L. S. Hunn Packing Co.

National Labor Relations Board - Board Decisions

Jan 31, 1946

65 N.L.R.B. 631 (N.L.R.B. 1946)

In the Matter of L. S. HUNN, DOING BUSINESS AS L. S. HuNN PACK-
ING CO. and CALIFORNIA STATE COUNCIL OF CANNERY UNIONS,
A. F. of L.
Case No. 00-C-1280.-Decided January 31, 1946
DECISION
AND
ORDER
On May 23, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, a copy of which is attached hereto,
finding that the employees alleged in the complaint to have been dis-
criminatorily discharged on or about October 21, 1944, were "agricul-
tural laborers," within the meaning of Section 2 (3) of the Act, and
that therefore the Board is without jurisdiction with respect to these
employees. The Trial Examiner accordingly recommended that the
complaint be dismissed. Thereafter, California State Council of
Cannery Unions, A. F. of L., and counsel for the Board filed exceptions
to the Intermediate Report; and counsel for the Board filed a brief
in support of his exceptions. The respondent filed a reply brief. No
request for oral argument before the Board was made, and none was
held. The Board has reviewed the rulings made by the Trial Exam-
iner at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recoimnendation of the Trial Examiner with
respect to the jurisdictional issue.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the respondent, L. S.
Hunn, doing business as L. S. Hunn Packing Co., Woodlake, Calif or-
nia, be, and it hereby is, dismissed. L
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
Since we are dismissing the complaint on jurisdictional grounds, we find it unnecessary
to consider the Trial Examiner ' s findings and conclusion with respect to the merits of the
complaint.
65 N. L R. B., No. 109.
631
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Wallace E. Royster , Esq., of San Francisco , Calif., for the Board.
Mr. Alen Luscutoft , business representative , of 712 Twelfth Street , Sacramento,
Calif., for the Union.
William D. Crossland, Esq, of 636 Brix Building, Fresno, Calif., for the
Respondent.
STATEMENT OF THE CASE
On a first amended charge filed March 12, 1945, by California State Council
of Cannery Unions, A. F. of L., herein referred to as the Union, the National
Labor Relations Board, herein called the Board, on March 13, 1945, by the
Regional Director for the Twentieth Region ( San Francisco , California ), issued
its complaint against L . S. Hunn, doing business as L. S. Hunn Packing Com-
pany, at Woodlake, California, herein called Respondent, alleging that Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( 1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 49 Stat . 449, herein called the Act. Copies of the complaint together with
copies of the first amended charge and a notice of hearing were duly served upon
the Union and the Respondent on March 13, 1945.
Concerning unfair labor practices, the complaint alleges that on or about
October 21, 1944, Respondent discharged 14 named employees and at all times
since that date has refused to reinstate them or any of them because of their
membership in and activities on behalf of the Union, and thereby has dis-
criminated and is discriminating in regard to the hire and tenure of employment
of said employees , discouraging membership of the employees of Respondent in
any labor organization, and interfering with, restraining , and coercing his
employees in-the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 (1) and (3)
of the Act.
Respondent duly filed his answer in which he denies, ( 1) that he was en-
gaged in the business of packing or processing olives at a plant located at or
near Woodlake, California, or any other plant or location, and (2 ), that in
the course of his business he causes or ever has caused a substantial amount
of materials to be purchased or delivered or transported in interstate commerce.
The answer admits the discharge of the 14 persons named in the complaint
on or about October 21, 1944, but denies all the allegations of the complaint
pertaining to or alleging the commission of any unfair labor practice. The
answer affirmatively alleges that the employees and each of them, referred
to in the complaint were, at all times mentioned in the complaint , individuals
employed as agricultural laborers within the meaning of Section 2 (3) of the
Act; that Respondent is not engaged in commerce as defined in Section 2 (6)
of the Act ; that he is not subject to the jurisdiction of the Board ; and that
the Board is without jurisdiction over him or over the matters or things set
out and alleged in the complaint.
Pursuant to notice of hearing issued by the Regional Director and duly
served upon the parties, a hearing on the complaint was held at Woodlake,
California, and at Fresno, California, on April 19 and 20, respectively, 1945.
before the undersigned, R. N. Denham , the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the Union, and the $espondent ap-
peared and were represented by counsel or by an official. All parties partici-
pated in the hearing and were afforded full opportunity to be beard, to
examine and cross-examine witnesses , and to present evidence pertinent to
the issues.
L. S. HUNN PACKING CO. 633
At the opening of the hearing, Respondent presented a motion to dismiss
this proceeding on the ground that all the employees involved therein are
agricultural workers within the meaning of Section 2 (3) of the Act and are
exempt from the operation of the Act and that the Board is without jurisdiction
over Respondent and the employees here involved. Disposition of the motion
was suspended until all the facts could be developed. The motion is disposed
of in this Intermediate Report. At the close of the taking of all testimony the
motion of counsel for the Board to conform the pleadings to the proof with
reference to the correction of names, dates, and other matters not material to
the main issues involved, was granted without objection. Extended argument
by counsel was made upon the record at the close of the hearing, and a memo-
randum brief has been received from counsel for the Board.
