Romar Carrot Co.

ROMAR CARROT COMPANY Guadalupe Carrot Packers d/b/a Romar Carrot Com- pany and Roberto Baca Food Packers, Processors and Warehousemen, Team- sters Local 865. International Brotherhood of 'Teamsters, Chauffeurs,,Warehousemen and Help- ers of America and Roberto Baca. Cases 31-CA- 4832 and 31-CB-1705 February 22, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On October 19, 1976, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge as modified herein. It is clear from the record, as set forth in the Administrative Law Judge's Decision, that Respon- dent Company deducted union dues from Baca's wages and forwarded them to Respondent Union without Baca's prior authorization, and that Respon- dent Union accepted and retained said funds. The Administrative Law Judge, however, inadvertently failed to conclude that by the foregoing conduct Respondent Company violated Section 8(a)(1) of the Act and that Respondent Union violated Section 8(b)(1)(A) of the Act. As these violations were alleged in the complaint, litigated at the hearing, and established by the record, we find that by said conduct Respondent Company violated Section 8(a)(1) of the Act and Respondent Union violated Section 8(b)(1)(A). Accordingly, we will modify the Conclusions of Law and order Respondent Company and Respondent Union jointly -and severally to reimburse Baca for the dues unlawfully withheld from his wages, with interest at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Inasmuch as the Administrative Law Judge's reme- dy was erroneously restricted to backpay alone, we will order Respondents jointly and severally to make 1 In sec 1II,D, of his Decision entitled "The Discharge of Baca,"par. 12, the Administrative Law Judge stated that "only two or three farmers do any of their own truckdriving in preparation for the shipment of carrots to their 228 NLRB No. 40 369 Baca whole for any loss of earnings or other benefits resulting from the unlawful - discrimination against him, with interest at the rate of 6 percent per annum, computed as prescribed in Isis Plumbing & Heating Co., supra, and F. W. Woolworth Company, 90 NLRB 289 (1950). Additionally, in light of the nature of the foregoing violations, we will order Respondents to cease and desist from interfering in any other manner with employees' rights under Section 7 of the Act. AMENDED CONCLUSIONS OF LAW Insert the following additional Conclusions of Law 4 and 5 and renumber present paragraph 4 according- ly: "4. By deducting dues for Respondent Union from Baca's pay without his prior authorization, Respondent Company violated Section 8(a)(1) of the Act. "5. By accepting from Respondent Company and retaining union dues deducted from Baca's pay without his prior authorization, Respondent Union violated Section 8(b)(1)(A) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Union, Food Packers, Processors and Warehousemen, Teamsters Local 865, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Guadalupe, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Guadalupe Carrot Packers d/b/a Romar Carrot Company to discharge or discriminate against any employee with regard to the retention of employment, because that employee is not a member of the Union. (b) Accepting and retaining union dues which have been deducted from employees' wages without their prior authorization. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Guadalupe Carrot Packers d/b/a Romar Carrot Company, in writing, that it has no objection to the immediate and full reinstatement of Roberto Baca to his former job or, if this job no longer exists, to a substantially equivalent position, without preju- destination." Although no exceptions were filed to this finding , we feel constrained to note that there is no evidence in the record to support it. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dice to his seniority or other rights and privileges, and furnish Baca a copy of such notification. (b) Jointly and severally with Guadalupe Carrot Packers d/b/a Romar Carrot Company make the above-named employee whole for any loss of earn- ings or other benefits resulting from the unlawful discrimination against him with interest at the rate of 6 percent per annum. (c) Jointly and severally with Guadalupe Carrot Packers d/b/a Romar Carrot reimburse the above- named employee the $9 illegally withheld from his pay as union dues, with interest at the rate of 6 percent per annum. (d) Post at its business office, hiring hall, and meeting place copies of the attached notice marked "Appendix A." 2 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent Union's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth above, as soon as they are forwarded by the Regional Director, copies of the Respondent Company's attached notice marked "Appendix B." (f) Deliver to the Regional Director for Region 31 signed copies of the attached notice marked "Appen- dix A" in sufficient numbers to be posted by Guadalupe Carrot Packers d/b/a Romar Carrot Company in all places where notices to employees are customarily posted. (g) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. B. Respondent Employer, Guadalupe Carrot Packers d/b/a Romar Carrot Company, Guadalupe, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or discriminating against any employee with regard to the retention of employment because that employee is not a member of the Union. (b) Deducting union dues from employees' wages and forwarding them to Teamsters Local 865, or any other labor organization, without prior employee authorization. