P.Q. Beef Processors, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1076 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P.Q. Beef Processors, Inc. and Meatcutters, Pack-
inghouse Workers & Food Handlers, District
Union No. 657, AFL-CIO. Cases 12-CA-7107,
12-CA-7179, and 12-RM-277
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 3, 1977, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' conclusions, and recommendations2 of the
Administrative Law Judge and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge's
conclusion that Durham was an independent con-
tractor, and that he was therefore not discharged in
violation of Section 8(a)(3) and (I) of the Act. In
addition to the factors cited by the Administrative
Law Judge in support of his conclusion, we also
specifically rely on testimony of Respondent's
president, Pernas, that he did not have "any kind of
control" over the manner in which Durham per-
formed his unloading duties. Such absence of control
is highlighted by the reaction of Pernas to Durham's
decision to procure a rail to assist in unloading extra
heavy cuts of meat. According to Durham's uncon-
tradicted testimony, Pernas initially suggested that
Respondent and Durham share the cost of the rail.
When Durham arranged to have the rail made and
informed Pernas of the cost, however, Pernas told
Durham he would lend him the money to get the rail,
but that the loan would have to be repaid because the
rail was of"no interest" to Respondent.
Our dissenting colleague, in finding Durham to be
an employee, asserts that Pernas told Durham how to
pay his helper. The record shows, however, that
Pernas did not tell Durham how to pay his helper,
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr), Wall Products.
Ins., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
231 NLRB No. 179
but only that whatever the helper was paid would
have to come out of Durham's own compensation.
Finally, our colleague relies on Durham's receipt of a
W-2 Federal tax withholding form allegedly covering
wages earned while performing occasional truckdriv-
ing duties in February 1976. The record clearly
shows, however, that Durham ceased his occasional
truck deliveries in mid-October 1975, and that, until
his discharge in mid-February 1976, he performed
only unloading work. His receipt of the W-2 form for
1975 driving assignments under such circumstances
clearly does not warrant a finding that Durham was
an employee at the time of his discharge in 1976.
For the foregoing reasons, we adopt the Adminis-
trative Law Judge's dismissal of the alleged 8(a)(3)
violation with respect to Durham.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, P.Q. Beef
Processors, Inc., Miami, Florida, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the challenges to the
ballots of Oscar Maza, Virsie Durham, Antonio
Labra, Gilberto Mulgado, Pedro Vera, Alberto
Mulgado, and Raimondo Rodriguez, in Case 12-
RM-277, be sustained and that Case 12-RM-277 be,
and it hereby is, severed from these proceedings and
remanded to the Regional Director for Region 12 for
further proceedings.
MEMBER JENKINS, dissenting in part:
I disagree with my colleagues' adoption of the
Administrative Law Judge's finding that Respondent
did not violate Section 8(a)(3) of the Act in its
discharge of Virsie Durham because he was an
independent contractor and not an employee of
Respondent. The few factors relied on by the
Administrative Law Judge and my colleagues are
clearly inadequate to make Durham an independent
contractor. 3 On the other hand, the facts of the
record establish an employment relationship. His
work of unloading beef as it arrived at the plant was
an integral part of Respondent's day-to-day business
operations. Respondent instructed Durham as to his
arrival time and work periods, ordered him to secure
2 In his recommended Order, the Administrative Law Judge recom-
mended that the challenges to the ballots in Case 12-RM-277 be overruled,
whereas it is clear from his Decision that he intended to recommend that
they be sustained. We shall correct this inadvertent error in our Order.
:3 See Member Penello's concurring opinion in Standard Oil Comparny of
Ohio, 230 NLRB 967 (1977).
1076
P.Q. BEEF PROCESSORS
a helper when his work was not progressing fast
enough, told him how to pay the helper, and
provided him with a helper when Durham was
unable to secure one. When Durham drove a truck,
he was on Respondent's payroll and received a W-2
form for his services at the end of the year. During
the strike, Durham signed a union card and joined in
the picketing. When Durham called in after the strike
to find out whether or not to work, Respondent
informed him that his services were no longer
needed.
