The Garin Co.

National Labor Relations Board - Board Decisions

Sep 30, 1964

148 N.L.R.B. 1499 (N.L.R.B. 1964)

THE GARIN COMPANY 1499
WE WILL make whole Irene Grier for any loss of earnings incurred by reason
of the unlawful lockout for the period July 16 to 27 , 1963, and Doris Vaillant,
Mary La Roque and Rose Herman for the period July 16 to 28, 1963.
WE WILL NOT by means of unlawful lockout , or in any other manner, interfere
with , restrain , or coerce employees in the exercise of the right to self-organiza-
tion , to form labor organizations, to join or assist the above -named Union or
any other labor organization , to bargain collectively through representatives of
their own cohosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
or all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
CITY CENTER MOTEL,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered byany other material.
Employees may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street, Seattle , Washington , Telephone No. 682-3300, if they
have any question concerning this notice or compliance with its provisions.
The Garin Company and United Packinghouse , Food and Allied
Workers, AFL-CIO, Local 78-A, Petitioner . Case No. 20-RC-
5915. September 30, 19611
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before a Hearing Officer of
the National Labor Relations Board. The Hearing Officer's rulings
made at the 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 Fanning and
Jenkins].
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 juris-
diction herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. Petitioner seeks to represent the production and maintenance
employees at the Employer's Gonzales, California, asparagus pack-
148 NLRB No. 138.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingshed. The Employer contends that these employees are "agricul-
tural laborers" within the meaning of Section 2(3) of the Act,' and
therefore outside the coverage of the Act.
The Employer is engaged in growing a variety of agricultural
products in nine districts of California and Arizona. Its entire op-
eration involves an annual volume of business in excess of $5 million.
In the Gonzales district involved in this proceeding, the Employer
has 550 acres of asparagus in production at present and 200 addi-
tional acres now being planted. The first crop was harvested in 1963
and, amounted to 8,000 boxes; in 1964 the crop was 25,000 boxes; and
the estimated 1965 production is 100,000 boxes. Apparently the gross
sales for 1964 totaled between $125,000 and $250,000, based on a mar-
ket price of $5 to $10 per box.
The packingshed involved is located in the town of Gonzales, about
2 miles from the closest asparagus field and about 6 miles from the
most distant field. This location is adjacent to a "team" railroad
siding, but the Employer trucks its asparagus into Salinas from
the shed.
Investment in the Employer's Gonzales asparagus operation amounts
to $276,000. In addition, the cost of the packingshed, completed
in April 1964, was $95,000, including equipment.
After being cut in the field and transported to the packingshed,
the asparagus is run through a washer and cut to equal length. The
remainder of the operation is a straight belt-line process. The as-
paragus is placed on the conveyor belt, sorted according to size and
shape, and packed in crates,.which are then nailed. The crates are
then put through a hydrocooler to remove the field heat. Because
,of the highly perishable nature of asparagus , this operation must be
performed within 4,6r 5 hours after cutting.
The packingshed operation involves 40 employees.2 The shed has
its own payroll and timekeeping on an hourly basis. The employees
are paid $1.50 per hour, with the exception of the maintenance man
1 Section 2 ( 3) of the National Labor Relations Act excludes from the definition of the
term "employees" "any individual employed as an agricultural laborer" Annually, since
1946 , Congress has added a rider to the appropriation for the Board , providing that no part
of the appropriation "shall be . . . used in connection with investigations ,' hearings , direc-
tives, or orders concerning bargaining units composed of agricultural laborers as referred
to in . .. Section 3(f)" of the Fair Labor Standards Act, 29 IISC 203(f). Section 3(f)
of the FLSA reads in pertinent part as follows, " . . agriculture includes farming in all
its branches and among other things includes . the production , cultivation , growing
and harvesting of any agricultural . . . commodities and any practices . . per-
formed 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 transportation to maiket "
2 Testimony indicated that two or three packingshed employees work from 2 to 4 hours
in the fields in the morning before the packingshed is opened Such dual work was per-
formed only during the early part of the season, from about February to March. Those
employees who worked in both operations were paid according to the separate wage rates
in the shed and field.
THE GARIN COMPANY 1501
who is paid on a salary basis. By contrast, the Employer's field crew
is paid on a piece-rate basis of 15 cents per box except during the
early part of the season when their pay is $1.05 an hour.
In addition to packing its own crop during 1964, the Employer
packed 100 acres of asparagus valued at $30,000 for another grower,
Arden Oraggio. The Employer received an estimated $3,000 for this
service. In its brief the Employer takes the position that this pack-
ing was done as a convenience to the grower and will not be done
next season because of the Employer's own increased production.
After the asparagus season, which ends in June, the Employer plans
to pack tomatoes in the Gonzales shed. Whether it plans to pack
tomatoes for other growers does not appear.
