Mississippi Chemical Corp.

826 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Michigan, in the sales and service of new, and used automobiles and trucks., ;During 1953, the Employer.. made purchases valued at $3,737,000, all of which were made locally in ,the, State of Michigan. During this same period, the Employer made sales and rendered serv- ices in the amount of $5,450,000, all,locally in the State, of Michigan. Of its wholesale sales of used cars in the amount of $339,000, $230,000 worth were made to out-of-State dealers who accepted delivery at the Employer's local used car lot in Detroit. The record does not indicate what disposition the out-of-State dealers made of the $230,000 worth of cars-whether sold in or out-of-State. As we no longer use the "franchise yardstick" to assert jurisdiction over auto- mobile dealers 72 and as'the Employer's commerce data does not meet any of the other Board-established criteria for the assertion of juris- diction, we grant the Employer's motion and dismiss the petition.' [The Board dismissed the petition.] MEMBERS MURDOCK and PETERSON, dissenting : We disagree with-the dismissal of the petition in this case. It is clear from the record that $230,000 worth of the Employer's whole- sale sales of used cars were made to out-of-State dealers who accepted delivery at the Employer's local used car lot in Detroit. In these circumstances, we would assert jurisdiction over the instant Em- ployer under the Board's direct outflow standard set forth in the Jonesboro case 4 because, so long as $50,000 worth of cars crossed State lines, we find no substantial difference between the out-of-State dealers picking them up at' the Employer's lot and the Employer delivering them outside the State .5 In our opinion, a distinction drawn on this basis would be more illusory than real. Accordingly, we would process the petition herein. 0 Wilson-Oldsmobile, Inc, 110 NLRB 534. 8In view of the decision herein, we find it unnecessary to consider the other conten- tions of the Employer. 4 Jonesboro Grain Drying Cooperatitie, 110 NLRB 481. 5 For the same reasons given above, we would have dissented to the refusal to exercise jurisdiction in Down River Chevrolet, Inc., Case No 7-RC-2435 , issued September 30, 1954 ( not reported in printed volumes of Board Decisions and Orders ), if we had par- ticipated in that case. MISSISSIPPI CHEMICAL CORPORATION and UNITED GAS, COKE, AND CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER . Case No. 15- RC-1095. November 9,1951" Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul A. Cassady, hearing 110 NLRB No. 129. MISSISSIPPI 'CHEMICAL CORPORATION 827 officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer, although not disputing that it is extensively en- gaged in commerce,' contends that the Board is precluded from assert- ing jurisdiction in this case on the ground that the employees sought are "agricultural laborers" within the meaning of the rider to the Board's 1954 appropriation act? In the alternative, the Employer contends that it is a nonprofit farmers' cooperative and therefore the Board should, as a matter of policy, refuse to assert jurisdiction.' With respect to the Employer's primary contention, it is admitted that the Board is now precluded, by the rider to its current appropri- ation act, as well as it was by the rider to its 1954 appropriation act, from processing representation cases involving "agricultural laborers," as defined in section 3 (f) of the Fair Labor Standards Act of 1938, "including in said definition employees engaged in the maintenance and operation of ditches, canals, reservoirs, and waterways when main- tained or operated on a mutual nonprofit basis and at least 95 per centum of the water stored or supplied thereby is used for farming purposes." The Employer argues that, by this language, Congress not only intended to include such irrigation employees within the defi- nition of "agricultural laborers," as defined in section 3 (f) of the Fair Labor Standards Act, but employees of any nonprofit farmers' cooperative which is engaged in the manufacture of products for farming purposes. Prior to the enactment of the rider to the Board's 1954 appropri- ation act, it is clear that the Employer's operations would not have fallen within the definition of "agriculture" in section 3 (f) of the FLSA, and accordingly its operations would not have been exempt from the jurisdiction of the Board. This is shown by the fact that to be exempt under section 3 (f) of the FLSA, the operations, must not only be "incident to or in conjunction with farming," but also they must either be performed "on a farm or by a farmer." In the present instance, the Employer's operations fail to meet either of the latter requirements because (1) the facts show the operations are not per- 1 The Employer , a Mississippi corporation , is engaged at Yazoo City, Mississippi, in the production of fertilizer primarily for the use of its farmer -stockholders. During the 12-month period preceding the hearing , the Employer purchased raw materials valued at $2,190 ,000 of which amount about $985,500 was shipped to the Employer from outside the State. During the same period , the Employer's sales amounted to $4,345,185.62, of which amount about $645 ,000 was shipped to points outside the State. 