Butchers' Union, Local No. 120, Meat Cutters

National Labor Relations Board - Board Decisions

Sep 29, 1966

160 N.L.R.B. 1465 (N.L.R.B. 1966)

BUTCHERS' UNION, LOCAL NO. 120, MEAT CUTTERS 1465
refusing to reinstate any of our employees , or in any manner discriminating in
regard to their hire or tenure of employment , or any term or condition of
employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization , in a manner constituting inter-
ference, restraint , or coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten employees with a closing of the casino or other
reprisals, in order to discourage union membership or activities
WE WILL NOT create the impression among our employees that we are engag-
ing in surveillance of their union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain from any or all such activities.
WE WILL offer to William Cox, Louis Cantalamessa, Robert Jones, David
Conner, and David H. Waggoner immediate and full reinstatement to their
former or a substantially equivalent position without prejudice to seniority
and other rights and privileges and make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
EXBER, INC., D/B/A EL CORTEZ HOTEL,
Employer.
Dated------- ------------ By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 450
Golden Gate Avenue, Box 36047 , San Francisco , California 94102 , Telephone 556-
0335.
Butchers ' Union , Local No. 120 , Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO and John
Pacheco, an Individual , d/b/a M. Moniz Portuguese Sausage
Factory. Case 2O-CP-188. September 9, 1966
DECISION AND ORDER
On April 14, 1966, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled case, finding that the Respondent had not
engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner' s Decision and a
supporting brief
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning and Zagoria].
160 NLRB No. 114.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the 'entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent they are con-
sistent with its Decision herein.
The complaint herein alleges that Butchers' Union, Local No. 120,
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, herein referred to as the Union or Respondent, vio-
lated Section 8(b) (7) (C) by picketing the premises of M. Moniz
Portuguese Sausage Factory, herein referred to as the Employer or
Charging Party, in order to force and require Charging Party to,
recognize or bargain with Respondent, and in order to force' and
require the employees of Charging Party to accept and select
Respondent as their collective-bargaining representative, notwith-
standing that Respondent was not currently certified as the represent=
ative of such employees.
The Trial Examiner dismissed the complaint on the ground that
the picketing was not prohibited by Section 8(b) (7) (C) because it
was for a one-man unit. He reasoned that the truckdriver was the•
only employee of the Employer as the other individuals were not
employees within the coverage of the National Labor Relations Act.
We disagree.
As more fully set forth in the Trial Examiner's Decision,' the
Employer herein is John Pacheco , who does business under the name
of M. Moniz Portuguese Sausage Factory, at Oakland, California.
At this location the Employer is engaged in the manufacture and sale
of sausages. It appears that at all times material herein the Employ-
er's business was carried on by Pacheco, with the assistance of his
daughter, a bookkeeper. Two sons-in-law, and an individual not iden-
tified by name but whose children are Pacheco's godchildren, were
engaged in the factory as production and maintenance employees,
and a truckdriver, who is not described further in the record, was
engaged in the wholesale sale and delivery of sausages . While the
record only sets forth the amount and type of compensation of the
unnamed production worker-he received a salary of $125 per week-
it reveals that he and the two sons-in-law received some form of com-
pensation from which the Employer deducts payments for social
security and that these three are covered by workmen's compensation.
In addition , it appears that these three were reimbursed by check by
the Employer for medical , dental, hospitalization , and certain house-
hold expenses , and that Pacheco accorded them a share of the firm's
BUTCHERS' UNION, LOCAL NO. 12 0, MEAT CUTTERS 1467
profits. Pacheco characterized them and the truckdriver in his testi-
mony as his "employees."
Except for an erroneous finding by the Trial Examiner that the
picketing ensued from October 1 through 4 instead of finding that it
began on October 1 or 4, the Trial Examiner's Decision accurately
sets forth the facts regarding the picketing herein. In brief, on Sep-
tember 30, 1965, Sylvan Thornton, secretary treasurer of the Respond-
ent, visited the Employer's Oakland plant, requesting that Pacheco
sign a contract covering Pacheco's employees. When Pacheco refused
to sign, Thornton left, saying he could make things unpleasant for
Pacheco if he did not sign. On October 1 or 4, 1965, the Union began
.picketing with the following legend:
MONIZ LINGUICA
UNFAIR
THE EMPLOYER PROVIDES WAGES AND WORKING
CONDITIONS FOR EMPLOYEES BELOW PREVAILING
STANDARDS ESTABLISHED BY BUTCHERS 120.