Upon the basis of the foregoing and on the entire record, after having heard
and observed the witnesses and considered all the evidence offered and received,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, L S. Hunn, is engaged in the business of growing and marketing
raw olives produced on approximately 480 acres of orchard land owned or con-
trolled by him under lease in the vicinity of Woodlake, California. During the
1944-1945 season, Respondent produced on his own property a total of ap-
proximately 1,160,230 pounds of olives, of which 576,230 pounds were sold for
ultimate transport outside the State of California, and approximately 684,000
pounds were sold to firms or persons within the State of California. The true
money value of the olives involved is not shown in the record, other than as
listed invoices indicate that the olives shipped outside the State of California
totaled in value more than $75,000. The character of the business done by
Respondent and the question as to whether it is wholly agricultural, or in
part is a commercial operation, will be discussed in a subsequent portion of
this Intermediate Report.
-II THE ORGANIZATION INVOLVED
California State Council of Cannery Unions, A. F. of L, is a labor organiza-
tion admitting to membership employees in packing houses, canneries, de-
hydrators, and in the freezing industry, and particularly admitting to membership
employees of Respondent.
III. THE STATUS OF THE EMPLOYEES WITHIN THE MEANING OF SECTION 2 (3)
OF THE ACT
Respondent contests the jurisdiction of the Board on the ground that he is a
farmer and that the employees here involved are agricultural workers exempt
from the jurisdiction of the Board under Section 2 (3) of the Act ,
Respondent owns or controls under lease, 480 acres of olive groves in the
general vicinity of Woodlake, California. Annual production is approximately
600 tons of olives taken from the groves which he owns or operates under lease.
His major operation is on his farm near Woodlake where he has erected a plant
in which he expects, at some future date, to carry on a general food processing
operation. This is a permanent brick and galvanized iron structure with over-
all floor dimensions of 100 by 200 feet plus an open concrete platform of 100 by
140 feet. Some food handling equipment is stored in the building, but none,
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except as hereafter noted, has been installed for operation The building is
not and never has been devoted to any use beyond that of storage, except for
the performance of the operations which are here under consideration The
only equipment in operation in the plant consists of a sorting belt, and an auto-
matic grader over which the-olives pass after leaving the sorting belt, and drop
into slots in accordance with their respective sizes, and thence into bins or
boxes placed alongside. This equipment takes up one corner of the main build-
ing. Except as otherwise noted, the employees here involved were employed
at the sorting and grading operation above described. Respondent had no other
employees except those working in the groves or about the farm as general
handy men. Not all the olives produced are sorted and graded However,
those that are so handled are brought to the sorting equipment from the field in
the field boxes that have been filled by the pickers, and are dumped into a hopper
which feeds the olives to the slowly moving sorting belt in a regulated flow.
The duties of those working at the sorting belt are to cull out the olives that
are bruised, rotten or misshapen and not of a commercial character, and also
to remove stems from olives where the stems have been left on by the pickers
This was the sole duty of the female employees herein conceived. After d1op-
ping from the sorting belt to the grader, the separation into sizes or grades is
automatic The olives are not again handled except to remove the filled boxes
from the graders and either load them on trucks for local delivery or place them
in brine filled barrels for distant delivery. The olive picking season is about 5
months long and ordinarily extends from sometime between September I and
October 15 to March 1 or 15 During the,rest of the year, the routine farm
work is carried on by a year-round crew When harvest time comes, the mem-
bers of the year-round crew may be found picking, sorting, driving tractors or
trucks, maintaining equipment, and generally making themselves useful wherever
needed. The picking, however, is primarily clone by seasonal workers, some of
whom are itinerant and others are residents in the vicinity of the groves
The employees here involved consisted of nine women who, it was stipulated
on the recoid, were employed on the sorting and grading operation when dis-
charged In addition, five male employees are listed The record reflects the
following as to their status and work: Robert Rippccoe began working for
Respondent about September 1, 1944, as a handy man, doing whatever was to be
done about the place This included driving trucks and tractors, cleaning up
weeds, helping at the grader, and other miscellaneous work with no single assign-
ment George Wagoner has been intermittently employed by Respondent from
the fall of 1942 into the fall of 1944. He does not fall into the category of a
"year round" employee but worked only when needed, which, as lie said was
"most of the time." Wagoner was a handy man and general farm employee
who worked at tractor driving, irrigating and various similar jobs, including
dumping the field boxes of olives into the sorter bin and the boxes of graded olives
into barrels. These latter he covered with brine and then closed the barrels.
,T. P. Rawlings started work for Respondent in September 1944 and did miscel-
laneous jobs, mainly repairing field boxes and picking ladders until the sorting
and grading operation had been under way about 3 days when he worked at the
grader, removing the filled boxes of graded fruit. Walter L Davis was a newly
hired man who drove tractors, cleaned up weeds, drove trucks and worked at the
grading operation, removing the filled boxes of graded fruit Albert L Asinan
was also a newly hired employee who did little if any work in the sorting and
grading operation. His work was to patch boxes, haul them to the field, and do
general handy man work in the field, occasionally going to the grader when a
"fill in" man was needed All of these men appear to have been hired as general
farm maintenance men, employed for the season to absorb the additional duties
L. S. HUNN PACKING CO. 635
imposed by the harvest, part of which duties placed them, at times, in the sorting
and grading operation when not otherwise employed at field work or maintenance
of field equipment. None appears to have had any single continuous assignment
Of the women here involved the record reflects that they are seasonal workers,
all of whom reside in or near Woodlake. Five of them had worked for Respondent
through one or more of the three preceding seasons, sometimes as pickers and
someties at the sorting belt. On the Monday following the discharge here com-
plained of, at least two of the women went to work for Respondent as pickets'
There is no particular skill required in the sorting and grading operation.
