Southwestern Council Industrial Workers, AFL-CIO

National Labor Relations Board - Board Decisions

Dec 17, 1980

253 N.L.R.B. 808 (N.L.R.B. 1980)

I)ECISIONS 01 NA IONAI. LABOR RELATIONS BO()ARD
Southwestern Council of Industrial Workers, AFL-
CIO and Duke City Lumber Company, Inc.
Southwestern Council of Industrial Workers Local
2356, AFI,-CIO and Duke City Lumber Com-
pany, Inc. Cases 28-CC-674 and 28-CC-674-2
December 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
On September 18, 1980, Administrative Law
Judge Russell L. Stevens issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in answer to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided toaffirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
SIA IIMINT 01: I It CASE
RussFIi L. STiveNs, Administrative L.aw Judge: This
case was heard by me in Albuquerque, New Mexico, on
July 1, 1980.1 The complaint in Case 28-CC-674 is based
on a charge filed April 9 by John R. Cooney and Alan
Konrad of Modrall, Sperling, Roehl, Harris & Sisk, at-
torneys for Duke City Lumber Company, Inc. (herein
called Duke City). The complaint in Case 28-CC-674-2
is based on a charge filed on June 25 by Modrall, Ster-
ling, Roehl, Harris & Sisk, attorneys for Duke City. By
order dated June 26, the Regional Director for Region
28, National Labor Relations Board, consolidated said
two cases for hearing. The complaints in said two cases
allege that Southwestern Council of Industrial Workers,
AFL-CIO and Southwestern, Council of Industrial
Workers' Local 2356, AFL-CIO (herein called Respond-
ent), violated Section 8(b)(4)(i) and (ii)B of the National
Labor Relations Act (herein called the Act).
i All dates herein are within 198(, unless stated to he othcrwise
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent, and the
Charging Party.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICION
Duke City is a New Mexico corporation, which main-
tains its principal office and place of business in Albu-
querque, New Mexico, where it is engaged in the busi-
ness of manufacturing and selling lumber products. Duke
City also operates other facilities in New Mexico, and at
points in other States of the United States. During the
past 12-month period, which period is representative of
its operations at all times material herein, Duke City, in
the course and conduct of its business operations, sold
and shipped from its Albuquerque, New Mexico, facility,
products, goods, and materials valued in excess of
$50,000 directly to points outside the State of New
Mexico.
Amalia Lumber Company (herein called Amalia) a
partnership comprised of copartners Renewable Re-
sources, Inc. (herein called Renewable), and Sangre De
Cristo Timber Corporation (herein called Sangre), main-
tains its principal office and place of business at Amalia,
New Mexico. where it is engaged in the manufacture and
sale of lumber products at its sawmill. During the past
12-month period, which period is representative of its
operations at all times materiel herein, Amalia, in the
course and conduct of its business operations, sold and
shipped from its Amalia, New Mexico, facility, products,
goods, and materials valued in excess of $50,fXX) directly
to points outside the State of New Mexico.
I find that, at all times material herein, Duke City and
Amalia have been, and now are, persons and employers
engaged in commerce within the meaning of Sections
2(1). (2), (6), and (7) and 8(b)(4) of the Act.
II. THU ILABOR OR(;ANIZATION INVOI VIt)
Respondent is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
111. Hll A I (iEl) UNFAIR L.ABOR PRACTICILS
Background
Pacific Lumber Company (herein called Pacific),
through Sangre a company wholly owned by Pacific,
several years ago owned a very large tract of timber, ap-
proximately 425.0(X) acres in size. Pacific and Sangre"
decided to sell some or all of the timber, and approached
Duke City, a subsidiary of U.S. Industries, as a possible
i his h;ackgroL nd uIllt llIar i, h.ed 1I creditld ttimlin . stipu;lation
)[' Ctil el. i11
1
'cVidcnCilt thait is nro in l dispUttt
' Pacific anlid Sangre's offices are in Sanl F:rancisco
253 NLRB No. 117
O08
SOUTHWESTERN COUNCIL OF INDUSTRIAL WORKERS, AFL-CIO
buyer. Duke City declined to buy the timber, but ex-
pressed a possible interest in working it with Pacific and
Sangre, as a partner or as a joint venturer. An agreement
was reached, and in preparation for commencement of
operations, Duke City organized Renewable, as a corpo-
ration. The two corporations, Sangre and Renewable
then formed a partnership under the laws of New
Mexico, and named the partnership Amalia Lumber
Company.4 The profit-and-loss split was established at 70
percent for Sangre, and 30 percent for Renewable,
which reflected the partners' capital contributions. The
partnership agreement s provides, inter alia, that "all ac-
tions" 6 of the partnership shall be by unanimous decision
of the partners; that Renewable is to have the responsi-
bility of conducting "day-to-day" affairs of the partner-
ship; that the partners may appoint a general manager of
the partnership; and that the partners7 will provide "spe-
cial counsel, direction and services" as required by
Amalia, with cost reimbursement therefor.