PLEASE DO NOT BUY PRODUCTS PREPARED,
PROCESSED AND PACKAGED BY THE ABOVE
EMPLOYER,
UNDER THE BRAND NAME OF MONIZ
Thereafter, the picketing continued with the same legend, on Octo-
ber 20, 21, 22, 25, 26, 27, 28, and 29, and November 5. On November 8
the Employer filed the charge in the instant case , and also a petition
for a representation election in a unit of three production and mainte-
nance employees at the Employer's factory involved herein. There-
after picketing occurred, as before, on November 15 and 30, the
complaint herein issued on December 2, and the picketing resumed on
the 6th and ended on the 15th. On December 23, 1965, the Employer's
petition was withdrawn with the consent of the Regional Director on
the ground that at the time the Union disclaimed any interest in
representing the Employer's employees.
The Trial Examiner concluded that the truckdriver' was the only
statutory employee of the Employer and thus the picketing was for a
one-man unit, and as such, did not fall within the proscription of
Section 8(b) (7) (C). We disagree, for reasons set forth infra.
The Trial Examiner properly concluded that no finding could be
made that the father of the Employer's godchildren or the sons-in-
law were supervisors 1 and found that their sharing in the profits did
not alone preclude an employee status. However, he, reasoned that
because Pacheco's testimony showed that they received profits based
1 No elecptoon is taken to this conclusion.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on need and their familial relationship to him, that as family mem-
bers they had authority effectively to make recommendations which
were not merely of a routine or clerical nature and of a kind set
forth in Section 2(11) of the Act, and that they shared in business
decisions, their relationship to the Employer "did not meet the defi-
nition of an employer-employee relationship contemplated by the
Act." In our opinion, however, such reasoning, as applied to the father
of the Employer's godchildren, does not give due consideration to the
record as a whole and to all the factors which are relevant to the
question of employee status. Thus, the Employer, as his testimony
shows, pays the father of his godchildren a weekly salary in a fixed
amount, makes deductions from his salary for social security, pro-
vides workmen's compensation coverage for him, and reimburses him
by check for medical, dental, hospitalization, and certain other ex-
penses. There is nothing in the record to support the Trial Examiner's
finding that this individual had his medical and related expenses paid
for through a profit-sharing arrangement, or that he exercised inde-
pendent judgment under Section 2(11) or (in the Trial Examiner's
words) that he had a "share in the final consensus of the decision-
making process." Under the foregoing circumstances, and on the
record as it. whole, we find, that this individual is an employee, who
is not excluded by Section 2(3) or (11) of the Act. As we agree with
the Trial Examiner that the truckdriver is also an employee,2 we find
that the picketing herein had an organizational or recognitional
object, directed to the unit of at least two employees.3
In view of his dismissal of the complaint on a single ground, supra,
the Trial Examiner did not reach other defenses raised by Respond-
ent, which Respondent now urges in its cross-exceptions that we
should consider and resolve in its favor. These are discussed infra.
As the picketing herein began immediately after Pacheco' s refusal
to accede to the Respondent's demand for a contract and the threat
to make things unpleasant because of such refusal, it is clear, and we
find, that the picketing thereafter had a recognitional or bargaining
object, and was proscribed by Section 8(b) (7), notwithstanding the
,language of the picket sign which the Respondent argues had only
the object of•informing the public that wages and working conditions
were below prevailing standards established by Respondent. Opera-
tive Plasterers' and Cement Masons' International Association, Local
2 No exception is taken to this finding.
3 Although the sons-in -law, as special status employees . would be excluded under appli-
cable Board precedent from a unit of employees based in part on their familial relation-
ship to the Employer , there is no precedent for excluding the father of the Employer's
godchildren In any event , assuming without deciding that such precedent should be ex-
tended , it would not include this more distant and indirect family relationship, as the
record does not show any special treatment of this individual which would support his
exclusion , under such precedent
BUTCHERS ' UNION, LOCAL NO. 120, MEAT CUTTERS 1469
Union No. 44, AFL-CIO ( Penny Construction Company, Inc.), 144
NLRB 1298 , 1300.' And it is also clear , and we find , that the picket-
ing herein began on October 1 or 4, 1965 , and intermittently occurred
thereafter until November 5, 1965, before the representation petition
was filed. Considering all the circumstances of this case , including
the constancy of Respondent 's recognitional demand upon Pacheco
during the period embraced by the picketing, as well as the fact that
no petition was filed within 30 days of the commencement of the
picketing, we find that the picketing herein was violative of Section
8(b) (7) (C) of the Act.5
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth in the Trial Exam-
iner's and the Board's Decision, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices , as alleged in the complaint, we shall order it to cease and
desist therefrom, and take certain affirmative action to effectuate the.
