American Fruit Growers

National Labor Relations Board - Board Decisions

Jun 28, 1939

13 N.L.R.B. 411 (N.L.R.B. 1939)

In the Matter of GEORGE G. AVERILL ; G. A. DAHL & COMPANY;
HUNTER-JOHNSON COMPANY; MCDANIEL & SONS, INC. ; LEWIS A.
TERVEN; THOR PACKING COMPANY ; A. & H. PRODUCE COMPANY;
A. ARENA & COMPANY ; AMERICAN FRUIT GROWERS ; M. O. BEST
COMPANY ; FRED R . BRIGHT COMPANY ; BRUCE CHURCH; J. P.
CARTER ; CROWN PACKING COMPANY ; C. P. DENNY ; DORMAN FARMS
COMPANY ; ALEx E . ENGLEMAN; FARLEY FRUIT COMPANY; FARM-
ERS PRODUCE COMPANY ; FITZGERALD & LITRON; CHARLES FREED-
MAN; ALBERT S. GARGUILO ; S. A. GERRARD COMPANY; GOLDEN
VALLEY PRODUCE COMPANY ; M. A. GOTFRIED ; FRED G . HILVERT Co.;
E. B. HUNTER ; IMPERIAL GARDEN GROWERS; FRANK NARUTO & CO.,
LTD.; JOSEPH PALINISANO COMPANY; SMITH THORNBURG COMPANY;
GEORGE SWINK ; LEVI ZENTNER ; WESTERN VEGETABLE DISTRIBUTORS
and FRESH FRUIT & VEGETABLE WORKERS UNION , LOCAL 78 , C.I.O.
Cases• Nos. R-1267 to R-1290, inclusive.-Decided June 28, 1939
Lettuce Packing Industry-Employee Status : agricultural laborer : individuals
employed in packing sheds during lettuce-packing season not employed as
agricultural laborers ; seasonal employment : employer -employee relationship
held to exist between shed workers and employers-Investigation of Repre-
sentatives : controversy concerning representation of employees : employers'
refusal to grant recognition of union ; contention that employees are agricul-
tural laborers ; majority status disputed by employers-Units Appropriate for
Collective Bargaining :' packing-shed workers employed in the packing and
shipping of lettuce in the Imperial Valley district of California and at Somer-
ton, Arizona , by each of the employers , respectively, excluding office help,
foremen , teamsters , and box makers-Elections Ordered
Mr. William R. TValsh, for the Board.
Whitelaw cC Whitellaw, by Mr. R. B. Whitelaw, of El Centro,
Calif., and McDaniel & Lyon, by Mr. George C. Lyon, of Los
Angeles, Calif., for all the Employers except McDaniel & Sons, Inc.
Leukowitz c Weir, by Mr. R. R. Weir, of Phoenix, Ariz., for
McDaniel & Sons, Inc.
Mr. L. T. Cunningham, of Brawley, Calif., for the Union.
Mr. Percy Rogers and Mr. Bailey Davenport, of Brawley, Calif.,
for the Association.
Mr. Louis Cokin, of counsel to the Board.
13 N. L. R. B., No. 48.
411
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. DECISION
DIRECTION OF ELECTIONS
AND
ORDER
STATEMENT OF THE CASE
On January 19, 22, and 30, 1939, Fresh Fruit & Vegetable Workers
Union, Local 78, C. I. 0., herein called the Union, filed with the
Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia) separate petitions alleging that questions affecting com-
merce had arisen concerning the representation of employees, re-
spectively, of George G. Averill, G. A. Dahl & Company, Hunter
Johnson, McDaniel & Sons, Inc., Lewis A. Terven, Thor Packing
Company, A. & H. Produce Company, A. Arena & Co., Ltd., Ameri-
can Fruit Growers, Inc., M. O. Best Company, Fred R. Bright Com-
pany, Bruce Church, J. P. Carter, Crown Packing Company, C. P.
Denny, Dorman Farms Company, Alex E. Engleman, Farley Fruit
Company, Farmers Produce Co., Ltd., Fitz-Gerald & Litrov, Charles
Freedman, Albert S. Gargiulo, The S. A. Gerrard Co., Inc., Golden
Valley Produce Co., Ltd., M. A. Gotfried, Fred G. Hilvert Co., E. B.
