K. Malofy & Son

National Labor Relations Board - Board Decisions

Jan 26, 1954

107 N.L.R.B. 943 (N.L.R.B. 1954)

K. MALOFY & SON AND RAY HART 943
I dissent, however, from the dismissal of the petitions in
Cases Nos. 21-RC-3108, 3109, 3112, 3137, 3145, 3147, and
3148, because the record shows that each of the Employers in
these cases is engaged in handling or processing goods
destined for shipment out-of-State in the value of $25,000
or more., I would therefore find, for the reasons stated in my
dissenting opinion in the McCormack case, supra, that their
operations individually exert sufficient impact on commerce to
warrant the assertion of jurisdiction over each of them.
K. MALOFY & SON AND RAY HART 1 and UNITED FRESH
FRUIT & VEGETABLE WORKERS, LIU NO. 78, CIO,
Petitioner . Case No. 21-RC-3138. January 26, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held in this case on June
18, 1953, before Jerome A. Reiner, hearing officer. At its
termination, the hearing was adjourned. On September 3, 1953,
the Regional Director for the Twenty-first Region issued his
order consolidating cases and notice of representation hearing
in D. W. Ferguson Co., et al.t in which the instant case was
consolidated for hearing with 10 other cases . On September
21 and 22 the consolidated hearing was held before Ben Grodsky,
hearing officer. Thereafter, the Board having duly considered
the matter, it issued its Decision and Order in D. W. Ferguson
Company, et al. in which, inter alia, it severe the instant
case3 for purposes ofdecisionfromtheconsolidated proceeding
upon the ground that it raised important issues not present in
the other cases . The hearing officers' rulings made at the hear-
ings are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. K. Malofy & Sono is engaged in commerce within the
meaning of the Act.
2. The petition in this case seeks a unit of packing-shed
employees. Malofy moved that the petition be dismissed on the
ground that the shed workers are "agricultural laborers" and
not "employees" within the meaning of Section 2 (3) of the Act
and that, therefore, the Board has no jurisdiction over them.
Malofy is a partnership composed of K. Malofy and his son,
G. Malofy. It owns approximately 1,100 acres in 8 separate
parcels in Kern County, California, where it grows cotton,
1 The petition was amended at the hearing to include Ray Hart as an employer.
2107 NLRB 939.
3In its Decision the Board also severed Mettler Ranch Packing Shed, 21-RC-3160, and
E. M. H Mettler & Sons, 21-RC-3188.
4Hereinafter called Malofy.
107 NLRB No. 201.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onions, alfalfa , and potatoes . It also owns a packing shed at
Shafter, California , a location central to its 8 parcels of land,
where it maintains throughout the year its office and where
during the month-long potato-harvesting season in late spring
its potatoes are washed , graded, and bagged for shipment and
ultimate sale by a broker . During the remainder of the year
that part of the shed not occupied by the office is used as a
warehouse to store farm products and seed, fertilizer , insecti-
cides, and other material used in the farming operations.
During the 1953 potato -packing season , Malofy engaged Ray
Hart , a labor contractor , to manage its packing operations. 5
In entering into his oral contract with Hart, Malofy was
emphatic upon the point that Hart would be dismissed if the work
in the shed was not properly done . Malofy also retained sole
discretion over the method of operations in processing the
potatoes . Hart hired , supervised , disciplined , and discharged the
shed workers . He carried them on his own payroll , paid them
out of his own funds , and made the required deductions from
their pay , such as for withholding taxes . Malofy, nonetheless,
possessed the authority , which it exercised , to lay off or
discharge shed employees if they did not perform their
work properly . Furthermore , on Malofy ' s recommendation,
a number of the farm laborers were employed by Hart to
do packing work in the shed during the 1953 season. Hart
received for his services in managing the packing opera-
tions lump-sum payments based on the number of bags of
potatoes processed in the shed.
In view of the foregoing , we find that Malofy is the employer
of the packing - shed workers covered by the petition . 6 Further-
more, as the packing operations and shed employees are both
under the farmer's --Malofy ' s--control and as only the produce
of Malofy farms is prepared for shipment and marketing in
the shed, it is clear that the shed operations do not constitute
a separate commercial enterprise but, on the contrary, are
carried on in conjunction with and incidental to Malofy's
farming operations . Accordingly, we find that the shed em-
ployees in the requested unit are agricultural laborers within
the meaning of Section 2 (3) of the Act and are, thus, outside
the jurisdiction of the Board .' We shall, therefore, grant
Malofy's motion , and dismiss the petition in this case.
[The Board dismissed the petition.
5 Hart was employed by Malofy during the 1952 packing season as a foreman to manage
the shed operations.
6See J G Howard Lumber Company, 93 NLRB 1230. Cf . Giffen, Inc , 106 NLRB 764.
7 Dofflemyer Bros . v. N. L.R B. , 206 F . 2d 813 (C. A. 9); N L. R. B. v. John W . Campbell,
Inc., 159 F. 2d 184 (C. A. 5); George Bianchi and Louis Bianchi d/b/a L Bianchi & Son,
107 NLRB 864.