Bernard Hamner

National Labor Relations Board - Board Decisions

Jan 25, 1954

107 N.L.R.B. 936 (N.L.R.B. 1954)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounts to some $17,000 a year, and the estimated revenue
from the hospital contract is between $400 and $500 a month.
We find merit in the Employer's contention that its contracts
with the Air Force base do not substantially affect the national
defense effort. In view of the foregoing, we find that, although
the Employer's operations are not unrelated to commerce, the
policies of the Act would not be effectuated by the assertion of
jurisdiction in this case? We shall therefore dismiss the
petition.
[The Board dismissed the petition]
Member Murdock, dissenting:
I dissent from the conclusion of my colleagues that the Em-
ployer's operations do not substantially affect the national
defense effort and hence do not warrant the assertion of juris-
diction. I have fully set forth my views as to the proper
approach to cases involving the national defense concept in my
dissent in Taichert's Inc., supra, in which my colleagues have
departed from the Board's prior jurisdictional policy in that
field.
The United States Air Force base 3 miles distant apparently
regards the laundry services rendered by this Employer of
sufficient importance to the base to permit the Employer the use
of a room at the base in connection with the transaction of its
business with individuals which amounts to $17,000 a year. In
addition the Employer has a contract for services to the base
hospital amounting to $400-$500 per month. It is the only
steam laundry within a distance of 40 miles. It seems a
reasonable inference that an industrial dispute involving a
stoppage of this Employer's laundry operations would create
a serious problem with respect to the base hospital.. Could
anything be more indispensable to the sanitary and efficient
operation of a hospital than adequate laundry service? I am
unwilling to take the position that laundry service for hospitals
of the armed services is an unimportant or insubstantial
aspect of the national defense or to speculate as to the extent
to which this hospital might be able to get a timely substitute.
2 See Taichert's Inc , 107 NLRB 779.
BERNARD HAMNER, BURDETTE HAMNER AND WALTER C.
ROBERTS, CO-PARTNERS,' AND R. D. MCCARTNEY and
UNITED FRESH FRUIT & VEGETABLE WORKERS, LIUNO.
78, CIO, Petitioner
'Hereinafter called Hamner. The names of the Employers appear as amended.
107 NLRB No. 187.
BERNARD HAMNER, ET AL 937
HARRY HUGHES AND NORMAN HUGHES, CO-PARTNERS, 2
AND GEORGE ASHBAUGH and UNITED FRESH FRUIT &
VEGETABLE WORKERS, LIU NO. 78, CIO, Petitioner
HORRIS GREER3AND THOMAS P E R S O N I U S and UNITED
FRESH FRUIT & VEGETABLE WORKERS, LIU NO. 78,
CIO, Petitioner. Cases Nos. 21-RC-3239, Z1-RC-3240, and
21 -RC-3328. January 25, 1954
DECISION AND ORDER
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held
on October 7, 1953, before Ben Grodsky , hearing officer.' The
hearing officer ' s rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Cases Nos. 21-RC-3239 and 21-RC-3240
Upon the entire record in these cases , the Board finds:
1. Hamner and Hughes are engaged , insofar as is material
here, in the growing of potatoes. As an adjunct to their farming
operations, they own packing sheds where their potatoes--and
a substantial quantity of potatoes of other growers--are, after
harvesting, washed, graded, and bagged for shipment. The
growers do not themselves manage the sheds but engage, under
oral contracts , labor contractors , who are in charge of, and
responsible for, the packing operations. The petitions in this
proceeding, each of which seeks a unit of packing-shed em-
ployees, name the growers and, alternatively , the labor con-
tractors, as the employers of the employees involved. Hamner
and Hughes moved that the petitions be dismissed as to them
upon the ground, among others, that they are not the employers
of the employees in the requested units.
During the 1953 potato-packing season Hamner and Hughes
engaged R. D. McCartney and G. Ashbaugh, respectively, as
their labor contractors . The record discloses that McCartney
and Ashbaugh are licensed by the State of California to engage
in the business of supplying labor for packing-shed operations,
and that they are paid for their services to the growers a cer-
tain amount for each 100 -weight bag of potatoes processed
through the sheds. Each contractor recruits the potato-packing
employees for work in the sheds , alone exercises the authority
to hire, discharge , and discipline these employees , alone de-
2 Hereinafter called Hughes. The names of the Employers appear as amended.
3Horris Greer's name appears as corrected at the hearing.
4The Lee Worsham case, 21-RC-3243, was consolidated for hearing with the above cases.
At the close of the hearing, however, that case was without objection severed from this pro-
ceeding and continued indefinitely On October 15, 1953, the hearing officer issued a formal
order so severing and continuing that case.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termines their rates of pay, hours of work, and other working