policies of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. John Pacheco, an individual doing business under the name of
M. Moniz Portuguese' Sausage Factory, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
i',We observe that the language on the picket sign does not fall within the second pie-
viso to Section 8(b) (7) (C). International Brotherhood of Electrical Workers, Local Unieu
No 113; AFL-CIO (LC.a. Electric, Inc), 142, NLRB 1418, 1419. Thus it is immaterial
that the evidence shows that only one stoppage of deliveries resulted trom Respondent's
picket.
Afthough the picket sign contains an appeal not to buy sausages sold. by •the Employer
under its own brand name, and although the Employer sells these products primarily at
wholesale,' but also at retail, from a store located adjacent to the factory, we find no
merit in, Respondent 's apparent contention , that the picketing here cannot be regulated
under Section 8 (b) (7) (C), because of the decisions by the Supieme Court in N L R B v.
Fruit 'and Vegetable Packeis d Warehousemen, Local 760, et at (Tree Fruits Labor Rela-
tions Committee, Inc ), 377 U S. 58, and, in Servette , Inc v. N L.R B., 37.7 U S. 46 In
those cases the Court did not purport to pass on the question of consumer picketing under
Section 8 (b)(7).
5 District 65, Retail, Wholesale & Department Store Union , AFL-CIO ( Eastern Camera &
Photo Corp.), 141 NLRB 991, 999.
The Respondent contends that the Employer trapped it into committing a-violation of
Section 8( b) (7) by asking it to sign a contract on October 13, 1965: We)find, no, need' to
consider that issue, since our finding of violation ' does not rest on that ' request,, but on. the
Respondent ' s earlier demand for recognition made on September 30, 1965.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Butchers ' Union, Local No. 120, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By picketing the above Employer for an object or objects pro-
scribed by Section 8(b) (7) (C) of the Act for more than a reasonable
period of time with filing a petition for an election, Respondent has
engaged in unfair labor practices within the meaning of Section
8(b) (7) (C) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Butchers', Union, Local No. 120, Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO, Oakland,
California, its officers, agents, and representatives, shall:
1: Cease and desist from picketing, or causing to be picketed, the
premises of the Employer d/b/a M. Moniz Portuguese Sausage Fac-
tory, with an object of forcing or requiring the Employer herein to
recognize or bargain with the Respondent as the representative of
its employees, or forcing or requiring the employees of the Employer
to accept or select the Respondent as their collective-bargaining agent,
in violation of Section 8 (b) (7) (C) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post copies of the attached notice marked "Appendix" 6 at its
offices and meeting halls. Copies of said notice, to be furnished by the
Regional, Director for Region 20, after being duly signed by official
representatives of Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for Region 20 copies of the
aforementioned notices for posting by the Employer, the Company
willing, at all locations where notices to the Employer's employees are
customarily posted. Copies of said notice, to be furnished by said
Regional Director, shall, after being signed by the Respondent Union,
as indicated, be forthwith returned to the Regional Director for dis-
position by him.
e In the event that this Order Is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States 'Court of Appeals Enforcing an Order."
BUTCHERS ' UNION, LOCAL NO. 12 0, MEAT CUTTERS 1471
(c) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF BUTCHERS' UNION, LOCAL No. 120,
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFL-CIO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket or cause to be picketed M. Moniz Portu-
guese Sausage Factory, Oakland, California, where an object
thereof is to force or require the aforesaid Employer to recognize
or bargain with us as the representative of its employees, or
where an object is to force or require the employees of Moniz
Portuguese Sausage Factory to accept or select us as their
collective-bargaining agent in violation of Section 8(b) (7) (C)
of the Act.