In Animertcani. F'svct Growers, Inc, 10 N. L It. B. 316, 327, the Board adopted, as
,,.in adequate interpretation which may be applied to the term `agricultural
laborer' as used in Section 2 (3) of the National Labor Relations Act," and has
consistently followed, the definition contained in United States Treasury Depart-
ment Regulation 90, Article 601 (1), published March 13, 1936, without, however,
adhering to all the specific rulings which hate been made with respect to this
definition by the Commissioner of Internal Revenue' This definition is also used
in the Social Security Act, 49 Stat 620, Section 811 (b), and provides that the
term
includes all services performed-
(a) By an employee , on a farm , in connection with the cultivation of the
soil. the harvesting of crops . or the raising , feeding, or management of live-
stock, bees and poultry, or
(b) By an employee in donne( Lion with the processing of article from
materials which were produced on a farm; also the packing , packaging,
transportation , or marketing of those materials or articles Such services
do not constitute "agricultural labor" however, unless they are performed
by an employee of the owner or tenant of a farm on which the materials in
their raw or natural state were produced and unless such processing, pack-
ing, packaging, transportation , or marketing is carried on as an incident to
ordinary farming operations as distinguished from manufacturing or com-
mercial operations .
This definition presupposes that the agricultural character of the work does
not necessarily tetininate with the severance of the crop from the tree or ground,
Star is Bi other s Nzrrscc i.es, et al . 40 N L It B . 1243, and also recognizes that "proc-
essing, packing , packaging , transportation , or marketing" the crop , when done
by the producer's own employees , may be "an incident to ordinary farming op-
erations ," and is not necessarily a part of it manufacturing or commercial op-
eration In its decisions , the Board has recognized that such a distinction may
and does exist , and in the case of Growci -Shopper Vegetable Association , supra,
makes special reference to the application of the "tests " set out in the above
definition.
The question of agricultural exemptions has come before the Board on numer-
ous occasions in both complaint and representation cases and in each instance,
on considering the special circumstances involved , the tests of the above defi-
nition have been invoked , either by direct reference , or by a process of ration-
alization that leads back to the definition At no time has the Board announced
' The record indicates that probably four of the women and two of the men returned as
pickers
2 Cf Noith Whittier Heights Citrus Association, 10 N L R B 1269, enf'd 109 F (2d)
76 (C C. A. 9) ; Grower-Shipper Vegetable Association of Central California, 15 N L R B.
322, enf ' d 122 F. (2d) 368 (C. C A 9 ) (the court notes that jurisdiction is conceded and
does not discuss the question This concession must have come after the Board decision
It was in issue there ). Park Floral Co , 19 N. L. R B. 403.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandonment of the limitations therein defined. In North Whittier Heights
Citrus Association, 109 F. (2d) 76, the court dwelled at length on the meaning of
the term "agricultural laborer," in the light of the present day economic develop-
ment of the "farm." The views of that court have been cited on numerous oc-
casions, with approval, by the Board. There, the court emphasized this develop-
ment by using as examples of the economic changes the time -
when every detail of farming from plowing to delivering the produce to the
consumer was done by the farmer and his "hired man,"
and the opposite condition evidenced in the facts of the case there under consid-
eration, -
when in the transition of citrus fruit growing from this independent action
to the great industry of the present in which the fruit is passed from the
individual grower through contract to a corporation for treatment in a pack-
ing house owned and run by such corporation, to be delivered by this corpo-
ration to an allied corporation for transportation and market.
In dealing with the contentions of the Association in that case the court further
observes:
Petitioner maintains that the nature of the work is the true test. Perhaps
it would more nearly conform to the true test to say that the "natare of the
work modified by the custom of doing it determines whether the worker is
or is not an agricultural laborer. [Italics supplied.]
And then follows with :
Petitioner argues that if each member of the non-profit cooperative corpora-
tion that runs the packinghouse were to persona]]y'hire and direct those doing
his own packing and sorting, the work would be agricultural and his em-
ployees would be agricultural laborers ; that it follows, therefore, that in
the case of the same members acting under a single organization to accom-
plish the same result there can be no change in the nature of the work nor in
the status of the persons doing it. The conclusion does not follow The
factual change in the manner of accomplishing the same work is exactly
what does change the status of those doing it. [Italics supplied ]
In the American Fruit Co. case, supra, and in Grower-Shipper case, supra, the
Board considered both factors that are set out in the foregoing. Those may be
generally referred to as the lettuce packing cases. The facts were analogous
to those in the citrus packing case of North Whittier Heights Citrus Assn. But
in viewing the nature of the work, the high degree of specialized organization
involved in carrying it on, the special skill of the packers and the fact that they,
in effect, constituted a craft unto themselves, as well as the fact that practically
none of the many concerns involved engaged in packing only their own production
of lettuce with their own employees, the Board found that, 'not only were the
tests not met, but the operation was wholly divorced from the farming operation
and had translated itself into a large and highly organized commercial marketing
business . In Idaho Potato Growers, et at, 48 N L R. B. 1084, enf'd 144 F. (2d)
295 (C. C A. 9), again the tests were not met, for the workers were employees'of
associations and dealers, and not of the farmers 'on whose'potatoes the graders
worked In its most recent case dealing with the subject, Pepcekeo Sugar Co .
