Arena-Norton, Inc., et al.

National Labor Relations Board - Board Decisions

Feb 21, 1951

93 N.L.R.B. 375 (N.L.R.B. 1951)

ARENA-NORTON, INC., ET AL. 375
posed of card setters, and its last president admitted at the hearing
that it had never achieved a written contract with any card clothing
manufacturer.
As the card setters are not craftsmen but production employees,
and as they work in the same department, under common supervision,
and together with other production employees, no persuasive reason
appears for severing them from the existing production and main-
tenance unit. Accordingly, we find that the unit requested by the
Petitioner is inappropriate for collective bargaining purposes.
Having found that the unit is inappropriate, we shall dismiss the
petition.
Order
IT Is HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
ARENA-NORTON , INC., ET AL .1 and UNITED FRESH FR UIT AND VEGETABLE
WORKERS, L. I. U. 78, CIO, PETITIONER . Cases Nos . 21-RC-1128
through 1438, and 21-RC-1440 through 1472. February 21, 1951
Decision , Direction of Elections , and Order
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated 2 hearing was held before
Ben Grodsky, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.3
1Involved in this proceeding are the Employers listed in Appendices A and B. As it
appears from the record that Dunlap Farms Company , Inc. (21-RC-1446 ), Mitchell
Packing Co ( 21-RC-1449 ), and Valley Produce Distributors ( 21-RC-1465 ) are no longer
in business , the petitions in these cases will be dismissed . The petition in John Jacobs
Farms ( 21-RC-1452 ) will also be dismissed for the reasons set forth in paragraph 3, infra.
In Case No . 21-RC-1435 , the named employer , Burrell Collins , was a partnership but
both partners are now deceased The estates of the partners have continued the operation
of the business . At the time of the hearing , a corporation was being organized by the
partnership accountant , who was present at the hearing , and a brother of one of the
deceased partners . When this corporation comes into existence , it intends to continue
the operation of the partnership business . Although the partnership name is used in this
decision , the packing shed employees of any legal successor or assignee of the partnership
are eligible to vote in the election hereinafter directed . See Allen W . Fleming, Inc., 91
NLRB 612
2 The captioned cases were consolidated for hearing by order of the Regional Director
dated October 2, 1950
3In Case No . 21-RC-1461, the Employer named in the petition is "Stanley Fruit Com-
pany " It appeared at the hearing that this company Is merely a sales organization, and
that the packing shed and farming operations are conducted by the partnership of Stanley
and McDaniels The partnership was represented at the hearing and was afforded adequate
opportunity to present evidence The hearing officer properly granted the Petitioner's
motion to amend the name of the Employer in this case.
The motion of the Employers to dismiss this proceeding on the ground that the employees
involved ilre " agrleultural laborers" within the meaning of the Act is denied, except in
Case No 21-RC-1452 , for reasons given in paragraph 3.
93 NLRB No 56.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. Each of the Employers is engaged in commerce within the mean-
ing of the Act.
2. The Petitioner and the Intervenor, Food, Tobacco and Agricul-
tural Workers Union, Local 78, are labor organizations claiming to _
represent certain employees of the Employers.
3. The questions concerning representation :
The Petitioner and the Intervenor seek to represent the packing
shed workers of the various Employers involved in this proceeding.
The Employers contend that these workers are "agricultural laborers"
and not "employees" within the meaning of the Act, and that there-
fore the Board has no jurisdiction over such workers.
Each employer operates one or several sheds for the packing of
lettuce, melons, and other vegetables in the Salt River Valley area
in and around Phoenix, Arizona. Packing operations are seasonal.
Lettuce is packed in the spring and fall of the year with peak shed
employment early in April. Melons are packed between June and
August, and other vegetables are handled at various times throughout
the year. The actual operation of each shed is substantially the same.
For example, in the case of lettuce, the chief product packed, the crop
is trucked to the packing sheds 4 from the land on which it is grown.
At the sheds, which are equipped with power and screw conveyors,
lidding machines, ice crushers, and other types of machinery, the let-
tuce is unloaded, trimmed, and packed into crates ; the crates are then
iced, lidded, labelled, and loaded into railroad cars. Although the
operations differ somewhat for melons and other vegetables, the sub-
stantive packing processes are the same for all crops.
