Potato Growers Cooperative Co.

National Labor Relations Board - Board Decisions

May 8, 1956

115 N.L.R.B. 1281 (N.L.R.B. 1956)

POTATO GROWERS COOPERATIVE COMPANY 1281
It is clear from the Regional Director's findings of fact that the
meeting was of an electioneering nature and that no effort was made
by the Employer to advise the regular employees that the meeting
was voluntary. That the meeting was involuntary is indicated by
the fact that it was necessary for certain employees to request and
obtain permission to be excused from attending. Furthermore, as
regards prior meetings of this character, there is no evidence that
employees were excused from attending. Upon these facts, we find
that the employees' attendance called by the Employer immediately
upon the closing of the store, was not voluntary. Accordingly, be-
cause the Employer violated the Peerless Plywood rule by addressing
campaign speeches to employees after working hours and within the
24-hour period preceding the election,' we find that objection No. 1
is sufficient to justify our setting the election aside. Under these
circumstances, we find no occasion to consider the other nine objections,
of the Petitioner to the conduct of the election.
The Board, having considered the Regional Director's report on
objections to the election, the Petitioner's exceptions thereto, and the
entire record in this case, hereby overrules the findings, conclusions,.
and recommendations of the Regional Director with respect to objec-
tion No. 1. We shall therefore order that the election be set aside!
and direct a new election in this proceeding.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.)
8 H & P Mining Company, 114 NLRB 1436.
Potato Growers Cooperative Company and American Federation..
of Grain Millers, AFL-CIO, Petitioner. Case No. 30-RC-1 065..
May 8,1956
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 Claude B. Calkin,
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 a cooperative association organized as a corpo-
ration under the laws of the State of Colorado, and operates two
grain elevators, a lumberyard, and a gasoline station. One grain ele--
vator, the lumberyard, and gasoline station are located in Eaton,.,
115 NLRB" No. 202.
390609-66-vol. 116-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colorado, within a few blocks of each other; the other grain elevator
is located 7 miles away in Galeton, Colorado. The Employer's total
purchases for the grain elevators for the fiscal year ending June 30,
1955, were about $3,900,000, of which over $500,000 was purchased
directly from sources outside Colorado. The Employer is, there-
fore, engaged in commerce within the meaning of the Act and sub-
ject to the Board's jurisdictional standards.'
The operations of the lumberyard and gas station, considered alone,
do not meet any of the Board criteria for asserting jurisdiction. The
Employer therefore contends that the Board should view those por-
tions of its business operations as independent commercial ventures
separate from the grain elevators, and exclude them entirely from this
proceeding although the Petitioner seeks to represent all of the Em-
ployer's employees in a single bargaining unit.
The Employer has a single general manager with an office at the
Eaton grain elevator and his authority encompasses the entirety of
the Employer's operations-the two grain elevators, the lumberyard,
and the filling station. Below the general manager in the line of
supervision is a manager for the lumberyard and one for the filling
station.' These subordinate managers at these two installations are
in charge of employee job tenure, working hours, and vacations, and
they determine the type and quality of merchandise to be bought and
sold. However, the Employer's board of directors and general man-
ager decide policy and the general manager transmits policy deter-
minations directly to the managers of the lumberyard and gas sta-
tion. The general manager himself sets the wage rates of all
employees at the gasoline station and "sometimes" sets the rates for
the lumberyard employees. The bookkeeping records for all four of
the Employer's installations are kept at its main Eaton office and all
the employees receive their pay from that office. There are tempo-
rary transfers of employees between the Employer's various installa-
tions at the rate of 4 or 5 instances a year. Approximately 90 percent
of the lumberyard's total sales are to members of the cooperative
corporation and about 98" percent of the gas station's sales are to the
cooperative's members.
The Employer has not explicated in detail the basis for its request
that the component parts of its business be disassociated for the pur-
poses of jurisdictional appraisal. Apparently it relies upon those
cases involving separate corporate entities which together may be
deemed a "single employer" because of integration and general inter-
relationship of operations.' The principle of those decisions is in-
Jonesboro Gratin Drying Cooperative, 110 NLRB 481.
There is also a separate manager at the Galeton grain elevator.
