Denver Smoked Fish Co.

National Labor Relations Board - Board Decisions

Feb 11, 1949

81 N.L.R.B. 622 (N.L.R.B. 1949)

In the Matter of Louis W . CO URTNEY AND ELMER J. SEInEL, A PARTNER-
SHIP, D/B/A DENVER SMOKED Fisii COMPANY, EMPLOYER and INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, LOCAL 452, PETITIONER
Case No. SO-RC-114.-Decided February 11, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing offi-
cer of the National Labor Relations Board. The hearing officer's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed.'
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-man panel, consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The business of the Employer :
The Employer is a partnership made up of Louis W. Courtney and
Elmer J. Seidel, doing business as Denver Smoked Fish Company,
and is engaged in the purchase, processing, and wholesale distribution
of fish and fish products at Denver, Colorado. The processing opera-
tions are confined to smoking fish and constitute about 1 percent of the
Employer's operations.
During the period March 1, 1947, to December 31, 1947, the Employ-
er's purchases, consisting mainly of fresh, frozen, processed, and
canned fish and fish products, amounted in value to approximately
$180,000, of which 99 percent was purchased outside the State of
Colorado. During the same period, the Employer sold products val-
ued at approximately $200,000, of which approximately 10 to 15 per-
cent was sold outside the State. During the period January 1, 1948,
1 At the hearing the Employer moved to dismiss the petition alleging ( 1) that the
Employer is not engaged in commerce within the meaning of the Act ; (2 ) that Section 9 (c)
(3) of the Act constitutes a bar to the instant proceeding ; and (3) that the proposed unit
is inappropriate . The hearing officer did not rule on this motion . For reasons stated
below , the Employer ' s motion is denied.
" Chairman Herzog and Members Houston and Gray.
81 N. L. R. B., No. 108.
622
DENVER SMOKED FISH COMPANY 623
to July 1, 1948, the Employer's purchases amounted to approximate-
ly $150,000, of which 99 percent was purchased outside the State of
Colorado. During the same period, the Employer sold products
valued at approximately $165,000 to $175,000, of which less than 5 per-
cent was sold outside the State.
We find, contrary to the contention of the Employer, that it is en-
gaged in commerce within the meaning of the Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. A 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 Act2
4. The appropriate unit :
The Employer operates in a one-story building consisting of one
room, exclusive of the office. The Employer buys fresh, frozen, proc-
essed, and canned fish and fish products from the east and west coasts
and from the Gulf of Mexico. The partners and four employees com-
prise the entire staff.
The four employees, Paul Pacheco, John G. Akshmeco, Nelson D.
Courtney, and Ronald H. Rappe, receive and unpack fish shipments,
process the fish when necessary, and repack it for delivery. All em-
ployees are under the common supervision of the two partners. They
all ta4ke orders from customers, and handle invoices and bills of lading
as routine matters in receiving goods and preparing for deliveries. All
employees work together in the same room and receive like treatment
as to vacation, sick leave, Christmas bonus, and other benefits. All em-
ployees, with the exception of Rappe, spend approximately 10 percent
of their time in clerical duties. Rappe spends approximately 35-50
percent of his time in clerical duties. All the employees, except Court-
ney, drive trucks to make the deliveries. Pacheco and Akshmeco spend
over 50 percent of their time driving. Rappe spends approximately
30 percent of his time driving. Courtney and Rappe are paid on a sal-
ary basis ; the other two employees are paid on An hourly basis.
The Petitioner contends that the Employer's "truck drivers" consti-
tute an apropriate unit. The Petitioner would exclude Nelson D.
Y Section 9 (c) (3) . . . "no election shall be directed in any bargaining unit or any
subdivision within which , in the preceding twelve-month period, a valid election shall have
been held "
On December 10, 1947 , a consent election was held among the Employer 's employees.
Two ballots were challenged, which affected the result of the election A hearing was set
for May 26, 1948 Although notices were sent , neither the Employer nor the Petitioner
appeared . The Board considered this non-appearance a disclaimer of interest and on July
28, 1948 , issued its Decision and Order dismissing the petition , 78 N L. R . B 631. More
than a 12-month period has elapsed since the consent election Therefore , it does not
constitute a bar to the instant proceeding , or to the election hereinafter directed, under
Section 9 ( c) (3), as alleged.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Courtney from its unit because of Courtney's relationship with one of
the partners and because he does not drive a truck; and the Petitioner
would exclude Rappe as a clerical employee. The Employer contends
that all four employees should be in a single bargaining unit.
Nelson D. Courtney has no financial interest in the partnership but
he is a brother of Louis W. Courtney, a partner. Although Nelson D.
Courtney works with the other employees, and his interests are closely
related to theirs, we shall, nevertheless, exclude him from the unit be-
cause of his close relationship to the Employer.3
Due to the integrated character of the Employer's operations, the
closeness, integration, and interchange of activities and interests of the
employees, we find that all employees of the Employer, excluding Nel-
son D. Courtney, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer , an election by secret
ballot shall be conducted as early as possible , but not later than 30 days
from the date of this Direction , under the direction and supervision
of the Regional Director for the Region in which this case was heard,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the unit found appropriate in paragraph numbered 4 , above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election , including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion or temporarily laid off , but excluding those employees who have
since quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the election , and also excluding employees
on strike who are not entitled to reinstatement , to determine whether
or not they desire to be represented , for purposes of collective bargain-
ing, by International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL, Local 452.
$ Matter of Olindo Galluccio, doing business as Preferred Oil Company, 77, N. L. R. B.
770, and cases cited therein.