Draper-King Cole, Inc.

National Labor Relations Board - Board DecisionsNov 16, 1976

226 N.L.R.B. 941 (N.L.R.B. 1976)

DRAPER-KING COLE, INC. 941 Draper-King Cole, Inc . and the Draper Canning Com- pany and Meat and Poultry Workers Local 199, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner . Case 5- RC-9461 November 16, 1976 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Pursuant to authority granted it under Section 3(b) of the National Labor Relations Act, as amended, a three-member panel has considered part of Employ- er's Objection 5 and determinative challenges in an election held on October 31, 1975,' and the Hearing Officers' report recommending disposition of same,' pertinent portions of which are attached hereto as Appendixes A and B. The Board has reviewed the record in light of the exceptions and brief, and hereby adopts the Hearing Officer's findings I and recommendations. DIRECTION It is hereby directed that the Regional Director for Region 5 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Order, open and count the bal- lots of Cassie Lee, Maria Tello, Maria Raquel Wong, Ira Baker, Steve Towers, Ronald Cirwithian, Alton Harmon, Bruce Harpster, Marvin Kates, James Law, Jr., Shep Lee, Ranion Martinez, John Mosely, Wil- i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election The tally was 304 for, and 297 against, the Peti- tioner , there were 93 challenged ballots 2 In the absence of exceptions thereto , the Board had earlier adopted, pro forma, the Regional Director 's recommendations that the challenges to 44 ballots be sustained , that the challenges to the ballots of Cassie Lee, Maria Tello, and Mana Raquel Wong be overruled , and that a hearing be held on the issues raised by a part of Objection 5, and by the remaining 46 chal- lenged ballots The opening and counting of the ballots of Cassie Lee Maria Tello, and Maria Raquel Wong was deferred pending the disposition of the 46 remaining challenged ballots by the Board 3 The Hearing Officer found that John Schroeder did not possess the indicia of supervisory status within the meaning of Sec 2 ( 11) of the Act Accordingly , he recommended overruling the challenge to his ballot In the absence of exceptions thereto , we adopt , pro forma, the Hearing Officer's recommendation that the challenge to his ballot be overruled in the ab- sence of exceptions thereto , we also adopt , pro forma, his recommendation that Objection 5 be overruled We agree with the Hearing Officer's finding that the Employer is not a "farmer" with respect to the harvesting operations it performs for contract growers We therefore find that employees engaged in such operations who also work in the maintenance shop and the canning factory during the offseason are not agricultural laborers with respect to nonharvesting duties and are eligible to vote In so deciding we do not adopt the Hearing Officer's statement that as these employees do not work for a farmer they are not agricultural laborers with respect to any part of their duties Liam Paul, John Schroeder, James Siegfried, William F. Smith, David Warrington, George Best, William Boyd, Raymond Medd, Calvin Brittingham, Preston Brittingham, Gilbert Bucksley, William Coulbourne, Franklin Holding, Jr., Franklin Holding, Sr., How- ard Horsey, Lonnie Horsey, Jerry Hudson, Wayne Hudson, Dorsey Morgan, James W. Pride, Carlton Smith (Spencer), Henry Wilson, Jr., and James Wilt- sey. IT IS HEREBY FURTHER DIRECTED that thereafter the Regional Director prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots, and thereafter issue an ap- propriate certification. APPENDIX A Group II-Alleged Supervisory Employees Raymond Ellingsworth John Williams Group IV-Alleged Agricultural Employees Wade Boozer Joe Branham Calvin Brittingham Preston Brittingham William Coulbourne Robert Creed Franklin Holding, Jr. Franklin Holding, Sr. Howard Horsey Lonnie Horsey Jerry Hudson Wayne Hudson James Wiltsey Donald Kochis Dale Lang Judy Lang Dorsey Morgan James W. Pride Edwin Sawyers Carlton Smith (Spencer) David Spencer Donald Spencer James L. Spencer, Jr. James L. Spencer Henry Wilson, Jr. APPENDIX B Raymond Ellingsworth and John Williams Raymond Ellingsworth was a leadman in the Employer's labeling room. He was hourly paid at the rate of $3.00 or $3.25 per hour. It appears the next highest paid employee on the line received $2.60 per hour. Mr. Ellingsworth testified that on several occa- sions, he had been instructed by his area supervisor, Leon Burton, to exercise disciplinary power over pro- duction employees with regard to discharge and maintaining production flow. Burton apparently en- couraged Ellingsworth to exercise these powers inde- pendently. Ellingsworth states that he sent a number of employees home who were not in compliance with plant rules and Burton learned of this action only 226 NLRB No. 138 