BUTCHERS' UNION, LOCAL No. 120, AMALGAMATED
MEAT CUTTERS AND BUTCIIER WORKMEN OF NORTH
AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 450 Golden Gate Avenue, Box 36047, San Francisco,
California 94102, Telephone 556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 8, 1965, by John Pacheco d/b/a M. Moniz Por-
tuguese Sausage Factory, herein Pacheco, against Butchers' Union, Local No. 120,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
herein the Meat Cutters or the Respondent, the General Counsel issued complaint
alleging Respondent engaged in picketing the premises of Pacheco in violation of
Section 8(b)(7)(C) of the National Labor Relations Act, as amended.
The answer of Respondent denied the commission of any unfair labor practice.
This proceeding with the General Counsel and the Respondent represented was
heard before Trial Examiner John F. Funke at San Francisco, California, on
March 2, 1966 . At the conclusion of the hearing the parties were given leave to file
briefs and briefs were received on April 6.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:,Upon the entire record in this case ands from , my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF PACHECO
John Pacheco is the sole owner of M. Moniz Portuguese Sausage Factory which
isi engaged in the processing and, sale of meat products at Oakland, California.
Ninety percent of his sales are wholesale. It was stipulated that products valued
in excess of $50,000 are received, from, places, outside the State, of California, Pa-
checo is engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within, the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. The stipulations
It was stipulated that on or about October 1 through 4, 1965,1 October 20
through 22, October 25 through 29, November 5, 15, 30, December 6 and 15,
Respondent picketed Pacheco's premises with a sign carrying the legend:
MONIZ LINGUICA
UNFAIR
THE EMPLOYER PROVIDES WAGES AND WORKING
CONDITIONS FOR EMPLOYEES BELOW PREVAILING
STANDARDS ESTABLISHED BY BUTCHERS 120.
PLEASE DO NOT BUY PRODUCTS PREPARED,,
PROCESSED AND PACKAGED BY THE ABOVE EMPLOYER,
UNDER THE BRAND NAME OF MONIZ:
On November 8, a petition for a representation election was filed by Pacheco
with the National Labor Relations Board. (Case 20-RM-803.) 2 On December 23
Pacheco, through United Employers, Inc., requested that the petition be withdrawn,
a-request approved by the Regional Director- on the same day.3 The approval, was
based upon a disclaimer of interest submitted by Respondent in the District Court
in 10(1) proceedings collateral hereto.' A temporary injunction was issued by con-
sent.in that proceeding. Respondent was not the certified bargaining, representative
of the employees of Pacheco.
2. The testimony
Only two witnesses were. called, both by the General Counsel. John Pacheco
testified that in October or November 1964, he had a conversation with- Sylvan
Thornton, secretary-treasurer of the Meat Cutters, at his store. Thornton told him,
he wanted to unionize the shop and Pacheco told him to go in back and speak to
the employees, two of whom were his sons-in-law. They had some discussion of
union benefits but Thornton refused to talk to the employees and left .5
Almost 1 year later, September 30, 1965, Thornton returned, again told Pacheco
he wanted to unionize the shop and again refused to talk to the employees. Thorn-
ton asked Pacheco to sign a contract but Pacheco wanted the contract explained.
Thornton did not give a copy of the contract to Pacheco but told him he would
have Davis 6 deliver it to him. On October 13, a Mr. Finney came into the store
and left a copy of a contract.? Finney was asked to explain the contract by Pacheco
and refused, saying, "I can't talk to you. I got orders not to, talk to you." Pacheco
1 Unless otherwise noted all dates refer to 1065.
Respondent's Exhibit 1. This was the only petition filed in, this proceeding:
Respondent's Exhibit 2.
'-Respondent's Exhibit 3.
5 This testimony was admitted only to establish the purpose of the, subsequent visit by
Thornton.
6 Richard Davis, a representative of United Employers, Inc., a management consultant
organization.
7 Finney was identified as business agent of the Meat Cutters. The contract was received'
as General Counsel's Exhibit 2.
BUTCHERS' UNION, LOCAL NO. 120, MEAT CUTTERS 1473
then remonstrated with Finney for "tampering with my accounts, taking accounts
away from me, and not letting me know or explaining this contract." Finney called
him a liar, told him he was not paying union rates and told him to call Thornton.
