Oxford Royal Mushroom Products, Inc.

OXFORD ROYAL MUSHROOM PRODUCTS, INC. 1015 Oxford Royal Mushroom Products , Inc. and Steelworkers Fed- eration, Independent, Petitioner. Case No. 4-RC-4800. Novem- ber 15, 1962 DECISION ON REVIEW On January 12, 1962, the Regional Director for the Fourth Region issued a Decision and Direction of Election in the above-entitled proceeding. Thereafter, the Employer, in accordance with Section 102.67 of the Board's Rules and Regulations, as amended, filed with the Board a timely request for review of such Decision and Direction of Election on the ground that the Regional Director erred in conclud- ing that its cannery and warehouse employees were nonagricultural. The Board by telegraphic order dated February 6, 1962, granted the request for review and stayed the election pending its decision on review. On April 26, 1962, the Board issued an order reopening record and remanding proceeding to Regional Director for further hearing for the purpose of adducing evidence as to whether the practices performed by the Employer at its cannery and warehouses are per- formed as an incident to, or in conjunction with, its mushroom farm- ing operations in the light of the criteria set forth in Sections 780.153- 780.157, inclusive, of the Interpretive Bulletins issued by the Ad- ministrator of the Fair Labor Standards Act. Pursuant thereto, a further hearing was held before David S. Reisman, hearing officer. The hearing officer's rulings made at the reopened 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 McCulloch and Members Leedom and Fanning]. The Board has considered the entire record with respect to the issues under review, and the briefs of the parties, and makes the fol- lowing findings : In his Decision and Direction of Election, the Regional Director found that the machine-cutting, canning and warehousing of mush- rooms by the Employer are not practices performed as an incident to, or in conjunction with, its farming of mushrooms . He therefore found appropriate a unit of such employees and excluded as agri- cultural employees only the workers employed in the growing areas. The Employer contends that all its employees are agricultural. In determining whether employees are agricultural the Board is required to follow the definition of the term "agriculture" which is contained in Section 3(f) of the Fair Labor Standards Act. That section states that "Agriculture includes farming in all its branches 139 NLRB No. 102. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and among other things includes the cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities . . . and any practices .. . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations. . . ." In applying such definition the Board attempts to follow the decisions and interpretations of the Administrator of the Fair Labor Standards Act. Lacking any spe- cific decision involving the disputed employees, we are guided by the Administrator's Interpretative Bulletins.' Section 780.154 thereof provides : The character of a practice as a part of the agricultural activity or as part of a distinct business activity must be determined by examination and evaluation of all relevant facts and circum- stances. . . . The result will not depend on any isolated factors or tests. Rather, the total situation will control . . . the general relationship, if any, of the practice to farming as evidence by common understanding, competitive factors and prevalence of its performance by farmers should be considered . . . also con- sider size of operations and respective sums invested in lands, buildings and equipment; amount of payroll for each type of work; number of employees; the amount of time they spend in each activity; the amount of interchange of employees between the operations; amount of revenue derived from each activity; and the degree of separation established between the activities. Section 780.157 provides : . . . it is also necessary to consider the type of product resulting from the practice-as to whether the raw or natural state of the commodity has been changed. . . . Consideration should also be given to the value added to the product as a result of the practice... . The record discloses the following facts with respect to the practices here involved : The Employer is in the business of spawning, growing, picking, cleaning, cutting, canning, storing, shipping, and selling mushrooms. Operations on its 100-acre farm are carried on mainly in 4 horti- cultural buildings covering 341,000 square feet of growing space, a cannery, and warehouses. These operations are located in the Ken- nett Square growing area which covers parts of Pennsylvania, Mary- land, and Delaware. This area is underbedded by limestone which nourishes the mushrooms. There are approximately 450 mushroom growers here. Five of them are also engaged in mushroom canning operations. In addition, three grocery chains also operate mushroom 126 Fed Reg. 10389 ( 1961). OXFORD ROYAL MUSHROOM PRODUCTS, INC. 1017 canneries here. The Employer's canning operations are estimated to be the fifth or sixth largest in the area. About 20 percent of the mushrooms grown by the Employer are shipped to the fresh market. The remaining 80 percent are canned by the Employer, and the cans are placed in larger containers and ware- housed