Teamsters, Chauffeurs, Etc., Local 386

National Labor Relations Board - Board Decisions

Aug 26, 1960

128 N.L.R.B. 1031 (N.L.R.B. 1960)

TEAMSTERS , CHAUFFEURS , ETC., LOCAL 386 1031
stated that Wells referred to the "past year," just as the majority
contends he did. Nor do I contend that Wells had in mind anything
other than an overall complement of 80-90 employees. The point is,
that as found by the majority, 55 of these are permanent employees.e
It therefore appears that these 55 employees must be considered not
to be employees among whom exists the "terrific turnover" referred
to by Wells.
Further, Wells' testimony does not have to be accepted as mathe-
matically precise in order to support my conclusion. The exhibits to
which the majority refers also show that of 58 seasonal employees
working on October 24,1959, only 7 had ever worked for the Employer
before the 1959 season . The majority's involved description of how
many months various numbers of the extra employees worked, also
obscures the fact that of the 58 working on October 24, 1959, 17 were
hired in September and 10 were hired during October.
The unit description includes " seasonal" employees, and excludes
"casual" employees. This solves nothing, for it is not apparent from
the record or from the findings of the majority, which employees are
in these respective categories.
In my opinion, all the extra employees here are merely temporary
seasonal employees who do not have a sufficient community of interest
with the Employer's regular, year-round employees to warrant their
inclusion in the unit.' I would so hold.
CHAIRMAN LEEDOM and MEMBER FANNING took no part in the con-
sideration of the above Decision and Direction of Election.
a This includes 13 employees in the candling department (Employer's exhibit B,
amended), and the 42 employees in the egg breaking department.
7 See California Vegetables Concentrates , Inc., 120 NLRB 266; Mission Pak Company,
127 NLRB 1097.
Teamsters, Chauffeurs , Warehousemen & Helpers Union, Local
386 and Hobbs-Parsons Co ., a corporation . Case No. A0-14.
August 26, 1960
ADVISORY OPINION
This is a petition, filed by Teamsters, Chauffeurs, Warehousemen
& Helpers Union, Local 386 (herein called Local 386), for an advisory
opinion conformable to Section 102.98 of the Board's Rules and Reg-
ulations, Series 8.
A. In material part, said petition alleges as follows :
1. Hobbs-Parsons Co. (herein called Hobbs), designated as the
Employer in the petition, is a California corporation engaged in the
wholesale produce business. It is admitted by Employer that during
1958 the value of merchandise purchased by Hobbs and shipped to
it directly from points outside the State of California was $317,055.82.
128 NLRB No. 109.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1959, for the period ending September 21, the value of mer-
chandise purchased by Hobbs and shipped to it from points outside
the State of California was $224,066.58.
2. Hobbs has brought suit against Local 386 in the Stanislaus
County Superior Court of the State of California for damages and
injunctive relief. Said suit has been docketed as case No. '68395.
Hobbs' suit is based on alleged injury arising from a notice sent by
Local 386 to retail grocery store customers of Hobbs. Said notice
stated that Local 386 contemplated commencing a campaign to notify
the general public that Hobbs-Parsons' drivers received wages and
enjoyed working conditions less favorable than those of employees
represented by Local 386.
3. The superior court mentioned, in paragraph numbered 2, above,
has issued a preliminary injunction.
B. No response has been received from Hobbs.
On the basis of the above, the Board is of the opinion that :
1. Hobbs is engaged in the wholesale produce business. Although
the petition fails to state where Hobbs operates, the fair intendment
of the petition warrants the inference that it is doing business in the
State of California.
2. The Board's current standard for exercising jurisdiction over a
nonretail enterprise which falls within its statutory jurisdiction is
"an outflow or inflow" across State lines of at least $50,000, whether
such outflow or inflow be regarded as direct or indirect. For the
purposes of applying this standard, direct inflow refers to goods or
services furnished directly to an employer from outside the State
in which the employer is located. Siemons Mailing Service, 122
NLRB 81, 85.
3. Hobbs' purchases from outside the State of California constitute
direct inflow. Grant-Billingsley Fruit Co., 127 NLRB 50, footnote 1;
Siemons Mailing Service, supra.
4. "In applying its jurisdictional standards, [the Board] has .. .
uniformly relied on the experience of an employer during the most
recent calendar or fiscal year, or the 12-month period immediately
preceding the hearing before the Board, where such experience was
available." Aroostook Federation of Farmers, Inc., 114 NLRB 538,
539; Langlade Veneer Products Corporation, 118 NLRB 985. Meas-
ured by this criterion, Hobbs had direct inflow exceeding $50,000 for
the calendar year 1959, although no data are mentioned for 1959
after September 21. Since the petition herein was filed on June 13,
1960, Hobbs' direct inflow during the year 1959 may be considered in
ascertaining whether its operations meet the Board's minimum stand-
ards for asserting jurisdiction over nonretail business organizations.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, that the Board would assert
FOREMOST APPLIANCE CORP. 1033
jurisdiction over the operations of Hobbs with respect to labor dis-
putes cognizable under Sections 8, 9, or 10 of the Act. The Board
expresses no opinion as to whether it would take jurisdiction over or
render a decision on the merits of the controversy which is the subject
of the State court action.
Foremost Appliance Corp . and Seafarers International Union
of North America, Atlantic and Gulf District , Marine Allied
Workers Division , AFL-CIO, Petitioner . Case No. 2-RC-10446.
August 26, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Arthur E. Neubauer, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion 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 Petitioner seeks to represent the production and maintenance
employees of the Employer. The latter and the Intervenor contend
that a current contract between them is a bar to this petition. The
Employer and the Intervenor executed a contract on April 28, 1958,
to expire April 18, 1960. As of April 28, 1958, the Employer was
located on Atlantic Avenue, Brooklyn, New York, and employed about
seven production employees.' In the latter part of February or
March 1959, the Employer opened a new location on Kent Avenue,
Brooklyn, and transferred to this plant from Atlantic Avenue, 20
of about 100 employees, without an accompanying change in the
character of the jobs and functions of the employees in the contract
unit. On May 26, 1959, the Employer and the Intervenor executed
an entirely new contract to expire May 25, 1962, covering the Atlantic
Avenue and Kent Avenue locations as well as a future contemplated
location at Butler Street. It appears that as of the date of the new
contract, the Employer had a total of 50 to 60 employees at both
' Amalgamated Local Union 355 was permitted to intervene , without objection, on
the basis of a contractual interest.
"Based on the Employer 's testimony.
128 NLRB No. 118.