California Labor Industries, Inc.

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Labor Industries, Inc. and Provision House Workers Union Local 274, affiliated with United Food and Commerical Workers Interna- tional Union, AFL-CIO, Petitioner. Case 21- RC-16016 May 16, 1980 DECISION ON REVIEW BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 30, 1979, the Regional Director for Region 21 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition on the ground that an existing collec- tive-bargaining agreement between the Employer and the Intervenor' was a bar to the conduct of an election. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review on the ground that the Regional Director erred in several respects. By telegraphic order dated February 6, 1980, the request for review was granted with re- spect to the Petitioner's contention that the collec- tive-bargaining agreement was executed at a time when the Employer did not have a representative complement of employees and its contention that the Employer and Cal Coast Beef Processors, Inc. (Cal Coast), were joint employers, but was denied in all other respects. 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 entire record in this case with respect to the issues under review and hereby affirms the Regional Director for the following reasons. The Petitioner contends that the existing collec- tive-bargaining agreement is not a bar to its peti- tion because at the time it was executed there exist- ed less than 50 percent of the job classifications in existence at the time of the hearing. This, if estab- lished, would mean that the employee complement was not representative under the second part of the two-pronged test set forth in General Extrusion Company, Inc., General Bronze Alwintite Products Corp., 121 NLRB 1165, 1167 (1958).2 It is the Peti- tioner's position that, of seven job classifications I Allied Service Division, Brotherhood of Railway. Airline, Steamship, Freight Handlers. Express and Station Employees. AFL-CIO, was al- lowed to intervene at the hearing. 2 The Petitioner does not question the employee complement under the first part of the General Extrusion test, which requires that at least 30 per- cent of the total work force be employed at the time the collective-bar- gaining agreement is executed. 249 NLRB No. 87 existing at the time of the hearing, only one was in existence when the contract was executed. The Board granted review in the instant case because, although the Regional Director found that four of the seven classifications were in existence when the contract was executed, he did not set forth the evi- dence on which this finding was based, and be- cause this finding appeared to be in conflict with his finding that all the employees then on the pay- roll were classified as general laborers. However, on scrutinizing the record, we find that by the first week of June 1979, when the contract was execut- ed, probationary employees were performing the work designated for assignment to the following job classifications: general laborer; leadman; rough meat trimmer and boner; and rough meat breaker. Performance of that work, even if full operations were only in the preparatory stage, was the equiva- lent of the existence of the classifications for Gener- al Extrusion purposes. Milton Klein and Jacob Klein a Co-Partnership, d/b/a Klein's Golden Manor, 214 NLRB 807, 815-816 (1974); Leone Industries, 172 NLRB 1463, 1464 (1968). Therefore, we conclude that the requirement that at least 50 percent of the job classifications be filled at the time the collec- tive-bargaining agreement is executed has been sat- isfied. Review was also granted as to the Petitioner's contention that the Employer and Cal Coast were joint employers. 3 The Employer is in the business of providing labor to other businesses. Its only cus- tomer, up to the date of the hearing, was Cal Coast, a meat producer and distributor. The Em- ployer sent its own employees and supervisors to Cal Coast's premises, where Cal Coast stores beef carcasses. The Employer's employees cut and pack the meat for distribution by Cal Coast. Cal Coast pays the Employer on a cost-plus basis. The joint-employer contention is based largely on the fact that the Employer had no written con- tract with Cal Coast, that Cal Coast was its only customer, and that a representative of Cal Coast had some supervisory authority over the Employ- er's operation, and on the disputed assertions that the Employer and Cal Coast shared at least one employee and that for several weeks after it began performing services for Cal Coast the Employer had not sent a bill for those services. a The Petitioner contends that the collective-bargaining agreement was improperly executed because it was not signed by Cal Coast, the alleged other joint employer. Neither the Regional Director nor any of the par- ties contested the Petitioner's premise that, since