Romar Carrot Co.

National Labor Relations Board - Board Decisions

Feb 22, 1977

228 N.L.R.B. 369 (N.L.R.B. 1977)

ROMAR CARROT COMPANY
Guadalupe Carrot Packers d/b/a Romar Carrot Com-
pany and Roberto Baca
Food Packers, Processors and Warehousemen, Team-
sters Local 865. International Brotherhood of
'Teamsters, Chauffeurs,,Warehousemen and Help-
ers of America and Roberto Baca. Cases 31-CA-
4832 and 31-CB-1705
February 22, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On October 19, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as
modified herein.
It is clear from the record, as set forth in the
Administrative Law Judge's Decision, that Respon-
dent Company deducted union dues from Baca's
wages and forwarded them to Respondent Union
without Baca's prior authorization, and that Respon-
dent Union accepted and retained said funds. The
Administrative Law Judge, however, inadvertently
failed to conclude that by the foregoing conduct
Respondent Company violated Section 8(a)(1) of the
Act and that Respondent Union violated Section
8(b)(1)(A) of the Act. As these violations were alleged
in the complaint, litigated at the hearing, and
established by the record, we find that by said
conduct Respondent Company violated Section
8(a)(1) of the Act and Respondent Union violated
Section 8(b)(1)(A). Accordingly, we will modify the
Conclusions of Law and order Respondent Company
and Respondent Union jointly -and severally to
reimburse Baca for the dues unlawfully withheld
from his wages, with interest at the rate of 6 percent
per annum, computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Inasmuch as the Administrative Law Judge's reme-
dy was erroneously restricted to backpay alone, we
will order Respondents jointly and severally to make
1 In sec 1II,D, of his Decision entitled "The Discharge of Baca,"par. 12,
the Administrative Law Judge stated that "only two or three farmers do any
of their own truckdriving in preparation for the shipment of carrots to their
228 NLRB No. 40
369
Baca whole for any loss of earnings or other benefits
resulting from the unlawful - discrimination against
him, with interest at the rate of 6 percent per annum,
computed as prescribed in Isis Plumbing & Heating
Co., supra, and F. W. Woolworth Company, 90 NLRB
289 (1950). Additionally, in light of the nature of the
foregoing violations, we will order Respondents to
cease and desist from interfering in any other manner
with employees' rights under Section 7 of the Act.
AMENDED CONCLUSIONS OF LAW
Insert the following additional Conclusions of Law
4 and 5 and renumber present paragraph 4 according-
ly:
"4. By deducting dues for Respondent Union
from Baca's pay without his prior authorization,
Respondent Company violated Section 8 (a)(1) of the
Act.
"5. By accepting from Respondent Company and
retaining union dues deducted from Baca's pay
without his prior authorization, Respondent Union
violated Section 8(b)(1)(A) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Union, Food Packers, Processors
and Warehousemen, Teamsters Local 865, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Guadalupe,
California, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Guadalupe
Carrot Packers d/b/a Romar Carrot Company to
discharge or discriminate against any employee with
regard to the retention of employment, because that
employee is not a member of the Union.
(b) Accepting and retaining union dues which have
been deducted from employees' wages without their
prior authorization.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Guadalupe Carrot Packers d/b/a Romar
Carrot Company, in writing, that it has no objection
to the immediate and full reinstatement of Roberto
Baca to his former job or, if this job no longer exists,
to a substantially equivalent position, without preju-
destination ." Although no exceptions were filed to this finding , we feel
constrained to note that there is no evidence in the record to support it.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dice to his seniority or other rights and privileges, and
furnish Baca a copy of such notification.
(b) Jointly and severally with Guadalupe Carrot
Packers d/b/a Romar Carrot Company make the
above-named employee whole for any loss of earn-
ings or other benefits resulting from the unlawful
discrimination against him with interest at the rate of
6 percent per annum.
(c) Jointly and severally with Guadalupe Carrot
Packers d/b/a Romar Carrot reimburse the above-
named employee the $9 illegally withheld from his
pay as union dues, with interest at the rate of 6
percent per annum.