Hunter, Imperial Garden Growers, Frank Naruto & Co., Ltd., Joseph
Palmisano Company, Smith-Thornburg Co., George Swink, A. Levy
& J. Zentner Co., and Western Vegetable Distributors,' herein col-
lectively called the Employers, and requesting investigations and
certifications of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On February 9, 1939, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, and Article III, Section 10 (c) (2), of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation in each case and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and further ordered that the cases be
consolidated for purposes of hearing, and that one record of the
hearing be made.
1 Hunter Johnson , A. Arena & Co., Ltd., American Fruit Growers , Inc, Farmers Produce
Co., Ltd , Albert S. Gargiulo, The S A. Gerrard Co., Golden Valley Produce Co., Ltd,
Joseph Palmisano Company, Smith -Thornburg Co., A. Levy & J Zentner Co , and Fitz-
Gerald & Litrov , were incorrectly designated in the notice of hearing as Hunter -Johnson
Company, A Arena & Company , American Fruit Growers, Farmers Produce Company,
Albert S . Gargullo , S. A. Gerrard Company, Golden Valley Produce Company, Joe
Palinisano Company, Smith Thornburg Company, Levi Zentner, and Fitzgerald and
Litron , respectively.
GEORGE G. AVERILL 413
On February 10, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon each of the Employers,
upon the Union, upon Fruit & Vegetable Packers Association of Cali-
fornia, herein called the Association, a labor organization claiming to
represent employees directly affected by the investigation, upon the,
Los Angeles Industrial Union Council, and upon the Los Angeles
Central Labor Council. Pursuant to the notice, a hearing was held
on February 17, 18, 20, and 21, 1939, at El Centro, California, before
Joseph L. Maguire, the Trial Examiner duly designated by the Board.
The Board and each of the Employers were represented by counsel,
and the Union and the Association by their representatives; all par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the commencement of the hearing,
a motion was filed by counsel for G. A. Dahl & Company to dismiss the
petition as to its employees. Counsel for the Board joined in this mo-
tion. Counsel for G. A. Dahl & Company subsequently attempted to
withdraw its motion. The Trial Examiner, however, reserved ruling
thereon. Inasmuch as no evidence was introduced regarding G. A.
Dahl & Company, the Board hereby grants the motion to dismiss.
Counsel for the Board read a letter from the Association to the
Regional Director stating that the Association wished to intervene
in the cases involving employees of the Employers listed in Appendix
"B," infra. The Trial Examiner allowed it to participate in the hear-
ing, but reserved ruling on the request to intervene. The request is
hereby granted. The Employers filed a joint motion to dismiss the
petitions for investigation and certification of representatives and to
dismiss the proceeding on the grounds (1) that no questions affect-
ing commerce had arisen concerning the representation of employees;
(2) that the employees named in the petitions are all "agricultural
laborers" within the meaning of Section 2 (3) of the Act and are there-
fore exempt from the jurisdiction of the Board; (3) that the Em-
ployers are not engaged in nor do their transactions or products affect
interstate commerce; (4) that the employees have not requested an
opportunity to bargain collectively with the Employers; and (5) that
there is no labor dispute between the employees and the Employers.
The Trial Examiner reserved ruling thereon. The Board hereby denies
the motion.
During the course of the hearing, the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 6, 1939, the Employers filed a brief which the Board has
considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Each of the Employers is engaged in the business of packing lettuce
in the Imperial Valley district of California or at Somerton, Arizona.
The Employers stipulated at the hearing that "from 80 to 90 per cent
of the lettuce and carrots that are packed in the lettuce sheds that
are under investigation in this hearing, whether sold on consignment
or f. o. b. shipping point, eventually found its way out of the State
of California into interstate commerce."
Adopting the language of the Employers' brief, we find that
generally -
The Employers 2 [fall] into three categories dependent upon
their method of operation. 'These three categories are as follows :
1. Those Employers who lease or own the land on which their
lettuce is grown and pack only the lettuce which they so grow.
2. Those Employers who raise their lettuce by making cash
advances to a person or persons who grow it under the Employers'
supervision and control, and those Employers who buy growing
crops of lettuce and thereafter mature and harvest it.
3. Those Employers who operate partially in the first manner
and partially in the second.
The Employers dry pack approximately 25 per cent of the lettuce in
the field where it is grown. The remainder is ice packed, the opera-
tions being carried on in packing plants or sheds which are located
at railroad shipping points.
In the Imperial Valley district there is only one lettuce-packing
season," from about the first of January until the middle of March.
George G. Averill operates a packing shed at Holtville, California.
The lettuce which he packs and ships is all grown by him. During
the lettuce deal of 1938, 46 employees were employed at the packing
shed and 247 carloads 4 of lettuce were shipped.