In my view, these facts indicate that Respondent
exercised a high degree of control over Durham's
operations in its behalf; 4 that such control, as well as
the nature and conditions of his work, curtailed him
in the economic latitude he would have otherwise
had to engage in entrepreneurial activity; and,
furthermore, that Durham's actions and attitude,
toward Respondent, toward his work, and toward the
strike were clearly those of an employee rather than
an independent contractor.
i R-M Framers. Inc., 207 NLRB 36 (1973).
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
charges filed February 5 and April 7, 1976, by Meatcutters,
Packinghouse Workers & Food Handlers, District Union
No. 657, AFL-CIO, herein called the Union, against P.Q.
Beef Processors, Inc., herein called Respondent, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 12, issued a complaint
dated March 24, 1976, and an order consolidating cases
and amendment to complaint dated May 18, 1976, alleging
violations by Respondent of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended, herein called the Act. Respondent, by its
answer, denied the commission of any unfair labor
practices.
On June 3, 1976, the Board issued its Order in Case 12-
RM-277, directing a hearing with respect to the issues
raised by the challenges to the ballots of seven individuals
in that case. Thereafter, on June 4, 1976, the Regional
Director consolidated that matter with Cases 12-CA-7107
and 12-CA-7179 for purposes of hearing and decision.
Pursuant to notice, hearing was held before me in Coral
Gables, Florida, on June 7, 8, and 9, 1976, at which the
parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce
evidence. Thereafter, the General Counsel and Respondent
filed briefs which have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
i Unless otherwise indicated, all dates referred to herein are in 1976.
While generally admitting the discharges. and contending that theq
where motivated bh economic considerations. Respondent also asserts that
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Florida corporation, engaged in the
business of boning cow and beef meat for wholesale
distribution. Prior to the issuance of the complaint in Case
12-CA-7107, Respondent had been in business for some 7
months during which time it shipped from its Miami,
Florida, location, to points in the United States located
outside the State of Florida, meat valued in excess of
$50,000. During the same period of time, Respondent
purchased meat valued in excess of $50,000 from points
within and without the State of Florida. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
lI. LABOR ORGANIZATION
Meatcutters, Packinghouse Workers & Food Handlers,
District Union No. 657, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Union organizing activity began at Respondent's plant
on or about January 15, 1976.1 By February 2, the Union
believed that a majority of Respondent's employees had
signed cards authorizing the Union to represent them for
purposes of collective bargaining. Accordingly, Union
President Greenfield, after consultation with the principal
employee organizers, Elroy Rodriguez and Felino lzqierdo,
decided that, on February 4, 1976, it would demand
recognition.
Before the Union could effectuate its plan, in the early
morning of February 4, Respondent's president, Antonio
Pernas, laid off some 9 or 10 employees, including union
card signers Oscar Maza, Antonio Labra, Gilberto Mulga-
do, Pedro Vera, Alberto Mulgado, Elroy Rodriguez, Felino
Izqierdo, Manuel Diaz, and Felix Velazquez, the alleged
discriminatees in Case 12-CA-7107. 2 Thereafter, others of
Respondent's employees decided to strike in protest of the
discharges, and the strikers and the dischargees engaged in
picketing. In an effort to settle the strike, Respondent, on
or about February 9, offered reinstatement to the dis-
charged employees and, on February 11, the dischargees
and the strikers returned to work. Respondent and the
Union then consented to a Board-conducted election
which was held on March 5, 1976.
On various dates between February 11 and March 2,
Respondent discharged Oscar Maza, Virsie Durham,
Antonio Labra, Gilberto Mulgado, Pedro Vera, Alberto
Mulgado, and Raimundo Rodriguez. Those individuals
cast challenged ballots at the March 5 election and
resolution of the challenges turns upon the legality of the
discharges. Following the election, Felino Izqierdo and
Julio Romero were discharged. The nine individuals, all of
Vera was discharged for cause; Diaz was offered reinstatement immediatel)
following his discharge; and Rodriguez was not discharged at all.