'See, for example , 01ksn Exterminating Company, Inc (of Kentucky), 115 NLRB
622
POTATO GROWERS COOPERATIVE COMPANY 1283
apposite here because in this case there is only one corporate entity-
not several.'
The Employer's basic position has been urged in earlier cases in-
volving assertion of the Board's jurisdiction, and both the Board and
the courts have for many years rejected such attempts to fragmentize
the operations of .an employer for jurisdictional purposes. In Vir-
ginia Electric & Power Co. v. N. L. R. B.,5 for example, the employer
admitted that the Board had jurisdiction over its electrical energy
installation but claimed that its illuminating gas distribution and
local transportation service in different communities throughout the
State of Virginia were local in character and outside the Board's
jurisdiction. In sustaining the Board's rejection of the argument, the
court said :
A sufficient answer to this position is the unitary character of
the Company's business . .. strife affecting the interstate com-
merce in which the company is engaged will be avoided only if
the rights of all employees are properly safeguarded. Virginia
Railway Co. v. System Federation No. 40, 4 Cir., 84 F. 2d
641, affirmed. 300 U. S. 515 . . . Consolidated Edison Co. v.
N. L. R. B. [305 U. S. 197]
Contrary to the Employer, it is clear from the decisions of a number
,of courts of appeals that the proper jurisdictional yardstick for an
,employer entity is the totality of its commercial activities.' The fact
that some employees are engaged solely in business of a purely local
nature does not insulate them from the totality of their employer's
operations which have an interstate impact 7 Consideration of the
entirety of an employer's operations is essential to effectuate the
policies of the Act which "extends to and was explicity designed to
regulate not merely interstate transactions, but all activities which
4 However , even assuming , contrary to the fact , that the 4 installations here involved
were operated by separate corporate entities rather than by 1 employer , the record estab-
lishes that the 4 installations constitute a single integrated enterprise and the Board
would still assert jurisdiction over them collectively
5115 F 2d 414 ( C. A. 4). The Supreme Court, in 314 U. S. 469, 476, referred to this
point as "correctly decided " by the court below.
° N L R B v Drummond Implement Co , 210 F 2d 828 (C A 6). . . . for jurisdic-
tional purposes , the operations of respondent 's Portsmouth , Ohio, store were not to be
considered as something separate and apart from the other stores owned and operated by
the respondent under a central management" Similarly , N. L R B v Weyerhaeuser
Timber Company, Clemons Branch, 132 F 2d 234 ( C A 9), "The case involves the opera-
tions of what is known as the Clemons branch This branch is owned by and is a part
of respondent company . . We agree with the Board that the operations of the Clemons
branch are not to be considered as something separate and apart from other divisions of
respondent ' s business ; hence the jurisdiction of the Board is clear."
'r N L. R B v. George W. Reed , et at., 206 F 2d 184 ( C. A 9). " . . . when a builder
so conducts his activities that his undertakings include both strictly local jobs and jobs
affecting commerce, he is in no different position from that of a manufacturer who en-
gages in both local and interstate activities The employer in both instances is engaged
in commerce."
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in their totality adversely affect the full flow of interstate commerce," 8
because a labor dispute in one section of an employer's enterprise
affects the operations of other departments.°
The Board has specifically adhered to the principle emerging from
this line of cases as recently as 1954. -The P. B. M. case 10 presented
a labor dispute "exclusively concerned" with a construction project
that was the outlet for investment funds of an interstate insurance
company. Considered alone, the operations of the construction proj-
ect did not fall within any of the Board's jurisdictional standards.
However, the Board asserted jurisdiction on the basis of "the overall
operations of the Employer," which included the insurance business-
operations as well as those of the construction project."
Upon the basis of the above-cited precedents, it is plain that the op-
erations of all four of the Employer's installations must be considered
collectively for jurisdictional purposes."
8 N. L R B. v. Tri-State Casualty Insurance Company, 188 F . 2d 50 ( C. A. 10).
8In N L. R B . v. Schmidt Baking Co ., 122 F. 2d 162 ( C. A. 4), the court interpreted
its decision in Virginia Electric & Power Co. v . N. L. R. B., supra, as follows ". . . we-
held that wage controversies or unfair labor practices in one department of such a busi-
ness would have repercussions in other departments , and that disputes affecting the inter-
state commerce in which the company engaged would be avoided only if the rights of all'
the employees were properly safeguarded."
