San Fernando Heights Lemon Association

National Labor Relations Board - Board Decisions

Feb 3, 1947

72 N.L.R.B. 372 (N.L.R.B. 1947)

In the Matter Of SAN FERNANDO HEIGHTS LEMON ASSOCIATION,
EMPLOYER and FRUIT &- PRODUCE DRIVERS, WAREHOUSEMEN S-5
EMPLOYEES UNION, LOCAL 630, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
AFL, PETITIONER
Case No. PI-R-3414.-Decided February 3, 1947
Ivan G. McDaniel, by Mr. George C. Lyon, of Los Angeles, Calif.,
for the Employer.
Mr. Ken Weston, of Los Angeles, Calif., for the Petitioner.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF SECOND ELECTION
Upon a petition duly filed, the National Labor Relations Board, on
July 24, 1946, conducted a prehearing election among the employees
of the Employer in the alleged appropriate unit, to determine whether
or not they desired to be represented by the Petitioner for the purposes
of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that, of the approximately 56 eligible
voters, 44 cast valid votes, of which 29 were for, and 15 against, the
Petitioner.
Thereafter, hearing in the case was held at Los Angeles, California,
on October 10, 1946, before David Aaron, hearing officer. The hear-
ing officer's rulings made ,tt the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
San Fernando Heights Lemon Association, a corporation organized
under the Agricultural Code of the State of California and having
72 N. L. R. B., No. 70.
372
SAN FERNANDO HEIGHTS LEMON ASSOCIATION 373
its principal place of business in San Fernando, California, is a
cooperative association engaged mainly in harvesting and packing
lemons for its member growers. Its packing house, which is alone
involved in this proceeding, is situated on a 3-acre plot located near
the members' groves and performs such functions as washing, storing,
grading and packing. The identity of the individual member's fruit
is maintained throughout these processes, and, for the services ren-
dered, each member is charged a pro-rata share of 'the Employer's
operating expenses. During the period from November 1, 1945 to
October 10, 1946, the Employer in the course of this operation packed
and caused to be shipped lemons valued at about $500,000, of which
approximately 50 percent represented shipments to points outside the
State of California.
We find that the Employer is engaged in commerce within the
meaning of the National'Labor Relations Act.
II. TIIE STATUS OF THE EMPLOYEES INVOLVED HEREIN
At the hearing and in its brief, the Employer contended that the
Board lacks jurisdiction over its packing house workers on the ground
that they are "agricultural laborers" within the purview of the limi-
tation attached to the Board's current Appropriations Act.,
The status under the National Labor Relations Act of workers en-
gaged in similar packing house operations performed by cooperative
associations has been considered in a number of Board and court deci-
sions. Both the Board,2 and the courts," have uniformly held that
such workers are "employees," and not "agricultural laborers," within
the meaning of Section 2 (3) of the Act. As to the status of such
i National Labor Relations Board Appropriations Act, 1947, Public Law 549, Ch. 672,
79th Cong, 1st Sess, approved July 26, 1946, contains the following proviso .
. . . no part of the funds appropriated in this title shall be available to organize or
assist in organizing agricultural laborers, or used in connection with investigations,
hearings, directives, or orders concerning bargaining units composed of agricultural
laborers as referred to in Section 2 (3) of the Act of July 5, 1935 (49 Stat 450)
[National Labor Relations Act] and as defined in Section 3 (f) of the Act of June 25,
1938 (52 Stat. 1060) [Fair Labor Standards Act of 19381
Section 2 (3) of the National Labor Relations Act provides that "the term `employee'
shall not include any individual employed as an agricultural laborer . . 11
Section 3 (f) of the Fair Labor Standards Act of 1938, insofar as it is applicable to the
instant case, reads as follows :
"Agriculture" includes farming in all its branches and among other things includes
the production, cultivation, growing, and harvesting of any agricultural or hor-
ticultural commodities . . . and any practices . . performed by a farmer or on
a farm as an incident to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market or to carriers for transpor-
tation to market.
'Matter of Saticoy Lemon Association, 28 N. L R. B. 1214, and Matter of Seaboard
Lemon Association, 28 N L R B. 273
3 N L. R. B v Edinburg Citrus Association, 147"F. (2d) 353 (C. C. A 5), rev'g on other
grounds 57 N. L R. B. 1145 ; Idaho Potato Growers v N. L. R B , 144 F (2d) 295 (C C A.
