Giffen, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1953

106 N.L.R.B. 764 (N.L.R.B. 1953)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GIFFEN, INC. and UNITED FRESH FRUIT & VEGETABLE
WORKERS, LIU #78, CIO, Petitioner
PAUL GARBER AND JIM NEWNHAM, doing business as
GARBER AND NEWNHAM and UNITED FRESH FRUIT &
VEGETABLE WORKERS, LIU #78, CIO, Petitioner. Cases
Nos. 20-RC-2270, 20-RC-2281, 20-RC-2273, and 20-RC-
2283. August 17, 1953
DECISION , ORDER, AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before LaFayette D.
Mathews, Jr ., hearing officer. The hearing officer ' s rulings
made at the hearing are free from prejudicial error and are
hereby affirmed. t
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with these cases
to a three - member panel [ Members Houston , Styles, and
Peterson] .
Upon the entire record in these cases, the Board finds:
1. Giffen , Inc., herein called Giffen , a California corporation,
is engaged in the growing of potatoes and other agricultural
products at its ranch in Huron , California . During the year
1952, Giffen received in excess of $400 , 000 for the sale of its
potatoes , most of which were sold to customers outside the
State of California by a brokerage firm. The partnership of
Garber and Newnham , herein called the Partnership, is a
licensed labor contractor whose employees work in two
packingsheds , where they wash the potatoes grown by Giffen,
grade them , pack them in suitable bags, and prepare them for
shipment to the consumer. During 1952 the Partnership re-
ceived in excess of $90,000 from Giffen for these services.
After the potatoes have been packed , they are placed in rail-
road cars under the supervision of the brokerage firm which
consigns the potatoes to out - of-State customers , receives
payment from those customers , and remits the sales price
to Giffen after deducting a fixed percentage in payment for its
services . As the Partnership furnishes services valued in
excess of $ 50,000 a year to the brokerage firm, which in
turn handles goods destined for out - of-State shipment having
a value of more than $ 25,000 a year , we find that the Partner-
ship is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert
jurisdiction over its operations. 2
2. The labor organization involved claims to represent
certain employees of the Employer.
IAt the hearing, the Petitioner moved , without objection , to withdraw its petitions filed in
Cases Nos . 20-RC-2280 and 20-RC-2282 . The motion is hereby granted
2 See Hollow Tree Lumber Company , 91 NLRB 635. In view of our finding that the employees
sought in the petitions filed herein are employees of the Partnership , we find it unnecessary
to determine whether or not Giffen 's activities fall within the Board 's jurisdictional criteria.
106 NLRB No. 38.
GIFFEN, INC. 765
3. A question affecting commerce exists concerning the
representation of employees of the Partnership within the
meaning of Section 9 (c) (1) and Section 2 ( 6) and (7) of the Act,
for the following reasons:
In Cases Nos. 20 -RC-2270 and 20-RC-2281, the Petitioner
seeks a unit of all potato packing employees employed by
Giffen at the packingsheds in Huron , California , known as the
Giffen, Inc., shed and the Costa shed , excluding office clerical
employees , watchmen , guards , and all supervisors as defined
in the Act. In Cases Nos. 20 -RC-2273 and 20 -RC-2283, the
Petitioner requests a similar unit of employees except that it
asserts that these individuals are employees of the Partner-
ship. ' Giffen has moved to dismiss the petitions in which it is
listed as an employer of the potato packing employees, con-
tending (a) that the employees sought are employees of the
Partnership , and not of Giffen, and (b) that these employees are
agricultural employees not covered by the Act. The Partner-
ship took no position with respect to these contentions.
Giffen maintains several potato fields on its Huron ranch,
where its employees dig potatoes . The potatoes are then loaded
on trucks operated by employees of a trucking concern who
convey the product to two packingsheds located on or near the
Giffen ranch and assist in unloading the potatoes into the sheds.
One of the sheds is owned by Giffen, while the other is owned
by a firm or individual named Costa . Although Giffen owns
some of the machinery and equipment located in both sheds,
the bulk of the equipment is owned by an undisclosed company.
Giffen pays for the water and electricity consumed in connec-
tion with the operation of the sheds and provides the sacks
into which the potatoes are packed for marketing . After the
potatoes are packed , they are loaded into railway cars , appar-
ently by Giffen personnel , at which point ownership and control
over the product is transferred to the brokerage firm which
markets the potatoes on a fixed -fee basis.
For the past 3 years the Partnership has been retained
under oral contract with Giffen to perform the packing opera-
tions in the sheds. The record discloses that the Partnership
is an independent labor contractor licensed by the State of
California to engage in the business of furnishing farm labor,
that it seeks out potato packing employees for work at the
Giffen ranch , exercises the authority to hire and discharge
them, determines their rates of pay, hours of work, and other
working conditions , carries them on its payroll , makes deduc-
tions from their pay for withholding taxes and unemployment
insurance , and carries workmen ' s compensation insurance for
them. Giffen , on the other hand, has no employees on its payroll
3The petitions in Cases Nos. 20-RC-2281 and 20-RC- 2273 sought a unit of the potato pack-
ing employees of Giffen and the Partnership , respectively , at the Giffen shed . The petitions
in Cases Nos. 20-RC-2270 and 20-RC-2283 sought a similar unit at the Costa shed. At the
hearing, the Petitioner amended its petitions , without objection, so that the petitions filed
against Giffen and the Partnership, respectively , sought overall units of potato packing em-
ployees at both the Giffen and Costa sheds.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who work in either of the two sheds , nor does it exercise any
supervisory or other authority over the packing shed employees.