"Local Union No. 55, and Carpenters ' District Council of Denver and Vicinity, eto.
(Professional and Business Men's Life Insurance Company ), 108 NLRB 263 , enfd. 218 F.
2d 226 (C. A. 10).
11 This general principle of asserting jurisdiction over operations involving local activi-
ties where such activities are connected with the flow of interstate commerce through a
larger employer entity was also reaffirmed after establishment of the present jurisdictional`
standards in 1954. Insulation Contractors of Southern California, Inc., et al , 110 NLRB=
636, involved a multiemployer association . The Board found a single company, which
did not alone have operations meeting any of the Board's jurisdictional standards , liable
under the Act for the commission of unfair labor practices , even though it simultaneously
dismissed the complaint as to the employer association of which it was a member.
'-' Member Bean believes that the legal precedents set forth above and the clear factual
evidence of integration in the operations of all four installations of the company strongly
support a decision to assert jurisdiction over the entire enterprise . However, in joining,-
the majority opinion in this case , he also relies upon the following important facts: (1)
In Optical Workers Local 24859 et al ., ( Rogers Brothers Wholesalers ) v. N. L. R. B., 227
F.-2d 687, the Fifth Circuit Court upheld the Board 's broad discretionary power on juris-
dictional matters, as follows : "We hold . . . that the Board has authority to adopt and-
reverse policy, either in the form of an individual decision or as rule -making for the-
future, in any manner reasonably calculated- to carry out its statutory duties .. . ( 2)
Assertibn of jurisdiction over the Employer ' s entire business is consistent with the Board's-
interpretation of the jurisdictional standards established in 1954. See The Union News-
Company, 112 NLRB 584, wherein the Board found that the employer operated, as an,
integrated enterprise , restaurants , newsstands , drugstores, lunchcounters , book and toy
shops, an ice skating rink , and other miscellaneous retail establishments located in about
30 States ; and Elizabeth R Lynett and Edward J. Lynett d/b/a The Scranton Times, 111
NLRB 780, in which the Board found that the employer 's two radio stations and its news-
paper constituted a single integrated enterprise See also Central Dairy Products Co ,
Staff en's Branch, 114 NLRB 1189 , where the Board rejected a contention that the opera-
tions of 4 separate corporations should be considered together and stated that the evi-
dence failed "to establish that the 4 corporations constitute a single employer within the-
meaning of the Act or that the employer is part of a single integrated enterprise."
[Emphasis supplied.] Chairman Leedom concurs with Member Bean. Moreover he re-
gards it significant that the grain elevators , which clearly meet jurisdictional standards,
had more than 10 times the total purchases of the other 2 enterprises , virtually all of the
sales of which are to members of the cooperative . Hence the facts of this case show that
MOLINA MILLS , INCORPORATED 1285
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 certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent in a single unit all the employees
of the two grain elevators, the lumberyard, and the gasoline station.
The Employer contends the Board should establish 3 units of its em-
ployees-1 unit for the 2 grain elevators, 1 for the lumberyard, and
1 for the filling station. In view of the close integration and inter-
dependence of all four of the Employer's installations and the fact that
no other labor organization seeks to represent separately any of the em-
ployees here involved, we find that the following employees constitute
.a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act: All production and maintenance
employees at the Employer's grain elevator, lumberyard, and gasoline
station in Eaton, Colorado, and its grain elevator in Galeton, Colorado,
excluding office clerical employees, guards, and supervisors as defined
in the Act. - .
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election. .
the Employer cooperative is predominantly engaged in the operation of grain elevators and
incidently engaged in selling lumber and gasoline products to its members. All of the
Employer's facilities are not only under central management and control but their opera-
tion is directed toward the same end of serving the needs of the Employer 's members.
These facts in conjunction with the other commerce data in the record establish the inte-
gration necessary to treat these diverse operations as one entity for jurisdictional purposes.
Molina Mills, Incorporated and Union Trabajadores Industria
de Alfombras, Local 24933, AFL-CIO,' Petitioner. Case No.
24-RC-870. May 9,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before George L. Weasler,
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.
1 The AFL and CIO having merged since the initiation of this proceeding, we are amend-
Ing the designation of the Petitioner and the Intervenor.
115 NLRB No. 204.