Hunter Johnson operates a packing shed at Holtville, California.
He packs only lettuce raised by him on his own land. During the
1938 lettuce deal, he employed 42 workers at the packing shed and
8 Although the brief uses the term "Respondents" we have in accordance with our usage
herein substituted the designation "Employers."
8 A packing season is also known as a "deal "
• A carload of lettuce contains from a minimum cf 285 to a maximum of 320 crates.
A crate contains either four, five, or six dozen beads of lettuce, depending upon the size
of the beads.
GEORGE G. AVERILL 415
shipped 149 carloads of lettuce. Some of the shipments were sold
f. o. b. the packing shed to buyers representing commission merchants
and some were sold on consignment.
McDaniel c6 Sons, Inc., an Arizona corporation, operates a packing
shed at Somerton, Arizona, where it ships lettuce and carrots. The
company's lettuce supply is grown on land owned by it. During
the lettuce deal of 1938 and part of the 1939 deal, the company
packed 999 carloads of lettuce, all of which it shipped to points
outside Arizona, and employed 136 workers in its packing shed.
Lewis A. Terven operates a packing shed at Holtville, California.
The lettuce which he packs and ships is all obtained pursuant to
cash-advance contracts. During the lettuce deal of 1938, he packed
183 carloads of lettuce and employed about 25 workers in his shed.
Thor Packing Company is the name under which M. E. Thornburg
does business. At a shed at Holtville, California, he packs lettuce
which is either grown on land which he owns or leases, or is obtained
through the purchase of growing crops, or pursuant to cash-advance
contracts . During the lettuce deal of 1938 and part of the 1939 deal,
he packed and shipped 436 carloads of lettuce. He employs approx-
imately 34 men in his packing shed during the lettuce season.
A. d H. Produce Company is a partnership composed of -V. Honda
& A. Aisawa. The partnership operates a lettuce- and carrot-packing
shed at Brawley , California . On occasion it purchases growing crops
of lettuce, but its principal supply comes from land which it owns or
leases . In the first half of the 1939 lettuce deal, the partnership packed
and shipped 160 carloads of lettuce. The partnership employs 41
people in its packing shed during the lettuce season.
A. Arena c Co., Ltd., a California corporation, has its principal
office in Los Angeles, California. It operates packing sheds at Yuma
and Mesa, Arizona, and in the Salinas Valley and in the Imperial
Valley in California. Its shed in the Imperial Valley is located at
Brawley, California , and is used for packing and shipping lettuce
and carrots . On occasion it purchases growing crops of lettuce,
but its principal supply comes from land which it leases or owns.
During the first half of the 1939, lettuce deal, it packed and .shipped
350 carloads of lettuce. The majority of the shipments were sold
f. o. b. the packing shed to buyers representing eastern commissioji
merchants . It employs approximately 160 workers in the Brawley
shed during the lettuce season.
American Fruit Growers, Inc., a California corporation, has its
principal office at Pittsburgh, Pennsylvania. It operates a packing
shed at Brawley, California, and has brokers in all the distributing
centers of the United States . Its lettuce supply is grown on land
which it leases or owns. During the lettuce deal of 1938, it packed
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and shipped 992 carloads of lettuce, employing 86 men in its packing
shed.
H. 0. Best Company is the name under which M. 0. Best does
business. He operates a packing shed at El Centro, California, grow-
ing his lettuce on land which he owns and leases. During the lettuce
deal of 1938, he packed and shipped 350 carloads of lettuce, employ-
ing 108 workers in the shed. All the shipments were sold f. o. b. the
packing shed to buyers representing various commission merchants.
Fred R. Bright Company is the name under which Fred R. Bright
does business. He operates a packing shed at El Centro, California.
His supply of lettuce comes from land which he owns or leases.
During the lettuce deal of 1938, he shipped 453 carloads of lettuce
from the El Centro shed, where he employed approximately 100
workers. All shipments were sold f. o. b. shipping point to buyers
representing eastern commission merchants.
Bruce Church operates packing sheds at Yuma, Arizona and at
Salinas and at El Centro, California. The shed at El Centro is used
for packing lettuce. He obtains his supply of lettuce from land
which he leases or owns or by cash-advance contracts. During the
lettuce deal of 1938 , he packed and shipped 359 carloads of lettuce.
He employed about 65 men in his packing operations.
J. P. Carter operates a packing shed at Calexico , California. The
lettuce which he packs and ships is grown by him . During the
lettuce deal of 1938, Carter employed approximately 28 workers
at the packing shed and shipped about 122 carloads of lettuce. Al]
the shipments were sold to commission merchants f. o. b. the shed.