The next day, October 14, Pacheco called Thornton and asked him to bring down
a contract and explain it to him. Thornton came to the store with a contract 8 and
signed it at Pacheco's request. Pacheco then took the contract, put it in his safe
and locked the safe.9 Thornton, according to Pacheco, "jumped up hollering and
demanding the contract." Pacheco, told, him to cool off before he got knocked down
and, after further demands for the return of the contract, Thornton left. This con-
cluded direct dealings between Pacheco and representatives of the Meat Cutters.'°
Respondent asserts as a defense the fact that no appropriate bargaining unit was
established. The testimony is not free from ambiguity on this issue. Pacheco, testi-
fied that he had four employees, three of whom worked in the back, the fourth was
a truckdriver. Of the three who worked in the rear of the store two were Pacheco's
sons-in-law and the other was described as a relative, by which it developed that
Pacheco meant that he was godfather to the employees five children. Pacheco's
testimony, and it is all we have, vis-a-vis the employee status, had best be quoted.
Q: Do you'' counsel' with your sons-in-law over decisions of the business
and what to, do?
A. I do.
Q. And you do the same with this relative?
A. Yes.
Q. So, the decisions of the business are made, as, a' sort- of counseling within
the family circle?
A. Yes, one family.
Q. Do they share in the profits of the firm?
A. Yes, they do:
TRIAL EXAMINER : Is this a corporation? -
The WITNESS: No, just like father and sons.
TRIAL EXAMINER: Is it a partnership?
The WITNESS: No.
* *
Q. (By Mr. VAN BOURG.) Do you pay any pension contributions, for your
sons-in-law and this other relative to any pension fund?`
A. No.
Q. So, they do not have pension protection?
A. No, outside of Social Security and Workmen's Compensation.
Q. So, at least insofar as pensions. are concerned,, that is, at least one con-
dition they don't have which exists in the contracts, General. Counsel's Exhib-
its 2 and 3?
A. Yes.
* * * * * * *
Q. (By Mr. JELLISON.) Mr. Pacheco, can you explain your answer when
you said these individuals share in the profits? Precisely what 'happens?'
A. Anything they need, they get. They get medical, dental, hospitalization,
automobiles, furniture, anything. It is, just like one family. Whatever they
need, they get.
General Counsel's Exhibit 3
It was established on cross-examination, that following Finney's visit on the, 13th
Pacheco had: talked with Richard Davis, of United Employers, Inc , who told: him' to get
another contract, get signatures one it, and, change the date. The second contract (iGeneral
Counsel's Exhibit. 3) differed from the one deliveredi by Finney in that: it contained the
date "October 14, 1965;" entered' in red ink_ on, page 1 and was signed by Thornton. The
name of the employer on the second contract was stated as "Moniz Linguisa Co ," whereas
the first contract it was stated as "Pacific Coast Meat Jobbers Assn " The first contract
bore the notation at the , end' of the contract in typing "At Company Request, left at Moniz,
Linguisa Co. for information."
m The conversations between Pacheco and Thornton on September 13 and October 14,,
and between Finney and Pacheco on October 1'3 are corroborated, as to substance by Brenda
Correia, Pacheco's daughter, then employed part time at the store. Correia further testified
that at the September 30: meeting Thornton,told, Pacheco that he could make "matters
unpleasant for him "
257-551-67-vol. 160-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Is there any agreement whereby they get a certain percentage of the
profits at the end of the year?
A. Whatever they need, they get.
TRIAL EXAMINER: I think the answer is no, there is no specific agreement.
The WITNESS: Exactly.
Q. (By Mr. JELLISON.) What decisions are made by this group, your employ-
ees? What decisions do they enter into with you?
Let me explain. What kinds of things do you discuss with your sons-in-law?
A. Do you mean about the business?
Q. Yes.
A. The buying, the hiring. We hold meetings and try to save here and there.
We discuss the business in general. I don't make the decisions alone. I discuss
them with them.
Q. What sorts of decisions are you talking about?
A. Accounts, price-wise, and so forth.
TRIAL EXAMINER: Who to buy from?
The WITNESS: Yes. If they have a suggestion of some company where the
meat is better than the meat I am buying from some company, and they don't
like this meat, they will say, "Try this other company. I have seen this company
in such and such a store." So, I will go ahead and try it.
TRIM, EXAMINER: Who does your selling?
The WITNESS: My son-in-law on the truck.
TRIAL EXAMINER: You mean the truck driver?
The WITNESS: I had an outside truck driver and by the Union taking my
accounts away I couldn't keep up his wages. The wholesale accounts dropped.