9), enf'g 48 N L R. B. 1084; cert. den 323 U S 769; and North Whittier Heights Citrus
Association v. N. L. R. B., 109 F. (2d) 76 (C. C. A. 9), enf'g 10 N. L. R. B. 1269; cert.
den., 310 U S. 632 , reh. den. 311 U S 724
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers under the Fair Labor Stanch rds Act of 1938, the authorities
indicate that they are not engaged in "agriculture" as defined in
Section 3 (f) of that Act, inasmuch as a cooperative association is not
"a farmer," nor are its packing facilities located "on a farm." 4
Accordingly, we find no merit in the Employer's contention that its
packing house workers are "agricultural laborers" within the purview
of the limitation attached to the Board's current Appropriations Act.
III. THE ORGANIZATION INVOLVED
The Petitioner ° is a labor organization, affiliated with the Ameri-
can Federation of Labor, claiming to represent employees of the
Employer.
IV. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affect ing commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNIT
The parties agree generally that the appropriate unit should com-
prise all seasonal and year-round employees at the Employer's San
Fernando, California, packing house, excluding office employees and
supervisors. The parties are in disagreement, however, as to the
truck drivers whom the Petitioner would include in, and the Em-
ployer would exclude from, the unit."
The only evidence adduced at the hearing with respect to the truck
drivers was a statement by the Employer's representative that it em-
4 See, e g, Walling v. McCracken County Peach Growers Ass'n., 50 F. Supp 900, where
the court considered the status of individuals employed in packing operations performed
by a cooperative peach growers association at a plant located apart from the groves, and,
in holding that these individuals were not engaged in "agriculture" under the Fair Labor
Standards Act of 1938, said
The defendant association is a corporation , it is not a farmer , its employees are not
all farmers ; its operations are not performed on a farm
See also Redlands Foothills Groves, et at v Jacobs, et at., 30 F. Supp. 995 For adnun-
istrative rulings to the same effect, see Wage and Hour 'Administrator's Interpretative
Bulletin No °10, "Farmers' Cooperative Associations under the Fair Labor Standards Act
of 1938," and Wage and Hour Administrator's Interpretative Bulletin No 14, "Exemption
of Agriculture ; and on the exemptions for processing Agricultural Commodities
The name of the Petitioner appears in the caption as amended at the hearing.
6 Before the prehearing election conducted herein, the part4es agreed that the truck
drivers should be excluded from the unit, and, as a result, individuals in this classification
did not participate in the election However, at the hearing, the Petitioner reversed its
position as to the truck drivers, asserting that its agreement to exclude them bad been
piemised on the mistaken belief that these individuals were directly employed by the
growers, not by the Employer.
SAN FERNANDO HEIGHTS LEMON ASSOCIATION 375
ploys from one to three such individuals, the number depending on
the seasonal requirements. In its brief, the Employer argues, in effect,
that although its truck drivers perform both agricultural and non-
agricultural duties, their exclusion is warranted in view of the amount
of time, allegedly in excess of 50 percent, spent by them in field work.
We cannot agree with the Employer's position. The Employer con-
cedes that the truck drivers are engaged in both agricultural and
non-ab icultural functions. Under the Fair Labor Standards Act of
1938, it appears that an individual, in order to be exempt from the
wage and hour provisions of that Act, as "employed in agriculture," 4
must spend his time in any particular workweek exclusively in agri-
cultural employment." As to Board practice in like cases, we have
customarily held that persons who divide their time between agricul-
tural and non-agricultural pursuits are "employees" while perform-
ing non-agricultural functions and, during such period, are entitled
to the benefits of the Act.9 Accordingly, we shall include the truck
drivers in the unit 10 and the Petitioner, if successful in the election
hereinafter directed, is authorized to bargain for these employees with
respect to that part of their activities which is non-agricultural in
nature.11
We find that all seasonal and year-round employees at the Employ-
er's San Fernando, California, packing house, including truck drivers,
but excluding office employees and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
VI. TILE DETERMINATION OF REPRESENTATIVES
As indicated above, a prehearing election was conducted in substan-
tially the unit found appropriate herein. At the hearing and in its
brief, the Employer contended that the vote cast at the election was
not representative of the employees in the appropriate unit princi-
pally on the grounds that on the eligibility date and at the time of the
' Section 13a (6) of the Fair Labor Standards Act of 1938 exempts fioin the wage and
hour provisions of that Act "any employee employed in agriculture "
Cf. Walling v Peacock Corp , 58 F. Supp 880. See also, Wage and Hour Administra-
tor's Interpretative Bulletin No 14, fn 4, supra.
