Valley Harvest Distributing, Inc.

1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Valley Harvest Distributing, Inc. Employer-Petition- er and Fresh Fruit and Vegetable Workers Local 78-A, United Food and Commercial Workers International Union, AFL-CIO and CLC and United Farm Workers of America, AFL-CIO. Case 32-RM-477 June 15, 1989 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 4, 1987, the Regional Director for Region 32 issued a Decision and Order in this pro- ceeding in which he dismissed the petition seeking a unit of all the Employer's cauliflower field work- ers after finding that: (1) within the meaning of Section 2(3) of the Act, the cutter-trimmers are ag- ricultural laborers, and the employees who wrap, pack, and stack the harvested cauliflower, make boxes, and pull the trailers on which these oper- ations are performed are statutory employees, and (2) no question concerning representation has been raised by Fresh Fruit and Vegetable Workers Local 78-A's claim to represent those employees in the Employer's field operations whose functions were previously performed in the Employer's off- field packing shed.' On March 21, 1988, the Board granted the Em- ployer-Petitioner's and the United Farm Workers' requests for review of that decision. No briefs were filed on review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Upon review and consideration of the entire record, the Board has decided to affirm the Re- gional Director's dismissal of the petition, but only for the following reasons. We agree with the Regional Director that none of the workers employed in the classifications at issue here are agricultural laborers under the sec- ondary definition of agriculture. The Regional Di- rector found that a "regular and substantial" amount of the Employer's business is performed for outside growers, and asserted jurisdiction relying ' Until February 1986, Local 78-A had been recognized by the Em- ployer as the bargaining representative of all packingshed employees en- gaged in the packing and handling of cauliflower When the bulk of the packing operations was moved to the fields, the Employer obtained all its workers through the United Farm Workers' hiring hall Subsequently, the Employer recognized the Farm Workers as the bargaining representative of its field packing workers, and these workers were added to the exist- ing Farm Workers' unit of agricultural laborers The Farm Workers have disclaimed any interest in representing individuals found to be statutory employees Thus, as found by the Regional Director, there are no com- peting claims for recognition of the field packing employees on Grower-Shipper Vegetable Assn., 230 NLRB 1011 (1977).2 We also agree, for the reasons set forth by the Regional Director, with his further findings con- cerning the Section 2(3) status of the Employer's field workers.3 However, we disagree with the Regional Direc- tor's rationale for dismissing the petition. He found that the packinghouse, with the exception of the truck loading work that continues to be performed by the forklift drivers at the shed, "has essentially been transferred to the field" and that, because the employees who work on, and pull, the field trailers are "part of the unit represented historically" by Local 78-A, its claim to represent them does not raise a question concerning representation. The collective-bargaining agreement between the Employer and Local 78-A, effective from March 16, 1983, to March 17, 1987, defined the recognized unit as including "all [the Employer's] packing- house employees engaged in packing and handling [cauliflower]." Prior to the February 1986 partial closing of its shed operations, the Employer em- ployed unit employees in eight classifications, in- cluding those of wrappers, packers, stackers, box makers, and dock workers (forklift drivers). Fol- lowing the shift of the packing operations to the fields, the Employer operated with 2 crews of 22 workers each. Approximately half of, each crew was composed of agriculturally exempt cutter-trim- mers. All the other field workers are employees en- gaged in wrapping, packing, stacking, box assem- bling, and driving tractors to pull the field trailers. All field employees, as noted, were obtained through the Farm Workers' hiring hall, and no preference was given to former shed employees. Ultimately, only four former shed employees were employed in the field packing operations. 2 We note that, a fortiori, the Employer's field workers would not be exempt under the stricter standard for secondary agriculture established in DeCoster Egg Farms, 223 NLRB 884 (1976) That case held that the handling of any farm products not grown by the employer or on the em- ployer's farm results in the loss of exempt status S The activities of the field workers engaged in wrapping, packing, box making, stacking, and tractor pulling are distinct from the harvesting of the crop by the cutter-trimmers and take place subsequent to when the cauliflower is "reduced to possession " They are thus statutory employ- ees Mario Saikhon, Inc, 278 NLRB 1289, 1291 (1986) As to the cutter- trimmers, there is no dispute that the cutting function itself comes within the harvesting aspect of primary agriculture The Regional Director found that the Employer has now completely merged into that job classi- fication the trimming function previously performed by employees in the shed unit We agree with the Regional Director that, as it is performed as a single continuous process, the cutting and trimming is agricultural ac- tivity within the definition of harvesting O1aa Sugar, 118 NLRB 1442 (1957) We further agree with the Regional Director that the cutter-trim- mers spend the vast majority of their time in primary agriculture and any nonexempt work performed by them on the field trailers is not frequent or substantial enough to cause them to lose the exemption 294 NLRB No. 67 VALLEY HARVEST DISTRIBUTING On April 29, 1986, Local 78-A, in a letter to the Employer, demanded recognition of all employees employed on the field trailers and requested that the former shed employees in all classifications now part of the field operations, including at a minimum the wrappers, packers, and stackers, be recalled under the seniority terms of the packing- house collective-bargaining agreement. Local 78- A's demand, then, Was based on its claim that the Employer had essentially relocated most of the unit and that the collective-bargaining agreement cov- ered both the remaining dock workers and the field employees performing packing and handling func- tions previously done in the shed. On May 16, 1986, the Employer filed its petition seeking an election in a unit of certain classifica- tions from the shed unit, specifically not including the dock workers, plus the trailer pullers and those workers found herein to be exempt agricultural la- borers. Local 78-A, in requesting recognition as bargain- ing representative of the field employees, did so in furtherance of its claim that these employees con- tinued to be part of the still existing shed unit. We fmd, however, that Local 78-A's previous recogni- tion as bargaining representative for the employees who once performed the various packing functions in the shed does not carry over because the unit of employees did not transfer to the field. Under Matte & Co., 278 NLRB 947, 948 (1986), a bargain- ing relationship remains in effect when an employ- er nibves an operation to a new location if oper- ations remain substantially the same and the niifnber of transferred employees constitute a sub- stantial percentage--iin that case approximately 40 percent or more-of the new employee comple- ment: Since only 4 former shed employees ulti- mately came to work in the Employer's field pack- 1167 ing operation out of approximately '22 statutory employees, all of whom were hired through the Farm Workers' hiring hall, no transfer or continu- ation of the unit took place.4 In these circum- stances; because Local 78-A does riot now repre- sent any of the petitioned-for employees, and is not seeking to represent those einployeeg as a separate unit from the existing packingshed unit,6 and be- cause the 1~arm Workers have disclaimed any inter- est in representing statutory employees, we find that no question concerning representation has been raised within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.6 Nor do we deem it appropriate that the request- ed field employees be accreted to the shed unit. Thus, after the partial closure of the shed, only 2 dock workers remained in the unit of shed employ- ees, but both field crews currently number approxi- mately 22 statutory employees working on the field trailers. It is inappropriate to accrete a large group of employees into a unit of two. Renaissance Center Partnership, 239 NLRB 1247 (1979).. Accordingly, and as we have determined that no question con- cerning representation exists, we shall dismiss the petition. ORDER The petition is dismissed. 4 We note that the hiring of the field operation employees thtough the Farm Workers' hiring hall Was not alleged to constitute an unfair labor practice. s The instant petition filed by the Employer seeks an electioi in a unit of all field employees separate from the existing 'shed unit, whereas Local 78-A requested recognition as the bargaining representative for the statu- tory field employees as part of the shed unit. ' See, e.g., Woolwich, Inc., 185 NLRB 783 (1970); Bowman Building Products, 170 NLRB 312 (1968).