Rod McLellan Co.

National Labor Relations Board - Board Decisions

Aug 2, 1968

172 N.L.R.B. 1458 (N.L.R.B. 1968)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rod McLellan Co.' and Industrial , Technical and
Professional Employees Division of the National
Maritime Union , AFL-CIO, Petitioner. Case
20-RC-7659
August 2, 1968
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers Barry S.
Jellison and William F. Roche.Following the hear-
ing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region
20, this case was transferred to the National Labor
Relations Board for decision. Briefs have been
timely filed by the Employer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion 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 af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.'
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)( I) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all
employees at the Employer's South San Francisco
location who perform any substantial, regular
amount of nonagricultural work, excluding office
clerical workers, guards, and supervisors as denned
in the Act.3 The Employer contends that all of its
employees are agricultural within the meaning of
Section 2(3) of the Act and are therefore excluded
from its coverage, because their work is either part
of or incidental to an agricultural or horticultural
enterprise.
Rod McLellan is a California corporation en-
gaged in nursery operations at Watsonville' and
South San Francisco,' California. Its principal
products are cut flowers and potted plants. It manu-
factures and bags soil and bark mixes, but it also
bags fertilizer and bark separately from these
mixes.' It conducts a plant boarding operation
whereby a customer who buys a plant may have it
tended by the Employer during the months it is not
in bloom or the customer does not wish to keep it.'
The Employer sells its products in three ways.
First, it operates a retail sales shop at the South San
Francisco location through which it sells cut
flowers, potted plants, fertilizer, bark, mixes, and ac-
cessories such as gardening books and plastic
flowerpots.' Secondly, it sells cut flowers to
wholesalers, retailers, and other growers on the San
Francisco flower market. Third, the Employer
maintains a route-selling operation in which it sol-
icits and fills orders for its products, mostly potted
plants, from commercial enterprises along specified
routes.9
The Employer classifies 96 of the employees at
the South San Francisco location as growers, 9 as
salespeople, 13 as office clerical help, and l 1 as su-
pervisors.
The bulk of the grower classification consists of
employees described by the Employer as field and
greenhouse workers and general laborers. They
primarily cultivate, water, fertilize, and cut flowers
and plants; when they are not engaged in these ac-
tivities they pack, sort, and grade plants and flowers
for sale.10 Three employees designated as general
hands or workers operate the boilerroom and regu-
late the climate in the greenhouses; they also repair
The Employer's name appears as amended at the hearing
The Employer's gross income for the fiscal year ending September 30,
1966, was $1,405,606 of which over $1 million was nonretail and over
$ 150,000 retail Of the total, $86,000 constituted direct outflow Direct
inflow amounted to $25,091
This is the unit description as amended at the hearing, the original
description covered all employees except supervisors, salesmen, and
office clericals
'The Watsonville location is a complete growing operation with no
sales offices, and it is not involved in this petition It consists of 112 acres
and 45 employees
The South San Francisco location consists of 37 acres and 129 em-
plovees There the Employer has 8 acres of eucalyptus, approximately
600,000 square feet of glass and plastic greenhouses, and 10,000 feet of
retail sales area
The Employer purchases bark and fertilizerfromotherestabl,shments.
9 This service is provided at a cost in addition to the price of the plant, it
is primarily for the customers of Rod McLellan, but 1 percent of the
Plants boarded were not sold by the Company
" The Employer carries on a mail order operation through this shop
The Employer is agent for an out-of-state firm for the sale of pre-
fabricated greenhouses, and it hybridizes orchid plants The sale of
greenhouses in handled by "specialists" whom the Petitioner does not
seek to include in the unit
10 Their exact number is not disclosed in the record, but they make up
over half of the classification
172 NLRB No. 157
ROD MCLELLAN CO.
greenhouses, machinery, and boilerroom equip-
ment." Employees in the grower classification also
handle warehouse work. 'I
Five employees in the grower classification are
engaged in the mixing and bagging operation, but
only for part of their total working time." The rest
of the time they perform general work connected
with the growing operation such as weeding, water-
ing, and cultivating.
Three men classified as growers and three
women classified as salespeople work on the board-
ing operation.'" When they are not working on this
the men do similar work on the Employer's own
plants, and the women work in the retail sales of-
fice.
