Yamada Transfer

National Labor Relations Board - Board DecisionsMay 15, 1956

115 N.L.R.B. 1330 (N.L.R.B. 1956)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yamada Transfer and Hawaii Teamsters and Allied Workers, Loca1996, AFL-CIO, Petitioner. Case No. 37-RC-303. May 15, 1956 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 Karin Nelson, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations' involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the.Act. 4. The Petitioner seeks a production and maintenance unit, at the Employer's Hilo, Hawaii, plant, including diesel truck-tractor drivers and their helpers, mechanics and their helpers, checkers, bulldozer- tractor operators, dump-truck drivers, and shovel ' operators. The Employer and the Intervenor agree that this unit is basically appro- priate. Contrary to the Petitioner and Intervenor, the Employer would exclude the bulldozer-tractor, dump-truck, and shovel operators as agricultural laborers within the meaning of Section 2 (3) of the Act.' The Employer would also exclude the head checker as a super- visor. The Employer, a partnership, is engaged in hauling general freight; selling and delivering rock; and renting heavy equipment, such as bulldozers, tractors, and dump trucks in and around Hilo. The Em- ployer also operates a garage for the purpose of servicing its trucks and equipment. There is no history of bargaining. Bulldozer-tractor operators : The Employer employs 13 bulldozer- tractor operators. These employees operate bulldozers and tractors which have been leased to the Olaa Sugar Company and to various independent sugar plantation owners. Their function is to reshape cane land, clear virgin land, plow, harrow, cut lines, and cover seeds. The work is performed on plantation lands 8 to 20 miles from the Company's offices. The equipment is furnished to the plantation owners by the Employer as needed on an hourly basis. These em- 'International Longshoremen 's and Warehousemen's Union, Local 142 ( Independent) appeared as Intervenor at the hearing ' Section 2 (3) excludes from the definition of "employee" any individual employed as an "agricultural laborer " 115 NLRB No. 210. YAMADA TRANSFER 1331 ployees are supervised by the Employer's tractor supervisor and are not interchanged with any other workers. It is apparent that the bulldozer-tractor operators are performing labors within the meaning of Section 3 (f) of the Fair Labor Stand- ards Act.' The Employer testified that the work being performed by the bulldozer-tractor operators on the plantations would be com- pleted within 2 or 3 months after the hearing and that there will then be no further need for this service. As the hearing was held on Feb- ruary 15, 1956, it is possible that all or some of the bulldozer-tractor operators are no longer performing the work which we have found constitutes them agricultural laborers. Accordingly, we shall exclude from the unit as agricultural laborers only those bulldozer-tractor operators who, on the eligibility date, are performing agricultural labor. - Dump-truck operators: The Company employs 12 dump-truck op- erators. At the time of the hearing, 3 drivers were operating dump trucks leased to plantation owners. The other nine were engaged in hauling rocks from the Employer's quarry to various sugar planta- tions, which the plantations use for road-building purposes, and to a few private parties. The rocks are unloaded either at the job site or at stockpiles on the plantations. The drivers in this latter group are supervised by the Employer's tractor superintendent. The drivers working under the lease arrangement carry waste materials to the plantation dumps and haul gravel for the road builders. Although they are immediately supervised by plantation agents, the sole author- ity to hire, fire, and discipline remains vested in the primary employer. The two groups of drivers are interchanged freely. None of the drivers does any of the actual loading or unloading of the trucks. In determining whether a particular type of work is agricultural, the Board has said 4 that, "the ultimate test is whether the services of the employees involved are in connection with a mercantile enter- prise or an agricultural operation." The Employer herein is engaged in work of a commercial character. Consequently the dump-truck drivers' work that relates to the Employer's commercial activities, delivering rocks to the plantations from the Employer's rock pit, is not primarily agricultural or incidental to agricultural operations, 3A rider to the Board's current appropriation Act, 69 Stat. 410, precluaes the Board from processing representation cases involving "agricultural laborers" as defined in Sec- tion 3 (f) of the Fair Labor Standards Act. This definition, in pertinent part, is as follows : farming in all its branches and among other things . . . the cultivation and tillage of the soil, . production, cultivation, growing, and harvesting of any agricultural commodities as an incident to or in conjunction with such farming operations, including pieparation for market, delivery to storage or to market or to carriers for transportation to market. 