Knaust Brothers, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1941

36 N.L.R.B. 915 (N.L.R.B. 1941)

In the Matter. of KNAUST BROTHERS, INC., and LOCAL 17 OF INTER-
NATIONAL HODCARRIERS, BUILDING & COMMON LABORERS UNION OF
AMERICA
Case No. R-31-Decided November 14, 1941
Jurisdiction : mushroom growing and selling industry.
Investigation and Certification of Representatives : existence of question : dis-
pute as to appropriate unit ; election necessary.
Unit Appropriate for Collective Bargaining : all employees of Company's grow-
ing houses, excluding superintendents, office and clerical employees, crane
operator, truckmen, and watchmen. .
Definitions : employees engaged in growing and picking mushrooms are not agri-
cultural laborers within the meaning of Section 2 (3) of the Act.
Mr. Frederick R. Livingston and Mr. John J. Cwneo, for the Board.
Curtis & Warren, by Mr. Leonard A. Warren, of Coxsackie, N. Y.,
for the Company.
Mr. Wendell E. Tripp and Mr. Samuel Nuzzo, of Newburgh, N. Y.,
for the Union.
Miss Marcia Hertzm,ark, of counsel to the Board.
DECISION,
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 13, 1941, Local 17 of International Hodcarriers, Building
& Common Laborers Union of America, herein called the Union,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Knaust Brothers,
Inc., Coxsackie, New York, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On August 22, 1941, the National Labor' Relations
Board, herein called" the Board, acting pursuant to Section 9 (t) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, ordered' an investiga-
36 N. L. R. B., No. 188.
915
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon clue notice.
On September 4, 1941, the Regional Director issued a notice of
hearing and on September 9 a notice of postponement, copies of
which were duly served upon the Company and the Union. On
September 15, 1941, the Company filed an answer, denying the juris-
diction of the Board, and the appropriateness of the unit sought by
the Union, and alleging affirmatively that its employees are agri-
cultural laborers and are not employees within the meaning of the
Act, and that it is not engaged in commerce within the meaning of
the Act.
Pursuant to notice, a hearing was held on October 6 and 7, 1941,
at Kingston, New York, before Mortimer Riemer, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company and
the Union were represented and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made rulings
on motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. The Company thereafter filed a brief which the Board
has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Knaust Brothers, Inc., a New York corporation with its principal
office in Coxsackie, New York, is engaged in growing and selling
mushrooms. The Company is owned by Herman and Henry Knaust,
brothers, who also own the controlling stock in K. B. Products Com-
pany,, a New York corporation engaged in canning mushrooms.
During the period from September 15, 1940, to March. 15, 1941,
the total sales of Knaust Brothers, Inc. were about $506,808, ap-
proximately 60 per cent of which sales were made to K. B. Products
Company, which in turn purchases almost all its mushrooms from
Knaust Brothers, Inc. The Company has one customer outside the
State of New York, to whom it ships about 1.7 per cent of its total,
sales. The sales of K. B. Products Company during the above-
mentioned period totaled about $480,334. It ships approximately 25
per cent of its products outside the State of New York. Knaust
Brothers, Inc., purchases outside the State of New York about 20
per cent of the materials which-go to make up the compost used in
KNAUST BROTHERS, INC. 917
growing mushrooms. It employs approximately 320 persons and is
the largest producer of mushrooms in the United States.
In view of the common ownership of Knaust Brothers, Inc. and
K. B. Products Company, and since it appears that K. B. Products
Company exists for the purpose of serving as an outlet for the
mushrooms produced by Knaust Brothers, Inc., we may consider
the two companies as one for the purpose of determining the course
taken by products of Knaust Brothers, Inc' It thus appears that
a. substantial proportion of the products of the Company enters the
channels of interstate commerce.
II. THE ORGANIZATION INVOLVED
Local 17 of International Hodcarriers, Building & Common
Laborers Union of America is a labor organization affiliated with the
American Federation of Labor. It admits to membership employees
of the Company.