Amalia started business in 1973, and since then has
been engaged in logging road construction, timber cut-
ting and hauling (through subcontractors), converting
logs to boards, and drying and surfacing lumber. The
final product is, for the most part, surfaced dry lumber.
Amalia's total sales for 1979 were approximately
$5,800,000, of which approximately $5,100.(XK) were for
the sale of lumber. Amalia's only facility, which is ap-
proximately 186 miles from Albuquerque, has approxi-
mately 140 to 150 employees.
The officers of Renewable and Duke City Lumber
Co., Inc., respectively, are as follows:"
Ira Liberman, president (D), president (D); Jack
Grevey, VP/secretary (D), VP/secretary (D); Tom Ca-
vanaugh, VP/treasurer (D), VP/treasurer (D); Yale
Weinstein, VP, VP/forestry timber procurement labor
relations; CD Adcox, VP, VP/molding and cutstock;
Dewey Hamilton, VP, VP/primary manufacturing;
Frank See, Jr., VP; George Richards, VP, VP/advanced
product sales; G. Richard ossoh, VP (D), Vl' (D);
Edward Toole, Jr., VP/assistant secretary (D), V/as-
sistant secretary (D); Ruth Tucker, assistant secretary,
assistant secretary; Roy Adams. assistant treasurer, assist-
ant treasurer; Dee Jeffers., VP/southern operations;
Edward McCausland, acting VP/molding and cutstock
Renewable has no salaried employees, and is a business
in name only, for most purposes. It has no separate busi-
ness location, and conducts no business operations, other
than in its position as a partner in Amalia. The principal
reason for Duke City's creation of Renewable was to
provide a corporate intermediary for Duke City, to cor-
respond with Pacific's intermediary Sangre, in the forma-
tion of Amalia.
Duke City and its predecessors have been in business
since the 1940's. Its administrative and clerical offices are
in Albuquerque, where its principal plant also is located.
' Amalia never has heen comprised of more than the iwo original parl-
ners
eG.C Exh 5
Wilh ilone xception relative to the period prior I, Ma;y 15, 1'73, and
except in "day to-day" affairs
' Particularly Renewable. because of it, geographical proxinul, to
Amalia' principal place I husilless
s The letter "I)" Ilidicates board of directors
Duke City manufactures lumber and wood products, and
its Albuquerque plant has approximately 300 to 350 em-
ployees. Additional facilities are located in Cuba, New
Mexico (45 employees); Espanola. New Mexico (60 to
100 employees); Winslow, Arizona: Splendora, Texas:
and Livingston, Texas. Duke City's 1979 sales totalled
approximately $50 million.
The relationship between Duke City and Amalia
covers a broad range of activities, including the follow-
ing:
a. Personnel. As shown in the chart above, nearly all of
Duke City's officers, and some of its directors. act in the
same capacity for Renewable. Ira Liberman, 9 Duke
City's and Renewable's president, is responsible foir Duke
City's labor policies. Yale Weinstein, vice president for
Duke City and Renewable, supervises Duke City's labor
policies, participates in labor contract negotiations for
Duke City, and participated in negotiations for the latest
Amalia labor agreement. That participation followed
consultations between Weinstein and Liberman, relative
to the labor policies to be pursued at Amalia. Pursuant to
the articles of partnership, officers and employees of
Duke City frequently assist officers and employees of
Amalia. in training and in executing specific jobs and
tasks ." Amalia reimburses Duke City for such services,
on a no-profit, cost-only basis." Such assistance is not
obtained from Sangre, because of its greater distance
from Amalia than Duke City. Such services could be ob-
tained from consultants, but at a more expensive rate of
compensation. 12 Liberman and other officers of Duke
City confer frequently, several times each week, on the
telephone with Amalia's general manager and other per-
sonnel, relative to many matters of Amalia's business.
Neither Liberman nor any other of Duke City's officers
have offices at Amalia.
b. Labor Policies. Sangre and Renewable, as partners,
are responsible for the labor policies of Amalia.
c. Sales. Duke City is Amalia's exclusive sales agent
for sale of all lumber manufactured by Amalia."' Duke
City's salesmen sell to customers of both Duke City and
Amalia. Title to Amalia lumber never passes to Duke
City in such sales. During the year 1979, Duke City
earned approximately $186,000 in sales commissions
under its agreement with Amalia.14 Amalia has a saw-
mill, and Duke City has no such mill in Albuquerque.
Duke City has a molding plant in Albuquerque, and
Individuals are referred to herein by their last names.
