Oxford Royal Mushroom Products, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1962

139 N.L.R.B. 1015 (N.L.R.B. 1962)

OXFORD ROYAL MUSHROOM PRODUCTS, INC. 1015
Oxford Royal Mushroom Products , Inc. and Steelworkers Fed-
eration, Independent , Petitioner. Case No. 4-RC-4800. Novem-
ber 15, 1962
DECISION ON REVIEW
On January 12, 1962, the Regional Director for the Fourth Region
issued a Decision and Direction of Election in the above-entitled
proceeding . Thereafter, the Employer, in accordance with Section
102.67 of the Board's Rules and Regulations, as amended, filed with
the Board a timely request for review of such Decision and Direction
of Election on the ground that the Regional Director erred in conclud-
ing that its cannery and warehouse employees were nonagricultural.
The Board by telegraphic order dated February 6, 1962, granted
the request for review and stayed the election pending its decision on
review.
On April 26, 1962, the Board issued an order reopening record
and remanding proceeding to Regional Director for further hearing
for the purpose of adducing evidence as to whether the practices
performed by the Employer at its cannery and warehouses are per-
formed as an incident to, or in conjunction with, its mushroom farm-
ing operations in the light of the criteria set forth in Sections 780.153-
780.157, inclusive , of the Interpretive Bulletins issued by the Ad-
ministrator of the Fair Labor Standards Act. Pursuant thereto, a
further hearing was held before David S. Reisman, hearing officer.
The hearing officer's rulings made at the reopened hearing are free
from prejudicial error and 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 [Chairman McCulloch and Members Leedom and
Fanning].
The Board has considered the entire record with respect to the
issues under review, and the briefs of the parties, and makes the fol-
lowing findings :
In his Decision and Direction of Election, the Regional Director
found that the machine -cutting, canning and warehousing of mush-
rooms by the Employer are not practices performed as an incident
to, or in conjunction with, its farming of mushrooms . He therefore
found appropriate a unit of such employees and excluded as agri-
cultural employees only the workers employed in the growing areas.
The Employer contends that all its employees are agricultural.
In determining whether employees are agricultural the Board is
required to follow the definition of the term "agriculture" which is
contained in Section 3(f) of the Fair Labor Standards Act. That
section states that "Agriculture includes farming in all its branches
139 NLRB No. 102.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and among other things includes the cultivation and tillage of soil,
dairying, the production, cultivation, growing and harvesting of any
agricultural or horticultural commodities . . . and any practices .. .
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations. . . ." In applying such definition the
Board attempts to follow the decisions and interpretations of the
Administrator of the Fair Labor Standards Act. Lacking any spe-
cific decision involving the disputed employees, we are guided by the
Administrator's Interpretative Bulletins.'
Section 780.154 thereof provides :
The character of a practice as a part of the agricultural activity
or as part of a distinct business activity must be determined by
examination and evaluation of all relevant facts and circum-
stances. . . . The result will not depend on any isolated factors
or tests. Rather, the total situation will control . . . the general
relationship, if any, of the practice to farming as evidence by
common understanding, competitive factors and prevalence of
its performance by farmers should be considered . . . also con-
sider size of operations and respective sums invested in lands,
buildings and equipment; amount of payroll for each type of
work; number of employees; the amount of time they spend in
each activity; the amount of interchange of employees between
the operations; amount of revenue derived from each activity;
and the degree of separation established between the activities.
Section 780.157 provides :
. . . it is also necessary to consider the type of product resulting
from the practice-as to whether the raw or natural state of the
commodity has been changed. . . . Consideration should also be
given to the value added to the product as a result of the
practice... .
The record discloses the following facts with respect to the practices
here involved :
The Employer is in the business of spawning, growing, picking,
cleaning, cutting, canning, storing, shipping, and selling mushrooms.
Operations on its 100-acre farm are carried on mainly in 4 horti-
cultural buildings covering 341,000 square feet of growing space, a
cannery, and warehouses. These operations are located in the Ken-
nett Square growing area which covers parts of Pennsylvania, Mary-
land, and Delaware. This area is underbedded by limestone which
nourishes the mushrooms. There are approximately 450 mushroom
growers here. Five of them are also engaged in mushroom canning
operations. In addition, three grocery chains also operate mushroom
126 Fed Reg . 10389 ( 1961).
OXFORD ROYAL MUSHROOM PRODUCTS, INC. 1017
canneries here. The Employer's canning operations are estimated to
be the fifth or sixth largest in the area.