III. THE EMPLOYEES, WITHIN THE MEANING OF SECTION 2 (3) OF THE ACT
The Company contends that its employees are 'engaged in agricul-
tural labor and therefore are not employees within the meaning of the
Act. 2
The Company operates a tray-crop plant, which is a large steel
building, and 12 growing houses, consisting of some specially con-
structed buildings, abandoned mills, former ice plants, and caves.
Employees, of the tray-crop plant make trays from logs which they have
cut on woodland owned by the Company, assist in filling these trays
with compost, plant the mushroom spore, stack the trays, and perform
other duties in connection with the first stages of mushroom growing.
The trays are thereafter transported by truck to the growing houses
where employees arrange them, water and spray the growing mush-
rooms, and pick them upon maturity. When a crop has been picked,
some of the employees of that growing house are usually transferred
to another while the first is being cleaned and fumigated in prepara-
tion for the receipt of another crop. The operations of the Company,
.on the whole, are not seasonal, since in most of the growing houses
there is equipment for controlling temperature.
From the above description of the operations of the Company, it is
plain that the growing of mushrooms under such conditions is not
i See Matter of Sound Timber Company and International Woodworkers of America
Locals 67 and 75, 8 N. L. R. B. 844; Matter of Tidewater Iron d Steel Company, Inc. and
American Federation of Labor, Passaic County, New Jersey District, 9 N. L. R. B. 624;
Matter of Sampson d Murdock Printing 'Co. and Boston Typographical Union No. 13 of the
International Typographical Union of North America, 31 N. L. R. B., No. 102.
2 Section 2 (3) of the Act provides, in part, that the term "employee" "shall not in-
clude any individual employed as an agricultural laborer."
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agricultural in nature as that term is commonly understood. Mush-
room growing, as practiced by the Company, does not depend upon
climate, temperature, rainfall, or other conditions which affect the
growing of crops under ordinary circumstances. It is, in fact, very
similar to the production which goes on in industrial plants under
controlled and artificial conditions at the will of the, producer. The
Company has cited provisions of the Federal Social Security Act and
of the Internal Revenue Code 3 in support of its contention that its
employees are agricultural laborers. We cannot consider the defini-
tions contained therein as controlling in this case. We have had occa-
sion to interpret the term "agricultural laborer" as used in the Act
with respect to employees engaged in work similar to that done by
the employees involved herein.4 We stated in the Park Floral Com-
pany case, "An agricultural laborer, within the meaning of Section 2
(3), is a person employed by the owner or a tenant of a farm on which
products in their raw or natural state are produced (1) to perform
services on such farm, in connection with the cultivation of the soil,
the harvesting of crops, the nursing, feeding, or management of live-
stock, bees, and poultry, or other ordinary farming operations; . . ."
In concluding that employees of a greenhouse were not agricultural
laborers within the. meaning of the Act, we stated in part :
Planting, care, and growing of the plants and flowers have been
removed from the farm and from the natural conditions which there
obtain, and are carried on under artificial conditions and as a, special-
ized process. Growing is done in soil-filled containers kept in glass-
covered, heat-regulated houses. Production is continuous throughout
the year and not affected by the change of seasons. The work in the
greenhouses is industrial in nature rather than agricultural in the
common understanding of that term.
The same reasoning applies in the instant case. We find that the
employees, of the Company are employees within the meaning of Sec-
tion 2 (3) of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
The Union began organizing employees of the Company in March
1941 and has had a number of conferences with representatives of the
Company. However, the parties have been unable to agree as to the
unit appropriate for the purposes of collective bargaining.
3Section 209 (1) (3) of the Federal Social Security Act and Section 1426 (h) (3) of
the Internal Revenue Code define agricultural labor to include all services "performed
. . . in connection with the raising or harvesting of mushrooms . . .
4 Matter of Great Western Mushroom Company and United Cannery, Agricultural, Pack-
ing and Allied Workers of America, United Mushroom Workers Local Union No. 300,
affiliated with the Congress of Industrial Organizations, 27 N. L. R. B., No. 79; Matter of
The Park Floral Company and United Greenhouse and Floral Workers Union No. 510 of
the United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with
the Congress of Industrial Organizations, 19 N. L. R. B. 403.