The produce handled in the packing sheds of most of the Employers
is grown on land either owned or leased by such Employers. However,
one Employer -is strictly a commercial packer, handling only produce
owned by others. Several other Employers pack substantial amounts
for other persons.
The packing shed employees are almost entirely recruited from
skilled migratory workers who travel with the crop. The Employers
maintain separate payrolls for field and shed employees, and, although
shed employees often transfer from shed to shed as occasion requires,
there is little interchange between shed and field. The average num-
ber of shed employees used by the individual Employers during the
4 The sheds are located at distances of 5 to 30 miles from the growing area.
° American Fruit Growers, Inc.
ARENA-NORTON, INC., ET AL. 377
course of a year is about 90, ranging from a low of 40 to 50 to a high
of 200 to 300 employees.
Section 2 (3) of the Act excludes from the definition of the term
employee "any individual employed as an agricultural laborer." Since
1946, riders to the Board's appropriation acts have required the Board
to define "agriculture" as that term is defined in Section 3 (f) of the
Fair Labor Standards Act. In the recent Imperial Garden Growers
case,6 the Board held that packing shed employees comparable to those
involved herein, were "employees" and not "agricultural laborers"
within the meaning of the Act. The Employers in this case perma-
nently maintain packing sheds representing a substantial investment
in buildings and equipment,' and conduct therein an industrial type
of operation; and the packing shed employees, for the most part,8
constitute in each case a labor force separate and distinct from the
farm employees.9 The Board concludes, therefore, that the packing
shed employees in this proceeding, other than those of certain Em-
ployers whose shed employees are not distinguishable from their field
employees, are employed in an operation constituting a separate com-
mercial enterprise, and that they are "employees" within the,meaning
of the Act.
With respect to John Jacobs Farms, the record indicates that 80
percent of the packing shed employees of this Employer are obtained
from among its farm employees, and that these employees spend most
of their time each year in farming work. - We are of the opinion that
the shed operation of this Employer is a subordinate part of its farm-
ing operation. We find, therefore, that the packing shed employees
of John Jacobs Farms are "agricultural laborers" and not subject to
the Board's jurisdiction.10
Stanley and McDaniels operates 2 onion packing sheds that are
manned exclusively by its own farm employees. As in the case of
John Jacobs Farms, and for the same reason, we find these shed
6 91 NLRB 1034, decided October 18, 1950
7 Specific evidence was offered in this connection with respect to 3 Employers who have
investments of $60,000 , $ 18,000, and $14 , 500, respectively, in their packing sheds and
equipment . Further support for the fact that the Employers have substantial shed invest-
ments is found in the dollar volume processed through the sheds Five Employers pack
over $1,000,000 worth of produce annually, 11 pack between $500,000 and $1,000,000
worth , 12 are in the $100,000-$ 500,000 class and the other 11 Employers have packs
valued at less than $ 100,000
8 The only exceptions in this respect are the employees of John Jacobs Farms, and Stanley
and McDaniels
D Testimony at the hearing showed that the Employers considered the two labor forces
separate Furthermoie, the shed employees are geographically separated from the farm
employees by distances of 5 to 30 miles, the two groups of employees are carried on separate
payrolls, and the shed employees are not only paid in accordance with wage scales estab-
lished for packing operations rather than at farm labor rates, but also perform no functions
in connection with the planting , cultivating , or harvesting of crops
10 See Inteipretative Bulletin No. 14, par. 10 , wage and Hour Division , Department of
Labor., -
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to be "agricultural laborers" and not subject to the Board's
jurisdiction. Stanley and McDaniels also operates a shed in which
lettuce, melons, and carrots are packed. Although workers hired
during the carrot season are recruited primarily from among this Em-
ployer's farm employees, the lettuce and melon workers, who constitute
the bulk of the labor force used in this shed, are hired from among
the migratory workers. We find that this shed operation constitutes
a separate commercial enterprise and that the workers employed
therein, including those employed during the carrot season, are em-
ployees within the meaning of the Act.-
- The Board finds that questions affecting commerce exist concerning
the representation of employees of the Employers listed in Appendices
A and B, within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act.
