Waldo Rohnert Co.

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenance employees in the slaughtering and meatpacking plant at Bloomfield, excluding the part-time employees, the office clerical, managerial and professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election 4 omitted from publication.] 4 The Petitioner called a strike among its adherents for recognition as bargaining rep- resentative at the Bloomfield operations, about a month before the hearing. Of the 30 full-time jobs at Bloomfield before the strike, only 25 were filled at the time of the hear- ing. The record shows that about 10 permanent replacements have been hired since the strike. The parties took no position at the hearing on the eligibility of the replaced strikers. We find that the foregoing replacements are eligible to vote if employed on the election date. These strikers who have been permanently replaced are not entitled to reinstatement and may not vote in the election herein. Dura Steel Products Com- pany, 111 NLRB 590. However, as their identity was not litigated at the hearing, we shall permit all the strikers to vote subject to challenge. Cuttingham Buick Inc., 112 NLRB 386. Waldo Rohnert Company and Freight, Construction, General Drivers, Warehousemen & Helpers Local Union No. 287, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America,' Petitioner. Case No. 20-RC-3388. March 19, 1958 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 Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and 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 [Chairman Leedom and Members Bean and Jenkins]. 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 em- ployees of the Employer. 3. The Employer seeks dismissal of the petition on the ground that the employees sought are agricultural laborers because they are en- gaged in a process which the Employer contends is performed as an incident to, or in conjunction with, its farming operations. We do not agree. The Employer is a family corporation which grows various seed crops 2 on land leased from members of the family as well as from 1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi- cate of affiliation revoked by convention action, the identification of this union is hereby amended. 2 The Employer also grows such row crops as may seem economically feasible. 120 NLRB No. 23. WALDO ROHNERT COMPANY 153 others. In addition, approximately 25 percent of its seed crops are raised by individual local farmers pursuant to contracts providing that the farmers will grow the crops under the Employer's direction. After the seed is harvested,' it is transported in the Employer's trucks to the seed cleaning plant on the home ranch at Hollister, California, where it is unloaded, weighed in, cleaned, sacked, stored, and shipped.4 The cleaning is accomplished by five machines, each of which ap- parently performs the complete process. During the fiscal year end- ing May 31, 1957, the Employer's sales were in excess of $1,000,000 of which over $50,000 were shipped directly outside the State of California. The seed cleaning plant is operated on a seasonal basis starting in about July and ending in about December, with its peak around September and October. The employee complement during this op- erational period varies from 4 to 27 to 30 workers, including 2 ad- mitted and 2 alleged supervisors. Most of these workers appear to be regular employees who do farm and millwork as needed . During the calendar year 1956, those employees spent between 2 and 84 per- cent of their time working in the mill (the largest number falling between 41 and 84 percent) and the remainder in farm activities. The other plant workers are employed only during the milling season and for the most part spend their full time in plant activities. Section 2 (3) of the Act excludes from its coverage "any individual employed as an agricultural laborer." The Board's annual appropri- ation rider requires the Board to follow the definition of the term "agricultural" contained in Section 3 (f) of the Fair Labor Standards Act.5 In a recent case 6 the Board found that employees of a corn seed processing operation were not "agricultural laborers" within the meaning of the Act. It is true that that decision was based on advice by the Wage and Hour and Public Contracts Divisions of the United States Department of Labor that those employees had been determined not to be agricultural employees within the meaning of Section 13 (a) (6) of the Fair Labor Standards Act, which embodies the definition of agricultural employees contained in Section 3 (f) of that Act, whereas no similar finding by that Agency has been made in the in- stant case. However, the substantial similarity between the facts there and those under consideration here impels the conclusion that , The Employer does not purchase any seed from others nor does it process seed except for its own purposes . However, it does grow and process seed for its wholly owned subsidiary , Wisconsin Cabbage Seed Company, of Racine, Wisconsin The sub- sidiary is billed at a certain price per pound for the seed produced, which price is intended to cover the costs plus a profit 4 The Employer sells only to jobbers and wholesalers 5 That Section defines agriculture, insofar as it is relevant here, as follows : "'Agricul- ture' includes farming in all its branches and among other things includes . . . any practices . . . performed by a farmer or on a farm as an incident to or in conjunction 11 with such farming operations, . . . 6 Columbiana Seed Company, 119 NLRB 560. 