Cal Coast did not sign the agreement, it would be defective for contract-bar purposes if Cal Coast and the Employer were joint employers. As we find that it has not been shown that they were joint employers, it is unnecessary for us to raise sua sponte the question of when all joint employers are necessary parties who must sign a contract before it can constitute a bar to a peti- tion. CALIFORNIA LABOR INDUSTRIES, INC. 601 We deal first with the contested allegations. The evidence the Petitioner produced fails to establish that Jesse Marron, an employee of the Employer, was also an employee of Cal Coast. The only sug- gestion of the latter was in the testimony of the Pe- titioner's witness, Luis Garcia, who did not know whether Marron was an employee of the Employer or of Cal Coast, but thought that all the employees "are Cal Coast" because "[e]verybody is working in the same plant." In the context in which he stated it, Garcia's opinion is not probative evi- dence. As for the Employer's alleged failure to bill Cal Coast, no evidence was produced at the hear- ing; and there was undisputed testimony that as of the hearing date the Employer had billed Cal Coast and been paid at least $100,000. We find no determinative significance in the Em- ployer's and Cal Coast's failure to reduce their ar- rangement to writing, as terms were still being ne- gotiated during the first several months of oper- ations. Similarly, the Employer's failure to secure any other customers during that period does not change the basic nature of its relationship with Cal Coast. The Employer presented uncontradicted evidence that its arrangement with Cal Coast did not require it to deal with Cal Coast exclusively, and the parties had the mutual right to cancel under certain conditions. There is no overlap in the ownership or management of the two companies, and no evidence either of a prior relationship be- tween the principals of the two or of anything else to persuade us that their dealings were at less than arm's length. 4 4 We note that a number of unfair labor practice charges filed by the Petitioner, apparently alleging various conspiratorial devices by which the principals of Cal Coast and others have sought to avoid a former col- lective-bargaining relationship with the Petitioner, have been dismissed by the Regional Director. In another case, the Regional Director dis- missed a charge against the Petitioner for alleged secondary picketing, finding that Cal Coast and the Employer were "'allies' .. if not joint employers." Since the "ally" finding was sufficient to dispose of that charge, the remainder of the quoted statement was not necessary to the dismissal. We would not, of course, be bound by any such finding made by the Regional Director in that case. Finally, in the circumstances of this case, the oc- casional "supervision" of employees of the Em- ployer by a Cal Coast official is of minimal signifi- cance. As noted, the Employer performs its serv- ices at Cal Coast's premises, where Cal Coast main- tains a business office. Cal Coast retains the right to inspect the production area, to see that its meat is being cut and trimmed according to its specifica- tions, and to bring its complaints to the attention of the Employer's supervisors. In addition, David Burk, who has some proprietary or management connection with Cal Coast which is not specified in the record, spends a good deal of time in the pro- duction area, where he has sometimes given direc- tions to employees of the Employer. There is no evidence that his directions are enforceable. The Petitioner also cites testimony to the effect that Burk once told the Employer's superintendent to hire two journeymen butchers who came in and talked to Burk in the superintendent's absence, and that Burk once told the superintendent that there would be a layoff because there was not much meat available. Both the hiring and the layoff oc- curred after Burk's remarks, but the role Burk's instructions had in bringing about the layoff was not developed further and is inconclusive. We agree with the Regional Director that these limited instances of Cal Coast's participation in the man- agement of the Employer, set against an otherwise complete absence of participation in its labor rela- tions, is insufficient to establish a joint-employer re- lationship. Cf. Furniture Distribution Center, Inc., 234 NLRB 751 (1978).5 Accordingly, the Regional Director's Decision and Order dismissing the petition is hereby af- firmed. I Even less probative are the following: Cal Coast's one-time payment of an employee of the Employer when his paycheck was made out im- properly; the role of a firm called General Labor Services, Inc., in han- dling the Employer's payroll and other administrative matters; and the Employer's use of Cal Coast's office and premises as its California busi- ness address, its main business office being in Missouri. In