D'Arrigo Bros. Co. of California

National Labor Relations Board - Board Decisions

Mar 15, 1951

93 N.L.R.B. 827 (N.L.R.B. 1951)

D'ARRIGO BROS. CO. OF CALIFORNIA 827
ceding the date of the issuance of the notice of election by the Regional
Director.
[Text of Direction 'of Election omitted from publication in this
volume.]
D'ARRIGO BROS. CO. OF CALIFORNIA and CANNERY WAREHOUSEMEN,
FOOD PROCESSORS , DRIVERS & HELPERS, LOCAL UNION 679, AFL,
PETITIONER . Case No. 20-RU-1234. March 15,1951
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 Eugene K. Kennedy,
hearing officer. 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 [Members Houston, Reynolds, and Styles].
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 organization involved claims to represent certain
employees of the Employer.
3. The question concerning representation :
The Petitioner seeks a unit of the Employer's packing shed em-
ploy ees. The Employer contends that the petition herein should be
dismissed, alleging that its packing shed employees are "agricultural
laborers" and therefore are not "employees" within the meaning of
Section 2 (3) of the Act.
The Employer, a California corporation, is engaged in its San
Jose, California, plant involved herein, in the growing, packing, and
shipping of fresh vegetables and fruits. The Employer operates a
packing shed at San Jose, at which it is engaged in the packing and
preparing for shipment of broccoli, endive, celery, anise, peppers, and
grapes. All of the produce packed is grown by the Employer on
approximately 900 acres of land which it either owns or leases at a
fixed rental. Except for 17 acres, all of the land is separated from
the packing shed by highways, streams, and other properties. An
average of 4 to 59 employees work in the shed from month to month
throughout the year.
'The Employer 's annual sales amounted to more than X1,000 ,000, of which 90 percent
was shipped out of State.
93 NLRB No. 135.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for three employees who recently have performed work
both in the packing sheds and in the actual growing of crops, there
has been no interchange of packing shed and field employees. The
packing shed employees perform no functions in connection with the
growing or harvesting of crops. These employees are under separate
supervision and separate personnel records and payrolls are main-
tained for them. It is apparent from the record that the Employer
conducts an extensive-operation in its packing shed.
The exemption of agricultural laborers in the Act is inapplicable
to the employees in this case, for although they work on an agricul-
tural commodity, they are employed in an establishment of the Em-
ployer which is operated as a "separate commercial enterprise," and
not merely as an incident to or in conjunction with its farming
operations? We find, accordingly, that the employees in the Em-
ployer's packing shed are not "agricultural laborers" but are "em-
ployees" within the meaning of the Act.
A question affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. We find, in agreement with the parties, that all workers in the
Employer's packing shed at San Jose, California, including trimmers,
top icers, packers, receivers, lidders, dumpers, car loaders, and the
crate maker, and excluding office and clerical employees, truck drivers,
guards, professional employees, 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.
5. The determination of representatives :
The Employer contends that no election should be ordered in the
instant matter before September or October of 1951 because a repre-
sentative number of employees will not be employed until that time.
The Petitioner asserts than an election may be appropriately directed
at any time from March to the end of the year. The record shows that
in March 1950 there was an average of 41 employees in the packing
shed. In April the average was 31; in September, 59; and in December,
55. In addition, the number of employees employed in the packing
shed varied considerably from week to week. During the last week in
February 1950, there were 3 employees. In March there were from
week to week, 58, 63, 49, 3, and 34 employees. In April the number
varied between 10 and 43. In September the variation was 35 to 78,
and in December, 15 to 111.
In 1950, the Employer reached several peak periods of employment.
Judged by monthly averages there were peaks in March, May, Septem-
z Imperial Garden Growers, 91 NLRB 1034 ; Arena Norton Inc., et al ., 93 NLRB 375.
D'ARRIGO BROS. CO. OF CALIFORNIA 829
be, and December. A representative complement was employed in
the packing shed from March to May of 1950. There is no evidence in
the record that a substantially different employment pattern will pre-
vail in 1951. Under these circumstances we see no reason to postpone
the election directed herein until December, as requested by the Em-
ployer. We shall direct that the election be held on a date when a
representative number of employees is determined by the Regional
Director to be employed in the packing shed .3
In view of the foregoing extreme fluctuations in employment from
week to. week, we shall depart from our usual eligibility rule and
direct that a 30-day eligibility period immediately preceding the is-
suance of the notice of election by the Regional Director be used to
determine which of the employees in the appropriate unit are eligible
to vote in the election.'
Direction of Election
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 102.61 and 102.62 of National
-Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed at any time during the 30-day period immediately pre-
ceding the date of issuance of the notice of election, including em-
ployees who did not work during said payroll period because they were
ill or on vacation or temporarily laid off, and employees in the military
services of the United States who appear in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled to
reinstatement, to determine whether or not they desire to be repre-
sented, for purposes of collective bargaining, by Cannery Warehouse-
men, Food Processors, Drivers & Helpers, Local Union 679, AFL.
8 Bob Tankersley d/b/a Bob Tankersley Produce Company , 89 NLRB 974.
4lndependent Motion Picture Producers Association et al., 88 NLRB 1285.