Light's Tree Co.

National Labor Relations Board - Board Decisions

Nov 17, 1971

194 N.L.R.B. 229 (N.L.R.B. 1971)

LIGHT'S TREE COMPANY 229
Light's Tree Company and Laborers' International
Union of North America , AFL-CIO, Local 259,
Petitioner. Case 7-RC-10533
November 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Kenneth E. Mead-
ows on May 13, 1971, and continued before Hearing
Officer Richard D. Hayes on June 30 and July 7, 1971.
Following the hearing and pursuant to Section 102.67
of National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision 'by direction of
the Regional Director for Region 7. Only the
Employer filed a brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
1. The Employer is engaged in the operation of a
horticultural nursery on a 220 acre tract of land in
Richland, Michigan, and in the wholesale and retail
sale of its horticultural products together with
incidental landscaping of self-grown products on the
premises of its customers. During 1970 the Employer's
gross revenue exceeded $500,000, and its purchases
from outside the State of Michigan exceeded $30,000.
We find, contrary to its contention, that the
Employer is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.2
2. The labor organization involved claims to
represent certain employees of the Employer.
3. No question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) of the Act for
the following reasons:
1 The Employer has requested oral argument. This request is hereby
denied because the record and the brief adequately present the issues and
the positions of the parties.
2 Man Products, Inc, 128 NLRB 546
3 Section 2(3) exempts from the definition of "employee" "any
individual employed as an agricultural laborer .. "
4 There is a dispute about the amount of nonhorticultural work
performed by landscape employees. According to the Employer's witnesses,
regular landscaping employees only spend about 5 percent of their time in
such work Because of their higher level of skill , foremen perform more of
The Petitioner seeks to represent a unit of the
Employer's nursery and landscape employees. The
Employer contends that these individuals are
"agricultural laborers" exempt from the Act's cover-
age by virtue of the definition of "employee"
contained in Section 2(3) of the Act.3
The Employer raises shade trees, flowering trees,
evergreens, small shrubs, vines , ground coverings, and
similar stock for transplantation by its landscaping
employees onto customers' properties. It purchases
80-90 percent of its stock in the form of seedlings and
small whips, and the remainder in large stock, for
replanting in its nursery for further growth and
development before sale to customers.
Although the Employer sells some of its stock
through its retail store located at the nursery to private
buyers, and some to other, nursery and landscaping
businesses at wholesale, the great bulk of its nursery
products are used in its own landscaping operations
for private, business, and institutional customers.
While most of its landscaping involves only the
transplantation of its nursery products and the
development of lawns from seed, a small amount of its
work involves nonhorticultural activities such as
installation of sprinkler systems, erection of fencing,
stone work, and sodding. This nonhorticultural work
is performed only in conjunction with nursery
landscaping work performed by the Employer and is
undertaken where the customer wants all landscaping
performed in one operation. Wherever feasible the
Employer prefers to subcontract this nonhorticultural
landscaping.
Employees working in the nursery propagate,
cultivate, water, transplant, trim, spray, dig, and
engage in other related functions necessary to insure
the development and proper growth of the nursery
stock. Landscape employees plant, mulch, water, and
trim stock on the premises of the customers. They
may also perform nonhorticultural work described
above.4
Since 1947 Congress has attached a rider to the
Board's annual Appropriations Act which in effect
makes the definition of agriculture set out in Section
3(f) of the Fair Labor Standards Act obligatory upon
the Board. This section (29 U.S.C. 203 (f)) defines
"agriculture" in pertinent part as follows:
"Agriculture" includes farming in all its branch-
es and among other things includes the cultivation
the nonhorticultural landscaping work than nonsupervisory employees.
According to two of the Petitioner's witnesses, crews spend about 50
percent of their time during the bulk of the spring and fall busy seasons
doing this work The testimony of the Petitioner's witnesses as to the
amount of nonhorticultural landscaping by nonsupervisors is not
projectible on a full year basis. In view of the fact that the Employer's
business records show that only 9.7 percent of its gross receipts is derived
from nonhorticultural landscaping , it seems improbable that nonsuperviso-
ry landscape employees spend more than 10 percent of their total worktime
in such nonagricultural work. We so find.
194 NLRB No. 35
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tillage of the soil, dairying , the production,
cultivation , growing, and harvesting of any agri-
cultural or horticultural commodities . .. .
A regulation of the Department of Labor states that
nursery employees engaged in the following activities
are employed in "agriculture" (29 CFR § 780.174):