4. The appropriate units :
The Petitioner and the Intervenor both request a multiple-employer
unit for all the Employers involved in this proceeding, while the Em-
ployers contend that the shed employees of each Employer constitutes
a separate unit. With respect to unit composition, the Petitioner
urges the inclusion of all shed employees ; the Intervenor and the Em-
ployers, however, argue that separate units for vegetable and melon
packers are appropriate.
Since 1943 a predecessor union of both the Petitioner and the Inter-
venor has negotiated contracts covering the packing shed employees
of most of the Employers herein. The contracts, separately executed
but uniform in character, resulted from negotiations conducted by
this union and Riney B. Salmon, an attorney, acting as bargaining
representative for the employers as a group.12 Salmon held, and still
holds, powers of attorney from 22 of the Employers in this case,13
under which he has complete authority to negotiate and execute col-
lective bargaining agreements covering all the shed workers of these
Employers. The parties were unable to agree on the terms of the
1949 contract, and since then no contracts have been in force.
On the basis of this bargaining history, the Board is of the opinion
that these 22 Employers have, through their duly authorized repre-
sentative, Salmon, unequivocally showed their intention to be bound
in collective bargaining by group, rather than by individual action.
The Board has heretofore held that bargaining upon a multiple-em-
ployer basis is the essential element necessary for the establishment of
"Imperial Garden Growers, supra; see also L Maxey, Inc, 78 NLRB 525, and Roberta
Fig Company , 88 NLRB 1150
12 Salmon represents-all but four of the Employers in the present proceeding.
1s Listed in Appendix A.
ARENA-NORTON, INC., ET AL. 379
a multiple-employer unit.14 Accordingly, as the record discloses the
existence of a multiple-employer bargaining history covering these
22 Employers, with no indication that any of them has elected to pur-
sue an individual course of bargaining,15 the Board believes that a
single multiple-employer unit for the packing shed employees of these
Employers is appropriate for the purposes of collective bargaining.-
Of the other 17 Employers,17 some 6 or 7 have been represented in
collective bargaining by Salmon, under powers of attorney restricted
to employees of individual Employers engaged in packing one or more
but not all of the crops packed by the Employer in question. We find
below that the appropriate unit includes all packing shed employees,
without seasonal limitations; these Employers have not participated
in multiple-employer bargaining for all of their shed employees. The
remaining Employers have either never executed contracts for their
shed employees, or have negotiated such contracts individually. Ac-
cordingly, as these 17 Employers have no history of multiple-employer
bargaining in the unit herein found appropriate, we will direct sep-
arate elections for the packing shed employees of these Employers.
Unit composition.-As indicated above, lettuce and melons are the
chief crops packed in the sheds. Lettuce is packed in the spring and
fall, melons in the summer months. The packing of other vegetables
frequently overlaps the lettuce and melon packing seasons. Gen-
erally speaking, separate groups of workers are engaged in the pack-
ing of lettuce,and melons, and these same workers are used for the
other vegetables that are packed from time to time.
As the record discloses that there is no substantial difference be-
tween the wages, hours, and working conditions of lettuce and melon
packers, and as most of the collective bargaining contracts in the Salt
River Valley area have covered all shed employees without seasonal
limitations, the Board is of the opinion that the appropriate unit in
each case should include all packing shed employees without regard
to the season in which they work.18
The Board finds that all packing shed employees of the Employers
listed in Appendix A, excluding clerical employees, guards, and super-
visors as defined in the Act, together constitute a unit appropriate for
14 Bunker Hill and Sullivan Mining and Concentrating Company, et al, 89 NLRB 243,
and cases cited therein ; Associated Shoe Industries of Southern Massachusetts, Inc., et at.,
81 NLRB 224
15 RKO Radio Pictures, Inc, 90 NLRB No. 58.
11 Neither the lack of a formal association of employers, Johnson Optical Company, et at.,
85 NLRB 895, nor the fact that the results of joint negotiation have been incorporated in
separate but uniform contracts, Balaban it Katz (Princess Theatre), 87 NLRB 1071,
precludes the establishment of a multiple-employer unit.
17 Listed in Appendix B.
19 Employer Members of Imperial Valley Shippers Labor Committee, at at., 92 NLRB
533; Imperial Garden Growers, supra.
