Denver Smoked Fish Co.

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.