2 Public Law 170, 83d Cong., 1st Sess. The identical language of the rider to the Board's 1954 appropriation act was reenacted in the Board's current appropriation act (1955), Public Law 472, 83d Cong, 2d Session. 3 Although , at the hearing, the Petitioner questioned the Employer's status as to whether it was strictly organized as a nonprofit farmers' cooperative , it now concedes , in its brief, for the purpose of this decision that the Employer is such a cooperative . In view of our decision herein, we believe that this question is immaterial . Nevertheless, for the pur- pose of this decision, we shall assume that Employer is such a cooperative. 828 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD formed on a farm, and (2) the Employer is'not a farmer within the meaning of section 3 (f). of the FLSA 4 - There remains for consideration the effect of the rider hereinabove- mentioned. In connection therewith, the background of the rider must also be considered. Beginning with the enactment of`the rider to the Board's 1946 ap- propriation act and continuing up to the enactment of the rider to the Board's appropriation act of 1950, the Board was required to re- late its definition of "agricultural laborers" to the definition of the word "agriculture" in section 3 (f) of the FLSA. With this legisla- tive background, the Board held in 1951 that the employees of a non- profit irrigation company were not "agricultural laborers" through consideration of the term "agriculture" in the FLSA, and accord- ingly asserted jurisdiction in that case.' Thereafter in 1953, an amend- ment to the rider of the Board's 1954 appropriation bill, was adopted which for the first time specifically included irrigation employees within the term "agricultural laborers," as referred to in section 2- (3) of the Labor-Management Relations Act and as defined in section 3 (f) of the FLSA, thereby exempting irrigation employees from the Board's jurisdiction.' The Employer contends that the amendment was not only intended to enlarge upon the definition of "agricultural laborers" by the inclu- sion of the irrigation employees specifically mentioned therein, but also that it was intended to include other types of employees whose services are needed in agriculture, particularly the fertilizer em- ployees involved herein. We find no merit in this contention. An amendatory act may not be construed to change the original act or section further than expressly declared or necessarily implied.' Con- sistent with this rule, we think that the intent of the Congress is clearly and fully expressed in the language of the amendment. This con- clusion leaves no basis for an implication that the amendment was intended to include categories other than the specific irrigation employees expressly included therein. Moreover, there is no legisla- tive history to support a contrary view. We find that the Employer's ' It is well settled that a corporate entity which performs its operations away from a farm is separate and distinct from the farmers that own its stock and accordingly it is not a farmer within the meaning of section 3 (f) of the FLSA. Farmers Irrigation Co. v. McComb, 337 U. S. 755, 768, 769; Wells Dairies Cooperative, 107 NLRB 1445; Tule River 'Cooperattive Gin, Inc., 102 NLRB 1523; Interpretative Bulletin of the Administrator, Wage & Hour Division, Department of Labor, 29 Code of Fed Reg 1947 Supp., Sec. 780-82. Twin Falls Canal Company, 97 NLRB 1473. e We take judicial notice of the origin of this amendment as set forth in the Congres- sional Record-House, Vol. 99, Part 4, pages 5521 , 5522 ( 83rd Congress, 1st Session). 