(a) Sowing seeds and otherwise propagating fruit,
nut, shade , vegetable and ornamental plants or
trees ... and shrubs, vines and flowers;
*
(c) Planting, cultivating , watering , spraying, ferti-
lizing, pruning, bracing , and feeding the growing
crop.
Another regulation of the Department defines the
following as exempt agricultural work (29 CFR §
780.175):
(a) The planting of trees and bushes is exempt
where it constitutes a step in the production,
cultivation , growing, and harvesting of agricultur-
al or horticultural commodities , or where it
constitutes a practice performed by a farmer or on
a farm as an incident to or in the conjunction with
farming operations (as where it is part of the
subordinate marketing operations of the grower of
such trees or bushes). Thus, employees of the
nurseryman who raised such nursery stock are
doing exempt work when they plant the stock on
private or public property, trim, spray, brace and
treat the planted stock , or perform other duties
incidental to its care and preservation.
Thus it appears, and we find, that the nursery
employees , and the landscaping employees , except to
the extent that they are engaged in nonhorticultural
landscaping activities , are engaged in exempt agricul-
tural work and are therefore "agricultural laborers"
excluded from the definition of employees in Section
2(3) of the Act .5 In finding that the nursery and
landscape employees here involved fall in the exempt
category, we do so on the facts revealed by the record
here considered in the light of the legislative enact-
ments. While we accorded great weight to the cited
regulations of the Department of Labor, and the
definitions thereunder, we do not rely exclusively on
them. Although landscaping employees do some
nonexempt work , this represents too small a percent-
age of their annual total work time to justify an
election among them to select a bargaining agent who
will represent them insofar as they engage in such
nonagricultural work.6
Accordingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
MEMBER JENKINS, dissenting part:
I do not agree with the finding of the majority that
the nonagricultural work performed by the landscap-
ing employees represents too small a percentage of
their annual total work to remove them from the
agricultural exemption.
As noted by the majority, the definition of agricul-
ture as set out in Section 3(f) of the Fair Labor
Standards Act is made obligatory upon the Board,
and while the Board does not rely exclusively on the
interpretations given that section by the Department
of Labor, we do accord such determinations great
weight, in view of that agency 's responsibility and
experience in administering the FLSA.
Section 780 . 110 of the Labor Department's Inter-
pretative Bulletin relating to exemptions applicable to
agriculture states as follows:
Exempt and nonexempt work during the same
workweek.
Where an employee in the same workweek
performs work which is exempt under this section
13(a)(6) and also engages in work to which the Act
applies, not exempt under this or any other section
of the Act, he is not exempt that week , and the
wage and hour requirements of the Act are
applicable (see Mitchell v. Hunt, 263 F .2d 913;
Mitchell v. Maxfield, 12 WH Cases 792 (S.D.
Ohio), 29 Labor Cases 69, 781; Jordan v. Stark
Bros. Nurseries, 45 F. Supp. 769; McComb v.
Puerto Rico Tobacco Marketing Co-op Ass'n., 80 F.
Supp . 953, affirmed 181 F.2d 697 ; Walling V.
Peacock Corp., 58 F. Supp . 880-883).
The Board , however, has taken a somewhat differ-
ent position regarding employees who spend part of
their time in agricultural duties and part in nonagri-
cultural. In Olaa Sugar Company, Limited.7 the Board
announced the rule "that employees who perform any
regular amount of nonagricultural work are covered
by the Act with respect to that portion of the work
which is nonagricultural ." This rule was reaffirmed in
Rod McLellan Co., supra.
Applying the above principle to the, facts of this
case, I note that the Employer's vice president
testified that regular landscape employees spend
about 5 percent of their time performing nonagricul-
tural work . However , a witness for the Petitioner
stated that his landscaping crew spent about 50
percent of its time during the busy season, which
extended from early spring to late fall , performing
5 Rod McLellan Co, 172 NLRB No 157 ; Stark Brothers Nurseries, 40
NLRB 1243, 1249.
6 N.L RB. v. Kelly Brothers Nurseries; 341 F2d 433 (C.A. 2), cf. Rod
McLellan Co, supra.
7 118 NLRB 1442.
LIGHT'S TREE COMPANY 231
nonagricultural work. Another witness for the Peti-
tioner testified that his crew spends about 50 percent
of its time doing nonagricultural work. No reference
was made to a particular season.
Unlike the majority, I am unwilling in these
circumstances to apply the de mini-mis principle to the
nonagricultural work performed by the landscaping
employees. It is quite possible that such work is
indeed performed on a regular or recurring rather
than sporadic basis, and the Employer has the burden
of showing otherwise; i.e., that the exemption is
applicable . I would therefore find that the landscap-
ing employees are not agricultural workers to the
extent that they are regularly engaged in nonagricul-
tural work such as the installation of sprinkler
systems, the erection of fencing and stone garden
walls or walks , and sodding.