IiNA- ST BROTHERS, INC. 919
A statement by the Trial Examiner. at the hearing indicates that the
Union represents a substantial number of employees in the unit which
it contends is appropriate.5
We find that a question has arisen concerning the representation
of employees of the Company.
V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has arisen,
occurring in connection with the operations of the Company described
in Section I above, has a close, intimate , and substantial relation' to
trade, traffic , and commerce among the several States and tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE APPROPRIATE UNIT
The Union contends that an appropriate unit should include only
the employees of the growing houses, whereas the Company claims
that employees of the tray=crop plant,should also be included within
the unit. The parties agree that superintendents, office and clerical
employees, the crane operator and truckmen 6 should be excluded from
the unit; but the Union wishes also to exclude watchmen. No evidence
was introduced at the hearing concerning the number of watchmen or
their duties. In accordance with our usual practice,? we shall exclude
them.
All employees of the Company do similar work, which the Company
characterizes as common labor. However, somewhat more skill is
required in the sprinkling and picking of mushrooms, which is done
by employees of the growing houses, than in the remaining operations.
Employees of the growing houses are frequently shifted from one
growing house to another as the need arises, while employees of the
tray-crop plant are seldom transferred to another location. The
growing houses are located at various places within a radius of about
35 miles. All operations of the Company are directed from its office
at Coxsackie, but employees are hired by the foremen and are desig-
nated as employees of a certain foreman rather than of a specific
growing house. There would appear to be merit in the Company's
contention that all its employees constitute an appropriate bargaining
5 The Trial Examiner ' s statement shows that the Union submitted 99 cards , 88 of which
contained names of persons on the Company ' s pay roll of June 1, 1941 . There are ap-
proximately 200 persons in the unit sought by the Union.
' The Company did not agree to the exclusion of truckmen during the hearing. How-
ever , in its brief it stated that its contention as to the appropriate unit involved the
exclusion of truckmen.
See Third Annual Report , pp. 186, 187.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. However, the Union has organized only the employees of the
growing houses, although employees of the tray-crop plant are eligible
to membership. Under these circumstances, we see no reason for
depriving the employees of the growing houses of the benefits of
collective bargaining until such time as the remaining employees may
be organized.' Our determination herein as to the appropriate unit
is no bar to a. later revision in accordance with changes in the status
of self-organization of the Company's employees.
We find that all employees of the Company's growing houses, exclud-
ing superintendents, office and clerical employees, the crane, operator,
truckmen, and watchmen, constitute a unit appropriate for the pur-
poses of collective bargaining, and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VII. TIIE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by holding an election by secret ballot. The
Company and the Union agreed that a current pay roll shall be used
to determine those eligible to vote. Persons eligible to participate
in the election, shall be the employees in the appropriate unit who
were employed by the Company during the pay-roll period next pre-
ceding this Direction, subject to such limitations and additions as
are hereinafter set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The employees of Knaust Brothers, Inc. are employees within the
meaning of Section 2 (3) of the Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees of Knaust Brothers, Inc., Coxsackie, New York,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
3. All employees of the Company's growing houses, excluding super-
intendents, office and clerical employees, the crane operator, truckmen,
and watchmen constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
8Matter of Foster-Grant Co ., Inc. and Local No. 60, Molders Union of Leominster, affili-
ated to United Paper, Novelty and Toy Workers International Union ( C. I. 0.), 32
N. L. R. B ., No. 97 , and case cited therein.
KNAI ST BROTHERS, INC. 921
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Knaust Brothers, Inc., Coxsackie, New York, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Second Region, acting
in this matter as agent for the National Labor Relations Board and
subject to Article III, Section 9, of said Rules and Regulations, among
all employees in the growing houses of Knaust Brothers, Inc., who
were employed during the pay-roll period next preceding the date
of this Direction, including employees who did not work during such
pay-roll period because they were ill or on vacation or in the active
military service or training of the United States, or temporarily laid
off, but excluding superintendents, office and clerical employees, the
crane operator, truckmen, and watchmen, and employees who have
since quit or been discharged for cause, to determine whether or not
they desire to be represented by Local 17 of International Hodcarriers,
Building & Common Laborers Union of America, for the purposes of
collective bargaining.