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom had signed union authorization cards, are the
alleged discriminatees in Case 12-CA-7179. 3
In addition to the discharges, the complaint alleges, and
Respondent denies, that it violated Section 8(a)(l) of the
Act by engaging in threats and interrogations conducted
by Pernas and Supervisor Jose A. Garcia, 4 and by
imposing more onerous working conditions following the
strike.
B. The Discharges
Supervisor Jose A. Garcia testified that, on the morning
of February 3, "Mr. Pernas talked to me and told me he
had problems with his employees, and did I know
anything." Asked what problems Pernas was referring to,
Garcia testified: "The Union problem it must have been."
According to Garcia, in a conversation which took place
later that same day, Pernas informed him that he was going
to discharge employees Izqierdo, Diaz, and E. Rodriguez.
That evening, Garcia spoke to Diaz and Rodriguez by
telephone, and informed them that Pernas knew about the
Union and intended to fire the three individuals.
On February 4, Pernas effectuated the layoffs of 6 of
Respondent's 10 butchers, 2 of 4 drivers, and 1 of 2 scalers.
The six employees classified as helpers, as well as the single
employee who worked as a packer, were retained. Accord-
ing to Pernas' uncontradicted testimony, he informed those
employees that their layoffs were necessitated by economic
conditions. Selection of employees for layoff was based on
seniority, and the retained employee complement included
individuals who had signed union authorization cards.
Immediately following this event, Garcia told several
employees that he, Garcia, was sorry, but the owner had
found out about the union problem.
Pernas, in explanation of Respondent's economic diffi-
culties, testified that cow beef, boned and distributed by
Respondent, is a relatively lower grade of meat. Toward
the end of 1975, the price of such beef began to increase
while the prices of higher grade choice meat started to
decrease. This trend continued into 1976. Thus, on January
1, 1976, cow prices were 22 cents per pound lower than
choice steer prices. By February 29, the differential was
only 2 cents per pound and, by March 20, the price of
choice meat was less than the price of cow beef. Since
choice meat is a better quality product, the market for cow
beef is dependent on its normally lower price. Thus, the
disappearance of the price differential, in late 1975 and
early 1976, had a devastating impact upon Respondent's
business. By February, its theretofore profitable enterprise
was operating at a loss. Accordingly, on February 2, 1976,
Pernas decided to reduce the business operations, lay off
employees, and so inform them on February 4, 1976, the
end of the payroll period. Pernas' testimony in this regard
was corroborated by the testimony of other witnesses; is
supported by business records and other documentary
:' Respondent asserts that Maza, Labra, Vera, Rodriquez, and the
Mulgados were discharged for economic reasons; that Izqierdo and Romero
were discharged for cause; and that Durham was not an employee but,
rather an independent contractor at the time he ceased work at Respon-
dent's plant.
'The uncontradicted testimony of Garcia, and various employee
witnesses, shows that Garcia directed employees in their work, granted time
off. effectively recommended pay increases for the employees working
evidence; and has not been seriously challenged, either by
the General Counsel or the Charging Party. Pernas denied
that prior to February 4, he held conversations with Garcia
pertaining to Respondent's economic situation, or employ-
ee layoffs, or that, at that time, he knew of, or discussed
with Garcia, the matter of the Union.
Respondent's business suffered further reversals during
the period of the strike, as many of its customers,
apparently responding to appeals from the Union, refused
to buy Respondent's product. In an effort to resolve the
situation, Pernas recalled the laid-off employees, settled the
strike, and agreed to an election. He testified that his
actions in that regard were motivated by his concern for
the survival of the business, although he had no business
need for the laid-off butchers. The business did require the
services of the striking helpers.