Crown Packing Company, a California corporation , operates pack-
ing sheds in the Salinas' Valley and at El Centro, California, in the
Imperial Valley. The lettuce which it packs and ships is either
grown by it or purchased as growing crops prior to maturity or
obtained pursuant to cash-advance contracts. During the lettuce
deal of 1938, it employed 38 people in the packing shed at El Centro
and shipped 100 carloads of lettuce . All the shipments were sold
f. o. b. the packing shed to buyers representing various commission
merchants.
C. P. Denny operates a lettuce-packing shed at Sandia, California.
Ile grows all the lettuce which he packs and, ships. During the
lettuce deal of 1938 , he employed about 53 workers in his shed and
packed 210 carloads of lettuce, all of which were sold f. o. b. shipping
point.
Dorman Farms Company , a California corporation , has its princi-
pal office at Los Angeles and operates a lettuce-packing shed at Holt-
ville, Imperial County, California. It grows lettuce on land which
it leases . During the lettuce deal of 1938 , it packed 492 carloads of
lettuce and employed 42 workers in its shed.
GEORGE G. AZVERILL 417
Alex E. Engleman operates a packing shed at Modesto, California,
in the Imperial Valley. The lettuce- which he packs and ships is
either grown by him or purchased as growing crops prior to maturity
or obtained pursuant to cash-advance contracts. During the lettuce
deal of 1938, he employed 47 workers at the packing shed and shipped
67 carloads of lettuce. All the shipments were sold f. o. b. the pack-
ing shed to buyers representing various commission merchants.
Farley Fruit Company, a California corporation, operates packing
sheds at Salinas and at Calexico, California. The shed at Calexico
is operated during the lettuce season . The corporation grows all of
its lettuce on owned or leased land . During the lettuce deal of 1938,
it packed about 174 carloads of lettuce at Calexico and employed 59
employees in its shed.
Farmers Produce Co., Ltd. is a California corporation with its
principal office and its packing shed at Brawley, California. The
lettuce which it packs and ships is either grown by it or obtained
pursuant to cash-advance contracts. During the lettuce deal of 1938
it employed 43 workers at its shed and shipped 325 carloads of lettuce.
All the shipments were sold f. o. b. shipping point to buyers repre-
senting various commission merchants.
Fitz-Gerald & Litrov, a partnership composed of J. E. Fitz-Gerald
and Abraham Litrov with its principal office at Los Angeles, operates
lettuce-packing sheds at El Centro, California, in the Imperial Valley,
and at Yuma, Arizona. It grows nearly all of its lettuce supply on
leased land and only infrequently purchases growing crops . During
the lettuce deal of 1938, it shipped 800 carloads of lettuce from its
El Centro shed, employing 54 men in the process.
Charles Freedman is a partner of a firm composed of Charles
Freedman and O. J. Jennings. The partnership operates packing
sheds for lettuce in the Salt River Valley district in Arizona and
in the Imperial Valley at El Centro, California. It obtains its
supply of lettuce by the purchase of growing crops or pursuant to
cash-advance contracts. During the lettuce deal of 1938, it employed
123 workers at the El Centro shed from which it shipped 348 car-
loads of lettuce. The majority of the shipments were sold f. o. b. the
packing shed to buyers representing eastern commission merchants.
Albert S. Gargiulo is a partner of a firm composed of Albert S.
and Louise Gargiulo which operates a lettuce-packing shed at Braw-
ley, California. It grows its lettuce on land which it owns or leases.
During the lettuce deal of 1938, it employed 32 men in its lettuce shed
and packed and shipped 200 carloads of lettuce.
The S. A. Gerrard Co., Inc. is an Ohio corporation having its
main office in Cincinnati . It operates packing sheds in Colorado, in
the Salt River Valley of Arizona, in the Salinas Valley in California,
and at Brawley in the Imperial Valley district of California. It
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtains its supply of lettuce from land owned or leased by it or pursu-
ant to cash-advance contracts. During the lettuce deal of 1938, it
employed 75 employees at the Brawley shed and shipped 375 carloads
of lettuce from it.
Golden Valley Produce Co., Ltd., is a California corporation op-
erating a lettuce-packing shed at El Centro, California. Its entire
supply of lettuce is obtained through cash-advance contracts. Dur-
ing the 1938 lettuce deal, it packed and shipped 295 carloads of
lettuce, and employed 36 workers in its shed.
