O. B. Brown Fertilizer Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1912 (N.L.R.B. 1954)

1912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in any way upon the powers vested in the General Counsel by Section
3 (d).
For the reasons set forth above, we would find that the objections
of the Intervenor raise substantial and material issues with respect to
the conduct or results of the election, and we would grant the motion
and direct a hearing.
O. B. BROWN FERTILIZER COMPANY and GENERAL TEAMSTERS, WARE-
HOUSEMEN & HELPERS UNION, LOCAL 8 90, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS OF
AMERICA, AFL. Case No. 2O-RC-f389. December 16, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before David Karasick, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.!
1. The labor organizations involved claim to represent employees of
the Employer.
2. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer is engaged in the buying, selling, contract hauling,
and spreading of manure and gypsum in Salinas, California. All of
the Employer's purchases and sales are made within the State of Cali-
fornia. During the year 1952, the Employer's gross volume of busi-
ness was $166,500. Of this amount, $29,047 represented sales and serv-
ices made to Bruce Church, Inc., $22,282 to Salinas Valley Vegetable
Exchange, herein called Salinas Valley, and $84,052 to Namimatsu
Farms, Incorporated, herein called Namimatsu. Under these circum-
stances, if this Employer is to fall within the Board's present juris-
dictional standards, it must be on the basis of its indirect outflow.2
Bruce Church, Inc., and Salinas Valley are each engaged in the
business of growing, packing, and shipping farm products. Each
company ships farm produce valued in excess of $1,000,000 from its
packingsheds located in Salinas, California, to places located outside
of the State of California. Namimatsu operates three farms in Santa
Clara County, the principal crop of which is celery. All of the celery
1 The hearing officer referred to the Board the Employer 's motion to dismiss the petition
on the grounds that the Employer is not engaged in commerce within the meaning of the
Act, and its employees are agricultural laborers . For the reasons stated infra, this mo-
tion is hereby granted.
2 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
110 NLRB No. 258.
0. B. BROWN FERTILIZER COMPANY 1913
grown by Namimatsu is handled by the firm of Levy and Zentner,
a wholesale fruit and produce company with its principal office and
place of business located in San Francisco, California, and packing-
sheds, warehouses, and branch offices located in San Jose and other
parts of California. It also maintains a jobbing house in Reno,
Nevada. The celery grown by Namimatsu is delivered to Levy and
Zentner at its packingshed located in San Jose. There it is washed,
trimmed, cooled, and packed for marketing by the employees of Levy
and Zentner on the latter's premises, and under its direction and con-
trol. Levy and Zentner bears all the costs of handling and market-
ing the product. After the celery is sold, Levy and Zentner charges
Namimatsu a commission, plus the cost of packing and shipping the
product. A final accounting is made at one time during the year, but
during the year advances of funds are made to Namimatsu to cover
expenses in connection with the crop. These accountings to Nami-
matsu are usually made every 10 days to 2 weeks. During the year
1952, gross sales by Levy and Zentner of Namimatsu's product
amounted to $1,447,502, approximately 83 percent of which was
shipped to points located outside the State of California.
Considered in its entirety, we conclude that Namimatsu sells its
product to the wholesale firm of Levy and Zentner rather than to out-
of-State purchasers with the wholesaler merely performing certain
packing and shipping operations. As the Employer's sales through
Namimatsu, therefore, are twice removed from interstate commerce,'
and as the dollar volume of the sales to Bruce Church, Inc., and Sa-
linas Valley are insufficient to meet the indirect outflow standards set
forth in the Jonesboro case, we shall dismiss the petition on the ground
that it will not effectuate the policies of the Act to assert jurisdiction
over the Employer's operations.
[The Board dismissed the petition.4]
MEMBER MURDOCK, dissenting :
I cannot agree with the conclusion of my colleagues that it will ef-
fectuate the policies of the Act to reject jurisdiction over this Em-
ployer. This denial of our processes to the Petitioner is based upon
the revised and highly restrictive jurisdictional standards contained
in Jonesboro Grain Drying Cooperative, 110 NLRB 481. In my dis-
senting opinion in that case, as well as in Breeding Transfer Com-
pany, 110 NLRB 493, I stated the numerous and grave defects in
these standards as well as their lack of any reasonable basis in law
or policy. The instant case, however, illustrates a facet of these stand-
ards not previously made clear as well as the resulting denial of pro-
tection to the free flow of commerce.
a Brooks Wood Products , 107 NLRB 237.
s In view of our dismissal of the petition on jurisdictional grounds, we find it unneces-
sary to discuss the other contentions of the parties
1914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer in this case sells fertilizer valued at about $135,000
to three firms, each of which sells over $1,000,000 in farm produce to
out-of-State purchasers. Prior to the actual shipment of the produce,
in the case of one of these firms (Namimatsu Farms), the produce is
prepared for marketing by a packingshed operator. It is then packed
and shipped by the packingshed operator-all these services being
performed for Namimatsu on a commission basis. On these facts, my
colleagues dismiss the case.
Apparently, this Employer is subject to the revised standard as to
"indirect outflow." I shall not burden this opinion with the complex
entirety of that standard. In pertinent part, however, it requires that
an employer, to be subject to the Act, must furnish goods or services
valued at $100,OOQ or more to certain other employers who "directly
utilize" these goods or services in their "products, services, or proc-
esses." The Employer to whom these goods or services are rendered
must, in turn, "produce or handle goods" in the value of $50,000 or
more and ship such goods out of State. I assume my colleagues con-
sider that because the packingshed operator performs the physical op-
erations necessary to market the produce, the grower is no longer di-
rectly engaged in interstate commerce. This utterly unrealistic point
of view completely ignores the facts. The growers, which this Em-
ployer supplies, raise produce for shipment and consumption in other
States. They do not grow their produce for sale to the packingshed,
but for sale in other States to other purchasers. The mere fact that
another party, for a commission, performs some of the labor involved
in this operation does not in any way change the essential nature of
this clear example of commerce between and among the States. Un
less, therefore, my colleagues also, against the experience of some hun-
dreds of years of farming practice, conclude that the Employer's fer-
tilizer is not "directly utilized" in the processes or products of the
growers, I can only conclude that this Employer meets even the re-
vised standards for jurisdiction and that it would effectuate the
policies of the Act to assert such jurisdiction.
MEMBER PETERSON took no part in the copsideration of the above
Decision and Order.
FELSWAY SHOE CORPORATION , FORSYTHE SHOE COMPANY , INCORPO-
RATED, FORUM SHOE STORES , INCORPORATED ( KY.), AND NERF CORPO-
RATION OF LOUISVILLE 1 and RETAIL CLERKS INTERNATIONAL ASSOCI-
ATION , AFL, PETITIONER . Case No. 9-RC-2057 . December 16, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held on September 30, 1953, before
i The Employer's name appears as amended at the hearing. The four corporations will
be referred to hereinafter as Felsway, Forsythe, Forum, and Nerf, respectively, and as the
Employer collectively.
110 NLRB No. 238.