Respondent's operating losses increased in the week
following reinstatement, and it lacked work for the
reinstated employees. According to Pernas, this condition
gave rise to the subsequent layoffs, by seniority, between
February 11 and March 30, 1976. At the time of the
hearing, in early June, Respondent was still operating with
the reduced employee complement. While it has not
replaced any of the laid-off employees, Respondent did
replace a helper, a packer, and a butcher when those
employees left their jobs between February 27 and March
5.5 The replacements were former employees with a higher
seniority standing than any of the laid-off employees who
are the subject of the instant charges. According to Pernas,
it is Respondent's policy to recall laid-off or former
employees in order of seniority.
With respect to the February 4 layoffs, Respondent, as
noted, contends that Vera was discharged for cause; Diaz
was offered reinstatement immediately following his
discharge; and Rodriguez was not discharged. As to Vera,
he testified that, following his hire of February 2, 1976,
Pernas, on February 3, asked him if he had signed a union
card. When Vera responded in the affirmative, Pernas told
him that there was no longer any work for him. Pernas
denied Vera's account, and testified that he laid off Vera
because the latter "requested from me to be paid under
table because he was collecting unemployment." As to
Diaz, who owed money to Pernas, both Diaz and Pernas
testified that, immediately following his layoff, Pernas
offered, and Diaz declined, continued employment. Ac-
cording to Diaz:
"I started to leave then, but Mr. Pernas told me,
'Manuel, if you want you can remain and work.' I told
him 'No, since he had fired me, I could not stay and
work because my fellow workers had been fired as
well,' and I didn't speak again to him."
As to Rodriguez, Pernas testified that he had not included
Rodriguez in his February 4 layoff plans, and did not tell
under him, and possessed and exercised the power to discharge those
employees. I find that, at all times material herein, Garcia was a supervisor
within the meaning of Sec. 2(11) of the Act.
5 Neither the helper nor packer classifications had been effected by the
layoffs. At the time that the butcher was replaced, on or after March 5, 1976,
some four butchers, who are the subject of the instant charges, had been laid
off. Subsequently, butcher lzqierdo was discharged on March 22, allegedly
for cause.
1078
P.Q. BEEF PROCESSORS
Rodriguez that he was laid off. Rodriguez testified that he
did not report for work on February 4, but remained
outside the plant to picket with the strikers and discharg-
ees, since, on the night of February 3, he had been told by
Garcia that Pernas "had fired us." According to Garcia, he
told Rodriguez that he was "going to be fired" by Pernas.
Respondent also contends that the postelection layoffs of
Izqierdo and Romero were for cause, and that Durham was
an independent contractor when, at the conclusion of the
strike, he ceased performing work for Respondent. Thus,
Pernas testified that Izqierdo was terminated because, in
the weeks preceding that event, he spent nluch of his time
talking to fellow employees, and not working. Pernas'
testimony in that regard was corroborated by employee
Jose R. Garcia. Izqierdo admitted that he had been
warned, by Supervisor Jose A. Garcia, that Pernas would
fire Izqierdo if he were caught talking again. As to Romero,
Pernas testified that he was discharged for ignoring
instructions to refrain from smoking inside the plant.
Romero acknowledged that Federal regulations prohibit
smoking in the plant, and conceded that he: smoked there,
from time to time, as did other employees. He also
admitted smoking in the "dry room," where he knew
smoking was a very hazardous activity. Romero had
received prior warnings on this subject from Pernas.
According to Romero, about I month before his discharge,
Supervisor Garcia asked him how he was going to vote in
the election. When Romero stated that he would vote for
the Union, Garcia asked if Romero knew what he was
doing and further stated that Pernas had threatened to
close the plant if the Union won the election. Garcia
acknowledged that he asked Romero how he was going to
vote, and that he told Romero "that I thought that if the
Union won out, the plant would be closed."