et al., 59 N. L. R. B. 1532, the Board found itself confronted by practically the
entire sugar industry of Hawaii, made up of large corporations, individually
owning thousands of acres of sugar plantations together with railroads for trans-
porting the cane to the mills, irrigation systems, mills, and miscellaneous main-
tenance facilities . "Sugar plantations in Hawaii are complex, highly mecha-
L. S. HUNN PACKING CO. 637
nized, carefully organized and operated as large scale business enterprises " The
plantation owners were claiming agricultural exemption for all their employees
in every category from field hands to the handlers of the finished product.
In disposing of the claims of exemption, the Board engages in broad general
language to apply to that situation, and cites the North Whittier Heights case
in support of the proposition that:-
Although the term "agricultural laborer" is not defined in the Act, its meaning
is not obscure. The guide post is the ordinary meaning of the phrase, that
stemming from common usage and common understanding The term "agri-
cultural laborer," as commonly understood, refers to a person employed on
a farm in the cultivation of the soil, including the harvesting of crops and
the rearing and management of livestock.
Following this, the Board then applies it to the operations of the sugar com-
panies and emphasizes the absurdity of regarding locomotive engineers, con-
ductors, brakemen, engine oilers, machinists, welders, bricklayers, toolroom
clerks, etc. as agricultural laborers. Admittedly, those engaged in the actual
growing and harvesting of the cane, and loading it on trucks or cars for transpor-
tation to the mill are agricultural laborers, and the Board so found But the
business of the sugar companies is the manufacture of sugar It is essentially
commercial. The moment the cane starts toward the grower's mill, it enters
the commercial process and continues so through the grinding, melting, and
all other operations that eventually convert it into the raw sugars that are the
objective of the grower-manufacturer Such being the case, there is only one
point where the cut-off can take place in that industry. That is the point des-
ignated by this Board. It is in conformity with all the tests of the definition.
The objectives of the employer, the relation of the agricultural produce, i e., the
raw cane, to the finished stigars, and the nature of the work done in manufac-
turing the sugars, are repugnant to the proposition that anything done after the
cane is first loaded out of the fields, is agricultural in character. The decision
in the Pcpeeaeo case was designed to fit that case. The general language used
by the Board and its approval of the reasoning of the court in the North Whittier
Heights case, are in line with that decision, and (1o not indicate that the Board
has abandoned the definition of "agricultural labor" above quoted, by eliminating
its paragraph (9) and thus abruptly terminating the applicability of the exemp-
tion with the severance of the crop from the soil Until such abandonment and
modification are clearly indicated, it would seem proper to adhere to the definition
and the rule that, "the nature of the work, modified by the custom of doing it,
determines whether the worker is or is not an agricultural laborer." -
The instant case is readily distinguishable from any of those in which deci-
sions have been rendered by the Board or by the courts Respondent is primarily
a grower of olives. His product is totally inedible and he engages in no operation
or process that converts it into a consumable food product What handling he
does is not designed to fit the product for its ultimate distribution and sale His
employees meet the test of handling only the products grown by their employer
The sole question is whether the sorting and grading of the olives by the grower's
own employees, and on his premises, in order to fit them into the available market
for raw olives, is incident to the growing and harvesting of them In my opinion,
it is
Fundamentally, marketing a crop is an essential incident to producing it
Whether the work done to process the crop or convert it into a marketable com-
modity is agricultural or commercial, depends on the nature of the work done,
modified by the custom of doing it If the processing or packing is an integral
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of ordinary production or farming operations , and is an essential step before
the product can be marketed in normal outlets , it retains its agricultural charac-
teristic . Stark Brothers Nurseries , et al.. supra.; Lsiidstroni. Hatcheries , 49 N. L.