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Roberto Baca immediate and full rein- statement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileg- es. (b) Jointly and severally with Teamsters Local 865 make the above-named employee whole for any loss of earnings or other benefits resulting from the unlawful discrimination against him with interest at the rate of 6 percent per annum. (c) Jointly and severally with Teamsters Local 865 reimburse the above-named employee the $9 illegally withheld from his pay as union dues. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its business facility located in Guadal- upe, California, copies of the attached notice marked "Appendix B. "3 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent Company's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Post at the same places under the same condi- tions as set forth above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice marked "Appendix A." (g) Deliver to the Regional Director for Region 31 signed copies of the attached notice marked "Appen- dix B" in sufficient numbers to be posted by Teamsters Local 865 in places where notices to members are customarily posted. (h) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 3 See fn.2,supra ROMAR CARROT COMPANY 371 APPENDIX A APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Guadalupe Carrot Packers d/b/a Romar Carrot Company to discharge or discriminate against any employee with regard to the retention of employ- ment because that employee is not a member of the Union. WE WILL NOT accept or retain union dues from the above-named Company, or any other compa- ny, which have been deducted from employees' wages without their prior authorization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL notify Guadalupe Carrot Packers d/b/a Romar Carrot Company, in writing, that we have no objection to the immediate and full reinstatement of Roberto Baca to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and furnish Baca with a copy of such notification. WE WILL jointly and severally with Guadalupe Carrot Packers d/b/a Romar Carrot Company reimburse to Roberto Baca the $9 illegally with- held from his wages as union dues, with interest at the rate of 6 percent per annum. WE WILL jointly and severally with Guadalupe Carrot Packers d/b/a Romar Carrot Company make Roberto Baca whole for any loss of earnings or other benefits resulting from our unlawful discrimination against him, with interest at the rate of 6 percent per annum. FOOD PACKERS, PROCESSORS AND WAREHOUSEMEN, TEAMSTERS LOCAL 865 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or discriminate against any employee with regard to the retention of employment because that employee is not a member of Food Packers, Processors and Ware- housemen, Teamsters Local 865, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization. WE WILL NOT deduct union dues from employ- ees' wages and forward them to the above-named or any other labor organization without prior employee authorization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Roberto Baca immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. WE WILL jointly and severally with the above- named labor organization reimburse Roberto Baca the $9 illegally withheld from his wages as union dues, with interest at the rate of 6 percent per annum. WE WILL jointly and severally with the above- named labor organization make Roberto Baca whole for any loss of earnings or other benefits resulting from our unlawful termination of him, with interest at the rate of 6 percent per annum. GUADALUPE CARROT PACKERS D/B/A ROMAR CARROT COMPANY DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case was heard by me in Santa Maria, California, on April 20, 1976, based on a consolidated complaint issued on Febru- ary 13, 1976. The complaint alleges that the Company, Guadalupe Carrot Packers d/b/a Romar Carrot Company, discharged employee Roberto Baca at the insistence of Respondent Food Packers, Processors and Warehousemen, Teamsters Local 865, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and thus both Respondents, the Employer, Romar Carrot Company, and the Union, Local 865, are guilty of violating Section 8(a)(1) and (3), Section 8(b)(2), and Section 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(1)(A) of the Act, respectively. The Employer defends on the basis that the Board lacks jurisdiction because Roberto Baca is an agricultural employee . Further, the Employer alleges that there is a second affirmative defense: that the State of California has taken jurisdiction and found that Baca is an agricultural employee within the meaning of the California Agricultural Labor Relations Act. The Issues 1. Is Baca an agricultural employee and thus excluded from the jurisdiction of the NLRB? 2. Is the fact that the California Labor Relations Board has asserted jurisdiction and has found that Baca is an agricultural employee a valid defense? Respondent's answer denied the allegations of unfair labor practices alleged in the complaint. All parties were afforded a full opportunity to participate in the hearing. The General Counsel and the Respondent Company filed briefs which have been carefully considered. Upon the entire record and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent Employer is a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in Guadalupe, California, where it is engaged in the processing and sale of carrots. Respondent Employer, in the course and conduct of its business operations, annually sells and ships goods and services valued in excess of $50,000 directly to customers located