'Because the amendment specifically exempts from the Board 's jurisdiction the same type .of irrigation employees as those over whom the Board asserted jurisdiction in the Twin Falls Canal Company case, we find that the amendment was designed specifically to alter - the effect of the Board 's decision in that case. ° Sutherland Statutory Construction, 3d ed. (Horack) Vol. 1, p. 414 ; National Tube Company, 76 NLRB 1199, footnote 9. MISSISSIPPI- CHEMICAL' CORPORATION , 829 'operations were not exempted from the Board's jurisdiction by the rider • to the Board's 1954 appropriation act. Furthermore, as that rider has been reenacted in the Board's current appropriation act,a we find that such operations are presently not exempt from the Board'& jurisdiction. The Employer further contends that, as a matter of policy, 'the Board should decline jurisdiction because it is a nonprofit farmers' cooperative engaged in the manufacture of fertilizer for its mem- bers. In support of this contention, it relies upon the Board's deci- sions in Inter-County Rural Electric Cooperative Corporation; 9 Coles-Moultrie Electric Cooperative; 10 Upshur Rural Electric Cooperative Corporation, and Armour Research Foundation of Illinois Institute of Technology." These cases fail to support the Employer's contention. In none of these cases did the Board's decision turn on the point that the business involved was a nonprofit cooperative. The Board declined jurisdiction in the three electric cooperative cases because in each of these cases all sales and prac- tically all purchases were made locally within the State. The Board refused to assert jurisdiction in the Armour Research Foundation of Illinois Institute of Technology case because the activities involved were intimately connected with the educational activities of the Insti- tution and were noncommercial in nature. Unlike the electric coopera- tives, the Employer purchased in a recent 12-month period a substan- tial amount of its raw materials directly from outside the State and during the same period it shipped a substantial amount of its finished products to customers outside the State.- And, unlike the Armour Research Foundation case it is clear that the Employer's operations are not educational and noncommercial in nature. From the foregoing, it appears that the Employer's interstate com- merce activities far exceed the Board's minimum jurisdictional requirements. The fact that the Employer may be a nonprofit farmers' cooperative does not obviate the effect that strikes or labor disturb- ances among its employees may have upon the free flow of interstate commerce." Moreover, we have recently asserted jurisdiction over a nonprofit farmers' cooperative.14 Accordingly, we find that the Employer is engaged in commerce and that it will effectuate the policies of the National Labor Relations Act to assert jurisdiction herein. 2. We find that the labor organization involved claims to represent certain employees of the Employer. 8 See footnote 2, supra 8 106 NLRB 1316. 10 107 NLRB 207. 11107 NLRB 207 and 107 NLRB 1053 12 See footnote 1, supra. 13 See Associated Press v N. L. R B , 301 U. S. 103, 125, 129. 14 Wells Dairies Cooperative, footnote 4, supra. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find, in accordance with a stipulation of the parties , that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All production and maintenance employees of the Employer employed at its Yazoo City , Mississippi, plant, including plant clericals, truckdrivers, truck hostlers, messengers, janitors, and laboratory employees , but excluding all office clerical employees, field representatives, first aid, nurses, engineers, assistant engineers, draftsmen, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] CONE MILLS CORPORATION-EDNA PLANT and GEORGE T. TERRY, PETITIONER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L. CONE MILLS CORPORATION-EDNA PLANT and TEXTILE WORKERS UNION OF AMERICA , C. I. 0., PETITIONER CONE MILLS CORPORATION-WHITE OAK PLANT and JAMES KENNEDY, PETITIONER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L. GREENSBORO-BURLINGTON JOINT BOARD CONE MILLS CORPORATION-WHITE OAK PLANT and TEXTILE WORK- ERS UNION OF AMERICA, C. I. 0., PETITIONER CONE MILLS CORPORATION-MINNEOLA PLANT and MERTON SIMPSON, PETITIONER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L., LOCAL 700 CONE MILLS CORPORATION-MINNEOLA PLANT and TEXTILE WORKERS UNION OF AMERICA, C. I. 0., PETITIONER CONE MILLS CORPORATION-PRINT WORKS PLANT and VERNON L. INGOLD, PETITIONER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L., LOCAL 259 CONE MILLS CORPORATION-PRINT WORKS PLANT and TEXTILE WORK- ERS UNION OF AMERICA, C. I. 0., PETITIONER CONE MILLS CORPORATION-PROXIMITY PLANT and LLOYD C. KEN- NEDY, PETITIONER and UNITED TEXTILE WORKERS OF AMERICA, A. F. L., LOCAL 739 CONE MILLS CORPORATION-PROXIMITY PLANT and TEXTILE WORKERS UNION OF AMERICA, C. I. 0., PETITIONER 110 NLRB No. 135.