So, I had to lay him off and put my son-in-law on the truck.
Q. (By Mr. JELLISON.) Who makes the ultimate decision if there is a
dispute?
A. I do.
Q. What happens if one of your employees has a dental bill?
A. It comes out of the business, a business check. -
Q. You may have answered this, but I am not sure. During this period,
September to November, 1965, how many employees did you have?
A. Three employees. The same employees plus the one outside truck driver.
Q. And one of those three employees who is not a' truck driver is the man
you described as a relative? •
TRIAL EXAMINER: Yes. He is the Godparent.
The WITNESS: To all his five children.
Q. (By Mr. JELLISON.) How is that man paid?
A. On salary. $125.00 a week.
Mr. JELLISON: No further questions.
RECROSS-EXAMINATION
Q. (By Mr. VAN BouRG.) Does he also get something in addition to that
salary? -
A. Medical, dental, hospitalization, division of the profits, refrigerator-
Mr. VAN BouRG: Nothing further.
B. Conclusions
It is my understanding that the case presents three issues:
1. Whether the object of the picketing was informational or recognitory?
2. Whether the petition filed in Case 20-RM -803 can serve as a defense?
3. Whether an appropriate unit existed at Pacheco which would support a
petition filed under Section 9(C) of the Act or a direction of election under Section
8(b)(7)(C)?
I find it unnecessary to pass upon the first two issues for I think the third rather
conclusively disposes of the case. On the basis of the testimony quoted I find that
only one of the persons working at Pacheco's store, the truckdriver, was an employee
within the meaning of the Act. Pacheco testified that both sons-in-law and the "rela-
tive" participated in all management decisions including the hiring of employees
and the purchasing of meats. All decisions were the result of family counsel, with
ultimate decision in event of disagreement resting with Pacheco. All shared in the
profits of the business although no specific percentage was allotted to any of them.
LONG LAKE LUMBER COMPANY 1475
According to Pacheco profits were distributed on the basis of need-"they get med-
ical , dental, hospitalization , automobiles, furniture, anything ." It was "just like one
family." The arrangement had some of the aspects of a communal compound, some
of de facto partnership . However described it did not meet the definition of an
employer-employee relationship contemplated by the Act. Both sons-in-law and the
relative had authority effectively to make recommendations which were more than
routine and clerical and which are set forth in Section 2(11) of the Act. Although
no finding can be made that they were supervisors as defined in that section I believe
the possesion and exercise of such responsibility precludes a finding that they were
employees . Nor is this finding-that they were not employees-based on the fact
that they participated in the profits for a profit-sharing plan may of course include
employees . It is based on the combination of factors unique to Pacheco's scheme of
doing business and the right of all to share in the final consensus of the decision-
making process.
Based on testimony which admittedly could be more complete, I find the recent
decision of the Board in Teamsters Local Union No. 115 (J. Stanley Thackerah
and J . Charles Bair t/a Vila-Barr Company ), 157 NLRB 588 controlling . No vio-
lation of Section 8(b) (7) (C) may therefore be found.
[Recommended Order omitted from publication.]
Long Lake Lumber Company and International Woodworkers of
America, AFL-CIO, Local 3-10. Case 19-CA-3259. Septem-
ber 29, 1966
DECISION AND ORDER
Upon charges duly filed by International Woodworkers of America,
AFL-CIO, Local 3-10, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 19, issued a
complaint dated December 15, 1965, against Long Lake Lumber Com-
pany, herein called Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Sections 8(a) (1) and (5) and 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the charge, com-
plaint, and notice of hearing were served on Respondent and the
Charging Party.
On March 7, 1966, Respondent duly filed its answer , admitting cer-
tain allegations of the complaint but denying the commission of any
unfair labor practices, as well as its motion to dismiss. The General
Counsel responded to the motion on March 8. The motion was denied
by Trial Examiner Martin S. Bennett on March 14.
On April 7, 1966, all parties to this proceeding entered into a stipu-
lation whereby they agreed that the charge, complaint, answer, and
the stipulation of facts with attached exhibits (subject to certain
objections and exceptions specified in the stipulation), constitute the
entire record in the case and that no oral testimony is necessary or
desired by any of the parties. The parties further stipulated that they
waived a hearing before a Trial Examiner and the issuance of a Trial
160 NLRB No. 123.