outside the State of California . Respondent annual- ly derives gross revenues in excess of $500,000. IL THE LABOR UNION INVOLVED Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Discussion Respondent Employer is engaged in growing, harvesting, and preparing carrots for market at its Guadalupe , Califor- nia, location. Respondent Employer began operations in March 1974. The officers and owners of the corporation are five growers in the Guadalupe-Santa Maria area. Its president, Clarence Donati, owns one-half of the corpora- tion and the remaining four owners hold the other half. At all times material herein, Clarence Donati occupied the position of president of Respondent Employer and Bob Birch, the position of sales manager. Respondent Employer has a packing shed which is located in Guadalupe, California, where it processes and packages carrots for growers within a 25-mile radius of the shed . During the period from March through December 1974, Respondent Employer processed approximately 8,000 tons of carrots at its packing shed . Approximately 5,000 tons of carrots came from farms owned by the owners of Respondent Employer and the remaining 3,000 tons of carrots came from other growers in the area. In addition to its processing and packing operations, Respondent Employer, during 1974, also planted , irrigated, fertilized, cultivated, and harvested carrots on farms owned by owners of Respondent Employer without charge. During 1974, Respondent Employer also planted carrots for other growers in the Guadalupe area, receiving $6 an acre for this service. Also during 1974, Respondent Em- ployer harvested and prepared the carrots of other growers at a rate of $50 a ton, which rate included the transporta- tion of the carrots to the shed and subsequent sale of the packaged carrots. In Respondent Employer's harvesting operations, during 1974, two of his field employees operated a machine which picked the carrots, topped them, and tossed them onto a conveyor belt which carried them to a trailer. A third field employee drove a tractor pulling the trailer which received the carrots from the harvester. When the trailers were full, they were then left in the field for pickup by one of Respondent Employer's drivers, who then hauled the loaded trailers to Respondent Employer's packing shed. At the shed another tractor driver then picked up the trailers and hauled them to a hoist alongside the shed which then lifted the sides of the trailers and dumped the carrots onto a conveyor belt. The carrots were transported by conveyor into the packing shed, where they were washed, graded, packaged, and loaded onto freight cars for shipment. Respondent Employer's harvesting operations were con- ducted in the same manner as carried on, not only in the fields of owners of Respondent Employer, but also in the fields of the independent growers. At all times material during 1974 the Respondent Employer had approximately 30 employees in the shed and 6 or 7 in the field, including truckdrivers. Respondent Employer had two harvesting machines, with a crew of three on each. Respondent Employer and Respondent Union are par- ties to a collective-bargaining agreement having a 3-year term from November 1, 1973, through October 31, 1976. Under said agreement the bargaining unit encompasses the Employer's drivers and helper employees operating on the Santa Maria and Lompoc Valleys in Santa Barbara County and San Luis Obispo County. During 1974 Respondent Employer had separate collective-bargaining agreements with Respondent Union covering its field and shed employ- ees. Respondent's growing seasons are from May through July and September through December. B. Baca's Employment with Respondent Employer Roberto Baca was employed as a driver by Respondent Employer on or about June 5, 1974, at a rate of $3.15 an hour. During his employment with the Employer, Baca drove one of the trucks hauling carrots to the packing shed. About twice weekly Baca also worked I or 2 hours loading carrots at the packing shed. The last day of Roberto Baca's employment with Respondent Employer was July 29, 1974. Baca earned $698.52 during the period of his employment with Respondent Employer. ROMAR CARROT COMPANY 373 C. Baca and the United Farm Workers Baca began working for the United Farm Workers in early 1973 and ceased working for them in May 1974. Baca testified that during the time he was with the United Farm Workers he met Johnny Miranda, an organizer for Respon- dent Union, on several occasions at the H . Y. Minami farm. Baca testified that he shouted to Miranda , "Why don't you go back to the factory, the sheds and leave the fields to the farmworkers." Baca testified that Miranda pointed at him at the time and said, "Wait until you try to go back to work." While picketing on behalf of the United Farm Workers, Baca saw Miranda again on several subsequent occasions. About a month after Baca ceased working for the United Farm Workers, he began working for the Respondent Employer. D. The Discharge of Baca Respondent Employer's president, Clarence Donati, testified that Baca was within the coverage of the collective- bargaining agreement between Respondent Employer and Respondent Union covering "local drivers and helpers." Donati testified that he terminated Baca at the insistence of Union Agent Miranda, who advised him that he should get rid of Baca, who was a member of Caesar Chavez' union and a troublemaker. That was the real reason why Respondent Employer terminated Baca. Donati testified that Miranda approached him regarding Baca about a week or 10 days after Baca was employed