Aroostook Federation of Farmers, Inc.

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aroostook Federation of Farmers, Inc.' and Truck Drivers, Warehousemen and Helpers Union, Local #340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,2 Petitioner. Case No. 1-RC-4039. October 19, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held before M. Alice Fountain and George A. Sweeney, hearing officers. The hearing officers' rulings made at the hearings are free from prejudicial error and are hereby affirmed.3 Upon the entire record in this case, the Board finds : 1. The Employer, a Maine coropration, is a nonprofit farmers' coop- erative association, engaged in the manufacture and sale of fertilizer and pesticides. The Employer maintains plants located at Caribou, Sherman Station, and Fort Kent, Maine, where it processes raw mate- rials into finished products and stores and sells them, principally to its own members, who are local potato growers. The Employer's first contention is that its employees are agricultural laborers. within the meaning of Section 2 (3) of the Act, and that the Act is therefore not applicable to them. However, as the Employer's operations are not performed on a farm or by a farmer, we find that its employees are not agricultural laborers under Section 2 (3) of the Act, or under the current rider to the Board's appropriation act 4 The Employer contends further that, considered as a manufacturing enterprise, it does not meet the Board's jurisdictional standards inas- much as its direct interstate inflow, although exceeding $500,000 in 1954 and in previous years, is expected to be less than $500,000 in 1955 and thereafter. The record shows that, for the calendar year 1954, the Employer's direct out-of-State purchases exceeded $550,000.5 Of this total, ap- proximately $85,000 was shipped to the Employer by the American 1 The name of the Employer appears as amended at the hearing 2 The name of the Petitioner appears as amended at the hearing 3 The hearing officers referred to the Board motions by the Employer to dismiss the petition on grounds that ( a) the employees of the Employer are agricultural employees within the meaning of Section 2 (3) of the Act; (b) the Employer does not meet the Board's jurisdictional standards; and (c ) the Petitioner's failure to attend the resumed hearing in this case negates the existence of any question concerning representation of the employees of the Employer. For reasons stated hereinafter in paragraphs numbered 1 and 3 infra, these motions are hereby denied *Mississippi Chemical Corporation, 110 NLRB 826; Associated Cooperatives, Inc., 112 NLRB 1012 s The Employer 's direct out-of-State purchases totaled approximately $515,000 for the calendar year 1952 , and approximately $650,000 for the calendar year 1953 114 NLRB No. 97. . AROOSTOOK FEDERATION OF FARMERS, INC. '539 ,Cyanamid Company from Ontario, Canada, and approximately $40,000 was shipped to the Employer from New Brunswick, Canada, by the Summers Fertilizer Company. The Employer testified that the American Cyanamid Company, early in 1955, opened a new warehouse at Presque Isle, Maine, from which the Employer now receives-and in the future will receive-all shipments by that company. The Em- ployer also testified that its contract with the Summers Company called for delivery to the Employer at the Summers warehouse in .Searsport, Maine, of all materials purchased by the Employer, but that because of hurricane damage to that warehouse in 1954, shipment was made instead from New Brunswick, directly to the Employer. The Employer contends that, because of these circumstances, the Board should not count the 1954 purchases from American Cyanamid and Summers as direct inflow, in determining whether it will effectuate the policies of the Act to assert jurisdiction in this case. However, the Board, in applying its jurisdictional standards, has heretofore 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 ex- perience was available. To rely instead, as the Employer would have us do, on employers' predictions as to their future operations would invite speculation by them as to matters within their peculiar knowl- edge. We do not believe that such a policy would be administratively feasible or desirable where, as here, commerce data for a recent annual period is available. Accordingly, as the Employer's direct out-of- State purchases exceeded $500,000 during 1954, we find that the Em- ployer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction in the instant proceeding.6 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. The Employer contends that no question concerning,representa- tion exists in view of the Petitioner's failure to attend the resumed hearing in this matter, and that the petition should, therefore be dis- missed with prejudice. The original hearing in this case was held on July 7, 1955, in Caribou, Maine, and was attended by repo.esenta- tives of both parties. Thereafter, on July 19, 1955, the hearing was resumed in Boston, Massachusetts, at which the Petitioner, although duly served with notice, failed to appear. However, the Petitioner O Jonesboro Grain Drying Cooperative, 110 NLRB 481. As the Employer is engaged in the manufacture of products which it sells to farmers for use in their farming, opera- tions , we find no merit in the Employer's contention that it should be considered a retail operation , and that therefore the standards established in Hogue and Knott Snpeimarkets, 110 NLRB 543, should be determinative of the juiisdictional issue. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did file a statement in opposition to the Employer's brief taking issue with various contentions therein, including the contention that Petitioner's nonappearance at the resumed hearing indicates abandon - ment of its petition. Under these circumstances, we find that the Petitioner has not disclaimed interest in the representation of em- ployees of the Employer. Accordingly, we find that a question affect- ing 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. In accordance with the agreement of the parties, we find that the following employees of the Employer at its plants located in Cari- bou, Fort Kent, and Sherman Station, Maine, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance em- ployees, including shippers, laborers, and truckdrivers, but exclud- ing office clerical employees, salesmen, professional employees, man- agers, executives, guards, and supervisors' as defined in the Act. 5. The record indicates that the operations of the Employer, in the past, have been seasonal in nature, with the peak season occurring during the months of May and June. The Employer stated at the hearing, however, that it is in the process of mechanizing its opera- tions, and that when such mechanization is completed, it will eliminate in major part the fluctuations in its payroll.' As the Employer further stated that it will have completed this program of mechanization by the time the 1956 peak season arrives, it thus appears that there will be no substantial rise in employment, as heretofore, during the months of May and June 1956, or thereafter, and that employment will, therefore, be stabilized at or near the present level. Under these cir- cumstances, we find that a representative group of employees is cur- rently employed by the Employer,9 and we shall direct an immediate election. [Text of Direction of Election omitted from publication.] MEMBER MuRDOCK took no part in the consideration of the above Decision and Direction of Election. 7 The parties agree, and we find , that the individual employed at the Sherman Station plant at the time of the hearing is a supervisor within the meaning of the Act. 0 The Employer testified that once its mechanization program is completed , it will em- ploy in the unit approximately 20 full-time employees during the peak season and approxi- mately 12 employees during the remainder of the year. 0 At the time of the hearing, there were 11 employees at the Caribou plant, 6 at Fort gent, and 1 at Sherman Station. These figures include watchmen , clerks, and super- visors. The Employer testified that it anticipates hiring approximately four additional production and maintenance employees in the fall.