Nine women, the entire sales classification,
operate the retail sales office. In addition to the
women who work on the boarding operation there
are three full-time employees and three part-time
employees, the latter working 15 to 20 hours per
week. Most of their time is devoted to selling
potted plants, cut flowers, mixes, bark, fertilizer,
and accessories; the rest is allocated to packing and
preparing flowers and plants for sale. 'I
There are three men who sell the Employer's cut
flowers on the San Francisco flower market. Two of
these market salesmen are exclusively engaged in
this work, but one divides his time between market
selling and delivery driving.'
Two driver-salesmen employed on a salary plus
commission basis handle the route-selling opera-
tion. When they are not doing this they haul
mixes."
There are four drivers who deliver potted plants
and mixes to customers. When they are not en-
gaged in delivery driving, one acts as a market
salesman, one cuts eucalyptus, one grows and pots
orchids, and one cuts eucalyptus and irrigates."
The Employer asserts that the cultivation, fer-
tilization, and irrigation of plants and flowers are
patently an integral part of its horticultural enter-
prises. Furthermore, it argues, the manufacture and
sale of mixes, the bagging and sale of bark and fer-
tilizer, and the sale of plastic flowerpots, gardening
goods, and other accessories are merely incidental
to this operation. Pointing to the fact that boarded
plants require the same treatment as its own, the
Employer also uses the latter argument to support
" The Employer classifies one of these employees as a grower ano one
as a supervisor, although the record is unclear as to the third employee,
the weight of the evidence indicates that he is classified as a grower
12 The Employer maintains the warehouse for storing containers in
which it ships flowers and plants No employees are specifically assigned
to warehouse duty, rather, they are shifted from other jobs when they are
needed and can be spared
13 One man spends 75 percent of his time on this operation, another 66-
2/3 percent, another 50 percent, and two 40 percent. The evidence in-
dicates that, unlike the rest of the work at Rod McLellan which is carried
1459
its contention that the boarding operation is
agricultural. Finally, it asserts that the maintenance
men, powerhouse workers, drivers, packers, sorters,
and graders all perform services incidental or
necessary to the horticultural operation.
The Petitioner argues that the potting, grading,
loading, unloading, transportation, and sale of
potted plants do not constitute agricultural or hor-
ticultural work. The basis of this argument is that
potting is done to enhance the value of the plant,
which makes it a commercial activity; therefore, ac-
cording to the Petitioner, any other services per-
formed in connection with the potted plant become
commercial rather than agricultural. The Petitioner
further contends that mix manufacturing and the
boarding operation are demonstrably commercial.
Finally, the Petitioner argues that the sale of fertil-
izer and flowerpots is a commericial enterprise, the
former because it is manufactured by someone
other than the Employer and the latter because
they are sold separately from the plants and have
independent value.
The Petitioner relies upon the standard adopted
by the Board in Olaa Sugar Company, Ltd.,'`' that
employees who perform any regular amount of
nonagricultural work are nonagricultural to that ex-
tent, and therefore are covered by the Act to that
extent. We agree that this standard is applicable to
the facts of this case.
Thus, the first question to be resolved is whether
the work performed by the employees sought
herein is agricultural or nonagricultural. 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 reads in pertinent part as fol-
lows.
"Agriculture" includes farming in all its
branches and among other things includes the
cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvest-
ing of any agricultural or horticultural com-
modities ... the raising of livestock, bees, fur-
bearing animals, or poultry, and any practices
... performed by a farmer or on a farm as an in-
cident to or in conjunction with such farming
operations, including preparation for market,
on throughout the year, mixes are prepared only during certain months
'" fhe three men work on it for 75 percent of their time. Two women
devote 40 percent and one 90 percent to it
'5 Sixty percent of their time is spent on sales and 40 percent on
packing and preparation
'6Infra, fn 18
17 Ten percent of their time goes to hauling mixes
18 The first two employees spend a day and a half per week in delivery
driving while the other two spend a day on it
19 118 NLRB 1442
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delivery to storage or to market or to carriers
for transportation to market.
This broad definition encompasses two distinct
types of activities which have been classified as the
primary and secondary definitions of agriculture.