M. A. Gotfried operates a packing shed at Holtville, California.
On occasion he purchases growing crops of lettuce but.his principal
supply comes from land which he owns or leases. During the lettuce
deal of 1938, he packed about 225 carloads of lettuce, employing 28
men in the process.
Fred G. Hilrvert Co. is a common-law trust and operates packing
sheds at several places in Colorado and in California. It operates a
shed for the packing of lettuce at Brawley, in the Imperial Valley
district of California where it grows lettuce on leased land. During
the lettuce deal of 1938, it shipped 547 carloads of lettuce from its
Brawley shed, employing 158 workers in the process.
E. B. Hunter operates a packing shed at Calexico, California. He
grows the lettuce which he packs and ships. During the lettuce deal
.of 1938, he employed 30 workers in his shed and shipped 278 carloads
of lettuce.
Imperial Garden Growers, a California corporation, operates a
packing shed at Heber, California. It grows all of its lettuce supply
on land leased or owned by it. During the lettuce deal of 1938, it
packed and shipped 155 carloads of lettuce and carrots and employed
25 men in its packing shed.
Frank Naruto & Co., Ltd., a California corporation, operates a
lettuce-packing shed at El Centro, California. It obtains its supply
of lettuce through the medium of cash-advance contracts. During
the lettuce deal of 1938, it shipped 100 carloads of lettuce and em-
ployed 21 workers at its shed.
Joseph Palmisano Company is the name under which Joseph
Palmisano does business. He operates a packing shed at Holtville,
California, obtaining his supply of lettuce from land owned and
leased by him or pursuant to cash-advance contracts. During the
lettuce deal of 1938, lie packed 185 carloads of lettuce employing 54
workers in the process.
Smith-Thornburg Co. is a partnership composed of Floyd N. Smith
and Wayne Thornburg. The partnership operates a packing shed
for lettuce at Holtville, California. Its lettuce supply is grown on
land which it leases or owns. During the 1938 lettuce deal, the
GEORGE G. AVERILL 419
partnership packed 193 carloads of lettuce and employed 40 people
as shed workers.
George Swink operates a packing shed at Brawley, California. He
obtains his supply of lettuce from land owned and leased by him.
During the lettuce deal of 1938, he packed 128 carloads of lettuce
employing 55 workers in the process.
A. Levy de J. Zentner Co., a California corporation, operates pack-
ing sheds at Reno, Nevada, at Elko, Nevada, and in the Imperial
Valley in California. The shed in the Imperial Valley district is
located at, El Centro. The corporation's lettuce supply, is grown on
land which it leases or owns. During the 1938 lettuce deal, it packed
and loaded 302 carloads of lettuce at the El Centro shed, employing
27 workers in the process.
Western Vegetable Distributors is a partnership composed of
Elmer Hartner and Calvin Kunz and operates lettuce-packing sheds
in Colorado, in the Salt River Valley district of Arizona, and in the
Imperial Valley of California. The shed in the Imperial Valley
district is located at El Centro where it obtains its supply of lettuce
pursuant to cash-advance contracts. During the lettuce deal of 1938,
it shipped a total of 259 carloads of lettuce from its El Centro shed
and employed about 61 workers.
II. THE ORGANIZATIONS INVOLVED
Fresh Fruit and Vegetable Workers, Local No. 78, United Cannery,
Agricultural , Packing and Allied Workers of America , is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to its membership all shed workers engaged in the packing
and shipping of lettuce , except foremen, clerical employees , teamsters,
and box makers.
Fruit & Vegetable Packers Association of California is an un-
affiliated labor organization admitting to its membership all white
shed workers engaged in the packing and shipping of lettuce , except
foremen , clerical employees , teamsters , and box makers.
III. THE EMPLOYEES
An Employer which grows its own supply of lettuce or which
purchases growing crops prior to maturity carries on its pay rolls
field laborers who perform the harvesting and cutting of the crop.
In the field, the lettuce is packed into field crates or Vessey wagons
and transported by truck to the packing shed. The truck drivers are
generally field workers who have been engaged in the harvesting of
the lettuce.
At the packing shed, the lettuce is unloaded from the truck and is
handled by shed workers called receivers. These workers either
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dump the lettuce into a skid which conveys it to the trimming bench
or carry it to the trimming bench themselves. Employees called
trimmers take the lettuce from the bench, remove the decayed or
brown leaves, and, using a sharp knife, chop off the butt of the head
of lettuce. After being trimmed, the lettuce is handled by a packer
who works at the trimming table packing two crates at a time. Gen-
erally there are two or three trimmers for each packer. The packer
picks up two heads of lettuce at a time and, depending upon the size
of the heads, places them in one of the two crates which-he is packing.
