definition of agricul- tural employees contained in section 3 (f) of that Act. We are fur- ther advised that the Company was told, however, that the employees involved herein would come within the "area of production" ex- emption of section 13 (a) (10) of the Fair Labor Standards Act which exempts certain nonagricultural employees from the requirements of 4 This section defines agriculture as follows : "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . . the raising of live- stock, bees, fur-bearing animals, or poultry, 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. 5 See 0iaa Sugar Company, Limited, 118 NLRB 1442, and cases cited therein. COLUMBIANA SEED COMPANY 563 the Act.' As we endeavor to follow the interpretation of section 3 (f) of the Fair Labor Standards Act made by the Wage and Hour Division of the United States Department of Labor, we find in accord- ance therewith that the corn seed-processing employees are not agri- cultural laborers within the meaning of the National Labor Relations Act.' There remains the question whether, as contended by the Employer, the employees involved in the instant case should nevertheless be deemed agricultural employees because they spend a substantial part of their time in functions which are clearly agricultural. The Board recently announced that it would take the same position on this issue as the Department of Labor with respect to the Fair Labor Standards Act and accordingly promulgated the rule that employees who perform any regular amount of nonagricultural work are covered by the Na- tional Labor Relations Act with regard to that portion of their work which is nonagricultural.' We find in accordance with this rule that the employees herein are covered by the National Labor Relations Act because, as held above, they regularly perform some nonagricultural work. Therefore, we deny the Employer's motion to dismiss the peti- tion herein. 4. As noted above, the Petitioner seeks to represent all the em- ployees in the Employer's corn seed-processing plants near Eldred, Illinois, including truckdrivers who deliver seed corn, but excluding office clerical employees, professional employees, guards, agricultural employees, and supervisors as defined in the Act. As we have al- ready held that the employees sought by the Petitioner are covered by the Act with respect to that part of their activities which is nonagricul- tural in nature, we find that the unit requested by the Petitioner is appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBERS RoDGERS and JENKINS took no part in the consideration of the above Decision and Direction of Election. 6 This section exempts from wage and hour regulations "any individual employed within the area of production ( as defined by the Administrator ), engaged in handling, packing, storing, ginning , compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market. . . . 7In view of this policy , we find that the hearing officer properly rejected as immaterial the Employer's offer of proof concerning the rulings of the U. S. Treasury Department and the Illinois Department of Labor that under the Federal Social Security , the Federal In- surance Contribution Act, and the Illinois Unemployment Compensation Act, respectively, all employees of the Employer other than office employees were agricultural laborers. See Imperial Garden Growers , 91 NLRB 1034 , footnote 8, as to the legislative history of the Board 's annual appropriation rider. 8 0laa Sugar Company , Limited, supra . See also H. A. Rider & Sons , 117 NLRB 517, wherein the Board overruled the Clinton Foods decision on which the Employer relies.