The packingshed now has one belt line with a capacity of 100,000
boxes for the asparagus season, which capacity is the estimated pro-
duction for 1965. The 200 acres of asparagus which are now being
planted should, in subsequent seasons, raise the production over the
100,000 capacity of the existing processing line. The record indicates
that the present shed was built with the idea of approximately
doubling its capacity by the addition of another line of equipment;
it also indicates that the shed previously used is still available for
processing work.
Recently the Board decided in Bodine Produce Company,3 in
accordance with the Department of Labor's administrative interpre-
tation of Section 3(f) of the FLSA, that employees in a melon pack-
ingshed devoted exclusively to handling the produce of the employer
were agricultural laborers. The Board stated in Bodine: "an import-
ant determining factor is whether the employer confines its packing
operations to its own produce."
As noted above, the Employer in the instant case did a substantial
amount of packing for another grower, approximately 15 percent of
this year's output. Its plan to discontinue this is uncertain. The
testimony of Employer's president was that the other grower
"probably will find other places to pack his stuff because I think our
own shed facility is going to be filled up with our own production
next year." We consider this testimony too speculative on which
to conclude that the Employer will pack only its own asparagus in
the future. In this connection we also note that the amount of
asparagus to be raised cannot be predicted with certainty, as produc-
tion varies greatly according to weather conditions; further the
E 147 NLRB 832. Member Fanning dissented from the dismissal of the petition in
Bodine. He would have found the packtngshed employees there involved were not agri-
cultural laborers despite the fact that no packing was done for other growers ; he viewed
the packing operation as a separate commercial enterprise apart from the employer's
farming operation . The employer 's packing plant there , as here, was located in the city
away from the farm, was manned by a separate crew, and involved a substantial investment.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer has unused processing facilities plus a new plant designed
for expansion
In the circumstances, including the fact that the Employer's pack-
ingshed operation has not been confined to its own produce, we find
that the workers employed in the packulgshed are not "agricultural
laborers" within the meaning of Section 2(3) of the Act 4
We find the following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) of the Act
All production and maintenance workers at the Employer's Gon-
zales, California, packing operation, excluding office clerical em-
ployees, guards, watchmen, professional employees, and supervisors
as defined in the Act 5
Because the seasonal employment peak for processing asparagus at
the Employer's shed has passed, we shall not direct that an election
be held at this time Following our customaiy practice In seasonal
industries, we shall direct that an election be held at or about the
time of the employment peak of the next asparagus packing season,
on a date to be determined by the Regional Director, among the
employees in the appropriate unit who are employed during the
payroll period immediately preceding the date of issuance of the
notice of election 6
[Teat of Direction of Election omitted f i om publication ]
* See The SwcetlaLe Land and Oil Company, Inc 138 NLRB 155, enfd 334 F 2d 220
(C A. 5) See also U S Department of Labor Interpretatiie Bulletin, "Exemptions Appli
cable to kgriculture Processing of Agricultural Commodities, and Related Subjects," 29
CPR 780146, providing that for the agricultural exemption under section 3(f) of the
Fair Labor Standiids Act to apple, "Section 780146 Practices Must Be Performed in
Connection With Farmer's Own Farming"
Practice,, performed bi a farmer must be performed as an incident to or in
conjunction with "such farming operations" in order to constitute "agriculture" within
the secondary meaning of the term Practices performed by a farmer in connection
with his non-farming operations do not satisfy this requirement (see Calaf v Gonzales
127 F 2d 934, Mitchell i Budd, 350 U S 473) r urthermore, practices performed
bi a firniei can meet the iboie requirement onli in the eient that they are performed
in connection with the farming operation,, of the same farmer ii ho performs the prac
tires Thus, the requirement is not met with re,pect to empiojees enraged in ant
practices performed bi their emploier in connection With firming operations that sic
not his own (see Farmers Rcccrvoii Co a McComb 337 U S 755 , Mitchell i Hunt,
263 F 2d 913 , AT L R B i 0laa Sugar Co , 242 F 2d 714 , Mitchell v Huntsville
Vni sev ies, 267 F 2d 286 , Bowie i Gonzalez, 117 F 2d 11) The processing by a
farrier of commodities of other farmeis, if incident to or in conjunction isith firm
ing operations, is nuidcntal to of in conjunction vii Eli furriers ind not incident il to
or in conjunction isith the fiinune operations of the i iimei doing the proses-in_z
(ifitcliell v Huntsville Auicciaes, supra, Earners Rese)von Co i McComb, supra,
BoiGie i Gonzalez, sepia)
The Lniployor contends Chit the unit should be described as emploices engaged in pick
rng and h indliig isparagus, app iientli excluding maintenance employees Wl e find no
justifiertion in the accord for excluding maintenance employees fiom the unit Thus, lie
find the ti aditional production and maintenance unit to be appropriate See The Siccei
Who Land and Oil Compan y, Inc supra, Kelly Bros Nurseries, lite, 140 NLRB 82
o A lbei t Rossi, d/b/a Al Rossi Produce Company, 103 NLRB 750, 752