Light's Tree Co.

LIGHT'S TREE COMPANY 229 Light's Tree Company and Laborers' International Union of North America, AFL-CIO, Local 259, Petitioner. Case 7-RC-10533 November 17, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Kenneth E. Mead- ows on May 13, 1971, and continued before Hearing Officer Richard D. Hayes on June 30 and July 7, 1971. Following the hearing and pursuant to Section 102.67 of National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision 'by direction of the Regional Director for Region 7. Only the Employer filed a brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 1. The Employer is engaged in the operation of a horticultural nursery on a 220 acre tract of land in Richland, Michigan, and in the wholesale and retail sale of its horticultural products together with incidental landscaping of self-grown products on the premises of its customers. During 1970 the Employer's gross revenue exceeded $500,000, and its purchases from outside the State of Michigan exceeded $30,000. We find, contrary to its contention, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.2 2. The labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) of the Act for the following reasons: 1 The Employer has requested oral argument. This request is hereby denied because the record and the brief adequately present the issues and the positions of the parties. 2 Man Products, Inc, 128 NLRB 546 3 Section 2(3) exempts from the definition of "employee" "any individual employed as an agricultural laborer .. " 4 There is a dispute about the amount of nonhorticultural work performed by landscape employees. According to the Employer's witnesses, regular landscaping employees only spend about 5 percent of their time in such work Because of their higher level of skill, foremen perform more of The Petitioner seeks to represent a unit of the Employer's nursery and landscape employees. The Employer contends that these individuals are "agricultural laborers" exempt from the Act's cover- age by virtue of the definition of "employee" contained in Section 2(3) of the Act.3 The Employer raises shade trees, flowering trees, evergreens, small shrubs, vines, ground coverings, and similar stock for transplantation by its landscaping employees onto customers' properties. It purchases 80-90 percent of its stock in the form of seedlings and small whips, and the remainder in large stock, for replanting in its nursery for further growth and development before sale to customers. Although the Employer sells some of its stock through its retail store located at the nursery to private buyers, and some to other, nursery and landscaping businesses at wholesale, the great bulk of its nursery products are used in its own landscaping operations for private, business, and institutional customers. While most of its landscaping involves only the transplantation of its nursery products and the development of lawns from seed, a small amount of its work involves nonhorticultural activities such as installation of sprinkler systems, erection of fencing, stone work, and sodding. This nonhorticultural work is performed only in conjunction with nursery landscaping work performed by the Employer and is undertaken where the customer wants all landscaping performed in one operation. Wherever feasible the Employer prefers to subcontract this nonhorticultural landscaping. Employees working in the nursery propagate, cultivate, water, transplant, trim, spray, dig, and engage in other related functions necessary to insure the development and proper growth of the nursery stock. Landscape employees plant, mulch, water, and trim stock on the premises of the customers. They may also perform nonhorticultural work described above.4 Since 1947 Congress has attached a rider to the Board's annual Appropriations Act which in effect makes the definition of agriculture set out in Section 3(f) of the Fair Labor Standards Act obligatory upon the Board. This section (29 U.S.C. 203 (f)) defines "agriculture" in pertinent part as follows: "Agriculture" includes farming in all its branch- es and among other things includes the cultivation the nonhorticultural landscaping work than nonsupervisory employees. According to two of the Petitioner's witnesses, crews spend about 50 percent of their time during the bulk of the spring and fall busy seasons doing this work The testimony of the Petitioner's witnesses as to the amount of nonhorticultural landscaping by nonsupervisors is not projectible on a full year basis. In view of the fact that the Employer's business records show that only 9.7 percent of its gross receipts is derived from nonhorticultural landscaping, it seems improbable that nonsuperviso- ry landscape employees spend more than 10 percent of their total worktime in such nonagricultural work. We so find. 194 NLRB No. 35 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tillage of the soil, dairying , the production, cultivation, growing, and harvesting of any agri- cultural or horticultural commodities . .. . A regulation of the Department of Labor states that nursery employees engaged in the following activities are employed in "agriculture" (29 CFR § 780.174): (a) Sowing seeds and otherwise propagating fruit, nut, shade, vegetable