by Respondent Employer. At that time Miranda asked Donati if he knew that Baca was a member of the United Farm Workers, and Donati replied in the negative. According to Donati, Miranda then stated that Baca was a member of the Farm Workers Union and "it is best that we get rid of him." When Donati refused to fire Baca, Miranda said, "You'd better get rid of him because as time goes on he may cause us trouble," and that Donati should not have Baca in his employ. About 5 days later, Miranda again spoke to Donati at the packing shed regarding Baca's employment. Miranda first questioned Donati as to why Baca had not been terminat- ed, and then demanded that Baca be terminated "right away." Donati testified that he told Miranda he wanted to keep Baca on through the season which was then almost over. On the repeated occasions when Miranda demanded that Donati discharge Baca, Donati testified that he kept Baca, and wanted to keep him, on his payroll until the end of the season, which at the time of the request had about 10 days left. According to Donati, "he said I have to get rid of this Roberto Baca and he was very demanding ." When Donati advised Miranda that he wanted to keep Baca on at least until the end of the season, Respondent Union's agent, Miranda, said, "No, I want you to get rid of him right now, I want you to get rid of him right now." According to Donati, he terminated Baca around noon on the following day (July 29, 1974). Donati testified that he told Baca at the time that "I was being forced to release him because the Teamsters 865 said Roberto Baca had been active in the United Farm Workers and there was a conflict between the two, and under the pressure that I was getting, I am forced to let Roberto Baca go." According to Donati, Miranda then stated that Baca was a member of the Farm Workers Union and "it is best that we get rid of him." Subsequently, Baca spoke with Respondent Employer's agent, Birch. According to Baca, Birch handed him his check and said, "I'm sorry to see you leave, we have been pressured by the Teamsters." According to Baca, Birch at that time promised to rehire him if Baca could "straighten out this whole thing." According to Respondent Employer's agent , Donati, union dues were withheld from Baca's wages and forward- ed to Respondent Union, although Baca had not turned in a dues-deduction authorization card. Baca's testimony that he had never executed a dues-deduction authorization card was substantiated by the testimony of Respondent Employ- er's bookkeeper, Bryant. The July union dues in the amount of $9 which were deducted by Respondent Employer from Baca's wages were forwarded to, received, and retained by Respondent Union. The major issue in this case was the question as to whether or not Baca was an employee within the meaning of Section 2(3) of the National Labor Relations Act. This section provides that the term "employee" shall exclude "any individual who is employed as an agricultural labor- er." The Board's annual appropriation act carries a rider which provides that the term "agricultural laborer" shall be defined in accordances with section 3(f) of the Fair Labor Standards Act, hereinafter referred to as FLSA, which provides in pertinent part: "Agriculture" includes farming and all its branches and among other things ... the production, cultivation, growing and harvesting of any agricultural ... com- modities ... and any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations .... As the Supreme Court stated with respect to this provision in Farmers Reservoir & Irrigation Company v. McComb, 337 U.S. 755, 762-763 (1949), "this definition has two distinct branches." The "primary" branch involves such farming operation, such as the raising of produce from the soil, while the "secondary" branch, in the Court's words, "includes any practices" which are performed either "by a farmer or on a farm, incidental to or in conjunction with `such' farming operations." In determining whether either branch of the exemption applies in the given case, the courts have consistently held that the exemption is to be narrowly construed and that the burden of proving the exemption is upon the party claiming it . See N.L.RB. v. Monterey County Building & Construction Trades Council, 335 F.2d 927, 930, fn. 4 (C.A. 9, 1964), cert. denied 380 U.S. 913 (1965); Hernsberger v. Gillespie, 435 F.2d 926,929 (C.A. 8, 1970), and cases cited therein. In the instant case, the Company does not contend that the work performed by its men is within the "primary" definition of agriculture. Moreover, as is shown below, the record does not support its contention that such work meets the standards of the "secondary" definition. In determining whether an activity is performed on a farm as an incident to or in conjunction with farming operations within the meaning of the secondary definition, 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the courts apply a two-part test: first, "whether the practices are among those ordinarily, customarily, or usually performed by a farm or on a farm," N.L.R.B. v. Monterey County Building & Construction Trades Council, 335 F.2d at 930; Mitchell v. Hunt, 263 F.2d 913, 197 (C.A. 5, 1959), and cases cited; and, second, whether the practice constitutes a part of the agricultural function as opposed to an independent and separately organized productive activi- ty. As the Supreme Court stated in Farms Irrigation Co. v. McComb, 337 U.S. at 760-761: Agriculture, as an occupation, includes more than the elemental process of planting , growing and harvest- ing crops. There area host of