R. B 776. If, on the other hand, the processing , packing, packaging , transporting
and marketing are parts of a comprehensive , highly organized , specialized and
integrated processing , manufacturing or sales operation or business , as in Tovi ca
Packing Company, 12 N. L R B. 106.3 ; Pepeekeo Sugar Co., supra; and in the
lettuce, citrus and potato cases, the agricultural status of those who handle or deal
with the crop ceases when it has been severed from the ground and turned over
by the harvesters to those who are to carry the processing and marketing oper-
ations through to completion -
This Respondent , like all other growers of olives in his vicinity , had five out-
lets through which his crop could be disposed of: (1) By having them milled
for the production of oil This was usually done at a cooperative mill for the
account of the grower ; ( 2) By selling in bulk . "orchard run," to a dealer who
would glade them and resell by grades This method may be adopted when the
grower has no grading facilities , where the quantity involved does not justify
grading, where labor is not at hand for grading , or where , for some other reason
such "orchard run " sale seems desirable , ( 3) By selling to a dealer or, processor
by grades On that score, the uncontroverted testimony of Ilunn is as follows
Most olives are purchased on a graded basis from the grower The grower
either takes the olives to a cooperative and has them graded or has his own
sorting belt or grades them in some manner, and they are generally sold on
a graded basis , so much per ton in each size
(4) Olives destined for ultimate delivery at a distant point where they are to
be processed, are placed in barrels after having been graded, and covered with
brine for purposes of preservation ; ( 5) Fully ripe and shrivelled olives are first
placed in a bin and covered with salt foi about 3 weeks They are then run
through a shakes to rid them of the salt , sprayed with olive oil and placed in
kegs for shipment to the processor . Neither of these last two treatments is a
part of contributing to the edibility of the olives, but both are for the purpose of
preserving the fruit during transit and reasonable storage' Respondent utilized
all five types of marketing his crop; about 40 percent of it in hiine : 5 percent as
greeked olives ; 18 percent to the mills of oil ; and the rest was said locally , mostly
ungiaded , to dealers in California With a market for raw olives demanding
graded fruit , the processing necessary to meet that demand is an incident to his
ordinary disposition of the crop It is not a manufacturing or highly indus-
trialized enterprise and contributes nothing except to permit of normal disposi-
tion of the fruit The recoil reflects that this was the custom of the growers and
was based on the demands of the buyer dealers or processors It is true , he might
have taken all his olives to the mill to be pressed for oil, or he might have sold
his crop "orchard run," but that is not the way the crops are customarily disposed
of Custom cannot be ignored , nor should the grower be forced to change his
status in order to market his produce in the usual and ordinary outlets, so long
as lie retains his place as a grower and does not expand over into the field of
manufacture or commercial operations This is not unlike the farmer with his
hay or his wheat . If he has a baling crew come in from outside and bale his hay,
those men are on a commercial or industrial enterprise , but if he has hay -baling
3 The brine shipment is a war measure due to lack of refrigeration space Normally
the graded olives are shipped dry but under refrigeration The salt treatment-known
as "greeking" applies only to fully ripe olives and appears to be standard for that type
of fruit . Without it they would soon mold and spoil
L. S. HUNN PACKING CO. 639
equipment on his farm and has his own men do the baling, little question would
be raised about the exempt status of the workers'
Since Respondent did no processing beyond that incident to making his crop
marketable and was not engaged in a manufacturing or commercial operation
in so doing, it is found that the employees here involved, were employees of
Respondent engaged in sorting and grading inatei ml In the raw or natural state
produced by Respondent; and that such sorting and grading operations were
carried on as an incident of Respondent's orduiaiy olive growing operations
On the basis of the foregoing facts and upon all the record herein the
undersigned makes the following:
CONCLUSION OF LAW
1 That California State Council of Cannery Workers, A F of L,,is a labor
organization within the meaning of Section 2 (5) of the Act
2. That the employees alleged in the complaint to have been discrinunatorily
discharged on or about October 21, were in fact agricultural laborers within
the meaning of Section 2 (3) of the Act and are exempt from the provisions of
the Act, and that therefore the Boaid is without jurisdiction over Respondent
or any of the employees so described in the complaint
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed"
I In the 1943-1944 season, Respondent bought olivestroni other glowers and sorted
and graded them along with his own It was admitted that this constituted a commer-
cial venture and that the sorteis and giaders were not agiicultural workers In 1943-
1944, Respondent made pay-ioll deductions for Unemploi nient Compensation, Social
Security and Income Max of his sorting and grading employees because of that For
1944-1945 season he sought and obtained rulings from all these agencies that no deduc-
rions should be made if lie confined his operations to his own crops, since the employees
would then be regarded as "agiicultural laborers" and exempt.
5In the summer of 1944, Respondent airanged to snake some experiments to determine
the cost of packing processed olives in glass darn tor distribution to the public Ile made a
tormal application to the War Labor hoesd for wage ceilings to cover the various opera-
tions involved in the processing and packing of olives ton ultimate consumption and then
piocured several barrels of his own ohs es to be processed el,ewlieie and ieturned to him
foi experimental packing At the beginning of 1944-1945 picking season, Respondent
encountered difficulty in getting his olives picked with the result that the supply of olives
to be handled at the sorting belt was only a small fraction of normal production Rather
than send the sorteis home after 2 hours or so of work, Respondent had them fill in their
time by carrying out the experimental packing of the processed olives in the basement of
]its building This experiment was carried on intermittently for 2 weeks or so on the
otherwise idle time (if the goiters and eventually demonstrated that the cost of handling
the olives would he out of proportion to the ceiling price allowed Respondent by the OPA,
with the result that the experimental packing was abandoned with the release of the
employees here involved while there Ras no particular stipulation on that score, this
activity on the part of the employees was apparently regarded by all parties , including
counsel for the Board and the Respondent, as a temporary arrangement not representing
the normal activities of the employees here involved and not to be considered as a part of
their regular employment in the determination of the question as to whether they are
agricultural laborers In view of this. the writer has proceeded, pursuant to the stipula-
tion of the parties read into the record "that as to all but Robert Rippecoe, George
Wagoner, J V Rawlings, Walter L Davis, and Albert L Asman, these mdniduals were
working in the grading operation," to determine the status of these employees solely upon
their employment in the grading operation
For the information of the Board , since the Intermediate Report embodies a recom-
mendation of dismissal for lack of jurisdiction and consequently the merits of the com-
plaint are not in issue at this stage, there is attached hereto as Appendix A, a rSsunih of
findings of fact concerning the merits , offered as they would have been set out in the Inter-
mediate Report had there been occasion to formally make such findings Any Conclusions
of Law or Recommendations are intentionally omitted therein.