The packed crate is next placed upon a skid which conveys it to
the end of the shed, where an iceman puts crushed ice into the crate.
The crate then moves under a lidding machine, which nails on a lid.
A label boy puts a label on the crate, the size of the heads is marked
on it, and then a car loader places the crate in a railroad car on a
siding alongside the packing shed. , Finally, ice is packed over the
tops of the crates in the railroad car, and the lettuce is ready for
shipment.
In the vast majority of cases, the shed employees do not perform
any work in the fields. Nor do they work in the sheds during the
cantaloupe or carrot-packing seasons. They leave the Imperial Val-
ley at the end of its lettuce-packing season and go to the Salt River
Valley in Arizona to work in packing sheds during the lettuce-pack-
ing seasons of that district. The Employers tend to give preference
to their old employees, and many of the shed workers work for
the same employer or for the same foreman in the Imperial Valley,
then in Arizona, and finally return for the next lettuce deal in the
Imperial Valley. The shed workers generally do only lettuce-packing
work and move from one lettuce deal to another.
The petitions of the Union requesting an investigation and certi-
fication of representatives are filed with reference to the shed em-
ployees who are engaged in the packing and shipping of lettuce.
The Employers contend that all of their employees are "agricultural
laborers," the packing-shed workers as well as the laborers in the
fields. Section 2 (3) of the Act excludes "any individual employed
as an agricultural laborer" from the definition of the term "em-
ployee," and consequently from the jurisdiction granted to the Board.
The mere fact that an employee is engaged in handling products
grown upon a farm does not of itself classify him as an "agricultural
laborer." Although the employees with whom we are here concerned
handle products grown upon a farm, their services are not rendered
in the fields. Instead, they work only in the packing sheds or plants
and their services are devoted entirely to the handling of lettuce as
it is being prepared in the sheds for shipment to market. It is our
conclusion that the services which are performed by shed workers
GEORGE G. AVERILL 421
engaged in the packing and shipping of lettuce are not "'agricultural"
in nature, but are performed in connection with commercial packaging
and shipping enterprises.5 Moreover, for the reasons stated in Mat-
ter of American Fruit Growers, Inc. et al. and Fruit c Vegetable
Workers Sub Local of #191, UCAPAWA, C. I. 0.,6 we are of the
opinion that employees of those firms which operate by means of
the purchase of growing crops or by means of cash advances are not
agricultural laborers for the added reason that they are not employed
by the owner of the farm on which the products were produced.
We find that the individuals employed by the Employers in the
packing sheds during the lettuce-packing seasons are not employed
as agricultural laborers.'
IV. THE QUESTIONS CONCERNING REPRESENTATION
The Employers contend that there is no question concerning rep-
resentation because 11 of the Employers were not requested to bar-
gain. The existence of a question does not depend solely upon
whether or not an employer has refused to bargain collectively upon
request. The Employers, at the hearing, contested the Union's alle-
gation that it represented a majority of the employees. Such a
denial is sufficient proof that a question concerning representation
exists.
The Employers also claimed that no question concerning repre-
sentation has arisen for-the reasons that if an election is ordered it
will have to be conducted after the close of the 1939 lettuce deal,
that no arrangements had been made for rehiring any of the em-
ployees when the 1940 packing season begins, and that the relation-
ship of employer and employee will have been terminated.
The ' evidence is clear, however, that an employer and employee
relationship exists between these packing-shed workers as a group
and the Employers. The fact that, as individuals, they may not
work for the same Employer season after season, does not deprive
5 For definitions of "agricultural labor" as defined by other Federal agencies , see Art 6,
Social Security Board Regulations No 2, relating to Federal Old-Age Benefits under Title II
of the Social Security Act ; Art. 6, U S Treasury Department, Bureau of Internal Revenue
Regulations 91 relating to the Employees ' Tax and the Employers ' Tax under Title VIII;
Art. 206 ( 1), U. S. Treasury Department , Bureau of Internal Revenue Regulations 90
relating to the Excise Tax on Employees under Title IX.