incidental activities which are necessary to that process. Whether a particular type of activity is agricultural depends, in large measure, upon the way in which that activity is organized in a particular society. The determination cannot be made in the abstract. In less advanced societies the agricultur- al function includes many types of activity which, and others, are not agricultural.... Economic progress however, is characterized by a progressive division of labor and separation of function. ...In this way, functions which are necessary to the total economic process of supplying an agricultural product become, in the process of economic development and specializa- tion, separate and independent productive functions operated in conjunction with the agricultural function but no longer a part of it. Thus, the question as to whether a particular type of activity is agricultural is not determined by the necessity of the activity to agriculture nor by the physical similarity of the activity to that done by farmers in other situations . The question is whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity. [Emphasis supplied.] Accord: NLRB. v. Monterey County Building & Construc- tion Trades Council, supra, 335 F.2d at 930. The Labor Department has promulgated similar stan- dards with respect to the "secondary" definition in sections 780.144 and 780. 145 of the interpretive bulletin (25 CFR sec. 780.144, 780.145). Thus, section 780.144 states that "Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture , is subordi- nate to the farming operations involved, and does not amount to an independent business ." Section 780. 145 sets forth the relevant factors to be considered in determining the relationship of the practice of farming: The character of the practice as a part of the agricultur- al activity or as a distinct business activity must be determined by examination and evaluation of all the relevant factors and circumstances, in the light of the pertinent language and intent of the Act . . . the general relationship, if any, of the practice of farming, as evidenced by common understanding ... and the prevalance of its performance by farmers ... should be considered. Other factors to be considered in determin- ing whether a practice may be properly regarded as incidental to or in conjunction with the farming operations of a particular . . . farm include ... the extent to which the practices performed by ordinary farm employees and the amount of interchange of employees between the operations ... and the degree of separation established between the operations. Tested by these principles, the Board's finding that the Company's truckdrivers "do not fall within . . . the secondary definition of agriculture" is amply warranted. First, as the Board noted, the work performed by the truckdrivers is of a "technical" and "engineering nature ... not commonly recognized or regarded as agricultural or performed by a farmer's own employees." Thus, as shown, supra, only two or three farmers do any of their own truckdriving in preparation for the shipment of carrots to their destination . Moreover, the record is devoid of evi- dence of interchange of employees or assistance in the truckdriving work by employees of the farmers for whom the Company performs its service. Thus, the Board was warranted in finding that the truckdrivers "do not assist farmers in purely agricultural tasks ." Therefore, it is clear that the work performed by the Company's truckdrivers is a "separately organized . . . independent productive activi- ty" which is "no longer a part of agriculture." Accordingly, it would be correct for the Board to find that the Company's truckdrivers were not "agricultural laborers" within the meaning of Section 2(3) of the Act. Thus, while Section 2(3) of the Act excludes any individual employed as an "agricultural laborer" from the definition of "employee" covered by the Act, it is clear that Baca's employment as a driver does not bring him within the said exclusion. Off-the-farm transportation is not agriculture in its primary sense, so Baca's work as a truckdriver transporting harvested carrots to Respondent Employer 's processing plant from the fields of independent growers and from the fields of growers who own stock in Respondent Employer would be agricultural labor only within the secondary meaning of the term. Baca's work is not agricultural within the secondary meaning of the term since it was performed neither by a farmer or on a farm. Thus, the evidence adduced establish- es that Respondent Employer is primarily engaged in the processing and sale of carrots. Moreover, even if Respon- dent Employer grows and harvests carrots on lands individually owned by Respondent Employer's stockhold- ers, this alone would not establish that Respondent Em- ployer is a farmer. Thus, to the extent that Baca's work involved the hauling of carrots from the fields of indepen- dent growers who were not shareholders of the Employer, such hauling could not be viewed as agriculture since it was not performed in conjunction with the Employer's own farming operations, but rather in conjunction with the farming operations of the independent growers. Similarly, to the extent that Baca regularly hauled carrots from the fields of independent growers to Respondent Employer's packing shed, Baca was not engaged in agricultural work and was at all times within the coverage of the Act. Alao Sugar Company, Ltd, 118 NLRB 1442 (1957). Moreover, it appears clear that at no time was Baca engaged in activities included in the secondary definition of agriculture. ROMAR