" Henlry Wearer, recently resigned as general manager of Amalia,
was carried on Pacific's payroll, and that cost w"as billed to and paid bh,
Anmalia The reason for the arrangement was t xtend tlock optionls Iof
Pacific and other benefits, to Weaver That arrangement is irrelexant Iio
issues herein
i' he General Counsel introduced cons iticlg, undisputed record ei-
dence that Duke City hills Amalia, and is paid by Arnalia. for all costs
incurred in prosiding services and material lo Amalia. ilhhout added
profit except n an exceptional. minor instance herein DI)uke City is dis-
tribultor t ad product Amalia uses (steel straps)
1" I)ke City provides expert services t lumber companies and saw-
mills ither than Amalia. on a reimbursable basis
':' [he les agreement is (i C xh 5 Duke City also buy, for, and
has executed sales agreements with, several ther icomilpanies Analia
makes ilts oi n sales arrangecments for lumber by productr. such as hips
I his i less than Duke C(ity earned under it :sils agreement with
Poniderosa ril u eluis
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Amalia has no such facility. Hence, Duke City purchases
some lumber from Amalia.' 5 Duke City does not con-
trol, or interfere with, Amalia's determination of lumber
production, but Duke City's sales manager confers with
Amalia's general manager relative to availability of cer-
tain types and sizes of lumber. After a sale is made of
materials of joint availability, determination of the ques-
tion as to origin of shipment, i.e., from Duke City or
Amalia, is based on geographical locations. The product
is sold by, and shipped from, the plant nearest the desti-
nation of the product. That determination is made by
Duke City's vice president of merchandising, based on
applicable freight rates, among other considerations.
d. Purchasing. Amalia has a purchasing agent in
Amalia, New Mexico, but, since that town is small and
located in a remote part of the State, Duke City pur-
chases approximately 40 to 50 percent of Amalia's parts
and supplies, on request of Amalia's purchasing agent.
Parts and supplies are billed to Amalia at Duke City's
cost, plus time and expenses incurred by Duke City, at
the latter's cost. Duke City sometimes makes small pur-
chases of supplies, such as coffee, for Amalia, and bills
Amalia for such supplies, at cost.
e. 4ccounting and Busines Administrution. Sangre and
Duke City work with the general manager of Anialia in
preparing budgets and making policy decisions for
Amalia. Duke City provides accounting services and
computer time to Anialia, on a cost-reimbursable basis. "
Sangre and Renewable select Amalia's general manager.
Amalia acts autonomously in some of its affitirs, in-
cluding:
a. Hiring and firing of employees, except the top three
to five supervisory personnel, concerning wihoni the gen-
eral manager must consult with Sangre and Duke City
managers.
b. Establishing wage scales for low level supervisors.
c. Maintenance of a separate bank account, and issuing
its owni paychecks.
d. Retaining its own attorneys, who are not the same
as those retained by Duke City.
e. Negotiating its own subcontracts for logging, and
selection of logs to be cut.
f. Determining the location of logging roads.
g. Maintaining good logging practices.
h. Maintaining proper relationships with land owners
where logs are to be cut.
i. Maintaining a petty cash account.
The most recent agreement between Amalia and Re-
spondent was effective April 1, 1977, until March 31,
1980. '7 Negotiations were conducted for a new contract,
but the parties were, and to date have been, unable to
reach agreement. A strike commenced at Amalia on
April 1, and has continued to the date of trial. On April
9 Respondent established a picket line at Duke City in
Albuquerque, which remained until the afternoon of
April 10, when it was removed. The signs used by pick-
ets read:
i Aalia', general mlalnager clearsi such ale s ith Sangre. to preclude
any appearance of a conflict of interest.
' Duke City also provides computer lime and services to other corn-
panics, both lunmbher ind nonlumher, on a reimbursable basis
1 C nii 2
AMALIA LUMBER COMPANY
EMPLOYEES ON STRIKE
NO CONTRACT
SOUTHWESTERN COUNCIL OF
INDUSTRIAL WORKERS
(LOCAL 2356) AFL-CIO
During telephone conversations on April 9 and 10, Pete
Ilaldwin, Respondent's executive secretary, told Edward
McCauslaru, vice president of Duke City's advance
manufacturing, that the picketing would cease if Duke
City withdrew its unfair labor practice charge filed with
the National Labor Relations Board, and if Duke City
settled its contract dispute with Amalia. While the picket
line was maintained, employees of Duke City refused to
work, and the entire facility was closed.
Issues
There is no dispute concerning the fact of the strike
anid picketing at Amalia, and extension of picketing to
Duke City. i'he principal factual issue is whether Duke
City and Amalia are separate employers under the Act,
or whether they are the same, or allied, employers.
The National Labor Relations Board, and several
courts, have laid down a series of principals in determin-
ing whether commonly owned or affiliated enterprises
are separate "persons" within the meaning of Sections
2(1) and 8(b)(4) of the Act.'H Those cases discuss at
length, several factors that are considered controlling
w\henr the issue is raised as to whether one legal entity is
an ally of another legal entity for purposes of the Act.
Those factors include interrelation and interdependence
of operations, extent of common ownership, and degree
of centralized control over labor relations. A principle
expressed or implied in almost every reported case is that
no single frnmula, or set of factors, controls every deci-
sion. The issue must he resolved on a case-by-case basis,
by considering the degree of control of one entity by an-
other. '9
A. Operational Relationship
Amalia was created as a result of Duke City's disincli-
nation to purchase from Pacific, the timber that Pacific
held through Sangre. The partnership Pacific and Duke
City created was for the sole purpose, so far as the
record shows, of disposing of the timber in a profitable
manner. No consideration of labor or other problems is
evident.