We do not , however, adopt all the specific rulings which have been made with respect
to the definitions set out in the above citations We expressly reject the ruling of the
Commissioner of Internal Revenue, dated September 10, 1937, which is cited in the
Employers ' brief and in Matter of American Fruit Growers , Inc, at at and Fiuit ,t
Vegetable Workers Sub Local of #191, UCAPAWA, C. I. 0, 10 N. L. R B 316.
e 10 N. L. R B. 316 at 327, 328
' Cf. Matter of American Fruit Growers, Inc et at . and Fruit & Vegetable Workers
Sub Local of #191, UCAPAWA , C. 1. 0., 10 N. L. R. B. 316; Matter of North Whittier
Heights Citrus Association and Citrus Packing House Workers Union , Local No 21,091,
10 N. L. R. B. 1269.
187930-39-vol 13-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them of the 'relationship they have with all the Employers as a
group. In this respect, their status is comparable to that of long-
shoremen whose employment shifts from day to day among a small
group of employers. We have consistently held that longshoremen
are employees within the meaning of the Act and it follows that
packing-shed employees are nevertheless employees entitled to all
the benefits accorded employees under the Act. The record indi-
cates that these employees constitute a clearly defined group of men
to whom the Employers turn season after season for their require-
ments 8
We find that a question has arisen concerning representation of
employees of each of the Employers, with the exception of G. A.
Dahl & Company.
V. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find as to each of the Employers in this proceeding that the
question concerning representation which has arisen occurring in
connection with its operations, described in Section I above, has a
close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tends to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
VI. THE APPROPRIATE UNITS
The Union, in its petitions, claimed that the production employees
in and about the lettuce-packing sheds of each Employer, respec-
tively, except office help, foremen, and teamsters, constitute a unit
appropriate for the purposes of collective bargaining. At the hear-
ing, the secretary of the Union clarified its claim by defining "pro-
duction employees" as including receivers, truckers, trimmers, pack-
ers, crate liners, icemen, lidders, and carloaders. He further as-
serted that the box makers working in the sheds are usually em-
ployees of an independent box company and should be excluded from
the unit.
As we have noted above, the Employers contended that all of their
employees, the packing-shed workers as well as the field workers,
are agricultural laborers. Other than this, the Employers made
no objection to the unit described by the Union and made no claim
for any other unit. The Association urged the same unit as that
desired by the Union.
a Cf. Matter of Alaska Packers Assoelatton and Alaska Cannery Workers Union Local
No. 5, Committee for Industrial Organization, 7 N. L It. B. 141.
GEORGE G. AVERILL 423
The propriety of a unit which is limited to packing-shed workers
is supported by several considerations. The packing-shed workers
receive substantially higher rates of pay than do the workers in the
field; generally there is no interchange of employees between the shed
and the field; and their operations in the packing sheds involve
entirely different processes. We see no reason to deviate from the
desires of the Union and the Association.
We find that all the receivers, truckers, trimmers, packers, crate
liners, icemen, lidders, carloaders, and others employed as packing-
shed workers in the packing and shipping of lettuce in the Imperial
Valley district of California, or at Somerton, Arizona, by each of
the Employers, respectively, excluding office help, foremen, teamsters,
and box makers, constitute, in the case of each Employer, a unit ap-
propriate for the purposes of collective bargaining, and that said
unit will insure to these employees the full benefits of their right to
self-organization and to collective bargaining and otherwise effectu-
ate the policies of the Act.
VII. THE DETERMINATION OF REPRESENTATIVES
Although the Union and the Association claimed substantial mem-
bership among the employees in the packing sheds, no evidence was
introduced at the hearing upon the basis of which we could make
a finding that a majority of the employees in the units found to be
appropriate have designated and selected any representatives for
the purposes of collective bargaining. We therefore find that elec-
tions by secret ballot are necessary to resolve the questions concern-
ing representation.
Inasmuch as packing-shed workers frequently shift their employ-
ment from one Employer to another, we shall select a date for de-
termining eligibility to participate in the elections which will most
closely reflect the employment situations at the time of the election.