Durham worked at Respondent's plant, unloading the
trucks of beef suppliers. He was, at times, paid by the
truckdrivers and, at other times, by Respondent, under a
reimbursement arrangement with the supplier. When paid
by Respondent, the amount was based on the number of
pounds unloaded, and the check was not reduced by the
usual employee payroll deductions. Durham hired his own
assistant who was paid, by Durham, from the funds he
received from the suppliers and Respondent. Durham also
purchased his own unloading equipment. Unloaders, such
as Durham, report for work when there are trucks to
unload. and they begin their work, not through a hiring
procedure, but on their own initiative. Pernas did issue
directions to Durham, and other unloaders, with respect to
the speed with which they were to perform their unloading
tasks. In that connection, it was Pernas who first suggested
to Durham that he retain a helper in order to speed the
unloading process. At times, Perna:s loaned to Durham one
of Respondent's own employees, when necessary to
accomplish the unloading tasks in a timely manner.
C. The 8(a)(1) Conduct
It is undisputed that, following the strike, Respondent
instituted certain changes in working conditions, as
follows: (1) The 40-hour guaranteed workweek, previously
granted to butchers, was eliminated; (2) the starting time
was changed from 6:30 a.m. to 7 a.m., so that employees
left the plant at a later hour; (3) the system of taking breaks
was revised; and (4) the previously unrestricted right of
employees to purchase meat was limited to Fridays only.
The General Counsel contends that these revisions in
conditions of employment were motivated by antiunion
considerations and were in violation of the Act. Pernas
testified that the first two changes were instituted for
economic reasons. Thus, with its changed economic
circumstances, Respondent could no longer guarantee a
40-hour week. The change in starting time was designed to
avoid the payment of overtime charges to U.S.D.A.
inspectors for work performed before 7 a.m., resulting in a
savings of $45 per week. As to the other changes, the
revision in the breaktime schedule, from breaks of 20
minutes, 20 minutes, and 10 minutes to 10 minutes, 30
minutes, and 10 minutes, did not reduce the total
breaktime, and served to grant the employees a longer
break at the lunch hour. The limitation on the right to buy
meat to Fridays only was designed to eliminate the daily
bottleneck in the packing department and confine that
problem to I day per week.
Other 8(a)(1) allegations include the claimed interroga-
tion of Vera by Pernas, concerning whether or not Vera
had signed a union card (discussed above); the threat by
Garcia to Rodriguez and Diaz that those two individuals,
and employee Izqierdo, would be discharged because of
their union activity (discussed above); the interrogation by
Garcia of Romero, concerning how that employee would
vote, coupled with a threat to close the plant if the Union
won the election; and alleged threats by Pernas to Izqierdo,
while the latter was picketing, to get even with that
employee, to kill him, as well as an attempted physical
assault upon Izqierdo. This last allegation arose from an
incident on the picket line when Pernas, after being
informed by Jose R. Garcia that Izqierdo had told Garcia
that he could not open the plant door, approached Izqierdo
and asked why Izqierdo had so harassed Garcia. Izqierdo
called Pernas a liar and a heated argument ensued. The
men were ready to fight when they were separated by a
picket. According to Izqierdo, Pernas swung at him.
threatened to get even with him, and to kill him, once "this
thing is over." Pernas described the incident as a personal
one, and denied threatening to get even with Izqierdo.
D. Conclusions
Based on the credited testimony of Antonio Pernas, I
conclude that the February 4 layoffs, as well as the
subsequent layoffs, were amply justified by the rapidly
declining economic condition of Respondent's business.
Indeed, as noted, the General Counsel has not seriously
challenged Respondent's defense in this regard but con-
tends, nonetheless, that union considerations were the
motivating factors for the layoffs. In support of that
contention, the General Counsel points to the suspicious
timing of the discharges, and to the statements of
Supervisor Garcia, evidencing, in the General Counsel's
view, Respondent's knowledge of employee union activity
and its union animus. I disagree. While the timing of the
initial layoffs, at a point when the Union had gathered
sufficient strength to seek recognition, is, on its face, a
suspicious circumstance, it has been adequately explained
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Pernas' testimony and other economic data. Thus, by
the end of January, Respondent's theretofore profitable
enterprise was operating at a net loss, and the losses grew
larger in the month of February. The underlying marketing
factors responsible for this decline left Respondent with
few alternatives in accommodating to the situation, and
gave rise to Pernas' decision to reduce the size of the
business enterprise with a consequent layoff of employees
on a seniority basis.