Duke City's decision to act as a partner through Re-
newable, rather than acting directly as a partner, is irrel-
Is See, e g, I.,os ,tigel ,A.spauper Guild a a (llarst C(orporalon),
IS5 NLRB 303( (1)711, enrd 443 t 2d 1173 (9ih Clr 1971); Americut bi'd-
ruorn f lojh' rirln and Radio, trists W(aihington-Baltinsr, L.ouaL .11.-
( ( timor .N'es 4 nrriera Dvision. the leartn (Corporrionl. 185
NI.RI 593 1970), aeid 42 F 2d 887 (t).C Cir 1972): Rtalr Storn Em-
p/,w,' inon o al l'X)I Rclad Clerks Internauinal 4SxOiioln. 4L-
(10 Ia.und litih Insurani (o o/ Pierc, County). 226 NLRI 754 (1976):
and ocal tll n,:i.o .191/, nrtlernairronul rotherhxod leuamier. ('huuf
irur. a urr,'hi,i wmrn'n olid lllpr i .4rif Arnru Chuatanrtxga Division, Vulcun
:aultriual (o . 208 N Ri 544) (1974), enfd 541 1:2d 1373 ()C Cir
197(t)
! l'iU/ oh t .ata'ri/iU. , upra.
l)
SOUTHWESTERN COUNCIL OF INDUSTRIAI WORKERS. AFL CIO)
evant to any issue herein. Renewable's existence, as such,
does not affect the issues. When Renewable acts, it is the
action of Duke City. Renewable has no employees, no
separate office, and no apparent reason for existence,
other than as a legal link between Duke City and
Amalia. Duke City's officers and directors are, almost
entirely, those of Renewable.
A basic document relating to Amalia is its Manage-
ment and Operating Manual (herein called Manual),."
which outlines the responsibility, authority, and scope of
the partnership. The Manual, which is dated June 5,
1973, provides, inter alia:2
AUTHORITY
While the Partners will direct the activities and
set the policies of Amalia, it is the intent that
Amalia shall be autonomous in that it shall not be
considered a subsidiary of either partner, hut a sole
and separate entity. The partners will direct their
efforts to this end.
A general manager will head Amalia and shall be
responsible to the partners. He will conduct the
actual operation of the partnership and has the au-
thority to make any and all decisions necessary for
its operation which are not specifically reserved to
the partners. It is imperative that frequent and
sound communication be maintained between the
two partners and between each of the partners and
the general manager for smooth and efficient oper-
ation.
The office at the plant site will be the principal
place of business of the partnership.
Paragraph 12(b) of the Partnership Agreement
states: "Resources is to have the responsibility of
conducting such day-to-day affairs of the partner-
ship as may, from time to time, be specified by the
partners. Such specific delegation(s) of authority to
Resources shall be reviewed annually by the part-
ners no later than thirty (30) days prior to the end
of each calendar year. On the basis of such annual
reviews, such specific delegation(s) of authority
may be revised or terminated." These particular re-
sponsibilities are specifically set forth in other por-
tions of this Manual.
ITEMS REQUIRING PAR TNERSHIP A UTHORI-
Z4 TION.
The following items require prior authorization
by the partners:
a) Designation of specific responsibilities of the
partners.
b) Appointment or termination of the general
manager and the determination of his compensation.
c) Appointment of a sales representative or the
decision to handle sales by alternative methods.
d) The borrowing of money by the partnership.
e) The mortgaging of partnership assets
20 GC Exh 6.
21 The Manual and the articles of partnership designate as' "Resources"
the corporation referred to herein as "Renewable."
f) The obligating of the partnership to any unusu-
al or longterm contracts (i.e., contracts exceding a
term of 12 months).
g) The approval of labor contracts.
h) The approval of the annual logging plan.
i) The approval of the annual budget.
j) An) substitution or change in the annual
budget exceeding 25.X)0.
k) Appointment of an auditor for the partnership.
1) Selection of legal counsel for the partnership
which shall be other than counsel representing
either partner.
m) Determination of t pes of bank accounts and
the banks in which partnership funds are to be de-
posited.
.4 IIORI 7Y ALD) RESPONSIBILITIES OF
P R tER S
The partners will have equal voice in all affairs
pertinent to Amalia and neither partner will have
independent authority over Amalia's management.
However, if either partner should observe any man-
agement dereliction or deviation from established
policies or conduct, the other partner will be imme-
diately notified so that joint corrective action can
be taken
Both partners are expected to advise and counsel
Amalia's management and the general manager is expect-
ed to seek such advice. ecause of Resource's proximity,
it is expected that closer contact will be maintained with
that partner, although Sangre expects to be kept fully in-
formed on all company and managment matters. The
general manager is particularly expected to consult with
Resources on:
a) All contracts to be entered into by the part-
nership, including those required to be submitted
to both partners for approval and all other legal
matters.
b) Matters pertaining to public relations
c) Any change in annual budget for capital ex-
penditures exceeding $5,000.
d) Any personnel problems that could become
serious.
e) Any significant change from the approved
logging plan.
f) The purchase of outside timber or logs.
