Teamsters, Chauffeurs, Etc., Local 386

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.