and ornamental plants or trees ... and shrubs, vines and flowers; * (c) Planting, cultivating, watering, spraying, ferti- lizing, pruning, bracing, and feeding the growing crop. Another regulation of the Department defines the following as exempt agricultural work (29 CFR § 780.175): (a) The planting of trees and bushes is exempt where it constitutes a step in the production, cultivation, growing, and harvesting of agricultur- al or horticultural commodities, or where it constitutes a practice performed by a farmer or on a farm as an incident to or in the conjunction with farming operations (as where it is part of the subordinate marketing operations of the grower of such trees or bushes). Thus, employees of the nurseryman who raised such nursery stock are doing exempt work when they plant the stock on private or public property, trim, spray, brace and treat the planted stock, or perform other duties incidental to its care and preservation. Thus it appears, and we find, that the nursery employees, and the landscaping employees , except to the extent that they are engaged in nonhorticultural landscaping activities , are engaged in exempt agricul- tural work and are therefore "agricultural laborers" excluded from the definition of employees in Section 2(3) of the Act .5 In finding that the nursery and landscape employees here involved fall in the exempt category, we do so on the facts revealed by the record here considered in the light of the legislative enact- ments. While we accorded great weight to the cited regulations of the Department of Labor, and the definitions thereunder, we do not rely exclusively on them. Although landscaping employees do some nonexempt work, this represents too small a percent- age of their annual total work time to justify an election among them to select a bargaining agent who will represent them insofar as they engage in such nonagricultural work.6 Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting part: I do not agree with the finding of the majority that the nonagricultural work performed by the landscap- ing employees represents too small a percentage of their annual total work to remove them from the agricultural exemption. As noted by the majority, the definition of agricul- ture as set out in Section 3(f) of the Fair Labor Standards Act is made obligatory upon the Board, and while the Board does not rely exclusively on the interpretations given that section by the Department of Labor, we do accord such determinations great weight, in view of that agency's responsibility and experience in administering the FLSA. Section 780. 110 of the Labor Department's Inter- pretative Bulletin relating to exemptions applicable to agriculture states as follows: Exempt and nonexempt work during the same workweek. Where an employee in the same workweek performs work which is exempt under this section 13(a)(6) and also engages in work to which the Act applies, not exempt under this or any other section of the Act, he is not exempt that week, and the wage and hour requirements of the Act are applicable (see Mitchell v. Hunt, 263 F.2d 913; Mitchell v. Maxfield, 12 WH Cases 792 (S.D. Ohio), 29 Labor Cases 69, 781; Jordan v. Stark Bros. Nurseries, 45 F. Supp. 769; McComb v. Puerto Rico Tobacco Marketing Co-op Ass'n., 80 F. Supp. 953, affirmed 181 F.2d 697 ; Walling V. Peacock Corp., 58 F. Supp. 880-883). The Board, however, has taken a somewhat differ- ent position regarding employees who spend part of their time in agricultural duties and part in nonagri- cultural. In Olaa Sugar Company, Limited.7 the Board announced the rule "that employees who perform any regular amount of nonagricultural work are covered by the Act with respect to that portion of the work which is nonagricultural." This rule was reaffirmed in Rod McLellan Co., supra. Applying the above principle to the, facts of this case, I note that the Employer's vice president testified that regular landscape employees spend about 5 percent of their time performing nonagricul- tural work. However, a witness for the Petitioner stated that his landscaping crew spent about 50 percent of its time during the busy season, which extended from early spring to late fall, performing 5 Rod McLellan Co, 172 NLRB No 157 ; Stark Brothers Nurseries, 40 NLRB 1243, 1249. 6 N.L RB. v. Kelly Brothers Nurseries; 341 F2d 433 (C.A. 2), cf. Rod McLellan Co, supra. 7 118 NLRB 1442. LIGHT'S TREE COMPANY 231 nonagricultural work. Another witness for the Peti- tioner testified that his crew spends about 50 percent of its time doing nonagricultural work. No reference was made to a particular season. Unlike the majority, I am unwilling in these circumstances to apply the de mini-mis principle to the nonagricultural work performed by the landscaping employees. It is quite possible that such work is indeed performed on a regular or recurring rather than sporadic basis, and the Employer has the burden of showing otherwise; i.e., that the exemption is applicable. I would therefore find that the landscap- ing employees are not agricultural workers to the extent that they are regularly engaged in nonagricul- tural work such as the installation of sprinkler systems, the erection of fencing and stone garden walls or walks, and sodding.