679100-46-v of 63-42
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective July 12, 1944, as amended,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations file with the Board, Rochambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board.
It N DENHAM,
Trial Examiner.
Dated May 23, 1945.
APPENDIX A
Basic findings of facts on merits
In the Intermediate Report to which this appendix is attached the writer has
recommended that the complaint be dismissed on jurisdictional grounds. For
the information of the Board, the following is a resume of the facts developed
during the course of the hearing as they pertain to the merits of the complaint
L. S Hunn owns or controls by lease, some 4S0 acres of olive groves in the
general vicinity of Woodlake, California. His acquisition of these substantial
holdings has been comparatively recent, and it has only been since 1941 or 1942
that he has had facilities to sort and grade olives on his own premises His
activities prior to that year are not reflected in the record. Normally he now
produces about 600 tons of olives on his own lands during each year These are
picked beginning about October 1 and extending into March. The harvest has
two peaks, one occurring in November and one in February. Ordinarily, most of
the olives are marketed by grade, which, under normal conditions will require
16 to 18 persons on the sorting belt, together with some temporary men and 10
or 12 of the year round farm employees who work at farm equipment maintenance,
trucking, or driving tractors or in the plant where the sorting is being carried
on, or wherever they may be needed. The persons employed at the sorting belt
are temporary female workers, who reside in the vicinity of Woodlake, and, dur-
ing the season usually work approximately 48 hours per week exclusively on the
sorting and grading operations. During the harvest season, ordinarily there
are a few men, likewise temporary, who do odd jobs around the farm, and in the
sorting and grading shed. Their work is intermittent and interchangeable
In the sorting and grading, their work usually consists of handling the boxes
of olives as they come from the field or as they are filled at the grader All the
employees here involved are in the "temporary" class and some of them have
worked with the Respondent, either as pickers or sorters, or both, each season
since be began his substantial production operation. ' Others were employed for
the first time in 1944.
The volume and steadiness of the employment of those engaged in the sorting
and grading operation obviously depend upon the operation of the pickers in the
groves and the flow of fruit from them. In the season of 1942-1943, with approxi-
L. S. HUNN PACKING CO. 641
mately 16 women on the sorting belt, Respondent consumed approximately 13,000
women hours. In the 1943-1944 season, he consumed approximately 14,000 women
hours. During these two previous seasons, ample pickers apparently, were avail-
able and the flow of fruit constant. At the opening of the 1944-1945 season, how-
ever, Respondent was unable to obtain an adequate number of pickers and experi-
enced much difficulty in obtaining a constant or substantial flow of fruit from the
groves because of the intermittent work stoppages of such pickers as were there
and their recurrent demands for progressive increases in pay rates This is
reflected in the fact that the cost of picking the 1944-1945 crop advanced approxi-
mately $60 per ton over the picking cost of the previous year. Due to his
inability to obtain pickers. Respondent lost approximately 15 percent of his
1944-1945 crop where normally there is no loss. This uncertainty as to picking
reflected itself in irregularity and shortage of employment for those on the
sorting and grading operation to the extent that in the 1944-1945 season, Respon-
dent consumed only approximately 3.700 women hours as against 14,000 in the
previous year.
In early October 1944, at the beginning of the 1944-1945 season, Respondent
initially hired a normal sized sorting and grading crew and the usual number of
men as general workers, that would correspond to ordinary requirements at that
early part of the season. Almost from the start, Respondent found his sorting
and grading operations held up because of his difficulties with the pickers, with
the result that the sorting and grading crew, instead of having the usual 8 hours
of work each day, found itself with only 2 or 3 hours of sorting and grading
work per day.
In the summer of 1944 Respondent had attempted to make plans to extend his
operations from the growing of olives to processing and packaging them for
ultimate consumption He applied to WLB for a determination of wages in the
processing operation, and to the OPA for ceiling prices on whatever he might
produce : and, having obtained a statement of ceiling prices, planned to do some
experimental work, or "test runs," to determine whether he could process and
pack olives and sell them within the allowed ceiling.
Anticipating this possible change, he had held over some of his 1943-1944 crop,
and had them processed in a California processing plant. He set up temporary
equipment in the basement of his Woodlake building, with which to carry on his
tests as to the cost of loose packing those olives in glass jars, and lidding and
labelling them Some very small amount of this was done in the summer of 1944.
but when it was discovered that the 1944-1945 sorting and grading crew could
be kept busy at their regular work only-a few hours per day, Respondent kept
them employed in their otherwise idle time, at the experimental packing, rather
than send them home each day after a few hours of sorting and grading. In fact,
by the second week in October, the overstaffed condition of his crew led him to
dismiss a number of them because of lack of fruit for sorting. Those who
remained were the 9 women here involved and the five men who spent some time,
when not engaged elsewhere, at the grading operation or in the packing work
above referred to. These 14 were the only temporary employees, other than
pickers and field workers, left in Respondent's employ on October 20, 1944. At
that time, with the reduced force, the women were spending about half of their
time at the sorting belt and the rest of it packing. The men were spending even
less in the grading shed and worked at the packing only when they had no outside
work to do. The only other employees were the picking crew and about 12 year
round employees who worked at miscellaneous jobs as directed from time to time
by the farm foreman
0
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 20, 1944, Respondent was away from the Woodlake place all day
and did not return until the latter part of the evening At noon of that day, while
the temporary workers were eating their lunch, Alen Luscutoff, business repre-
sentative of the Union, approached them and solicited their signatures on cards
designating the California State Council of Cannery Unions, A. F of L, to repre-
sent them for purposes of collective bargaining. Apparently all the temporary
workers then present signed these designations This was Luscutoff's first visit to
the plant and on that clay he did not speak to any of the supervisory employees
or any person connected with the plant, other than the temporary employees
whose naives he acquired on the designation blanks He was, however, observed
by the bookkeeper, Oscar Witt.