CARROT COMPANY 375 Thus, the Board has expressly followed the Department of Labor regulation, section 780.141, which interprets the phrase "such farming operations" contained in section 3(f) as follows: No practice performed with respect to farm commodi- ties is within the language under discussion by reason of its performance on a farm unless all such commodities are the products of "that" farm. See Austin J. Decoster d/b/a Decoster Egg Farms, 29 CFR, section 780-118, and cases cited therein. In that decision the Board has held that the above regulation must be read as limiting the agricultural exemption to those processors who deal exclusively with their own goods. On that basis the Board held that the employer's processing plant employees and truck and trailer drivers did not fall within the agricultural laborer exemption. Thus, it can be seen that Respondent Union and Respondent Employer seek to challenge the jurisdiction of the Board in the instant case on the ground that the California Agricultural Labor Relations Board recently asserted jurisdiction over Respondent Employer's field unit, in which Baca was employed, despite the fact that the California Agricultural Labor Relations Board had, in fact, subsequently asserted jurisdiction over the unit to which Baca belonged at the time the instant unfair labor practices arose, under the doctrine of Federal preemption which is to the effect that the National Labor Relations Board does in fact have jurisdiction over the instant case. San Diego Building Trades Council v. Garmon, et al., 359 U.S. 236 (1959), later reaffirmed in Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). The evidence is clear that Respondent Employer termi- nated Baca because of the insistence of Union Agent Miranda that Baca be discharged because Baca was a member of the United Farm Workers. The evidence is clear that Respondent Union's agent, Miranda, insisted on Baca's discharge and was motivated by its knowledge of Baca's past activities on behalf of the United Farm Workers. In these circumstances, the sole conclusion that one can come to is that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act. Moreover, it should be noted that the Respondent Union further violated Section 8(b)(1)(A) of the Act by its acquiescence in and retention of some $9 in union dues which Respondent Employer illegally deducted from the wages of Baca during his employment. It should be further noted that in Respondent Employer's brief no mention is made of the unfair labor practice, which was not denied at the hearing, and which appears without doubt to be the fact relating to Baca's discharge. I so find. In conclusion, taking all the facts into consideration, I find that Respondent Union and Respondent Employer are jointly and severally liable for the violation described, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Baca and Respondent Union as set forth in section III, above, occurring in connection with the business operations of Guadalupe Carrot Packers d/b/a Romar Carrot Company, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, and that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Baca was unlawfully terminated on July 29, 1974, because of the unlawful actions of Respon- dent Union, which Union insisted that Baca be discharged, I shall recommend that the Union be ordered to notify Respondent Employer, in writing, with a copy to Baca, that it has no objection to his immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position without prejudice to his seniority to other rights and privileges. I shall also recom- mend that Respondent Employer be ordered to offer Roberto Baca immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. I shall further recommend that Respondent Union and Respondent Employer be ordered jointly and severally to make Baca whole for any loss of earnings he may have suffered as a result of the discrimina- tion against him by payment to him of the amount he normally would have earned from July 29,1974, which was the date of his discharge, to the date set forth hereafter, less net earnings, to which shall be added interest of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In the case of the Union, its backpay liability shall terminate 5 days after it notifies Respondent Employer and Baca that it has no objection to his reinstatement as provided above. In the case of Respondent Employer, its backpay liability shall terminate on the date that Baca is offered reinstatement. Having found that the Union unlawfully insisted on the discharge of Baca, I shall recommend that it be ordered to register Baca immediately. I shall further recommend that Respondent Employer be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. As the unlawful conduct of the Respondent Union indicates a purpose to limit the lawful rights of an applicant for employment and the danger of its continued commis- sion is reasonably foreseen, I shall also recommend that Respondent Union be ordered to cease and desist from causing a discharge of an employee because he is not a member of the Union, subject to the Board's jurisdiction to 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deny employment to any employee or applicant for employment because of lack of union membership. CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By compelling the discharge of Baca solely because he was formerly a member, and on the staff of, the United Farm Workers, Respondent Union violated Section 8(b)(1XA) and (2) of the Act and Respondent Employer violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]