(d) Post at its business office, hiring hall, and
meeting place copies of the attached notice marked
"Appendix A." 2 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent Union's
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Post at the same places and under the same
conditions as set forth above, as soon as they are
forwarded by the Regional Director, copies of the
Respondent Company's attached notice marked
"Appendix B."
(f) Deliver to the Regional Director for Region 31
signed copies of the attached notice marked "Appen-
dix A" in sufficient numbers to be posted by
Guadalupe Carrot Packers d/b/a Romar Carrot
Company in all places where notices to employees are
customarily posted.
(g) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
B. Respondent Employer, Guadalupe Carrot
Packers d/b/a Romar Carrot Company, Guadalupe,
California, its officers, agents, successors , and as-
signs , shall:
1. Cease and desist from:
(a) Discharging or discriminating against any
employee with regard to the retention of employment
because that employee is not a member of the Union.
(b) Deducting union dues from employees' wages
and forwarding them to Teamsters Local 865, or any
other labor organization, without prior employee
authorization.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Roberto Baca immediate and full rein-
statement to his former job or, if this job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileg-
es.
(b) Jointly and severally with Teamsters Local 865
make the above-named employee whole for any loss
of earnings or other benefits resulting from the
unlawful discrimination against him with interest at
the rate of 6 percent per annum.
(c) Jointly and severally with Teamsters Local 865
reimburse the above-named employee the $9 illegally
withheld from his pay as union dues.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its business facility located in Guadal-
upe, California, copies of the attached notice marked
"Appendix B. "3 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent Company's
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent Company to insure that said notices
are not altered, defaced, or covered by any other
material.
(f) Post at the same places under the same condi-
tions as set forth above, as soon as they are forwarded
by the Regional Director, copies of the Respondent
Union's notice marked "Appendix A."
(g) Deliver to the Regional Director for Region 31
signed copies of the attached notice marked "Appen-
dix B" in sufficient numbers to be posted by
Teamsters Local 865 in places where notices to
members are customarily posted.
(h) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
2 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
3 See fn.2,supra
ROMAR CARROT COMPANY 371
APPENDIX A APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Guadalupe Carrot Packers d/b/a Romar Carrot
Company to discharge or discriminate against any
employee with regard to the retention of employ-
ment because that employee is not a member of
the Union.
WE WILL NOT accept or retain union dues from
the above-named Company, or any other compa-
ny, which have been deducted from employees'
wages without their prior authorization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL notify Guadalupe Carrot Packers
d/b/a Romar Carrot Company, in writing, that
we have no objection to the immediate and full
reinstatement of Roberto Baca to his former job
or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
furnish Baca with a copy of such notification.
WE WILL jointly and severally with Guadalupe
Carrot Packers d/b/a Romar Carrot Company
reimburse to Roberto Baca the $9 illegally with-
held from his wages as union dues, with interest
at the rate of 6 percent per annum.
WE WILL jointly and severally with Guadalupe
Carrot Packers d/b/a Romar Carrot Company
make Roberto Baca whole for any loss of earnings
or other benefits resulting from our unlawful
discrimination against him, with interest at the
rate of 6 percent per annum.
FOOD PACKERS,
PROCESSORS AND
WAREHOUSEMEN,
TEAMSTERS LOCAL 865
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or discriminate against
any employee with regard to the retention of
employment because that employee is not a
member of Food Packers, Processors and Ware-
housemen, Teamsters Local 865, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
WE WILL NOT deduct union dues from employ-
ees' wages and forward them to the above-named
or any other labor organization without prior
employee authorization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer Roberto Baca immediate and
full reinstatement to his former job or, if this job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges.
WE WILL jointly and severally with the above-
named labor organization reimburse Roberto
Baca the $9 illegally withheld from his wages as
union dues, with interest at the rate of 6 percent
per annum.
WE WILL jointly and severally with the above-
named labor organization make Roberto Baca
whole for any loss of earnings or other benefits
resulting from our unlawful termination of him,
with interest at the rate of 6 percent per annum.