conditions , alone carries these employees on his payroll, and
alone makes deductions from their pay for withholding taxes
and unemployment insurance. The growers have no employees
of their own in the sheds and exercise no supervisory or other
authority over the shed employees.
In view of the foregoing, and the entire record, we find that
the labor contractors, McCartney and Ashbaugh, are independent
contractors and that the potato-packing employees employed
at each of the packing sheds are the employees of the labor
contractor at each shed and not the employees of the growers,
Hamner and Hughes.'
2. The record shows that McCartney received during the
most recent 12-month period not more than $ 14,000 for all
his services as an independent contractor . During this period
he was paid a total of only $7,851.48 for his services in
operating the Hamner packing shed, this sum including payment
by both Hamner and other growers who utilized the shed. The
record further shows that Ashbaugh received during the most
recent 12-month period only $9,008.50 for all his services in
operating the Hughes shed. What other sums, if any, he re-
ceived during this period for his services elsewhere as a labor
contractor is Trot stated in the record. Assuming, without so
finding, that McCartney and Ashbaugh are engaged in operations
affecting commerce within the meaning of the Act, we find on the
basis of the above facts and on the record as a whole that their
operations do not have sufficient impact on commerce to war-
rant our assertion of jurisdiction herein.6
In view of the foregoing we shall dismiss in their entirety
the petitions in Cases Nos. 21-RC-3239 and 21-RC-3240.
Case No. 21 -RC-3328
Upon the entire record in this case, the Board finds:
Norris Greer , like Hamner and Hughes , is engaged in the
growing of potatoes. He rents two packing sheds where his
potatoes , as well as those of other growers, are washed,
graded, and bagged for shipment. The petition in this case,
SGiffen, Inc., 106 NLRB 764.
6Thomas Bulen McCormack, 107 NLRB 606.
Chairman Farmer and Member Rodgers concur in the refusal to assert jurisdiction but are
not to be deemed thereby as agreeing with the Board's present jurisdictional standards.
Member Murdock concurs in the dismissal of the petition herein, for the following reasons:
The record discloses that neither of the growers for whom the Employers washed, graded,
and packed potatoes shipped as much as $25,000 worth of products :q interstate commerce
during the past 12- month period it follows therefrom that the Employei3 are not engaged in
handling goods destined for out-of-State shipment of a value of $25,000 L.^ more, and con-
sistent with the principles set forth in my dissent in the McCormack case, supra I find that
the Employer's operations do not exert sufficient impact on interstate commerce to warrant
the exercise of jurisdiction.
D. W. FERGUSON COMPANY 939
which names both Greer and Thomas Personius as employers,
seeks a unit of potato -packing -shed employees in Greer's
sheds . Greer moved that the petition be dismissed as to him
upon the ground , inter alia, that he is not the employer of the
employees covered by the petition. Personius was not served
with the order consolidating cases and notice of representation
hearing until the day following the hearing and did not appear
either in person or by counsel at the hearing or at any other
stage of this proceeding.
The record shows that during the 1953 packing season Greer
engaged a labor contractor , Personius , to manage the packing-
shed operations , paying the contractor for his services a cer-
tain sum for each 100-weight bag of potatoes run through the
sheds. The contractor was wholly responsible for the shed
operations , Greer's authority being limited solely to lodging
complaints with the contractor if the work was not properly
performed . Greer neither hired nor exercised any authority
over the employees engaged in the potato-packing operations.
He did not pay them, nor carry them on his payroll, nor de-
termine their wages or other conditions of employment. Ac-
cordingly, we find that Greer is not the employer of the em-
ployees in the requested unit. As Personius was not timely
served with the order consolidating cases and notice of
representation hearing and did not appear at any stage of this
proceeding , we shall make no findings as to him. In view of
the foregoing , we shall dismiss in its entirety the petition in
Case No. 21 -RC-3328.
[The Board dismissed the petitions.]
D. W. FERGUSON COMPANY and HERB EIDENSHINK '
and UNITED FRESH FRUIT & VEGETABLE WORKERS,
LIU. NO. 78, CIO, Petitioner
W. C. HANDEL, H. C. KIRSCHENMANN, d/b/a KIRSCHENMANN
BROS., AND RALPH STONE and UNITED FRESH FRUIT &
VEGETABLE WORKERS, LIU. NO. 78, CIO, Petitioner
MARVIN E. BENDER AND DON STEWART and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU. NO. 78, CIO, Peti-
tioner
ZUCKERMAN POTATO COMPANY and UNITED FRESH FRUIT
& VEGETABLE WORKERS, LIU. NO. 78, CIO, Petitioner
W. C. HANDEL AND RALPH STONE and UNITED FRESH FRUIT
& VEGETABLE WORKERS, LIU. NO. 78, CIO, Petitioner
1 The case names appear in the captions as amended at the hearings.
107 NLRB No. 188.