While Respondent is responsible for the statements of its
supervisor, Garcia (and I have found violations of Section
8(a)( ), infra, based on those statements), I have also
concluded that Garcia's comments were representative of
his own apprehensions and speculations, and were not
based on knowledge acquired from Pernas. Thus, accord-
ing to Pernas' credited, uncontradicted testimony, he did
not discuss with Garcia, prior to the February 4 layoffs, the
matter of Respondent's financial difficulties. Pernas also
denied discussing the Union with Garcia. While Garcia
testified to two February 3 conversations with Pernas, the
first concerning "problems with his employees," and the
second concerning layoffs, Garcia did not testify that
Pernas related the two matters. Indeed, Garcia merely
speculated that the conversation dealing with employee
problems pertained to the Union ("the Union problem it
must have been"). Such speculation runs throughout
Garcia's testimony. In addition, while I believe that Garcia
was a truthful witness, he suffered from a decided lack of
memory while on the witness stand. For these reasons, I
have concluded that Garcia was not a reliable witness and,
to the extent that his testimony conflicts with Pernas'
account of events, I have credited Pernas who impressed
me as a truthful, forthright witness.
I have also credited Pernas' account of the February 3
conversation with Vera and find that Vera was discharged
because of his request "to be paid under the table," and not
because he affirmatively replied to a question by Pernas
with regard to Vera's union sympathies. Based on demea-
nor and other impressions of the two witnesses, I find that
Pernas did not inquire into Vera's union activities or
sympathies. As to the February 4 layoff of Diaz, in view of
my findings herein, I need not decide whether Diaz was
offered reinstatement following his discharge. Rodriguez,
concededly, was not laid off by Pernas on February 4, but
assumed that he had been discharged on February 3,
following his conversation with Garcia. However, on
February 3, Garcia neither discharged Rodriguez in his
own right, nor in the name of Pernas. Rather, he told
Rodriguez that he was "going to be fired" by Pernas, a
statement which does not amount to an actual notification
of discharge, or one from which an employee could
reasonably conclude that the act of reporting for work on
the next day would be futile. Accordingly, I find that,
during the February 4 to I1 period, Rodriguez was a
striker, and not a dischargee.
Pernas' testimony that the postelection discharges of
Romero and Izqierdo were for cause was both credible and
supported by other evidence. Thus, Pernas' contention that
lzqierdo, in the period preceding his termination, often
ceased work while engaging in conversation with fellow
employees was corroborated by the testimony of another
employee. Izqieirdo acknowledged a previous warning on
the matter. Romero, discharged for repeatedly smoking
inside the plant, contrary to prior instructions and
warnings, conceded that such smoking was prohibited by
Federal regulations. Moreover, Romero admitted smoking
in the "dry room," which he knew was a particularly
dangerous act. On this state of the evidence, I find that
Romero and I:zqierdo were discharged for cause. I also
conclude that 'Durham was not an employee of Respon-
dent within the meaning of the Act but, rather, an
independent contractor. Durham's wages, either directly,
or through a reimbursement arrangement, were paid by
suppliers, not by Respondent. Such payments were not
reduced by payroll deductions. He hired his own helper, set
the amount of that employee's remuneration, and pur-
chased his own equipment. Like other unloaders, Durham
was not formally hired, but simply reported when work was
available, and received remuneration based on the number
of pounds unloaded. Pernas concerned himself with the
manner in wh:ich Durham performed his work only to the
extent of deimanding that the unloading process be
accomplished in a swift fashion. In these circumstances, I
conclude that Durham was not an employee of Respon-
dent, and that his separation from his work with Respon-
dent cannot be the subject of an 8(a)(3) finding. See Quality
Hay Company, 173 NLRB 1144 (1968).
