Batley-Janss Enterprises

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Batley-Janss Enterprises and Truck Drivers, Ware- housemen and Helpers Local 898, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case 21- RC-12291 February 3, 1972 DECISION AND DIRECTION OF ELECTION 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 Orville S. Johnson. Following the hearing the Regional Director for Re- gion 21, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, trans- ferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The appropriate unit. There is no history of collective bargaining for the employees sought to be represented herein. The Petitioner seeks to represent a unit consisting of all the Employer's mill employees and truckdrivers, excluding all other employees, chopper drivers, field and harvest machine mechanics, truck mechanics, office clerical employees, professional employees, guards, and supervisors as defined in the Act.' The Employer contends that the unit sought by the Peti- tioner is inappropriate in that the truckdrivers are agricultural laborers under Section 3(f) of the Fair La- bor Standards Act and therefore are excluded by Sec- tion 2(3) of the National Labor Relations Act, as amended. The Employer is a California corporation engaged in the harvesting, dehydrating, and sale of alfalfa. Super- visors of the Employer purchase alfalfa from tenant farmers who grow their crops on land owned by the Employer. Due to the highly perishable nature of cer- tain alfalfa ingredients vital to the Employer's special process, the Employer has set a 1-hour time target for cutting the alfalfa and delivering it to the mill for dehy- dration. This dehydration process stops the oxidation of certain valuable carotenoids in the alfalfa, which the Employer sells for use in the pigmentation of poultry feed. Within the 1-hour time period several operations must be performed. First, a single-unit harvester is used to mow the growing alfalfa. Then the harvester chops the alfalfa and stores it in a holding tank which is mounted on this machine. The harvester cannot, as in the case of other processes, put the alfalfa in piles or stack it on the ground. The alfalfa is stored in the holding tank only until a full load is accumulated. At this point the harvester meets with a truck at the edge of the growing field. The harvester driver and one or more truckdrivers work together in unloading the stored alfalfa. The truckdriver gives signals to the har- vester driver to aid in the positioning of the harvester's holding tank over the trailer. After the harvester is correctly positioned, the truckdriver usually operates valves on the harvester machine to release the alfalfa from the holding tank. Then the truckdriver moves the truck back and forth under the tank to level the load. At the completion of the loading operation, the truck- driver rushes the alfalfa to the Employer's mill. There he weighs the load prior to depositing it in a hopper. The truckdriver then returns to the field for another load, at which time he frequently has to wait in line until other trucks are loaded. During this waiting period the truckdriver either reads a magazine or helps load another truck. If a harvester is sitting idle in the field, some truckdrivers may operate it to mow the growing alfalfa. Occasionally a truckdriver will drive a harvester on a public road to move it to the next farm due to be harvested. Primarily, the truckdriver is under the immediate supervision of Robert Kempton, who, with the assist- ance of Clarence Haskins, supervises the Employer's trucking operations. However, while he is in the field, he may also receive supervision from the Employer's field supervisors. Section 2(3) of the Act excludes from its definition of employees "any individual employed as an agricul- tural laborer." Section 3(f) of the Fair Labor Standards Act,z to which the Board accords great weight in defin- ing an agricultural laborer,' states in part: 29USC 203(f) The unit description appears as amended at the hearing Lights' Tree Company, 194 NLRB No 35 195 NLRB No. 47 BATLEY-JANSS ENTERPRISES 311 "Agriculture" includes farming in all its branches and among other things includes the ... harvest- ing of any agricultural or horticultural commodi- ties ... and any practices ... performed by a farmer or on a farm as an incident to or in con- junction with such farming operations, including ... delivery to storage or to market .... In Farmers Reservoir & Irrigation Co. v. McComb' the Supreme Court interpretated Section 3(f) as fol- lows: As can be readily seen, this definition has two distinct branches. First, there is the primary mean- ing. Agriculture includes farming in all its bran- ches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning . Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are per- formed either by a farmer or on a farm, incidently [sic] to or in conjunction with "such" farming operations.' In the instant case the Employer does not contend that it is a farmer. Nor does the Employer argue that the hauling operations performed by its truckdrivers occur entirely on a farm. The Employer contends, rather, that due to the highly perishable nature of the mowed alfalfa, the hauling operations are a part of the harvesting of the alfalfa, and thus within the primary meaning of agriculture under the Fair Labor Standards Act. We do not find merit in the Employer's contention. The Employer does not contend that it is engaged in farming. It cuts or "harvests" alfalfa and transports it to its mill for processing after it has purchased it from the farmer. It is true that the nature of the crop permits only a relatively short time within which the alfalfa must be cut and transported to the mill for processing. But the cutting and transporting of the crop must be closely timed with the capacity and ability of the mill to process the same, and are an integral part of the processing and not the farming operation. Accordingly, in the circumstances here, we do not view the hauling operation as agricultural in nature, nor do we view the 337 U S 755 (1949) Id at 762-763. employees performing such work as agricultural labor- ers.6 Based upon all the facts revealed by the record, in- cluding administrative advice of the Department of La- bor, the agency primarily charged in enforcing the Fair Labor Standards Act,7 we find that the truckdrivers are not agricultural laborers, and are therefore employees within the meaning of Section 2(3) of the Act. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All mill employees and truckdrivers, excluding all other employees, chopper drivers, field and har- vest machine mechanics, truck mechanics, office clerical employees, professional employees, guards, and supervisors as defined in the Act. [Direction of Election' omitted from publication.] ' In its brief, the Employer relies heavily on Holtville Alfalfa Mills v. Wyatt, 230 F 2d 398 (C A. 9), in which the court observed that transporta- tion of crops to prevent spoilage might be considered part of harvesting. The Employer argues from the Holtville case that its truckdrivers are engaged in harvesting and, hence , are agricultural laborers We do not agree Even in Holtville, the court speculated that, because cut alfalfa was exceedingly perishable , perhaps it was no longer an "agricultural " commodity in its "raw or natural state" and remanded to the trial court for a finding on the point Moreover, in a subsequent case, N.L.R.B v O1aa Sugar Co., Ltd., 242 F.2d 714 (C A 9), the same court, on the basis of the intervening Supreme Court decision in Maneja v Watalua Agricultural Co., Ltd., 349 U.S. 254 (1955), found that the hauling of a perishable product need not be considered "harvesting " The court rather made its determination on the basis of the so-called secondary definition of agriculture , viz whether the truckdriving was "by a farmer or on a farm, incident to or in conjunction with such farming operations " The Employer in the instant case concedes that its truckdriving operations do not come within that secondary definition We find, on the basis of the facts in the present record, as set forth above, that the Employer's truckdnvers are not exempt from our Act as agricultural laborers ' We have been administratively advised by the Department of Labor, under date of November 12, 1971, that on the facts here involved the Employer's truckdrivers do not come within the meaning of Section 3(t) of the Fair Labor Standards Act In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236, N . L R B v Wyman-Gordon Co, 394 U S 759 Accordingly , it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 21 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.