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the fact. On both occasions where Ellingsworth recommended employees for pay raises , they were received, and the record is devoid of evidence of an independent investigation being made before the in- creases were granted. Additionally, Ellingsworth granted employees time off without prior consulta- tion with Burton and was not chastised. The record further indicates that the decisions made by Mr. Ell- ingsworth were of a routine nature and the amount of his time spent directing employees was minimal. John Williams was employed by the Employer for a period of approximately five years and first became a leadman in 1972 or 1973. Williams testified that it was his responsibility to maintain a sufficient flow of product moving into the production area and that in so doing, he spent a good deal of his time directing other employees. His duties involved the perfor- mance of physical labor on infrequent occasions. Uncontroverted testimony indicates that Williams fired Juan Villa in 1975 and when Williams ques- tioned Leon Burton , the area supervisor, concerning his authority to effectuate the discharge, Burton in- structed him to do what he thought best. Williams was similarly unrestricted in the exercise of other su- pervisory prerogatives such as independently sending employees home for disciplinary reasons or granting time off. Williams recommended pay increases for employees on several occasions but concedes that his recommendations were not always followed. The totality of the evidence compels the hearing officer to find that Raymond Ellingsworth and John Williams are supervisors within the meaning of the Act. Both employees, although working in the classi- fication of leadman, exercised significant supervisory prerogatives and were not constrained in these ac- tions. Accordingly, it is recommended that the chal- lenges to the ballots of Raymond Ellingsworth and John Williams be sustained. Group IV-Those Challenged by Petitioner as Alleged Agricultural Employees While the Employer in this case is in the business of processing and canning a variety of vegetables, it also engages in harvesting operations throughout a large portion of the State of Delaware. To this end, the Employer owns and operates numerous types of mechanized farming equipment and employs both harvesting crews who perform the actual work of re- moving the crops from the fields and specialized me- chanics who maintain the equipment both in and out of the fields. In most instances, those engaged in the task of harvesting perform other work for the Em- ployer at the end of the harvest season. For example, they may operate or maintain harvesting equipment in the fields during the summer months, and at the conclusion of the harvest, move to the maintenance shop or the plant itself for the remaining portion of the year. The Employer's Field Manager, William Taylor, negotiates written contracts with area farmers prior to each growing season. These contracts provide for the individual farmer to plant and cultivate the crops. The Employer provides specific varieties of seed. The seed is supplied to the individual farmer by the Employer and the cost is deducted from the farmer's share of the value of the harvested crop at the end of the growing year. The Employer specifies the time of planting and is responsible for harvesting the farmer's crop. In the event of crop failure or other natural disaster, Draper may underwrite a por- tion of the farmer's loss, but is not legally obligated to do so. Although during the 1975 season nearly 10,000 acres of land were harvested by Draper crews, only approximately 140 of those acres were company owned. At issue in this case is the status of a number of employees engaged in harvesting operations and other agriculturally related work. While the Peti- tioner contends that most of these employees are covered by the agricultural exemption and are not eligible voters, the Employer argues that they are dual function employees who are covered by the Act. The Employer further states that it is not engaged in "farming" operations with respect to its harvesting activities. In two recent cases, the Board has set forth the criteria utilized in determining whether an Employer is, in fact, a "farmer," and, concomitantly, the cir- cumstances under which the agricultural employee exemption will be applied. In Green Giant Company, 223 NLRB 377 (1976), the Employer maintained a separate agricultural division which operated under contracts with independent growers. Under these contracts, the growers planted seed supplied by the Company, but cultivated their own crops. The grow- ers further assumed the risk of crop failure. In the Green Giant case, employees of the agricultural divi- sion who repaired or maintained farming equipment were found to be nonagricultural employees as the employer was not a "farmer" by virtue of its harvest- ing and other activities as to the crops raised by con- tract growers. The facts of the instant case are strik- ingly similar. Here, the Employer also negotiates contracts with independent growers, supplies seed and assumes the responsibility for removing the crop from the field with its harvesting crews. The Em- ployer may provide partial reimbursement in the event of a crop failure but is under no legal obliga- tion to do so. The Employer harvests 140 acres of its DRAPER-KING COLE, INC own land; however, this miniscule portion of a total harvested acreage exceeding 8,000 acres would not appear to alter the intent of the Green Giant decision. The Board has also held that even where the Em- ployer grows and processes the vast majority of its agricultural products on its own land, but engages in some outside contracting, "farmer" status will be de- nied and the Employer's employees will enjoy the coverage of the Act. Austin J. DeCoster d/b/a De- Coster Egg Farms, 223 NLRB 884 (1976). In the in- stant case, the facts weigh even more heavily in favor of denying the Employer "farmer" status. Here, the Employer's operation relies almost entirely upon contract growers. In the DeCoster case, "farmer" sta- tus was denied in spite of the fact that less that two per cent of the Employer's eggs were purchased from contract farms. Specifically, the Board stated that in interpreting the term "farming operation" the ex- emption must be read "as limiting the exemption to those processors who deal exclusively with their own goods." Green Giant Company, supra. Accordingly, the Hearing Officer finds that the Employer in this case is not a "farmer" with respect to its harvesting operations and, consequently, that its employees engaged in the harvesting of crops and the repair and maintenance of farm equipment are not agricultural employees within either the primary or secondary definition adopted by the Board. In addition to its harvesting and canning opera- tions, the Employer also owns and operates a facility some three and one-half miles from Milton, Dela- ware, known as "The Ranch." At this location, the Employer is engaged in the raising of livestock in- cluding beef cattle for commercial purposes, and horses used by the ranch hands in herding the cattle. The "Ranch" contains numerous buildings includ- ing living quarters for some employees, an office, a large horse barn, cattle sheds and a house which the cattle boss occupies. Although the Employer owns approximately 5,000 acres of land totaling some 30 individual farms, only a portion of these holdings are referred to as "The Ranch." As stated by Mr. Brote- markle, the purpose of this facility is ". . . a feeding operation for cattle to help us dispose of the bypro- ducts of production from the plant." It is also appar- ent from the record that the Employer raises addi- tional crops on its own land as a supplement to the cattle's diet. Thus, as the Employer owns the lands and build- ings referred to as "The Ranch," plants and harvests crops thereon, and engages in the feeding and raising of cattle and horses, I find the Employer to be a In defining the term "agricultural employees " the Board has long ac- corded great weight to the definition to be found in sec 3(f) of the Fair Labor Standards Act which states that agriculture includes Any practices 943 "farmer" with respect to the operation of this facility. Accordingly, those employees employed solely at this facility are agricultural employees excluded from the coverage of the National Labor Relations Act, as amended.4 David Spencer and Donald Spencer At the hearing, the parties stipulated that the chal- lenges to the ballots of David Spencer and Donald Spencer be sustained. Accordingly, as the agreement of the Parties is not in conflict with Board law, the [Hearing Officer] recommends that the challenges to their ballots be sustained. Preston Brittingham, William Colbourne, Calvin Brittingham, Jerry Hudson, James W. Pride, Carlton Smith (Spencer), and Henry Wilson, Jr. At the hearing , the parties stipulated that the above -named individuals perform the same basic kind of work and have generally the same responsi- bilities. All operate or maintain farming machinery such as combines and viners . During the growing season , their work is performed in the fields and dur- ing the winter months they overhaul and repair equipment in the maintenance shop adjacent to the canning factory. As these employees are not employed by a farmer, they are not agricultural employees exempt from the coverage of the Act . Even assuming , arguendo, that their summer employment qualified them for the ag- ricultural exemption , the fact that they regularly per- form a substantial amount of non -agricultural work (in the plant maintenance shop ) would assure them the right to exercise their franchise . Olaa