About 20 percent of the mushrooms grown by the Employer are
shipped to the fresh market. The remaining 80 percent are canned by
the Employer, and the cans are placed in larger containers and ware-
housed until sale and shipment to the market. As it is necessary that
mushrooms ready for harvesting either be shipped to fresh market or
canned within a very short time, the Employer buys mushrooms for
canning from up to 25 different nearby growers when their mushrooms
are harvested too late in the week for shipment to the fresh market
which is open only 5 days a week. The Employer also buys mush-
rooms of various types and sizes from other mushroom growers to
meet specific demands of its own brokers. During canning opera-
tions, such buying is a daily practice. In addition, the Employer buys
canned mushrooms from other canneries to satisfy its own require-
ments. For bookkeeping purposes, these purchases are classed as a
loan account. The Employer sells most of its canned mushrooms under
its own labels. Occasionally, its customers"labels will be used. Dur-
ing 1960 and 1961, the Employer purchased from other growers fresh
mushrooms valued at approximately $447,000 and $500,000, respec-
tively, and during the past year purchased canned mushrooms from
other growers with value estimated at approximately $160,000.
The Employer's gross sales for the years 1960 and 1961 amounted
to $1,752,000 and $1,915,000, respectively. Its overall operations, in-
cluding land, buildings, and equipment, represent a total investment of
approximately $750,000. The canning equipment is valued at $40,000;
the cutting machinery represents an investment of $25,000; and the
blanchers have an estimated value of $5,000. The building housing the
canning operations, the spawning department and a portion of the
warehouse space is valued at $100,000. Two other warehouses have a
value of $50,000. The total value of the investment in canning and
warehousing operations is thus upwards of $120,000.
The number of employees working on the Employer's farm varies
according to the season, the weather, and the size of the crop. It ap-
pears that, on the average, approximately 110 are employed in the
farming operations, including 40 to 50 pickers and 4 or 5 in the spawn-
ing department. Approximately 122 women are engaged, in season, in
the preparation of mushrooms after their delivery to the cutting
tables, and about 17 are employed in the warehouses. The amount of
employee interchange is not significant and occurs primarily between
employees in the spawning department and the growing areas. There
is no evidence that women in the canning department have had oc-
casion to work in the growing areas. The workers in the growing
areas who have assisted in the canning department for short periods
of an hour or more have done no canning but rather have moved cans,
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driven trucks, and worked on machinery. Over a 3-month period,
these workers have assisted in such fashion on only six occasions.
During that same period, no warehouse employee did any work in
the growing areas. Each phase of the Employer's operations is un-
der separate supervision.
Applying the criteria indicated in the Interpretive Bulletins of the
Administrator of the Fair Labor Standards Act, especially those
spelled out in Sections 780.154 and 780.157, above-quoted, we are satis-
fied that the Employer's canning and warehouse operations are prac-
tices which are not performed as an incident to or in conjunction
with the Employer's farming operations.' The processing of a farm
product which requires such a sizable investment in machinery and
involves heating and canning the product for purposes of preserva-
tion and more flexible marketability is not, in our opinion, incidental to
farming but is a separate industrial enterprise which only happens to
be performed on a farm. We do not believe that Congress intended
to exclude employees engaged in such operations from the protection
of the Act. We therefore affirm the Regional Director's determina-
tion that individuals engaged in various aspects of the canning and
warehousing operations of the Employer are not "agricultural labor-
ers" but are employees within the meaning of the Act.'
Accordingly, the case is hereby remanded to the Regional Director
for the Fourth Region for the purpose of holding an election pursuant
to his Decision and Direction of Election, except that the payroll pe-
riod for determining eligibility shall be that immediately preceding
the date below.'
2 See Maneja v. Waialua Agricultural Co., 349 U.S. 254.
'As there are hand cutters who work side by side with machine cutters , and do both
types of work interchangeably , we shall, as requested by the Petitioner in its brief, amend
the Regional Director ' s unit description by inserting the words "or by hand" after the
word "machine."
`As it appears from the record that the Employer 's mushroom canning season is cur-
rently in progress , it is unnecessary to pass upon Petitioner ' s request that the election be
postponed until after the start of the next season.
Banner Yarn Dyeing Corporation and William Neville and Local
30, 30A, 30B, 30C, International Union of Operating Engineers,
AFL-CIO, Party in Interest. Case No. 2-CA-7791-1. Novem-
ber16,1962
SUPPLEMENTAL DECISION AND ORDER
On June 6, 1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the alleged unfair labor practices and
recommending that the amended complaint herein be dismissed in
139 NLRB No. 95.