GENERAL AND ADMINISTRATIVE FlUNC-
I10,NS
I) Resources will:
(a) Set up a chart of accounts for the partner-
ship.
(b) Set up and maintain all necessary payroll
functions and prepare all payroll checks and pay-
roll withholding checks.
(c) Prepare all accounts payable checks.
(d) Do all other accounting functions neces-
sary for the partnership.
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Prepare monthly operating statements and
budget comparisons for the partners and general
manager.
(f) Submit to the partners monthly a detailed
printout of all charges made by a partner to the
partnership, including the costs to perform these
services.
(g) Direct the general manager to develop any
source date needed to account for any of the op-
erations of the partnership.
(h) Maintain all primary accounting functions.
(i) Maintain a complete set of business records
for the partnership.
(j) Handle any organized industrial relations of
the partnership.
(k) Direct any advertising and, together with
the general manager, public relations of the part-
nership.
*NOTE: All payroll checks are to be signed by
Amalia personnel or their fascimile signatures, and
issued from the Amalia office.
2) The general manager will maintain:
a) An office staff sufficient to develop the data
necessary for the accounting and statistical infor-
mation required by the partnership, and to per-
form such other functions as may he required in
company business.
(b) A petty cash account for the partnership,
not to exceed $5000), in a local bank.
The manual includes an organization chart. [Omitted
from publication.]
Baldwin testified that Tom Cavanaugh, vice president
and treasurer of Renewable and Duke City, handled
workmen's compensation matters for both Duke City
and Armalia, and that Cavanaugh was the only person he
ever worked with at both companies, relative to such
matters. Baldwin also testified that he dealt with
McCausland on safety matters at both uke City and
Amalia and that, on one occasion, McCausland said he
was the safety engineer for Amalia.
Cavanaugh did not testify.
Liberman testified that McCausland handled safety
matters at Amalia as a "staff function," and was available
to Weaver as a form of consultant. On at least one occa-
sion, McCausland took an active part in settling an
OSHA problem:
December 7, 1978
Ms. B. Hargis, Program Manager
N.M. Health and Environment Department
Occupational Health and Safety Section
I' (). Box 968, Crown Building
Santa Fe, New Mexico 87503
RE: OSHA No. 55937--Citation with Proposed
Penalty Issued on November 14, 1978--Received
on November 29, 1978
Dear Ms. Hargis:
Referring to our December 6, 1978 telephone con-
versation, in order to not forego any of our rights
and recourses under the law, within the fifteen-day
appeal period, we are hereby formally notifying you
of our intent to contest the above-referenced OSHA
Citation with Proposed Penalty. We are contesting
all aspects of this Citation including the alleged vio-
lations, abatement dates and proposed penalty.
We shall await your reply from your office with
regard to the next step in the contest procedure,
which I understand is an Informal Administrative
Review. We would appreciate receiving prior to the
Review two complete copies of all the latest rules,
regulations, rules of procedure for the Review
Commission, and any other OSHA-related informa-
tion on rules and procedures.
Thank you for you[r] assistance.
Very truly yours,
AMALIA LUMBER COMPANY
EDWARD L. McCAUSLAND
Liberman also testified that Cavanaugh, as part of his
duties in handling Amalia's bookkeeping, handled Ama-
lia's workmen's compensation records.
McCausland was not available for rebuttal, and coun-
sel stipulated that, if called McCausland would deny he
ever represented to Baldwin that he was Amalia's safety
engineer.
B. Labor Policies
Liberman testified that the partners establish the labor
policies for Amalia, and that testimony was corroborated
by Weinstein. As noted supra, the Manual provides that
the labor contracts of Amalia must have prior authoriza-
tion of the partners. Further, the Manual provides that
selection of legal counsel for Amalia, who must be dif-
ferent from legal counsel of the individual partners, re-
quires prior authorization of the partners.
Weinstein testified that he participated in negotiations
with Respondent for the recently expired Amalta bar-
gaining contract, as did the then general manager, A.M.
Sedlack, who, Weinstein testified, was Amalia's negotia-
tor.
Weinstein testified that he attended negotiations with
Respondent for a successor to Amalia's expired bargain-
ing agreement, and that Henry Weaver, Sedlack's succes-
sor, also attended, until the date when Weaver left Ama-
lia's employ. Weinstein testified that Weaver discussed
with him at considerable length, a proposed new con-
tractl, and provisions he would like to have embodied in
a new agreement. Weinstein stated that Tom Malarky, as
executive vice president of Pacific and as an officer of
Sangre, attended at least one of the negotiation sessions.