GUADALUPE CARROT
PACKERS D/B/A ROMAR
CARROT COMPANY
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF , Administrative Law Judge: This case
was heard by me in Santa Maria, California, on April 20,
1976, based on a consolidated complaint issued on Febru-
ary 13, 1976. The complaint alleges that the Company,
Guadalupe Carrot Packers d/b/a Romar Carrot Company,
discharged employee Roberto Baca at the insistence of
Respondent Food Packers, Processors and Warehousemen,
Teamsters Local 865, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
and thus both Respondents, the Employer, Romar Carrot
Company, and the Union, Local 865, are guilty of violating
Section 8(a)(1) and (3), Section 8(b)(2), and Section
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(A) of the Act, respectively . The Employer defends
on the basis that the Board lacks jurisdiction because
Roberto Baca is an agricultural employee . Further, the
Employer alleges that there is a second affirmative defense:
that the State of California has taken jurisdiction and found
that Baca is an agricultural employee within the meaning of
the California Agricultural Labor Relations Act.
The Issues
1. Is Baca an agricultural employee and thus excluded
from the jurisdiction of the NLRB?
2. Is the fact that the California Labor Relations Board
has asserted jurisdiction and has found that Baca is an
agricultural employee a valid defense?
Respondent 's answer denied the allegations of unfair
labor practices alleged in the complaint . All parties were
afforded a full opportunity to participate in the hearing.
The General Counsel and the Respondent Company filed
briefs which have been carefully considered.
Upon the entire record and from my observation of the
demeanor of the witnesses , I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer is a corporation duly organized
under and existing by virtue of the laws of the State of
California , with an office and principal place of business
located in Guadalupe , California, where it is engaged in the
processing and sale of carrots.
Respondent Employer, in the course and conduct of its
business operations, annually sells and ships goods and
services valued in excess of $50,000 directly to customers
located outside the State of California . Respondent annual-
ly derives gross revenues in excess of $500,000.
IL THE LABOR UNION INVOLVED
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discussion
Respondent Employer is engaged in growing, harvesting,
and preparing carrots for market at its Guadalupe , Califor-
nia, location . Respondent Employer began operations in
March 1974 . The officers and owners of the corporation are
five growers in the Guadalupe-Santa Maria area. Its
president , Clarence Donati , owns one-half of the corpora-
tion and the remaining four owners hold the other half. At
all times material herein, Clarence Donati occupied the
position of president of Respondent Employer and Bob
Birch , the position of sales manager.
Respondent Employer has a packing shed which is
located in Guadalupe , California , where it processes and
packages carrots for growers within a 25-mile radius of the
shed . During the period from March through December
1974, Respondent Employer processed approximately
8,000 tons of carrots at its packing shed . Approximately
5,000 tons of carrots came from farms owned by the owners
of Respondent Employer and the remaining 3,000 tons of
carrots came from other growers in the area.
In addition to its processing and packing operations,
Respondent Employer, during 1974, also planted , irrigated,
fertilized, cultivated, and harvested carrots on farms owned
by owners of Respondent Employer without charge.
During 1974, Respondent Employer also planted carrots
for other growers in the Guadalupe area, receiving $6 an
acre for this service . Also during 1974, Respondent Em-
ployer harvested and prepared the carrots of other growers
at a rate of $50 a ton, which rate included the transporta-
tion of the carrots to the shed and subsequent sale of the
packaged carrots.
In Respondent Employer 's harvesting operations, during
1974, two of his field employees operated a machine which
picked the carrots , topped them, and tossed them onto a
conveyor belt which carried them to a trailer. A third field
employee drove a tractor pulling the trailer which received
the carrots from the harvester. When the trailers were full,
they were then left in the field for pickup by one of
Respondent Employer's drivers , who then hauled the
loaded trailers to Respondent Employer's packing shed. At
the shed another tractor driver then picked up the trailers
and hauled them to a hoist alongside the shed which then
lifted the sides of the trailers and dumped the carrots onto a
conveyor belt. The carrots were transported by conveyor
into the packing shed, where they were washed, graded,
packaged , and loaded onto freight cars for shipment.
Respondent Employer's harvesting operations were con-
ducted in the same manner as carried on, not only in the
fields of owners of Respondent Employer , but also in the
fields of the independent growers.
At all times material during 1974 the Respondent
Employer had approximately 30 employees in the shed and
6 or 7 in the field, including truckdrivers. Respondent
Employer had two harvesting machines, with a crew of
three on each.