380 DECISIONS OF N'A'TIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
The Board finds, further, that all packing shed employees 19 of
each of the Employers listed in Appendix B, excluding clerical em-
ployees, guards, and supervisors as defined in the Act, constitute sep-
arate units appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. In accordance with the usual practice in seasonal operations of
this kind, the Board will direct that the elections be held at or about
the approximate seasonal peak '20 on a date to be determined by the
Regional Director, among the employees in the appropriate units who
are employed during the payroll period immediately preceding the
date of the issuance of the Notice of Election by the Regional
Director.
Order
The petitions in Cases Nos. 21-RC-1446, 1449, 1452 and 1465 are
hereby dismissed.
[Text of Direction of Elections omitted from publication in this
volume.]
Appendix A
M. 0. Best Company-------------------------------- 21-RC-1429
Johns & Hagin------------------------------------- 1432
Burrell Collins------------------------------------- 1435
Isabell-Hartner Ranches----------------------------- 1436
Floyd N. Smith Co---------------------------------- 1437
Englebretsen-Grupe Co------------------------------ 1440
S. A. Gerrard Co------------------------------------ 1444
Arizona Vegetable Distributors---------------------- 1448
Martori Bros. Distributors--------------------------- 1450
Eaton Fruit Co.,Inc -------------------------------- 1453
Apache Distributors--------------------------------- 1454
Goldsby-Evans Produce Co-------------------------- 1455
Fred G. Hilvert Co.,Inc ----------------------------- 1456
Joseph Pahnisano Co-------------------------------- 1457
Richman-Justman-Frankenthal, Inc------------------ 1459
H. D. Conner Produce Company---------------------- 1463
Western Vegetable Distributors---------------------- 1464
Smith Vegetable Company--------------------------- 1466
30 The appropriate unit covers only employees in the lettuce , melon , and carrot packing
shed of Stanley and \lcnamels See paragraph 3, supra
20 This appears to occur in April during the spring lettuce pack.
METROPOLITAN LIFE INSURANCE COMPANY 381
Miller-Johns Company------------------------------ 1469
L. T. Malone Co------------------------------------ 1470
Bodine Produce Co--------------------------------- 1471
American Fruit Growers, Inc------------------------
E*
1472
Appendix B
Arena-Norton, Inc---------------------------------- 21-RC-1428
Lane Whaites Produce Co--------------------------- 1431
Burton Johns--------------------------------------- 1433
E. E. Davis Packing Co., Inc------------------------- 1434
Santa Cruz Farms---------------------------------- 1438
Earl C. Recker Co---------------------------------- 1441
Western Marketing & Sales Co----------------------- 1442
McDonald Vegetable Co----------------------------- 1443
H. P. Garin Company------------------------------- 1445
Birch Bros----------------------------------------- 1447
Cook Produce Co----------------------------------- 1451
M. B. Al. Farms------------------------------------ 1458 and 1430
Salinas Valley Vegetable Exchange------------------- 1460
Stanley and McDaniels------------------------------ 1461
J. A. Wood Company-------------------------------- 1462
Paul A. Ruth Co------------------------------------ 1467
0. R. Recker Packing Co---------------------------- 1468
METROPOLITAN LIFE INSURANCE COMPANY PARKLABREA RESIDENT COM-
MUNITY 1 and Los ANGELES BUILDING TRADES COUNCIL, A. F. OF L.,2
PETITIONER. Case No. 21-RC-1623. Febncary 21, 1951
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before Eugene M.
Purver, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record of this case, the Board finds:
1. The Metropolitan Life Insurance Company 3 owns and operates,
as part of its insurance business , a number of housing projects located
in New York City, Los Angeles and San Francisco , California, and
Alexandria , Virginia . The present proceeding involves the Parkla-
brea Resident Community in Los Angeles , herein called Parklabrea.
' The name of the project of the Employer appears as corrected in its brief
z The name of the Petitioner appears as amended at the hearing
'For further commerce data as to the Metropolitan Life Insurance Company, herein
called the Metropolitan, see Metropolitan Life Insurance Company, 64 NLRB 396, wherein
the Board assumed jurisdiction over that company.
93 NLRB No 60.