Weinstein said ". . . I may have done more talking than
Mr. Weaver, but Mr. Weaver essentially was negotiating
on behalf of the Amalia Lumber Company." Weinstein
testified that, during contract negotiations, "I guess by
my very nature, had been keeping notes and I essentially
volunteered to submit, or to respond to any proposals or
counterproposals." Weinstein further testified that work
rules erc part of the matters negotiated with Respond-
ent. inally, Weinstein testified that, during a negotiation
812
S()OUTHWSFFRN COUNCIL. OF INDIUSTRIA WORKERS. AflI. CI()
session of March 28, the parties appeared to be at im-
passe, and:
We had heard some considerable discussion re-
garding strike and my comment was addressed to
Mr. Baldwin indicating that I certainly hoped that if
a strike would result as of our inability, or failure to
be able to come to an agreement on either the
matter of the termination date, or the other matters
being considered, I would hope that there would be
certain guidelines that both of us could accept.
Whereupon Mr. Baldwin said, he indicated, con-
trary to what you may have heard, we, you know,
are not interested in a strike and asked the question.
on Tuesday morning, April Ist, will there be work
for the men and I think I responded by asking, are
you asking will there be a lockout. And before any
further conversations took place, Mr. Henry
Weaver, the general plant manager, made the deci-
sion and answered the question, there will be work.
our gates will be open. And essel.tially that was the
point I was leading to, it was not my decision, there
was no cauceses [sic] or any meetings that took
place. The question was asked and Mr. Weaver, the
general manager answered the question, which was
fully within his authority and completely within his
prerogative.
Weinstein testified that he never had been involved in
any grievance procedure prior to some time in 1979. He
testified as follows:
A. There was a very substantial change that took
place.
Q. And how were you informed of that change'
A. I first learned of it when I was advised that
there was a top labor, top management grievance
that was scheduled for consideration betweeTn Mr.
Pete Baldwin and myself. And had been advised at
a plant committee meeting held, which was part of
the contract, regularly on a monthly basis, that by
mutual agreement between Mr. Weaver and the
union, that they had agreed to modify the contract
to utilize a grievance procedure which was in the
Duke City Lumber Company contract which was
completely different from the Amalia contract,
which provided for a similar step of top labor, top
management. And in view of the fact that Mr. Pete
Baldwin and I are both geographically close to each
other in Albuquerque, I learned that there was a
grievance that was scheduled for our consideration,
one that had not been resolved at the Step 2 level.
Weinstein stated that Weaver notified him of the change,
and said he would send Weinstein the grievance, his
review of it, and his recommendations. "2 Soon thereaf-
ter, Weinstein stated, he participated in the grievance
and later, participated in 2 to 5 others. Relative to proce-
dure, Weinstein testified:
Well, I always received word from Mr. Weaver
to the effect that there wvas a grievance which at
22 Weavers niemorandumn is (iC t xh 8
Step 2 was at an impasse and that it was being for-
warded. He, in all cases, sent me a complete memo-
randum indicating the events that led up to he
grievance and also accompanied with his recom-
mendation.
9. And in processing those grievances, did you at
any time ever take a position contrary to Mr.
Weaver's recommendation'
A. Not to my recollection. We had compromised.
we had compromised some of these grievances
which Mr. Baldwin and I have. to my knowledge I
think they have all been resolved.
Q. Would you discuss those comparisons with
Mr. Weaver before you committed the final posi-
tion'?
A. In many cases they were a part of his recom-
mendation.
Baldwin testified that he has negotiated with Amalia
for 5 or 6 years, but that he never met Malarky until the
latter attended a "couple" of Amalia negotiation sessions,
as an observer. Baldw in stated that he never heard of
Sangre prior to April 9, 1980, aitd that he never met any
representative of Sangre at any ngoliation, greivarnce or
other session. Baldwin said Weinstein was Arnalia's
spokesman during the 1980) negotiations, "... in the ex-
treme lions share of the time," and that Weaver partici-
pated only to "fill ini" when Weinstein or the negotiating
committee was not familiar with a particular matter, and
that there were no more than three such occasions. Bald-
win said he had attended negotiatio sessions with Duke
City since 1974, that Weinstein was the principal spokes-
man for Duke City during those sessions, and that those
negotiations were conducted in the same manner as the
negotiations with Amalia.
Baldwin testified that lie has known Weinstein, whom
he holds in high rcgard a s a skilled labor relations
person, since 1970() and that he has been familiar with the
Amalia grievance and arbitration procedure for approxi-
mately 5 years. Baldwini said problems with grievances
began shortly after Weaver became general manager, ap-
proximately in 1977, because of Wcaver's inability to
adjust grievances, his lack of knowledge of labor rela-
tions, and his fear of Liberman, Weinstein. alnd Cavan-
augh. Baldwin said Weaver "had to check with these
people before he could do anything." As a result, Bald-
win said, the grievances were delayed and it was neces-
:a~,N. in order to avoid contractual lime limitations, to set
the matters fortarbitral on Wein'tein then would call
Baldwin on the telephonc. and the two of them settled
the grievances only one grievance went to arbitration.