Based on the foregoing, I conclude that neither the
February 4 discharges, nor the discharges occurring
between February II and March 30, 1976, were in
violation of Section 8(aX3) of the Act. Accordingly, I
further conclude that the challenges to the ballots of Oscar
Maza, Virsie Durham, Antonio Labra, Gilberto Mulgado,
Pedro Vera, Alberto Mulgado, and Raimundo Rodriguez,
in Case 12-RNM-277, should be sustained.
I have also concluded that the changes in working
conditions made following the strike were motivated by
legitimate business concerns and were not in violation of
the Act. Thus, the elimination of the 40-hour guaranteed
workweek and the change in starting time from 6:30 a.m.
to 7 a.m., have been satisfactorily explained by Pernas in
terms of the economics of the situation which then
prevailed. The minor change in the breaktime schedule did
not affect the total employee breaktime, and operated to
lengthen the amount of lunchtime available to the
employees. Pernas also satisfactorily explained his reasons
for limiting employee purchases of meat to Fridays only, in
terms of limiting the resultant disruption to I day per week
instead of 5.
In view of my earlier findings, I conclude that Pernas did
not interrogate Vera with respect to whether or not that
employee had signed a union card. I further conclude that
the altercation between Pernas and Izqierdo, on the picket
line, related solely to Pernas' belief, and Izqierdo's denial,
that Izqierdo had attempted to.prevent another employee
from entering the plant. If Pernas made any threats at that
time, it related solely to that heated argument, and not to
the fact of employee organization, the Union, or the strike.
I find that Respondent did violate Section 8(a)(1) of the
Act by Supervisor Garcia's admitted threat to Rodriquez
and Diaz that those individuals, as well as employee
Izqierdo, would be discharged because of their union
1080
P.Q. BEEF PROCESSORS
activity; by the conceded interrogation by Garcia of
Romero, concerning how that employee would vote; and
by Garcia's acknowledged threat to Romero that the plant
would be closed if the Union won the election. While, in
each instance, I believe that Garcia was expressing his own
beliefs and fears, and was not speaking for Pernas, such
threats and interrogations by a statutory supervisor are
attributable to Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and take affirmative action designed to effectu-
ate the policies of the Act.
CONCLUSIONS OF LAW
I. P.Q. Beef Processors, Inc., is an employer engaged in
commerce, and in operations affecting commerce, within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Meatcutters, Packinghouse Workers & Food Han-
dlers, District Union No. 657, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practic-
es within the meaning of Section 8(a)(3) of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 6
The Respondent, P.Q. Beef Processors, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with plant closure in reprisal
for their union activities.
(b) Threatening employees with discharge or other
discipline in reprisal for their union activities.
(c) Interrogating employees with respect to their union
sympathies.
(d) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act to engage in concerted
activities for their mutual aid and protection, or to refrain
from such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Miami, Florida, facility copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the challenges to the ballots
of Oscar Maza, Virsie Durham, Antonio Labra, Gilberto
Mulgado, Pedro Vera, Alberto Mulgado, and Raimondo
Rodriguez, in Case 12-RM-277, be overruled, and that
Case 12-RM-277 be remanded to the Regional Director
for Region 12 for further proceedings.
6 In the event no exceptions are filed. as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with plant
closure in reprisal for their union activities.
WE WILL NOT threaten to discharge or otherwise
discipline our employees in reprisal for their union
activities.
WE WILL NOT interrogate our employees with respect
to their union sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
All our employees are free to become or remain members
of Meatcutters, Packinghouse Workers & Food Handlers,
District Union No. 657, AFL-CIO, or any other labor
organization of their choosing.
P.Q. BEEF PROCESSORS,
INC.
1081