April Argo Industries, Inc., Argo Management Corporation, Argo Processing and Consultant International Corporation

National Labor Relations Board - Board Decisions

Aug 26, 1982

267 N.L.R.B. 484 (N.L.R.B. 1982)

APRIL ARGO INDUSTRIES
April Agro Industries, Inc., Agro Management Cor-
poration, Agro Processing and Consultant Inter-
national Corporation and Puerto Rico Labor
Relations Board, Union Insular de Trabajadores
Industriales y Construcciones Electricas, Feder-
acion de Empleados de Comercio y Ramas
Anexas de Puerto Rico, Inc., Sindicato de
Obreros Unidos del Sur de Puerto Rico. Case
AO-244
26 August 1982
ADVISORY OPINION
This petition for advisory opinion, with exhibits
attached, was filed on 31 January 1983 by April
Agro Industries, Inc., Agro Management Corpora-
tion, and Agro Processing and Consultant Interna-
tional Corporation (Petitioners), pursuant to Sec-
tions 102.98 and 102.99 of the National Labor Rela-
tions Board's Rules and Regulations, Series 8, as
amended, for a determination whether the Board
would assert jurisdiction over Petitioners' employ-
ees. Subsequently, Petitioners filed a brief in sup-
port of the petition.
In pertinent part, the petition, with exhibits and
brief, alleges:
1. There is pending before the Puerto Rico
Labor Relations Board, herein called the Puerto
Rico Board, a petition for representation filed by
Union Insular de Trabajadores Industriales y Con-
strucciones Electricas, herein called the Union,
docket number P:3520, claiming that a controversy
concerning representation exists as to Petitioners'
employees. Federacion de Empleados de Comercio
y Ramas Anexas de Puerto Rico and Sindicato de
Obreros Unidos del Sur de Puerto Rico have been
granted permission by the Puerto Rico Board to in-
tervene.
2. April Agro Industries, Inc., is a holding and
administrative company of Agro Management Cor-
poration and Agro Processing and Consultant
International Corporation, and owns shares in these
corporations. Agro Processing processes the vege-
tables grown on three farms administered by Agro
Management. The farms do not belong to either of
these corporations, but are subject to a lease agree-
ment. The operation conducted by Agro Manage-
ment centers upon a specialized technique known
as "drip-irrigation system" to obtain agricultural
production from arid and semi-arid land. A consid-
erable number of foreign specialized personnel is
used in the process. Agro Processing, at its plant,
cleans, processes, packs, and prepares the vegeta-
bles for export. The cost of its machinery is ap-
proximately $650,000, and its gross volume of busi-
ness is in excess of $1 million during a representa-
tive 12-month period; a substantial percentage of
the processed products are sold in interstate and
foreign commerce; and a substantial number of pur-
chases made by Petitioners are from outside Puerto
Rico. During the last 12 months, Petitioners have
directly exported to points and places outside
Puerto Rico goods valued in excess of $50,000,
and, during this same period, Petitioners have di-
rectly imported to points and places inside Puerto
Rico goods valued in excess of $50,000. The pack-
ing operation is not located on any of the farms
that are cultivated by Agro Management; it is al-
leged that its purpose is to increase the value of the
products for export, and its functions are not a nec-
essary incident to farming and/or agriculture.
3. The above commerce data has been neither
admitted nor denied by the other parties. The
Puerto Rico Board has made a finding that "April
Agro Industries, Inc., is an enterprise engaged in
the planting and harvesting of vegetables in Santa
Isabel, Puerto Rico, and uses in its operation the
services of employees. Therefore, it is an employer
within the meaning of Article 2(2) of the Puerto
Rico Labor Relations Board."
4. There is no representation or unfair labor
practice proceeding involving this labor dispute
pending before this Board.
5. Although all parties were served with a copy
of the petition for advisory opinion, none has filed
a response as permitted by the Board's Rules and
Regulations.
The Board has duly considered the allegations of
the petition, exhibits, and supporting brief. The
Board's advisory opinion proceedings are designed
primarily to determine questions of jurisdiction by
application of the Board's dollar volume standards
to the "commerce" operations of an employer.
The basic issue presented here is whether Petition-
ers' employees are agricultural laborers and, there-
fore, not "employees" within the meaning of Sec-
tion 2(3) of the National Labor Relations Act. As
this issue is one concerning fact questions which
I Encinitas Floral Co. Robert R. Hall, Inc.. H-M Flowers. Inc., and Man-
atee Co., 221 NLRB 1118 (1975).
267 NLRB No. 80
484
APRIL ARGO INDUSTRIES
have no clear-cut resolution, the determination
sought by Petitioners, that their employees are not
"employees" under Section 2(3) of the Act, does
not fall within the intent of the Board's advisory
opinion rules. Accordingly, we are dismissing the
petition herein.2
2 Ibid.
Accordingly, it is hereby ordered that, for the
reasons set forth above, the petition for an advisory
opinion be, and it hereby is, dismissed.3
3 In view of the reason for our dismissal of the petition for advisory
opinion, we find it unnecessary to reach the issue whether Petitioners
should be considered as joint employers.
485