Baldwin testified that, because of Weaver's ineptitude in
labor meetings and labor relations, the Union boycotted
the plant committee meetings, as a result of which Wein-
stein got in touch with Baldwin and the two of them
agreed, on January 30, 1979, after discussions, to reini-
state the meetings and to alter the Antalia grievance pro-
cedure to confi)rm with the procedure at Duke City.,
wherein there was an opportunity for "top labor and top
management," i., Baldwin and Weinsteil, to settle
gric',ances prior to arbitration Baldwiin testified that.
thereafter, the grievance proccdiurc worked quite well,
13
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
and that there has not been a request for arbitration since
that time.
Relative to the work rules, Baldwin testified that those
in effect at Amalia are almost identical with the ones in
effect at Duke Clty, and that they first were promulgat-
ed by Amalia in 1974. Baldwin said Respondent always
has opposed the rules; that the rules never were negotiat-
ed; and that Respondent has filed many grievances as a
result of Amalia's enforcing rules that Respondent con-
sidered unfair or improper.
Gilbert Vigil, an International representative who as-
sists Baldwin, testified that he was a "pitch hitter" for
Baldwin on two occasions at Amalia. The first occasion
he said, was in late 1978 or early 1979, when there was a
money and work classification problem involving a tally
man.2 He met with Weaver, who said he would have to
discuss the matter with Weinstein. Vigil said the matter
was resolved later that day, with Weinstein. The second
occasion involved a problem with a forklift operator.
The problem was solved, Vigil testified, on January 9,
1980, by him and Weinstein. The date was after the
grievance procedure was changed. On cross-examination.
Vigil testified that the problem with the tally man in-
volved a wage raise not provided for in the contract, and
that is the reason Weaver had to call Weinstein, and that
there was a long dispute between Weaver and the Union
before the matter was settled.
Charles Lopez, who was employed by Duke City
prior to October 1976 and who has been employed by
Respondent since that date, testified that he serves "as
the local" at Amalia, attends plant committee meetings,
handles grievances and "normal union business," and
participated in the 1980 negotiations. Lopez said Malarky
attended "one or two" of the negotiation sessions, and
said nothing of relevance at the negotiations. Prior to
that time, Lopez said, he never had heard of Sangre, or
met anyone from Sangre. Lopez said Weinstein was
Amalia's chief spokesman during negotiations, and that
Weaver participated mostly as an observer, with some
occasional talking. Lopez corroborated Baldwin con-
cerning the date of, and the reasons for, changing the
grievance procedure.
On rebuttal, Weinstein testified that he recalled discus-
sions with Baldwin concerning "a breakdown in the
plant committee procedure," and said he agreed to meet
with Amalia and Respondent concerning the procedure.
Weinstein said the meeting was held, and that he agreed
that too many arbitrations were being scheduled. He said
he told Weaver that the latter had "full authority" to
change the procedure. Weinstein testified that he never
made an independent decision relative to grievances; that
he always relied on Weaver's recommendations. Wein-
stein testified:
Q. Did you understand, did you have any author-
ity to overrule Mr. Weaver?
A. According to the contract.
Q. In any aspect of labor relations.
A. Or any other aspect.
23 This incident occurred before the grievance procedure as
changed.
Discussion
It is noted at the outset, that Amalia is a partnership,
and that Sangre and Renewable are general partners,
with each corporation having authority to bind the part-
nership. As pointed out above, Renewable is a corpora-
tion on paper only; in reality, Duke City is the operating
partner, rather than Renewable.
Liberman and Weinstein made it clear in their testimo-
ny that the partners worked closely together in the for-
mulation of all policy matters concerning Amalia, includ-
ing labor policies. Liberman and Weinstein also made it
clear that the partners policed the execution of all such
policies, and made certain that they were executed in
proper manner.
The articles of partnership, and the testimony of Liber-
man and Weinstein, show that Renewable has the re-
sponsibility of conducting the "day-to-day affairs" of the
partnership, as specified by the partners. Liberman testi-
fied to Duke City's active conduct of such affairs, but
contended that, in so doing. Duke City and Renewable
acted on behalf of the partnership, rather than as Duke
City. However, that statement does not alter the actual
relationship of the parties. If Duke City controlled the
day-to-day affairs of Amalia, that control would not be
vitiated by the existence of the partnership, or by the ex-
istence of Renewable.
L.iberman also contended that the partnership acted
through a general manager, who was responsible for the
operation at Amalia, but the fact remains that the general
manager was appointed by the partnership, and Duke
City exercised direct and immediate control over many
of Amalia's daily affairs. Duke City performed the fol-
lowing day-to-day functions at Amalia: 24
1. All sales,2 5 with consultation concerning production
for sales.
2. Preferential right to purchase upper grades of
lumber manufactured by Amalia.
3. All data processing and basic accounting functions.
4. Forty percent to 50 percent of all purchasing of
parts and supplies.
5. Training of personnel in a broad range of work clas-
sifications.
6. Frequent assignment of managerial and rank-and-file
employees to perform work on a temporary basis.