4 Dc Giorgio Fact corporation, 80 NLRB 853 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and insofar as this work is concerned these employees are not agri- cultural laborers. However, while working under the lease arrangement they are at all times employed within the plantation boundaries. The work so performed appears necessary to the proper functioning and mainte- nance of the plantations. The drivers are directed by plantation fore- men and the job they perform is duplicated by plantation employees. We find that the dump-truck drivers while working for plantation owners on a rental basis are performing agricultural work. The Employer alleges that 25 percent of its dump-truck work is leased out. At one time or another, all of the dump-truck drivers work on the rental basis. However, there is no evidence to show the pro- portion of time spent by each driver on the rental operations. In Clinton Foods, Inc.,5 the Board decided that individuals who divide their time between agricultural and nonagricultural pursuits must be deemed agricultural employees. In the instant situation, one- quarter of the dump-truck drivers' total operations are performed while working for plantation owners on plantation land. Accord- ingly, we shall exclude the dump-truck drivers from the unit. Shovel operators: There are two employees in this category. One works at the various plantation stockpiles and the other is stationed at the Employer's rock pit. They are not interchanged. The stock- piles are necessitated by the fact that some of the trucks, hauling rocks to the plantations, are too large to take into the muddy plantation fields. The plantation shovel operator loads smaller field trucks from these stockpiles. This employee spends approximately 5 to 10 hours a week performing repair work at the company garage. Both of these employees work under the same supervision as the dump-truck drivers. There is no evidence that these employees load plantation owned trucks or Employer's trucks leased to the plantations. It is clear that the shovel operators' duties are inseparably con- nected with the delivery of the Employer's rocks and not with the operation of the plantations. We find that they are not agricultural employees and we shall include them in the unit. Head checker: The Employer contends that this individual super- vises a crew of 12 employees, called the town gang. The town gang is comprised of 3 checkers, 4 drivers, and 5 helpers. Their job con- sists of loading freight around the Hilo pier and delivering merchan- dise to wholesalers. The head checker performs the same duties as the other checkers; however, he is paid 15 cents more per hour. Al- though he has never exercised it, the head checker has had authority for the past 2 years to fire town gang employees. The Board custo- marily excludes individuals with supervisory authority, even though 5 OUnton Foods, Inc., 108 NLRB 85. LOCAL 50 1333 such authority has not been used .6 In view of his authority, we find that the head checker is a supervisor within the meaning of the Act, and shall exclude him from the unit. Accordingly, we find that 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 employees at the Employer's Hilo, Hawaii, plant, including diesel truck-tractor drivers' and their helpers, mechanics and their helpers, checkers, and shovel operators, but excluding bulldozer-tractor opera- tors who are employed as agricultural laborers, dump-truck drivers, the head checker, office employees, part-time employees, professional employees, watchmen, guards, and supervisors as defined in the Act., [Text of Direction of Election omitted from publication.] a United States Gypsum Company , 93 NLRB 91 , 92 (footnote 8) and cases cited therein. The parties stipulated to exclude Richard J. K. Chong, listed by the Employer as a diesel truck -tractor driver . Chong is the spouse of one of the firm's copartners . Accord- ingly, we exclude him from the unit. Local 50, Bakery and Confectionery Workers International Union, AFL-CIO and Arnold Bakers Employees Association . Case No. 2-CC-321. May 15,1956 DECISION AND ORDER On April 29,1955, Trial Examiner Charles W. Schneider issued his- Intermediate Report in the above-entitled proceeding, finding that the Respondent, Local 50, Bakery and Confectionery Workers Interna- tional Union, AFL-CIO, hereinafter called Local 50, had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (4) (C) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Local 50 and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner , with the following additions and modifications : We note that on May 12, 1955, the Court of Appeals for the Second Circuit heard arguments on the General Counsel's appeal from an order of the United States District Court for the Southern District of 115 NLRB No. 208.