In view of the foregoing , and the entire record in these
proceedings , we find that the Partnership is an independent
contractor and the potato packing employees employed at the
Giffen and Costa sheds are its employees .4 Accordingly, we
shall dismiss the petitions filed with respect to Giffen.
With respect to the contention that the potato packing em-
ployees are agricultural employees exempt from the Act, the
record reveals that these employees , approximately 100 in
number , work exclusively in the sheds . Some operate washing
machines which cleanse the potatoes . Others grade the potatoes
as required under particular orders from customers. Still
others pack the potatoes in bags provided for that purpose and
sew the tops of the bags . There is no interchange of packing-
shed and field employees.
The Board has frequently stated that where employees are
employed in an establishment of any employer which is operated
as a "separate commercial enterprise ," and not merely as an
incident to or in conjunction with its farming operations, such
employees are not "agricultural laborers " but are "em-
ployee s" within the meaning of the Act . 5 In view of the fact that
the potato packing employees involved herein do not engage
in farming operations , and are employees of the Partnership,
which concededly does not engage in farming work , we find
that they are "employees " engaged in a "separate commercial
enterprise " and are not "agricultural laborers." 6
We find , in agreement with the parties , that all employees
of Paul Garber and Jim Newnham , doing business as Garber
and Newnham , employed in the packingsheds at Huron,
California , known as the Giffen, Inc ., shed and the Costa shed,
excluding office clerical employees , watchmen, guards , andall
supervisors as defined in the Act, constitute aunit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
5. Determination of representatives:
The record indicates that the potato packing operations at the
Giffen , Inc., and Costa sheds are seasonal in nature, the season
normally extending from June 1 to June 30 . However , there is
no indication whether the potato packers perform other packing
operations after the conclusion of the potato packing season, or
whether any potato packing work is done after June 30.
In view of the foregoing , we shall depart from our usual
eligibility rule and direct that an election be conducted among
the employees in the unit herein found appropriate at such time
as the Regional Director determines that a representative num-
4See Lee E. Stine d/b/a Fairchild Cafeteria , 87 NLRB 667.
s E g., D'Arrigo Bros. Co. of California, 93 NLRB 827; Imperial Garden Growers , 91 NLRB
1034.
6 Ibid
MILCO UNDERGARMENT CO., INC. 767
ber of employees in the packingsheds are employed, and that
a 30-day eligibility period immediately preceding the issuance
of the notice of election by the Regional Director be selected.
[The Board dismissed the petitions filed in Cases Nos. 20-
RC-2270 and 20 -RC-2281.]
[Text of Direction of Election omitted from publication.]
MILCO UNDERGARMENT CO., INC. and INTERNATIONAL
LADIES' GARMENT WORKERS' UNION, LOCAL 225, AFL
and BLOOMSBURG INDEPENDENT GARMENT WORKERS'
ASSOCIATION, Party to the Contract
BLOOMSBURG BRAIDING CORPORATION and INTERNA-
TIONAL LADIES' GARMENT WORKERS' UNION, LOCAL
225, AFL and BLOOMSBURG INDEPENDENT GARMENT
WORKERS' ASSOCIATION, Party to the Contract. Cases
Nos. 4-CA-591 and 4-CA-605. August 18, 1953
DECISION AND ORDER
On May 11, 1953, Trial Examiner C. W. Whittemore issued
his Intermediate Report in this proceeding , finding that the
Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that Respondent Milco
had not engaged in certain other unfair labor practices and
recommended dismissal as to them . Thereafter , both Respond-
ents filed exceptions to the Intermediate Report and supporting
briefs.
The Board t has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed.2 The rulings are hereby affirmed.
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel [Members Houston, Styles, and Peter -
son].
2On June 18, 1953, the Respondents filed a motion to reopen the record on the basis of
newly discovered evidence, and also because of the Trial Examiner's refusal to permit cer-
tain other pertinent evidence to be admitted. The movants assert that they have evidence that
the incident of the paycheck and Blanche Gross' altercation with Marco Mitrani, president of
Respondent Milco, took place before July 13, 1951, in the testimony which Blanch6 Gross
gave under oath at a hearing before another governmental agency, and that such direct con-
tradiction of testimony by the same witness, under oath, at two different hearings, destroys
the probative value of any testimony given by her. They further assert that a refusal to grant
this motion would deprive the Respondent of "constitutional rights under the rules of civil
procedure, adopted by the Supreme Court of the United States pursuant to the Act of June 19,
1934, as amended, and would constitute reversible error." The Trial Examiner sustained the
General Counsel's objection to the following question which company counsel sought to ask
106 NLRB No. 125.