Respondent Employer and Respondent Union are par-
ties to a collective-bargaining agreement having a 3-year
term from November 1, 1973, through October 31, 1976.
Under said agreement the bargaining unit encompasses the
Employer's drivers and helper employees operating on the
Santa Maria and Lompoc Valleys in Santa Barbara County
and San Luis Obispo County. During 1974 Respondent
Employer had separate collective -bargaining agreements
with Respondent Union covering its field and shed employ-
ees.
Respondent's growing seasons are from May through
July and September through December.
B. Baca 's Employment with Respondent Employer
Roberto Baca was employed as a driver by Respondent
Employer on or about June 5, 1974 , at a rate of $3.15 an
hour. During his employment with the Employer, Baca
drove one of the trucks hauling carrots to the packing shed.
About twice weekly Baca also worked I or 2 hours loading
carrots at the packing shed . The last day of Roberto Baca's
employment with Respondent Employer was July 29, 1974.
Baca earned $698.52 during the period of his employment
with Respondent Employer.
ROMAR CARROT COMPANY 373
C. Baca and the United Farm Workers
Baca began working for the United Farm Workers in
early 1973 and ceased working for them in May 1974. Baca
testified that during the time he was with the United Farm
Workers he met Johnny Miranda , an organizer for Respon-
dent Union , on several occasions at the H . Y. Minami farm.
Baca testified that he shouted to Miranda , "Why don't you
go back to the factory , the sheds and leave the fields to the
farmworkers ." Baca testified that Miranda pointed at him
at the time and said , "Wait until you try to go back to
work." While picketing on behalf of the United Farm
Workers , Baca saw Miranda again on several subsequent
occasions . About a month after Baca ceased working for
the United Farm Workers , he began working for the
Respondent Employer.
D. The Discharge of Baca
Respondent Employer's president , Clarence Donati,
testified that Baca was within the coverage of the collective-
bargaining agreement between Respondent Employer and
Respondent Union covering "local drivers and helpers."
Donati testified that he terminated Baca at the insistence of
Union Agent Miranda , who advised him that he should get
rid of Baca, who was a member of Caesar Chavez' union
and a troublemaker . That was the real reason why
Respondent Employer terminated Baca.
Donati testified that Miranda approached him regarding
Baca about a week or 10 days after Baca was employed by
Respondent Employer. At that time Miranda asked Donati
if he knew that Baca was a member of the United Farm
Workers, and Donati replied in the negative. According to
Donati , Miranda then stated that Baca was a member of
the Farm Workers Union and "it is best that we get rid of
him." When Donati refused to fire Baca , Miranda said,
"You'd better get rid of him because as time goes on he may
cause us trouble," and that Donati should not have Baca in
his employ.
About 5 days later , Miranda again spoke to Donati at the
packing shed regarding Baca's employment. Miranda first
questioned Donati as to why Baca had not been terminat-
ed, and then demanded that Baca be terminated "right
away ." Donati testified that he told Miranda he wanted to
keep Baca on through the season which was then almost
over . On the repeated occasions when Miranda demanded
that Donati discharge Baca, Donati testified that he kept
Baca , and wanted to keep him , on his payroll until the end
of the season , which at the time of the request had about 10
days left.
According to Donati , "he said I have to get rid of this
Roberto Baca and he was very demanding ." When Donati
advised Miranda that he wanted to keep Baca on at least
until the end of the season , Respondent Union's agent,
Miranda , said , "No, I want you to get rid of him right now,
I want you to get rid of him right now."
According to Donati , he terminated Baca around noon
on the following day (July 29, 1974). Donati testified that he
told Baca at the time that "I was being forced to release him
because the Teamsters 865 said Roberto Baca had been
active in the United Farm Workers and there was a conflict
between the two, and under the pressure that I was getting,
I am forced to let Roberto Baca go." According to Donati,
Miranda then stated that Baca was a member of the Farm
Workers Union and "it is best that we get rid of him."
Subsequently, Baca spoke with Respondent Employer's
agent, Birch. According to Baca , Birch handed him his
check and said , "I'm sorry to see you leave, we have been
pressured by the Teamsters." According to Baca , Birch at
that time promised to rehire him if Baca could "straighten
out this whole thing."