On the morning of October 20, the sorting and grading groups, consisting of
nine women and some of the temporary men employees heretofore referred to,
worked at the sorting and grading operation for 2 or 3 hours and at about 10
o'clock, when there were no more olives to sort or grade, were directed to go to
the basement and busy themselves on the packing operation It was at noon of
this day when they signed the Union's designation cards. At about 3 o'clock in
the afternoon, the barrel of processed olives upon which they were working was
exhausted, and the farm foreman, Archie Martin, told them to stop work and go
home Some question was raised as to whether they should come back the next
morning Witt, who was also helping with the packing operation, said he would
go into the office and find out whether they were to come back He did so, and
atter,a few minutes, returned and told them they were to return the next morning
as usual. That evening, Martin and Hunn were together for a short time talking
about business matters but no mention was made of laying off the employees the
next morning, nor was any mention made of the union activities which had taken
place (luring the day Martin testified, and there is nothing to controvert it,
that he knew nothing of any union activities at the shed at the time, and did not
learn of them until the next morning, when one of the laid off men told him as
Mai tin handed him his check This statement by Martin is credited Hunn also
stated that he knew nothing of the union activities but-chat on the evening of
October 20 Witt had told him of Luscutoff's visit at the plant Hunn's testimony
on this was:
A I hadn't seen him (Luscutoff) until after October 21.
Q. I think you did say Mr. Witt, who was working for the warehouse
company some time or other mentioned a union man had been around
A Yes, he mentioned it to me, but I bad never bothered, I was busy with
pickers at that time
Q. Do you recall whether he mentioned it to you before or after the lay off?
A. It was on Friday, I imagine. The day before the lay off
There is nothing to indicate that Witt had any knowledge as to'how many of
the temporary employees had signed designation cards with the Union, nor does
the record reflect what Witt told Hunn, beyond the single statement by Hunn
above quoted
On the morning of Saturday, October 21, that being the regular pay day, all
the temporary employees assembled at the plant expecting to go to work, but
found their time cards were not in the rack They accordingly waited for
developments and for their regular pay checks. After a short time, Hunn came
out of the office and-handed all the women their checks, covering payment in-full
up to the time they had stopped work on the preceding day He also had checks
for persons who had worked other parts of the week and who were not present.
These he gave to those who could deliver them to the proper payees, and in this
manner closed out the entire list of temporary employees. The checks for the five
L. S. HUNN PACKING CO. 643
temporary men employees were handed to Martin who was instructed to give them
to the men indicated and to "make the lay-off" This lay-off marked the perma-
nent abandonment of the canning operation and eliminated all the temporary
employees on the farm at that time except picking crews. The only other em-
ployees remaining were some 10 or 12 permanent year round employees. There
is no evidence that up to this time, Respondent had indicated any antipathy
toward any labor organization or any apparent opposition to his employees' join-
ing labor organizations.
When paying the final checks on the morning of October 21, Hunn volunteered
no information as to the reason for the lay-off beyond saying, "That is all", and
no one asked any questions except as hereinafter noted They all knew, how-
ever, of the difficulties he was having getting his olives picked and from their
own work experience, were familiar with the fact that only a small quantity of
olives were available for sorting and that conditions were abnormal
At the time of the lay-off, Laura Kelley, one of the women who had taken some
processed olives home a day or two before, had the money with her to pay for
them. After getting her check, she approached Hunn and told him she wanted
to pay for the olives According to her testimony, after telling Hunn this, she
told him also that they were sorry "the way things had happened," and Hunn's
reply v as that he "didn't like to be stabbed in the back " On further examination
Mrs Kelley testified :
Q What we want to know, and this is very important, just as nearly as
you can tell us the conversation that you had with Mr. Hunn on that after-
noon about this lay-off
A. Well, we were talking about the Union and I told him-
Q. (Interposing.) Who
A. Mr Hunn and I. After I had told him I was sorry.
Q Then who first mentioned the Union?
A Well, I don't know, probably I did, I don't remember. But anyway
I told him' I didn't know much about the Union, but I knew my husband was
a strong union man and he said his father was a union man.
Q Who said that?
A Mr Hunn
Q Said his father was?
A And he had no objection to the Union, that he liked the Union, but
he felt that every one should have a right to do as they pleased
Q. Was there anything said further than that9
A. Well, not that I can recall
Another witness, Eliza Simmons, testified that when she received her check
on the morning of October 21, Hunn also gave her a check for her daughter
who had worked a short time (luring the previous week, but that the check was
in a wrong amount and that she went to Hunn and asked him to have it corrected.