7. Participation in handling OSHA complaints.
8. Maintaining records and office data.
9. Frequent telephone and personnel conversations
concerning day-to-day work activities.
10. Assistance in recruiting supervisory personnel.
11. Consultation concerning proposed expenditures in
excess of $5,000.
12. Maintenance of work rules that are almost identical
at both Amalia and Duke City.
So far as labor matters are concerned, Liberman and
Weinstein made it clear in their testimony that the part-
nership establishes all of Amalia's labor policies, and that
Weinstein attends all contract negotiations. 1. Baldwin
4 Ihthe business of Arnalia hat is shown il the articles of partnership.
is he address otf luke City.
2' Wth the minollr cxception of byproducts
814
S()OUIH-WESTFRN COUNCIL. ()F INDUSTRIAL WORKERS, AFt (()
was an unusually impressive witness, and his testimony
that Weinstein was Amalia's negotiator, which testimony
partially was supported by Weinstein, is credited. 2. Bal-
dwin's testimony concerning Weaver's lack of knoswl-
edge or expertise in labor matters was convincing, and is
credited. Weaver did not testify. No witness contradicted
Baldwin's assessment of Weaver in this regard. 3. Bal-
dwin's assessment of Weinstein as a knowledgeable and
experienced labor relations man has the support of the
record, and is credited. 4. Baldwin's testimony concern-
ing the change in the grievance procedure is credited.
Weinstein acknowledged that he participates as "top
management" in settling grievances. His testimony that
he relies on Weaver's recommendations does not alter his
participation in the grievance process, and Baldwin's tes-
timony concerning that process is credited. Vigil's testi-
mony concerning his discussion with Weaver and Wein-
stein relative to two grievances, is credited. Lopez' testi-
mony that, on one occasion, Weaver advised him that he
(Weaver) could not agree to a settlement involving back-
pay until he first consulted with Weinstein, is credited. 5.
The fact that work rules of Duke City and Amalia are
the same, is given some weight in assessing Duke City's
role in Amalia
Conclusions
As seen from the foregoing discussion, Duke City
cannot be considered as a disinterested, or neutral, b-
stander in the argument between Amalia and Respond-
ent. Duke City personnel were deeply involved in Ama-
lia's daily business affairs, from the general manager
down through the organization. That involvement in-
cluded all management policy, sales, purchasing, clerical
work, accounting, employee training, technical assist-
ance, production consultation, daily advice, and a host of
other matters. So far as labor relations were concerned,
Sangre and Renewable established all labor policies for
Amalia, and Duke City management personnel partici-
pated in negotiations for contracts, establishment of work
rules, settlement of grievances, and miscellaneous matters
relating to employee relations.
But for Duke City's support of, and assistance to,
Amalia, the latter could not function. Absent Duke City,
Amalia would be required to hire a large managerial
staff, and to alter its method of operation.
So far as outsiders are concerned, it is clear that Duke
City appeared to control Amalia. Pacific and Sangre offi-
cials rarely appeared on the scene, and they exercised no
managerial functions, so far as outsiders could see. Duke
City geographically was relatively close to Amalia, and
Duke City officials commonly were in Amalia's offices
and on Amalia's land. Duke City officials participated in
all Amalia business affairs, and Duke City employees
often performed Amalia work. Respondent's representa-
tives frequently worked with Weinstein in all phases of
employee relations, and Weinstein was well known as
Duke City's labor relations representative. There is noth-
ing to show that Respondent's representatives knew any-
thing about Amalia's genesis or legal status, and there is
much in the record to show that those representatives
ressonably could conclude that Amalia was controlled by
Duke City.
The fact that the partners intended to and did, rely on
Duke City to supervise the conduct of Amalia's business
affairs, is clear from the articles of parnership, and the
record. The fact that Duke City did not add any profit
to its billings for services rendered to Amalia indicates
Duke City's benevolent position in Amalia's business.
Clearly, that position was not that maintianed at arm's
length. Duke City effectively controlled Amalia. 2s
Upon the basis of the foregoing findings of fact, and
the entire record, I make the following:
CONC I USIONS OF LAW
1. Southwestern Council of Industrial Workers, AFL-
CIO and Southwestern Council of Industrial Workers,
Local 2356, AFL-CIO are, and each of them is, labor
organizations within the meaning of Section 2(5) of the
Act.
2. Duke City Lumber Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
3. Respondent did not, as alleged, violate Section
8(b)(4)(i) and (ii)(B) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
26 ulcan .uaterials, supra, leamsters. Chauffeurs. Warehousemen and
Helpers, Lcal Union o. 560, affiliated With Inrernational Brotherhood oj
Teamsters. Chauffeurs. Warehousemen and Helpers of America (Crtin
Matheson Scientific, Inc.. 248 NLRB 1212 (1980), and Drivers. Chaulffrurs
and Helpers Local Nvo 639, International Brotherhood of Teamsers Chauf-
feurs. Warehousemen and Helpers of America (Poole's Warehousing. Inc.),
158 NL.RB 1281 (196).
X15