According to Respondent Employer's agent , Donati,
union dues were withheld from Baca's wages and forward-
ed to Respondent Union, although Baca had not turned in
a dues-deduction authorization card . Baca's testimony that
he had never executed a dues-deduction authorization card
was substantiated by the testimony of Respondent Employ-
er's bookkeeper, Bryant. The July union dues in the amount
of $9 which were deducted by Respondent Employer from
Baca's wages were forwarded to, received, and retained by
Respondent Union.
The major issue in this case was the question as to
whether or not Baca was an employee within the meaning
of Section 2(3) of the National Labor Relations Act. This
section provides that the term "employee" shall exclude
"any individual who is employed as an agricultural labor-
er." The Board's annual appropriation act carries a rider
which provides that the term "agricultural laborer" shall be
defined in accordances with section 3 (f) of the Fair Labor
Standards Act, hereinafter referred to as FLSA, which
provides in pertinent part:
"Agriculture" includes farming and all its branches and
among other things ... the production, cultivation,
growing and harvesting of any agricultural ... com-
modities ... and any practices ... performed by a
farmer or on a farm as an incident to or in conjunction
with such farming operations ....
As the Supreme Court stated with respect to this provision
in Farmers Reservoir & Irrigation Company v. McComb, 337
U.S. 755, 762-763 ( 1949), "this definition has two distinct
branches." The "primary" branch involves such farming
operation, such as the raising of produce from the soil,
while the "secondary" branch , in the Court's words,
"includes any practices" which are performed either "by a
farmer or on a farm , incidental to or in conjunction with
`such' farming operations." In determining whether either
branch of the exemption applies in the given case, the
courts have consistently held that the exemption is to be
narrowly construed and that the burden of proving the
exemption is upon the party claiming it . See N.L.RB. v.
Monterey County Building & Construction Trades Council,
335 F.2d 927, 930, fn. 4 (C.A. 9, 1964), cert. denied 380 U.S.
913 (1965); Hernsberger v. Gillespie, 435 F.2d 926,929 (C.A.
8, 1970), and cases cited therein. In the instant case, the
Company does not contend that the work performed by its
men is within the "primary" definition of agriculture.
Moreover , as is shown below , the record does not support
its contention that such work meets the standards of the
"secondary" definition.
In determining whether an activity is performed on a
farm as an incident to or in conjunction with farming
operations within the meaning of the secondary definition,
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the courts apply a two-part test : first, "whether the
practices are among those ordinarily , customarily, or
usually performed by a farm or on a farm," N.L.R.B. v.
Monterey County Building & Construction Trades Council,
335 F.2d at 930; Mitchell v. Hunt, 263 F.2d 913, 197 (C.A. 5,
1959), and cases cited; and, second, whether the practice
constitutes a part of the agricultural function as opposed to
an independent and separately organized productive activi-
ty. As the Supreme Court stated in Farms Irrigation Co. v.
McComb, 337 U.S. at 760-761:
Agriculture, as an occupation, includes more than
the elemental process of planting , growing and harvest-
ing crops. There area host of incidental activities which
are necessary to that process . Whether a particular type
of activity is agricultural depends, in large measure,
upon the way in which that activity is organized in a
particular society . The determination cannot be made
in the abstract . In less advanced societies the agricultur-
al function includes many types of activity which, and
others, are not agricultural.... Economic progress
however, is characterized by a progressive division of
labor and separation of function. ...In this way,
functions which are necessary to the total economic
process of supplying an agricultural product become, in
the process of economic development and specializa-
tion, separate and independent productive functions
operated in conjunction with the agricultural function
but no longer a part of it. Thus, the question as to
whether a particular type of activity is agricultural is not
determined by the necessity of the activity to agriculture
nor by the physical similarity of the activity to that done
by farmers in other situations . The question is whether
the activity in the particular case is carried on as part of
the agricultural function or is separately organized as an
independent productive activity . [Emphasis supplied.]
Accord: NLRB. v. Monterey County Building & Construc-
tion Trades Council, supra, 335 F.2d at 930.