Her testimony was:
So I said to Mr. Hunn, "Mr Hunn, what is the reason for this?" He said
"you know the reason" then he said, "Well, this is just anotheri stab in the
back to me" Of course, he was sore, and didn't want any more argument and
with that I left the building That was all that was said.
Hunn's testimony concerning the Kelley incident is as follows:
Well, she made-I believe she made the statement. that this is the reason
of the lay-off, it is, due to us signing with the Union Of course, that came as
a shock to me, because I hadn't given it any thought and I said, "Absolutely
not." I said, "You signed or some of them signed for a union" she said "Yes".
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "Well, that i,s alright " She said. "Well. I thought"-these are not
the exact words, but something to it-"so." I said, "No, I have no objection
to any union, because I have always more or less favored the union." She
made the statement her husband was a union man. I remarked back and
said, "My father is also a union man ; in fact, one of the originators of the
A. F. of L. in California ; the one that originally started the bricklayers
union in California."
The foi egoing was in answer to questions put to Hunn by the Trial Examiner,
Previously he had described the eonveisation witlii Mrs Simmons in substan-
tially the same manner that Mrs Simmons had. told of it, but stated that he was
unable to recall making any statement either to Simmons or Kelley in which he
made reference to a "stab in the back". The foregoing constitutes the entire
direct evidence relied on by Boatd's counsel to show that the October 21st lay
off was discriminatory.
Following the lay-off, at least two of the women, both of whom had worked for
Respondent in previous seasons, went to work the following Monday in Respond-
ent's grove picking olives These two transferred from the grove back to the
sorting and grading operations in February and continued in that operation
until the close of the season. None of the others returned to work for the
Respondent nor did any'of them request to be again employed.'
Following the lay-off, all sorting and grading operations ceased and did not
resume again until after November 1st when they were picked up in a very small
way and carried on by Hunn, his wife, and other members of his family, with
the assistance of two or three women who, as old time employees from previous
years, had made applications for jobs, and had been hired. Thereafter and
through much of the rest of the season, Hunn never had more than four or five
women working on the sorting and grading operations The record does not
indicate that he replaced any of the men He did not send for the discharged
employees to return, and none of them applied for work, except as pickers as above
set out, but hired former employees as they made applications for jobs.
Hunn explained that the difficulty over picking was general in the industry
during the 1944-1945 season, and that a number of the sorting and grading opera-
tions as well as processing plants were closed down because of it;.that many
of the growers shipped their olives to a commercial grading plant in order to
consolidate shipments, whereas in normal times he would have made up com-
plete loads of graded olives at his own plant; that he also shipped something
in the neighborhood of 100 tons to the mill for pressing into oil, and as an over-
all result, did not put more than 25 percent of the normal amount of olives over
his own sorting table.
The foregoing fairly recites all the pertinent facts, and, beyond commenting
on matters of credibility and plausibility of recitals, the writer draws no con-
clusions of law and makes no recommendations.
The entire basis for any claim that the discharges of October 21, 1944, were
discriminatory, lies in the timing, and on whatever credence may be given the
testimony of Kelley and Simmons, that on the day of the discharges, Bunn
made the statement that he had been "stabbed in the back."
Respondent denies that the discharges were discriminatory and gives as his
reason for the lay-off and resultant shut down, that he had determined from
his "test run" experiments, that he could not pack olives under his 0 P A.
'Although questions addressed by Board counsel to Hunn, while on the witness stand,
indicated that four of the women and two of the men Involved In the lay-off Immediately
returned to Respondent's employ as pickers, the record affirmatively shows only that two
of the women did so These two were witnesses and testified as to their respective actions
only.
L. S. HUNN PACKING CO. 645
ceiling, in competition with others, and so abandoned the packing work ; that
he could not afford to run his grader only a'few hours per day; that all growers
were having similar difficulty, and that he determined to have his olives go
through a commercial grading plant and from that point, make up loads with
others, for sale to points within trucking distance ; that he and his family could
grade the small amount that would come through under this plan and that he
therefore simply had no further use for the temporary help. Actually, very little
was done during November and December, although one or two women were hired
to help out, most of whatever grading was clone, being done by Hunn and members
of his family. The circumstances are such as to give substantial weight to his
reason for the lay-off Its proximity to the signing of the union cards is not
explained, but the writer is inclined to the belief that this timing was coinci-
dental. The conditions in the industry in general and at Respondent's plant
in particular, were such that a substantial reduction, if not a total elimination,
of the sorting and grading crew was indicated at the time. It would have been
poor business to have retained them.
As to discriminatory intent, the only evidence of that is the "stabbed in back"
testimony of Kelley and Simmons. In view of the rest of the conversation
between Hunn and Kelley, in which, they both agree, he expressed approval of
labor unions and rather boastfully told of his father's leading role in establish-
ing A. F. L in California and assured Kelley he believed everyone should do as
he pleased about joining a union, it is difficult to reconcile these views with any
idea that if Hunn mentioned "a stab in the back," (I cannot find that he did)
he was referring to the action of the employees in interesting themselves in the
Union. This is especially true since he obviously knew nothing more than Witt
had told him and Witt had no information other than that a union man had
visited with the employees and that he had, seen them signing some kind of
papers.
In view of the operational difficulties he was having, which made it impossible
to adequately use his sorting and grading crew in October, and his conversation
with Kelley, I am unable to find that the discharges were motivated by any
factor other than business reasons.