until sale and shipment to the market. As it is necessary that mushrooms ready for harvesting either be shipped to fresh market or canned within a very short time, the Employer buys mushrooms for canning from up to 25 different nearby growers when their mushrooms are harvested too late in the week for shipment to the fresh market which is open only 5 days a week. The Employer also buys mush- rooms of various types and sizes from other mushroom growers to meet specific demands of its own brokers. During canning opera- tions, such buying is a daily practice. In addition, the Employer buys canned mushrooms from other canneries to satisfy its own require- ments. For bookkeeping purposes, these purchases are classed as a loan account. The Employer sells most of its canned mushrooms under its own labels. Occasionally, its customers"labels will be used. Dur- ing 1960 and 1961, the Employer purchased from other growers fresh mushrooms valued at approximately $447,000 and $500,000, respec- tively, and during the past year purchased canned mushrooms from other growers with value estimated at approximately $160,000. The Employer's gross sales for the years 1960 and 1961 amounted to $1,752,000 and $1,915,000, respectively. Its overall operations, in- cluding land, buildings, and equipment, represent a total investment of approximately $750,000. The canning equipment is valued at $40,000; the cutting machinery represents an investment of $25,000; and the blanchers have an estimated value of $5,000. The building housing the canning operations, the spawning department and a portion of the warehouse space is valued at $100,000. Two other warehouses have a value of $50,000. The total value of the investment in canning and warehousing operations is thus upwards of $120,000. The number of employees working on the Employer's farm varies according to the season, the weather, and the size of the crop. It ap- pears that, on the average, approximately 110 are employed in the farming operations, including 40 to 50 pickers and 4 or 5 in the spawn- ing department. Approximately 122 women are engaged, in season, in the preparation of mushrooms after their delivery to the cutting tables, and about 17 are employed in the warehouses. The amount of employee interchange is not significant and occurs primarily between employees in the spawning department and the growing areas. There is no evidence that women in the canning department have had oc- casion to work in the growing areas. The workers in the growing areas who have assisted in the canning department for short periods of an hour or more have done no canning but rather have moved cans, 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD driven trucks, and worked on machinery. Over a 3-month period, these workers have assisted in such fashion on only six occasions. During that same period, no warehouse employee did any work in the growing areas. Each phase of the Employer's operations is un- der separate supervision. Applying the criteria indicated in the Interpretive Bulletins of the Administrator of the Fair Labor Standards Act, especially those spelled out in Sections 780.154 and 780.157, above-quoted, we are satis- fied that the Employer's canning and warehouse operations are prac- tices which are not performed as an incident to or in conjunction with the Employer's farming operations.' The processing of a farm product which requires such a sizable investment in machinery and involves heating and canning the product for purposes of preserva- tion and more flexible marketability is not, in our opinion, incidental to farming but is a separate industrial enterprise which only happens to be performed on a farm. We do not believe that Congress intended to exclude employees engaged in such operations from the protection of the Act. We therefore affirm the Regional Director's determina- tion that individuals engaged in various aspects of the canning and warehousing operations of the Employer are not "agricultural labor- ers" but are employees within the meaning of the Act.' Accordingly, the case is hereby remanded to the Regional Director for the Fourth Region for the purpose of holding an election pursuant to his Decision and Direction of Election, except that the payroll pe- riod for determining eligibility shall be that immediately preceding the date below.' 2 See Maneja v. Waialua Agricultural Co., 349 U.S. 254. 'As there are hand cutters who work side by side with machine cutters , and do both types of work interchangeably , we shall, as requested by the Petitioner in its brief, amend the Regional Director's unit description by inserting the words "or by hand" after the word "machine." `As it appears from the record that the Employer 's mushroom canning season is cur- rently in progress, it is unnecessary to pass upon Petitioner's request that the election be postponed until after the start of the next season. Banner Yarn Dyeing Corporation and William Neville and Local 30, 30A, 30B, 30C, International Union of Operating Engineers, AFL-CIO, Party in Interest. Case No. 2-CA-7791-1. Novem- ber16,1962 SUPPLEMENTAL DECISION AND ORDER On June 6, 1962, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had not engaged in the alleged unfair labor practices and recommending that the amended complaint herein be dismissed in 139 NLRB No. 95.