The Labor Department has promulgated similar stan-
dards with respect to the "secondary" definition in sections
780.144 and 780 . 145 of the interpretive bulletin (25 CFR
sec. 780.144, 780.145). Thus, section 780.144 states that
"Generally, a practice performed in connection with
farming operations is within the statutory language only if
it constitutes an established part of agriculture , is subordi-
nate to the farming operations involved, and does not
amount to an independent business ." Section 780 . 145 sets
forth the relevant factors to be considered in determining
the relationship of the practice of farming:
The character of the practice as a part of the agricultur-
al activity or as a distinct business activity must be
determined by examination and evaluation of all the
relevant factors and circumstances , in the light of the
pertinent language and intent of the Act . . . the
general relationship, if any, of the practice of farming,
as evidenced by common understanding ... and the
prevalance of its performance by farmers ... should be
considered . Other factors to be considered in determin-
ing whether a practice may be properly regarded as
incidental to or in conjunction with the farming
operations of a particular . . . farm include ... the
extent to which the practices performed by ordinary
farm employees and the amount of interchange of
employees between the operations ... and the degree
of separation established between the operations.
Tested by these principles, the Board's finding that the
Company's truckdrivers "do not fall within . . . the
secondary definition of agriculture" is amply warranted.
First, as the Board noted, the work performed by the
truckdrivers is of a "technical" and "engineering nature
... not commonly recognized or regarded as agricultural
or performed by a farmer's own employees." Thus, as
shown, supra, only two or three farmers do any of their own
truckdriving in preparation for the shipment of carrots to
their destination . Moreover , the record is devoid of evi-
dence of interchange of employees or assistance in the
truckdriving work by employees of the farmers for whom
the Company performs its service . Thus, the Board was
warranted in finding that the truckdrivers "do not assist
farmers in purely agricultural tasks ." Therefore, it is clear
that the work performed by the Company's truckdrivers is a
"separately organized . . . independent productive activi-
ty" which is "no longer a part of agriculture." Accordingly,
it would be correct for the Board to find that the
Company's truckdrivers were not "agricultural laborers"
within the meaning of Section 2(3) of the Act.
Thus, while Section 2(3) of the Act excludes any
individual employed as an "agricultural laborer" from the
definition of "employee" covered by the Act, it is clear that
Baca's employment as a driver does not bring him within
the said exclusion.
Off-the-farm transportation is not agriculture in its
primary sense , so Baca's work as a truckdriver transporting
harvested carrots to Respondent Employer 's processing
plant from the fields of independent growers and from the
fields of growers who own stock in Respondent Employer
would be agricultural labor only within the secondary
meaning of the term.
Baca's work is not agricultural within the secondary
meaning of the term since it was performed neither by a
farmer or on a farm . Thus, the evidence adduced establish-
es that Respondent Employer is primarily engaged in the
processing and sale of carrots . Moreover , even if Respon-
dent Employer grows and harvests carrots on lands
individually owned by Respondent Employer's stockhold-
ers, this alone would not establish that Respondent Em-
ployer is a farmer. Thus, to the extent that Baca's work
involved the hauling of carrots from the fields of indepen-
dent growers who were not shareholders of the Employer,
such hauling could not be viewed as agriculture since it was
not performed in conjunction with the Employer's own
farming operations, but rather in conjunction with the
farming operations of the independent growers. Similarly,
to the extent that Baca regularly hauled carrots from the
fields of independent growers to Respondent Employer's
packing shed, Baca was not engaged in agricultural work
and was at all times within the coverage of the Act. Alao
Sugar Company, Ltd, 118 NLRB 1442 (1957). Moreover, it
appears clear that at no time was Baca engaged in activities
included in the secondary definition of agriculture.
ROMAR CARROT COMPANY 375
Thus, the Board has expressly followed the Department
of Labor regulation, section 780.141, which interprets the
phrase "such farming operations" contained in section 3(f)
as follows:
No practice performed with respect to farm commodi-
ties is within the language under discussion by reason of
its performance on a farm unless all such commodities
are the products of "that" farm.
See Austin J. Decoster d/b/a Decoster Egg Farms, 29
CFR, section 780-118, and cases cited therein. In that
decision the Board has held that the above regulation must
be read as limiting the agricultural exemption to those
processors who deal exclusively with their own goods. On
that basis the Board held that the employer's processing
plant employees and truck and trailer drivers did not fall
within the agricultural laborer exemption.