Sugar Com- pany, Limited, 118 NLRB 1442 ( 1957). Accordingly, it is recommended that the challenges to their ballots be overruled and their ballots be opened and count- ed. James L. Spencer and James L. Spencer, Jr. The parties stipulated that these employees per- form the same job functions. Father and son alike are employed primarily on "The Ranch" mending fences and planting corn. They work a regular sched- ule of 7:30 to 5:00 on weekdays and one-half day on Saturday. They are not compensated at time and one-half for overtime work. During the summer of 1974, James L. Spencer, Jr., worked as a portaway operator harvesting peas. Dur- performed by a farmer on a farm as an incident to or in conjunction with such farming operations" and further . "Any practices whether or not them- selves farming practices which are performed either by a farmer or on a farm as in incident to or in conjunction with such farming operations " 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that same summer, his father worked sporadically in the harvesting operation but spent most of his time on the ranch . Since the end of 1974 , both employees have been engaged primarily in work at the ranch. The record is devoid of evidence that these are pres- ently dual-function employees with any appreciable responsibilities outside the confines of "The Ranch." Accordingly, as it appears that James L. Spencer and James L. Spencer , Jr. are agricultural employees, it is recommended that the challenges to their ballots be sustained. Franklin Holding, Sr., Franklin Holding, Jr., Lonnie Horsey, Howard Horsey, Wayne Hudson, Dorsey Mor- gan, James Wiltsey All of these employees follow a seasonal work pat- tern which involves field work in the summer and work in the canning factory or maintenance shop af- ter the end of the harvest season . During the harvest season their jobs may involve the operation or main- tenance of harvesting equipment , fence repair, and other tasks which are related to field crops grown by contract growers. In September or October of each year, at the end of the harvest, these employees as- sume other assignments which may include work in the canning plant , or clean up and maintenance in the maintenance shop. As I have found the Employer in this case to lack the status of a "farmer " with respect to its harvesting operations , these employees are in fact "employees" within the meaning of our Act and not exempt as agricultural employees. Moreover , as each employee performs maintenance or plant work on a cyclical basis which is unquestionably non-agricultural in na- ture, that portion of their work would in any event defeat the agricultural exemption. Accordingly, it is recommended that the challenges to the ballots of Franklin Holding, Sr., Franklin Holding, Jr., Lonnie Horsey, Howard Horsey, Wayne Hudson, Dorsey Morgan and James Wiltsey be overruled and their ballots be opened and counted. Wade Boozer, Joe Branham, Robert Creed, Dale Lang, Edwin Sawyers, and Donald Kochis The parties stipulated at the hearing that the above -named six individuals work with the cattle and horses on the Ranch, operate feed trucks on the ranch as well as make trips to locations other than Draper Company property to pick up feed, and per- form odd jobs such as fence mending. The record reflects that three of these employees are provided free housing on the Ranch . Donald Ko- chis testified that he did not receive time and one- half for overtime work. As distinguished from other employees of the employer, those working on the Ranch can apparently buy beef "at a price." The Hearing Officer is of the opinion that the above six employees are essentially ranch hands whose main concern is with the operation of the Ranch. Although they may occasionally drive feed trucks off Ranch property to the locations of other employers, this is only incidental to their primary functions and responsibilities as ranch hands; thus, as these employees appear to be agricultural employ- ees, it is recommended that the challenges to their ballots be sustained. J. G. Boswell Company, 107 NLRB 360 (1953); cf. Lee A. Consaul Co., Inc., et al., 192 NLRB 1130 (1971); Light's Tree Company, 194 NLRB 229 (1971). Judy Lang The parties stipulated that Judy Lang is a janitress employed by Draper Canning Company and her sole responsibility is to clean the facilities at the company's "Ranch." The record also reveals that Judy Lang is the wife of Dale Lang and resides on the ranch with her husband in housing provided by the Employer. Since Judy Lang' s duties are per- formed solely on the Ranch and do not bring her in contact with other aspects of the Employer 's busi- ness, I find her to be an agricultural employee within the secondary definition provided by the Fair Labor Standards Act (see fn. 4). Accordingly , it is recom- mended that the challenge to her ballot be sustained.