154 DECISIONS OP NATIONAL LABOR RELATIONS BOARD the seed cleaning plant employees, sought herein, 'are likewise not "agricultural laborers" within the meaning of the Act. Further, although most of these employees spend part of their time in agricul- tural activities, they regularly perform some functions in connection with the work which we have found to be nonagricultural and are, therefore, covered by the Act with respect to that portion of their work which is nonagricultural? Accordingly, we find that a question affecting commerce exists concerning 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. In agreement with the stipulation of the parties, we find that all production and maintenance employees, including truckdrivers,8 at the Employer's seed cleaning plant at Hollister, California, exclud- ing office and clerical employees , `farm truckdrivers, supervisors 9 as 7 Columbiana Seed Company, supra ; Olaa Sugar Company, Limited , 118 NLRB 1442. gee also H. A. Rider & Sons, 117 NLRB 517, holding that employees who perform both agricultural and nonagricultural work are not agricultural employees within the mean- ing of the Act. In its brief, the Employer , in addition to emphasizing the dual functions and interchange of the employees sought , enumerates a number of other factors which are to be considered in any determination of the status of employees as agricultural laborers. However, we disagree with the Employer's application of some of those criteria to the facts of this case and find that the remaining factors are not by themselves sufficient to require the cbnclusion that the seed cleaning plant employees are agricultural laborers within the meaning of the Act. - s The Employer has certain truckdrivers who spend a considerable portion of their time transporting the seed crop from the Employer's various farms to the plant. When so, engaged, these employees are engaged in agricultural work (N L. R. B. v Olaa Sugar Company, Ltd, 242 P. 2d 714 ( C A 9)), and we exclude any drivers who perform only such duties and do no work in connection with the plant operation . However, the record indicates that two drivers in dispute do spend some time in plant work. Thus , Ghlone spent 2 percent and Giachello spent 10 percent of the time in plant work during 1956. In Olaa Sugar Company, Limited, 118 NLRB 195, we announced the rule that "employees who perform any regular amount of non-agricultural work are covered by the Act with respect to that portion of the work which is non-agricultural ." Since it is not shown whether the two truckdrivers regularly spend time in plant work , we shall permit them to vote subject to challenge in the election hereinafter directed. g The parties stipulated that the mill foreman and assistant mill foreman are super- visors and should be excluded from the unit . Since the record indicates that the fore- man has authority to hire and fire and that the assistant foreman makes effective rec- ommendations in this regard, we exclude them from the unit. The Employer contends that the machine setup man and the warehouse and shipping supervisor should be ex- cluded as supervisory , whereas the Petitioner seeks their inclusion. Since the record indicates that the machine setup man has the authority effectively to recommend changes in job assignments of employees and that on at least one occasion he discussed with his foreman the case of an unsatisfactory assistant which resulted in the transfer of that employee , we find that he is a supervisor and exclude him from the unit. Mid-States Corporation d/b/a Rex Mobile Homes, 119 NLRB 91. We also exclude the warehouse and shipping supervisor , although he performs some manual labor and the Employer was unable to cite instances of his effectively recommending the employment of discharge of any person , since the Employer testified that such authority exists. The Board has held that it is the existence, not the exercise, of such authority that determines whether an employee has supervisory status The Eavey Company, 115 NLRB 1779. Further, the record indicates that this employee directs the work of up to 21 employees in the ware- house operations , which are located in 3 buildings , and is paid approximately 20 cents more per hour than the employees under him. Pearl Packing Company, 116 NLRB 1489. Although our finding that the disputed employees are supervisors results in an overall. ratio of 4 supervisois to a maximum of 26 employees, this does not appear to be unrea- sonable in view of the unskilled nature of the work and the high rate of turnover among, the employees. INTERNATIONAL BROTHERHOOD OF TEAMSTERS 155 defined in the Act, guards, and all other employees, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. In accordance with the usual practice in seasonal operations of this kind, the Board will direct that the election be held at or about the approximate seasonal peak, on a date to be determined by the Regional Director, 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.] International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Local No. 249; and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 2501 and Polar Water Company. Case No. 6-CC-143. March 20, 1958 DECISION AND ORDER On October 14, 1957, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Charging Party, and the Respondents filed exceptions to the Intermediate, Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner,made. 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 brief, and the entire record in this case 2 and hereby adopts the findings, conclusions, and 1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi- cate of affiliation revoked by convention action, the identification of this union is hereby amended. 2 The Charging Party requested ( 1) the reopening of the record to adduce additional evidence before the Trial Examiner on the status of the distributors and (2) oral argu- ment before the Board . As for reopening the record , we shall deny the motion as it appears that the proffered evidence was available at the time of the hearing and no rea- son is given why it was not produced. In any event , as the record , exceptions , and brief, in our opinion , adequately present the issues and positions of the parties, we shall deny this request as well as the request for oral argument. 120 NLRB No. 25.