Thus, it can be seen that Respondent Union and
Respondent Employer seek to challenge the jurisdiction of
the Board in the instant case on the ground that the
California Agricultural Labor Relations Board recently
asserted jurisdiction over Respondent Employer's field
unit, in which Baca was employed, despite the fact that the
California Agricultural Labor Relations Board had, in fact,
subsequently asserted jurisdiction over the unit to which
Baca belonged at the time the instant unfair labor practices
arose, under the doctrine of Federal preemption which is to
the effect that the National Labor Relations Board does in
fact have jurisdiction over the instant case. San Diego
Building Trades Council v. Garmon, et al., 359 U.S. 236
(1959), later reaffirmed in Motor Coach Employees v.
Lockridge, 403 U.S. 274 (1971).
The evidence is clear that Respondent Employer termi-
nated Baca because of the insistence of Union Agent
Miranda that Baca be discharged because Baca was a
member of the United Farm Workers.
The evidence is clear that Respondent Union's agent,
Miranda, insisted on Baca's discharge and was motivated
by its knowledge of Baca's past activities on behalf of the
United Farm Workers. In these circumstances, the sole
conclusion that one can come to is that Respondent Union
violated Section 8(b)(2) and (1)(A) of the Act. Moreover, it
should be noted that the Respondent Union further
violated Section 8(b)(1)(A) of the Act by its acquiescence in
and retention of some $9 in union dues which Respondent
Employer illegally deducted from the wages of Baca during
his employment. It should be further noted that in
Respondent Employer's brief no mention is made of the
unfair labor practice, which was not denied at the hearing,
and which appears without doubt to be the fact relating to
Baca's discharge. I so find. In conclusion, taking all the
facts into consideration, I find that Respondent Union and
Respondent Employer are jointly and severally liable for
the violation described, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Baca and Respondent Union as set forth
in section III, above, occurring in connection with the
business operations of Guadalupe Carrot Packers d/b/a
Romar Carrot Company, have a close, intimate, and
substantial relationship to trade , traffic , and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, and that Respondent Union has engaged
in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act, I shall recommend that they
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Baca was unlawfully terminated on
July 29, 1974, because of the unlawful actions of Respon-
dent Union, which Union insisted that Baca be discharged,
I shall recommend that the Union be ordered to notify
Respondent Employer, in writing, with a copy to Baca, that
it has no objection to his immediate and full reinstatement
to his former job or, if this job no longer exists, to a
substantially equivalent position without prejudice to his
seniority to other rights and privileges. I shall also recom-
mend that Respondent Employer be ordered to offer
Roberto Baca immediate and full reinstatement to his
former job or, if this job no longer exists , to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges. I shall further recommend that
Respondent Union and Respondent Employer be ordered
jointly and severally to make Baca whole for any loss of
earnings he may have suffered as a result of the discrimina-
tion against him by payment to him of the amount he
normally would have earned from July 29,1974, which was
the date of his discharge, to the date set forth hereafter, less
net earnings, to which shall be added interest of 6 percent
per annum, in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In the case of the Union, its backpay liability shall
terminate 5 days after it notifies Respondent Employer and
Baca that it has no objection to his reinstatement as
provided above. In the case of Respondent Employer, its
backpay liability shall terminate on the date that Baca is
offered reinstatement.
Having found that the Union unlawfully insisted on the
discharge of Baca, I shall recommend that it be ordered to
register Baca immediately.
I shall further recommend that Respondent Employer be
ordered to preserve and, upon request, make available to
the Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
As the unlawful conduct of the Respondent Union
indicates a purpose to limit the lawful rights of an applicant
for employment and the danger of its continued commis-
sion is reasonably foreseen, I shall also recommend that
Respondent Union be ordered to cease and desist from
causing a discharge of an employee because he is not a
member of the Union, subject to the Board's jurisdiction to
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deny employment to any employee or applicant for
employment because of lack of union membership.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By compelling the discharge of Baca solely because
he was formerly a member , and on the staff of, the United
Farm Workers , Respondent Union violated Section
8(b)(1XA) and (2) of the Act and Respondent Employer
violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]