The first part of the definition is the primary mean-
ing which includes farming in all its branches. The
rest of it is the secondary meaning which includes
any practices, whether or not they are themselves
farming practices, which are performed either by a
farmer or on a farm as an incident to or in conjunc-
tion with "such" farming operations.20
It appears that the field and greenhouse work and
general labor come within the primary definition of
agriculture and are therefore exempt activity.
Planting , cultivating , watering , fertilizing , and har-
vesting the Employer's flowers and plants are obvi-
ously part of the production of horticultural com-
modities.21
Some of the other work apparently comes within
the secondary definition of agriculture. The main-
tenance, repair, and powerhouse activities are
necessary to the growing operation. Cutting, grad-
ing, sorting, potting, and packing do not change the
Employer's flowers and plants or enhance their
value; rather, these activities merely prepare them
for normal marketing. Sale and delivery of these
items through the retail shop, on the market, or
along routes are the final steps in this operation.
Thus, as this work is either performed by the Em-
ployer or on its premises as incident to or in con-
junction with its horticultural operation, it is ex-
empt activity.22
However, much of the work performed at Rod
McLellan is not within either the primary or secon-
dary definitions of agriculture and therefore is not
agricultural. The Employer prepares its soil and
bark mixes by blending bark, fertilizer, redwood
sawdust, and other soil ingredients most of which
are procured from other companies. The prepara-
tion itself is essentially a manufacturing and not an
agricultural operation. Although the Employer uses
one-third of these mixes in its growing operation
it sells the other two-thirds to plant customers,
retailers, and wholesalers. Therefore, we conclude
that the mix operations, including steaming,
bagging , sale, and delivery , is neither the production
'"Farmers Reservoir * Irrigation Company v McComb , 337 U S 755
(1949)
d1 Seattle Wholesale Florists Association, 92 NLRB 1186
22 Hershey Estates, 112 NLRB 1300 William H Elliott * Sons Co,
78 NLRB 1078, Walling v Rocklin, 132 F 2d 3 (C A 8, 1942) Since the
warehouse work involves only the containers that the Employer uses for
shipping its flowers and plants, it also comes within the secondary
definition
"Southern Illinois Sand Co, Inc, 137 NLRB 1490, Waldo Rohnert
Co, 136 NLRB 89, Columbiana Seed Company, 119 NLRB 560
of an agricultural or horticultural commodity nor
performed as an incident to or in conjunction with
the horticultural operation.
So too with the bagging, sale, and delivery of
bark and fertilizer separetely from the mixes. The
Employer purchases the bark from other compa-
nies, and the fertilizer is manufactured to the Em-
ployer's order by another establishment. Clearly
these are not agricultural or horticultural products,
and it does not appear that the bagging and sale is
carried on purely as an incident to or in conjunc-
tion with the horticultural operation. The same ra-
tionale applies to the sale and delivery of plastic
flowerpots, gardening books, and other accesso-
ries. The character of the boarding operation as a
separate commercial activity renders it, in our
opinion, a nonagricultural function.
The employees engaged in the work which we
have found to be nonagricultural occupy a divided
work status since they spend only part of their time
on this work and the rest on work which we have
found to be agricultural. However, the Board has
consistently followed the Olaa standard in divided
work problems. 23 Regularity rather than the
amount of nonagricultural work performed is the
test ,24 and the evidence in this case warrants the
conclusion that all employees engaged in non-
agricultural work are engaged in such on a regular
basis.
Therefore, we find that the following employees
are not agricultural workers to the extent that they
are regularly engaged in the following work:
All employees at the Employer's facility in South
San Francisco, California, who prepare, sell, or
deliver soil and bark mixes; who bag, sell, or deliver
bark and fertilizer separately form the mixes; who
sell or deliver plastic flowerpors, gardening books,
or other accessories; and who are engaged in the
plant hoarding operation.
We further find that these employees, excluding
office clerical workers, guards, and supervisors as
defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
[Direction of Election25 omitted from publica-
tion.]
24 Strain Poultry Farms, Inc, 160 NLRB 236, Waldo Rohnert Com-
pany, 120NLRB 152
25 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 20 within 7 days after the date of this Decision and
Direction of Election The Regional Director shall make the list available
to all parties to the election No extension of time to file this list shall he
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Euelmor Underwear
Inc , 156 NLRB 1236