S. J. Doroski

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. J. Doroski and/or Luis Perez and Local 424, Packing of Grain Fertilizer and Processors of Allied Food, Ind., Petitioner. Case No. 2-RC-11040. August 4, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c)' of the National Labor Relations Act, a hearing was held before William G. Haemmel, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in this case,' the Board finds : 1. S. J. Doroski is the sole proprietor of a business engaged in grow- ing potatoes and vegetables and, during the period from mid-July through November each year, wholesaling potatoes, mainly purchased from other farmers, from two packingsheds 2 located on his farm at North Road, Southold, Long Island, New York. Doroski concedes, and the record reveals, that he is engaged in commerce within the meaning of the Act. However, Doroski and the Intervenor,' contrary to the Petitioner's position, contend that Doroski is not the employer of the employees sought herein.' Rather, they assert that Luis Perez, former crew chief in the shed, is the employer because he operated the business of the shed during 19601 as an independent contractor under an oral agreement with Doroski. The record shows that Doroski pays all the employees in the shed, establishes the rate of pay, keeps their payroll records, pays their workman's compensation insurance, and withholds their social security payments. He owns all of the equipment used in the performance of the work, maintains it, and keeps it in repair. The record further shows that Perez had no investment in the operation and was paid by Doroski in the same manner and at the same rate as the shed employ- ees. At all times material herein, Doroski has exercised the right to control the manner in which the work is done. We find, therefore, 1 The Employer filed with the Board a motion to reopen record for submission and con- sideration of newly discovered evidence. This motion is denied as the issues raised therein are disposed of by our subsequent findings, and , in any event, the evidence sought to be adduced would not change our disposition of the matter. 2 The smaller packingshed is operated by an independent contractor , and there is no contention that the employees at this shed should be included in the unit. The employees involved herein are employed at the larger packingshed , hereinafter referred to as the shed 3 Produce Purveyors , Fresh & Frozen Fruits and Vegetables , Processed Fish Drivers, Helpers, Salesmen & warehousemen, Local 202 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America intervened at the hearing 4 Doroski claims that he is the employer of only one employee who repairs machinery at the shed and drives a truck 6 Luis Perez was terminated by Doroski in November 1960, before the end of the season 132 NLRB No. 52. S. J. DOROSKI AND/OR LUIS PEREZ 747 that Luis Perez is not an independent contractor, and that S. J. Doroski is the employer of the employees sought.6 2. The labor organizations involved claim to represent certain employees of the Employer.? 3. The Intervenor entered into a collective-bargaining agreement with Manuel Diaz, Perez's predecessor as crew chief at the shed, on August 15, 1958, to expire August 14, 1960, covering leadmen, graders, packers, loaders, and female employees at the shed. On September 9, 1960, Luis Perez extended this agreement with the Intervenor to expire March 14, 1961. The Intervenor contends that this contract is a bar to the instant petition. We find it unnecessary to pass on this contention. In the recent Deluxe Metal 11 case which, inter alia, announced the new contract-bar rules relating to the timeliness of petitions, the Board stated : Henceforth, where there is a subsisting contract, a petition filed more than 150 days before the terminal date of a contract will be regarded as premature and will be dismissed unless a hearing is directed despite the prematurity of the petition and the Board's decision issues on or after the 90th day preceding the expiration date of the contract. [Emphasis supplied.] As a hearing was held despite the premature filing of the petition, and as this decision will issue after the expiration of the contract, we find that the latter agreement is no bar to a present determination of representatives.9 The Intervenor also contends its contract with Doroski, covering warehouse and maintenance employees, bars this petition. Doroski has one employee within these categories. This contract resulted from bargaining between the Intervenor and Long Island Agricultural Marketing Association, on behalf of the members of the Association. Doroski, a member of the Association, signed the contract July 7, 1960, effective July 1, 1960, to June 30, 1963. As the petition herein was not timely filed with respect to the end of the first 2 years of this contract, we find this contract a bar as to the maintenance man em- ployed by Doroski and shall exclude him from the unit. Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. G Keystone Floors, Inc d/b/a Keystone Universal Carpet Company, 130 NLRB 4; Dunes Enterprises, Inc., d/ b/a Dunes Motel, 124 NLRB 805, 807. Cf John McCormack Co, 107 NLRB 606 7 The Intervenor contended that the Petitioner is not a labor organization. As the record establishes that the Petitioner admits employees to membership and bargains with employers concerning wages, hours, and working conditions , we find that it is a labor organization within the meaning of Section 2 (5) of the Act. s Delume Metal Furniture Company, 121 NLRB 995, 999. The Ohio Valley Gas Company, 124 NLRB 579. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner seeks a unit essentially composed of the produc- tion and maintenance employees employed at the Employer's packing- shed. The Intervenor contends that two separate units, one of chauf- feurs, maintenance employees, and warehousemen and the other of packers, graders, loaders, and unloaders, are appropriate. As we have found the maintenance man to be covered by an existing valid contract and therefore excluded from the unit, and, as the record is devoid of any evidence that Doroski employs any chauffeurs or ware- housemen in connection with the operation of the packingshed, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (c) of the Act : All packers, graders, loaders, and unloaders employed at the Em- ployer's larger packingshed at North Road, Southold, Long Island, New York, excluding the bookkeeper, maintenance employee, and supervisors within the meaning of the Act. 5. The Employer's packingshed operations are conducted during the period from mid-July to the end of November. In accordance with our usual practice in seasonal industries we shall direct that an election be held at or about the peak of the season, on a date to be de- termined by the Regional Director, among the employees in the ap- propriate unit who are employed during the payroll period immedi- ately preceding the date of the issuance of notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] Tele-Dynamics Division, American Bosch Arma Corp. and American Federation of Technical Engineers, AFL-CIO, Petitioner. Case No. 4-RC-4470. August 4, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William Draper Lewis, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 1 The Employer's request for oral argument is denied as the record, including the briefs , adequately sets forth the issues and the positions of the parties. 132 NLRB No. 61.