Donald R. Fretz

National Labor Relations Board - Board Decisions

Jan 7, 1964

145 N.L.R.B. 863 (N.L.R.B. 1964)

DONALD R. FRETZ, JUDGE, SUPERIOR COURT (CALIF.) 863
Donald R. Fretz, Judge, Superior Court of the State of Cali-
fornia, In and For the County of Merced and Joe V. Aguiar
and Joe V. Aguiar, Jr., d/b/a Aguiar and Aguiar, Joe V. Aguiar
and Manuel Faria d/b/a Aguiar and Faria, Robert Kelley and
Georgette Kelley d/b/a Flying H Ranch, and Stevinson Corpo-
ration and Dairy and Creamery Employees Local Union No.
304, and its Agents, and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America and
Dairy Employees Union Local 17, affiliated with Christian
Labor Association of the United States and Ben Meninga.
Case No. AO-66. January 7, 1964
ADVISORY OPINION
This is a petition filed on November 12, 1963, by the Honorable
Donald R. Fretz, Judge, Superior Court of the State of California
in and for the County of Merced, herein called the State Court, for an
Advisory Opinion in conformity with Sections 102.98 and 102.99 of
the Board's Rules and Regulations, Series 8, as amended.
In pertinent part, the petition alleges as follows :
1. There is pending in the State Court an injunction proceeding filed
by Joe V. Aguiar and Joe V. Aguiar, Jr., d/b/a Aguiar and Aguiar,
Joe V. Aguiar and Manuel Faria d/b/a Aguiar and Faria, Robert
Kelley and Georgette Kelley d/b/a Flying H Ranch, and Stevinson
Corporation,' herein called the Companies, against Dairy and Cream-
ery Employees Local Union No. 304, herein called Local 304, and its
agents, and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called Teamsters.' The
complaint in the State Court action alleges that Local 304, and its
agents, and the Teamsters have carried on activities in violation of the
California Jurisdictional Strike Act, Sections 1115 to 1120, inclusive,
of Chapter 7 of the Labor Code of the State of California. Such ac-
tivities include, inter alia, picketing and threats to picket the Com-
panies' places of business, picketing and threats to picket purchasers
and consumers of the Companies' products, and blacklisting and
threats to blacklist the Companies and the purchasers of the Com-
panies' products. The complaint also alleges that the object of these
activities is to compel the Companies to recognize, bargain, and exe-
cute an agreement with Local No. 304 and the Teamsters covering the
Companies' milkers despite the fact that the Companies have exe-
cuted contracts with Dairy Employees Union Local 17, affiliated with
13-H Securities Company is another party plaintiff to the State court action but an
Advisory Opinion is not requested as to it.
2 The Teamsters was not served in the State Court proceeding and made no appearance
therein.
145 NLRB No. 86.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christian Labor Association of the United States, herein called Local
17, after 17 had shown that it represented a majority of the milkers.
2. Each of the Companies operates one or more dairy ranches in
Merced County, California, and is under contract with Berkeley
Farms Dairy, herein called Berkeley, to sell it a specified minimum
gallonage of grade A milk daily. The milk produced at the dairy
ranches is customarily loaded daily onto tank trucks operated by
Berkeley and transported to Berkeley's plant where the milk is proc-
essed. In the performance of the aforesaid contracts, each of the
Companies makes sales to Berkeley of at least $50,000 annually. The
Companies make no purchases of goods either directly or indirectly
from outside the State of California, nor do they make sales to pur-
chasers in other States.
3. Berkeley is engaged in the processing of milk and the retail and
wholesale distribution of milk entirely within the State of California
where its plants are located. During its most recent calendar or fiscal
year, Berkeley's sales equaled or exceeded $500,000, and its purchases
of goods and services from outside California exceeded $50,000.
4. Although it entered no findings of fact relating to the afore-
said commerce operations, according to the State Court, the stipula-
tion of the parties and the testimony and exhibits received in evidence
at the hearing before it showed the aforesaid commerce facts.
5. Although served with a copy of the petition for Advisory
Opinion herein, no responses as provided by the Board's Rules and
Regulations were filed by the other parties hereto.
On the basis of the above, the Board is of the opinion that:
1. The Companies are nonretail enterprises engaged in the opera-
tion of dairy ranches in Merced County, California.
2. Berkeley is a retail and wholesale enterprise engaged in the
processing and distribution of milk in California.
3. The current Board standard for the assertion of jurisdiction over
nonretail enterprises within its statutory jurisdiction requires an an-
nual minimum of $50,000 out-of-State inflow or outflow, direct or in-
direct. Siemons Mailing Service, 122 NLRB 81, 85; while the current
retail standard requires an annual gross volume of business of at least
$500,000. Carolina Supplies and Cement Company, 122 NLRB 88, 89.
As Berkeley's out-of-State purchases of goods and services in ex-
cess of $500,000 annually constitute direct inflow under the Board's
Siemons decision, its operations would satisfy the standard for asser-
tion of jurisdiction over nonretail enterprises. In addition, Berkeley's
annual gross volume of business of $500,000 meets the Board's Carolina
test for retail enterprises. Accordingly, the Board would assert juris-
diction over the operations of Berkeley.'
a See also Tale Mart, a New Jersey Corporation, 141 NLRB 886; Joseph Crowden and
Thomas Crowden, a Partnership, d/b/a Indiana Bottled Gas Company, 128 NLRB 1441;
Man Products, Inc., 128 NLRB 546.
ICE CREAM , FROZEN CUSTARD EMPLOYEES, LOCAL 717 865
4. Each of the Companies makes sales of at least $50,000 to Berke-
ley, over whom the Board would assert jurisdiction. As such sales
constitute indirect outflow 'as the term has been defined by the Board
in Siemons 4 and as they amount to at least $50,000 annually, the op-
erations of each of the Companies would meet the Board's standard
for the assertion of jurisdiction over nonretail enterprises.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that upon the
allegations submitted herein, the Board would assert jurisdiction over
the operations of each of the companies with respect to disputes cog-
nizable under Sections 8, 9, and 10 of the Act.'
"'Indirect outflow refers to sales of goods and services to users meeting any of the
Board 's jurisdictional standards except the indirect outflow or indirect inflow standard."
Siemons Mailing Service, supra, at 85.
r ,The Board expresses no opinion as to whether the milkers , over whose representation
the dispute herein arose , are "agricultural laborers" excluded from the definition of "em-
ployee" in Section 2(3) of the Act nor as to what impact such a finding would have.
The Board's Advisory Opinion procedures concern questions of the applicability of the
Board 's discretionary commerce standards . See Broward County Port Authority, 144
NLRB 1539.
Ice Cream , Frozen Custard Industry Employees , Drivers, Vendors
and Allied Workers Union Local 717, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, and John Thibeau , its Agent and Ice Cream Council,
Inc. Case No. 13-CB-1174. January 8, 1964
DECISION AND ORDER
On September 10, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents, the Union, and its agent, John Thibeau, had not
engaged in and were not engaging in unfair labor practices and rec-
ommending that the complaint be dismissed in its entirety, as set forth
in the attached Intermediate Report. Thereafter, the General Counsel
and the Charging Council filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the excep-
tions, and the briefs, and as set out below finds merit in the exceptions
145 NLRB No. 71.
734-070-64-vol . 145-56