Muscarella Co.

In the Matter of PETER MUSC ARELLA, JENNY MUSCARELLA, JOSEPH MUSCARELLA , AND MAMIE MUSCARELLA , CO-PARTNERS , D/B/A MUS- CARELLA COMPANY,' EMPLOYER and CHAUFFEURS, TEAMSTERS, WARE- HOUSEMEN AND HELPERS LOCAL UNION 118 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., PETITIONER Case No. 3-RC-303.-Decided November 18, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before William J. Cavers, hearing officer. The hearing officer referred to the Board the Employer's motion to dismiss the petition on the grounds that it is not engaged in commerce within the meaning of the Act, and that the Petitioner has not shown that it represents any employees in the requested unit 2 The motion is hereby denied. 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 makes the following findings : 1. The business of the Employer : The Employer, a co-partnership having its only office and place of business in Rochester, New York, is engaged in buying and selling bananas at wholesale. During 1948, the Employer purchased bananas valued in excess of $160,000, all of which originated outside the United States, in Central America. Of this amount, $156,000 repre- sented purchases from the Fruit Dispatch Company, a Buffalo, New York, importer; the remainder represented purchases from importers located in the State of Florida. Ninety percent of the bananas pur- chased by the Employer is shipped from Central America to New York City, whence it is then transported by rail to the Employer' s place of business at Rochester. The remaining 10 percent is imported through Baltimore, New Orleans, and other ports, and is shipped by rail to I The name of the Employer appears as amended at the hearing. 2 See 0. D. Jennings and Company, 68 NLRB 516. 87 NLRB No. 17. 120 MUSCARELLA COMPANY 121 Rochester.3 During 1948, all the Employer's sales were made to re- tailers within the State. We find, contrary to the contention of the Employer, that it is en- gaged in commerce within the meaning of the National Labor Rela- tions Act 4 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A 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. 4. The following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All truck drivers, truck driver helpers, and warehousemen employed by the Employer at Rochester, New York, excluding all office and clerical employees, guards, professional employees, and supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or teen discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees 3It is clear from the record that approximately $16,000 worth of bananas is shipped to the Employer by rail directly across State lines . Moreover, it is a well known fact that bananas are perishable produce , requiring expeditious shipment from point of origin to the ultimate consumer with no delays enroute (see U . S. Dept. of Agriculture, Office of Foreign Agricultural Relations study "World Banana Production and Trade ," by Hubert Maness and Ruth G . Tucker, Washington , 1946; Middle America Information Bureau bulletin "Background Information on Bananas ," New York City, 1946; and United Fruit Company, Educational Department pamphlet , "The Story of the Banana," Boston, 1941.) The record does not negate the inference that all the purchased bananas are shipped to the Employer as part of a continuous flow of such produce in both interstate and foreign commerce. ' See Providence Public Market Company, 79 NLRB 1.482. See also Dixie Wholesale Company, Inc., 73 NLRB 1203. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented , for purposes of collective bar- gaining, by Chauffeurs , Teamsters , Warehousemen and Helpers Local Union 118, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , A. F. L. MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Election. MEMBER GRAY, dissenting : This Employer is engaged at Rochester, New York, in the whole- sale buying and selling of bananas. Of its total purchases during 1948, only $16,000 represented shipments made directly to the Em- ployer from outside the State. All sales were made within the State. These facts, upon which we are all in agreement, demonstrate that the operations of this Employer are essentially local in character-5 Consistency in the application of Board precedents require the Board, in my opinion, to decline to assert jurisdiction under these circum- stances s I would dismiss the petition because, under the controlling Board precedents, it would not effectuate the policies of the Act to assert jurisdiction over this Employer. 5 This is so, even if the total purchases (luring 1948 , amounting in value to $160,000, represented shipments made directly to the Employer from outside the State. 6 See, e. g., Hubby-Reese Company, 72 NLRB 1404 (wholesale grocery business with annual purchases value at $195 ,000 shipped directly to the Employer from out-of-State sources and the remaining purchases amounting in value to over $1,000 ,000 originating outside the State ) ; Hom-Ond Food Stores, 77 NLRB 647 (annual purchases amounting in value to $ 750,000 originating outside the State ) ; The O'Rourke Baking Company, Inc., 79 NLRB 1457 ( wholesale bakery with annual purchases amounting in value to $160,000 shipped directly to the Employer from outside the State and over $300,000 of purchases originating outside the State ) ; Conlon Baking Company, 81 NLRB 934 (wholesale bakery with annual purchases of approximately $700,000 coming from outside the State ) ; Cream- land Dairies, Inc., 80 NLRB 106 (wholesale and retail sale and distribution of dairy products with annual purchases of over $125 ,000 from outside the State). The cases relied on by the majority may be distinguished . Thus in the Providence Public Market Company case, the majority found ( 1) that of the annual purchases origi- nating outside the State and amounting in value to more than $1,500,000, "a substantial amount . . . was shipped to the Employer directly across State lines ," and (2) that a "small, indeterminate percentage" of its annual sales, amounting in value to over $2,000 ,000, was made outside the State. In the Dixie Wholesale Company, Inc . case, the Board found ( 1) that the Employer sent one of its trucks across State lines every 2 weeks on a regular route and ( 2) that during a 7-month period sales amounting in value to $4,841 were made to consumers located outside the State.