0 Matter of Maut Pineapple Company, Limited, 60 N. L R. B. 401, and Matter of Pepeekeo
Sagas Company, 59 N. L R B 1532.
10 The Petitioner customarily represents truck dtivers, and the Board, under similar cir-
cuinstances, despite the disagreement of the parties, has included truck drivers in units of
packing house employees Matter of Orange Belt F? tut Distributors, 69 N. L R. B 489;
of Matter of Maui Pineapple Company, Limited, fn 9, supra
11 The Employer ' s request , in its brief , to reopen the record to receive additional evidence
on the nature of the truck diiveis' duties is accordingly denied Chairman Herzog dissents
to the denial of this motion and, on the present state of the law and the record, would
exclude the truck drivers from the unit.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election only half the packing house operations were still in progress,
and that the number of employees who participated in the election
constituted a small proportion of those employed during the peak
period of the 1945-46 season.
The Employer's business of harvesting and packing lemons is a
seasonal enterprise extending approximately from November to July.
During the months from November to May, the fruit is picked, and
concurrently, all packing house functions, including washing, storing,
grading and packing, are performed. By June and July, the harvest-
ing has been completed and during these months the Employer's pack-
ing house operations are limited to grading and packing. Thereafter,
mainly plant maintenance work is performed.
With particular reference to the packing house operations, the
washing and storing functions are essentially distinct from those of
grading and packing. Thus, washing and storing involves the fol-
lowing procedures : The newly picked fruit is dumped into washing
tubs, from which it is conveyed by belts to "washers" who sort the
lemons by,color and place them in storage boxes. The "storers" then
move the filled boxes to the storage room, where the fruit is permitted
to ripen for a period of several months. Thereafter, the grading and
packing processes are performed, i. e., the fruit is graded manually
into various classes, after which it is conveyed to packing employees
who wrap the lemons according to size and pack them in boxes for
shipment. The washing and storing functions cease with the end
of the harvesting period and only a limited number of "washers" and
"storers" are retained to work in the grading and packing processes.
The Employer's peak employment for the 1945-46 season was
reached in February and part of March, 1946, when 113 names ap-
peared on the Employer's pay rolls. By June 29, 1946, the eligibility
date established for the prehearing election, only grading and packing
operations were being performed and there were approximately 56
eligible employees on the Employer's pay roll; of these, 44 were still
working on July 24, 1946, the election date, and all cast ballots. Sev-
eral days later, the number of employees dropped to 13, which
represents the approximate number of the Employer's year-round
employees.
It is apparent from the foregoing that the petition was filed 12 and
the prehearing election conducted several months after the employ-
ment peak for the 1945-46 season had been passed, and at a time
when the employee complement had diminished substantially. More-
over, the record supports the Employer's contention that only half
the normal packing house functions were being performed on the
eligibility date and at the time of the election. Under these circum-
12 The Petitioner did not invoke the Board 's jurisdiction until May 21, 1946.
SAN FERNANDO HEIGHTS LEMON ASSOCIATION 377
stances, we are of the opinion that the vote cast was not representa-
tive,13 and we shall direct that the election be set aside. Furthermore,
we shall direct that a new election be conducted during the 1946-47
season on an exact date to be determined by the Regional Director.
among the employees in the appropriate unit who are employed during
the pay-roll period immediately preceding the date of the election.
ORDER AND DIRECTION OF SECOND ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with San Fernando Heights Lemon
Association, San Fernando, California, it is hereby ordered that the
prehearing election conducted on July 24, 1946, among the packing
house employees of the San Fernando Heights Lemon Association,
San Fernando, California, be, and the same hereby is, vacated and
set aside; and it is hereby
DIRECTED that a second election by secret ballot shall be conducted
on a date to be determined by the Regional Director under the direc-
tion and supervision of the Regional Director for the Twenty-first
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Sections 203.55 and 203.56, of National Labor
Relations Board Rules and Regulations-Series 4, among the em-
ployees in the unit found appropriate in Section IT, above, who are
employed during the pay-roll period immediately preceding the date
of the election, including employees who do not work during said pay-
roll period because they are ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who, between the pay-roll period and the date of the election,
have quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether or
not they desire to be represented by Fruit & Produce Drivers, Ware-
housemen & Employees Union, Local 630, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL,
for the purposes of collective bargaining.
13 Cf. Matter of North Whittier Heights Citrus Association, 63 N. L. R. B. 240.