Eligibility to vote in the elections will, therefore, be extended to
packing-shed workers within the appropriate unit employed by
the Employers during a pay-roll period to be determined by the
Board in the future.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONcI usIONs OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of each of the Employers listed in Appendices
"A" and "B," respectively, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the National Labor Relations Act.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) All the receivers, truckers, trimmers, packers, crate liners, ice-
men, lidders, carloaders, and others employed as packing-shed work-
ers in the packing and shipping of lettuce in the Imperial Valley
district of California, or at Somerton, Arizona, by each of the Em-
ployers listed in Appendices "A" and "B," respectively, excluding
office help, foremen, teamsters, and box makers, constitute, in the
case of each Employer, a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigations authorized by the
Board to ascertain representatives for the purposes of collective bar-
gaining, elections by secret ballot shall be conducted at such times as
the Board may in the future direct, under the direction and super-
vision of the Regional Director for the Twenty-first Region, acting
in this matter as agent for the National Labor Relations Board and
subject to Article III, Section 9, of said Rules and Regulations, among
all the receivers, truckers, trimmers, packers, crate liners, icemen,
lidders, carloaders, and others employed as packing-shed workers in
the packing and shipping of lettuce in the Imperial Valley district
of California, or at Somerton, Arizona, who were employed, during
a pay-roll period to be determined by the Board at a future date, by
each of the Employers listed in Appendix "A," respectively, exclud-
ing office help, foremen, teamsters, boxmakers, and employees who,
between the pay-roll date to be determined by the Board and the date
of the election have quit or been discharged for cause, to determine
whether or not such employees desire, in the case of each Employer,
to be represented by Fresh Fruit & Vegetable Workers, Local No. 78,
United Cannery, Agricultural, Packing and Allied Workers of Amer-
ica, affiliated with the Congress of Industrial Organizations, for the
purposes of collective bargaining; and it is
FURTHER DIRECTED that, as part of the investigations authorized
by the Board to ascertain representatives for the purposes of collec-
tive bargaining, elections by secret ballot shall be conducted at such
times as the Board may in the future direct, under the direction 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 Article III, Section 9, of said Rules and Regulations,
GEORGE G . AVERILL 425
among all the receivers, truckers, trimmers, packers, crate liners,
icemen, lidders, carloaders, and others employed as packing-shed
workers in the packing and shipping of lettuce in the Imperial Valley
district of California or at Somerton, Arizona, who were employed,
during a pay-roll period to be determined by the Board at a future
date, by each of the Employers listed in Appendix "B," respectively,
excluding office help, foremen, teamsters, box makers, and employees
who, between the pay-roll date to be determined by the Board and the
date of the election have quit or been discharged for cause, to deter-
mine whether such employees desire, in the case of each Employer, to
be represented by Fresh Fruit & Vegetable Workers, Local No. 78,
United Cannery, Agricultural, Packing and Allied Workers of
America, affiliated with the Congress of Industrial Organizations, or
by Fruit & Vegetable Packers Association of California, for the
purposes of collective bargaining, or by neither. And it is
ORDERED that, the petition alleging that a question affecting com-
merce has arisen concerning employees of G. A. Dahl & Company,
Somerton, Arizona, be, and it hereby is, dismissed.
APPENDIX A
1. George G. Averill.
2. Hunter Johnson.
3. McDaniel & Sons, Inc.
4. Lewis A. Terven.
5. M. E. Thornburg, an individual doing business as Thor Packing
Company.
APPENDIx B
1. V. Honda & A. Aisawa, copartners doing business under the
name of A. & H. Produce Company.
2. A. Arena & Co., Ltd.
3. American Fruit Growers, Inc.
4. M. O. Best, an individual doing business as M. O. Best Company.
5. Fred R. Bright, an individual doing business as Fred R. Bright
Company. -
6. Bruce Church, an individual doing business as Bruce Church Co.
7. J. P. Carter.
8. Crown Packing Company.
9. C. P. Denny.
10. Dorman Farms Company.
11. Alex E. Engleman.
12. Farley Fruit Company.
13. Farmers Produce Co., Ltd.
14. J. E. Fitz-Gerald and Abraham Litrov, copartners doing busi-
ness under name of Fitz-Gerald and Litrov.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. Charles Freedman and O. J. Jennings, copartners doing busi-
ness under the name of Charles Freedman.
16. Albert A. and Louise Gargiulo, copartners doing business under
the name of Albert A. Gargiulo.
17. The S. A. Gerrard Co. Inc.
18. Golden Valley Produce Co., Ltd.
19,. M. A. Gotfried, an individual doing business as M. A. Gotfried
Co.
20. Fred G. Hilvert Co., a common law trust.
21. E. B. Hunter.
22. Imperial Garden Growers.
23. Frank Naruto & Co., Ltd.
24. Joseph Palmisano, an individual doing business as Joseph
Palmisano Company.
25. Floyd N. Smith and Wayne Thornburg, copartners doing busi-
ness under the name of Smith-Thornburg Co.
26. George Swink.
27. A. Levy & J. Zentner Co.
28. Elmer Hartner and Calvin Kunz, copartners doing business
under the name of Western Vegetable Distributors.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision , Direction of Elections , and Order.