Bayside Enterprises, Inc.

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bayside Enterprises, Inc., Penobscot Poultry Compa- ny, Poultry Processing, Inc. and Truck Drivers, Warehousemen and Helpers Union, Local No. 340, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 1-CA-9721 February 5, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 25, 1974, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 1 and has decided to affirm the rulings, findings, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondents, Bayside Enterprises, Inc., Penobscot Poultry Company, and Poultry Processing, Inc., Belfast, Maine, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 Respondents' request for oral argument is denied as the record and briefs in our opinion adequately present the positions of the parties. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: Pur- suant to a charge filed on March 26, 1974, by Truck Drivers, Warehousemen and Helpers Union, Local No. 340, a/w International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, a complaint issued on May 7, 1974, and was thereafter amended on June 20 , 1974. The complaint, as amended, alleges that Respondents violated Section 8(axl) and (5) of the Act by refusing to bargain with the Union as the exclusive representative of feed-truck drivers employed by Bayside. Respondents have filed an 216 NLRB No. 92 answer and an amended answer in which they deny the commission of any unfair labor practices. The principal issue raised is whether the feed-truck drivers employed by Bayside are agricultural laborers within the meaning of Section 2(3) of the Act. On June 26 and 27, 1974, a hearing was held before me at Belfast, Maine, at which all parties appeared and had an opportunity to present evidence. At the conclusion of the hearing oral argument was waived , and the parties were given leave to file briefs which have been received from the General Counsel and Respondents. Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENTS Bayside Enterprises, Inc., herein referred to as Bayside, and Poultry Processing, Inc., are Maine corporations having their principal offices in Belfast, Maine. Bayside is engaged in the breeding and raising of poultry, and Poultry Processing is engaged among other things in the dressing and processing of poultry for market. Bayside and Poultry Processing each in the course of its business annually receives goods valued in excess of $50,000 from points outside the State of Maine. Bayside and Poultry Processing concede that each is an employer engaged in commerce within the meaning of the Act, and I find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The refusal to bargain The Union and Amalgamated Meat Cutters Local 385 jointly represent a unit of Poultry Processing employees including those who work in its processing plant, pickup crews which pick up poultry from farms for processing, and truckdrivers . On or about October 21, 1973, the Union requested recognition as representative of drivers em- ployed by Bayside who deliver feed for Bayside to poultry farms. Through one of its officers, Bernard Lewis, Bayside recognized the Union and began to negotiate with it for an agreement. After several meetings, however, Lewis in- formed the Union that Bayside believed the feed-truck drivers were agricultural employees and that it was not obligated to bargain with the Union for them. Negotiations were terminated on or about December 14, 1973, giving rise to this proceeding. BAYSIDE ENTERPRISES, INC. 2. The operations of Bayside and Poultry Processing Poultry Processing is a wholly owned subsidiary of Bayside. Poultry Processing in turn has several operating divisions, some of which are not located in the Belfast area and have no direct involvement in this proceeding. Bayside owns and operates two hatcheries and six primary breeding farms on which it develops and raises breeder stock as the source of eggs which are hatched to provide chicks for poultry production. Bayside has agree- ments with approximately 119 independent farms in the area around Belfast for the care and feeding of chickens from the age of I day until they are ready for processing for the market as broilers, roasters, or capons. During the time that the chickens are on the farms Bayside determines what they are to be fed and furnishes all necessary feeds and other supplies to the farms. Bayside has employees who visit the farms periodically to deter- mine whether any special care or medicaments may be needed, and they provide supervision to farmers for the care and management of the flock. The farmers provide necessary space for the flocks, storage facilities for supplies, and the labor required to care for the flocks. Title to the chickens remains in Bayside until they leave the farms for processing. All but a small portion of the poultry raised by Bayside is sold to its subsidiary Poultry Processing and processed for market at Poultry Processing's Belfast plant which operates under the trade name Penobscot Poultry Company.' Crews employed by Poultry Processing come to the farms, load the poultry into coops, and truck the poultry to the Belfast plant. At the plant the poultry is weighed, and title is deemed to pass to Poultry Processing at that point. Poultry Processing slaughters, dresses, sells, and ships the dressed poultry. Bayside purchases some feed from a farmers' cooperative of which it is a member,2 but 80 to 85 percent of its feed needs are supplied by a mill at Thorndike, Maine, operated by Poultry Processing under the trade name Penobscot Feeds. About two-thirds of the feed processed by Penob- scot Feeds goes to Bayside, and the remaining one-third is sold to Fort Halifax Packing Co., an unrelated poultry raising enterprise. Since May 1, 1974, Bayside has purchased feed ingredients directly from suppliers and has paid Poultry Processing a milling fee for milling and mixing feed. Poultry Processing purchases the ingredients for the feed sold to Fort Halifax and sells the feed to it. Before May 1, 1974, Poultry Processing purchased all the ingredients and sold feed to both. Feed deliveries to Fort Halifax are made by an independent contractor paid by Fort Halifax. Feed deliveries from Penobscot Feeds to farms under contract with Bayside are made by the feed- truck drivers employed by Bayside whose status is at issue in this proceeding. Bayside and Poultry Processing have common officers and directors, a common corporate office , and a common controller. In the office two clerical employees are on the I The name Penobscot Poultry Company apparently is owned by Penobscot Poultry Co., Inc., also a wholly owned subsidiary of Bayside, which is no longer an operating corporation and remains only as a 503 payroll of Bayside, and seven are on the payroll of Poultry Processing. The controller, office manager, and an accoun- tant are carried on the payroll of Poultry Processing but do joint work for both corporations. A portion of their cost is charged to Bayside each year. There are numerous transactions between the two corporations, and checks are written transferring funds between the two corporations for each transaction. The persons who sign the checks are the same for both corporations. Bayside has a broiler department manager who is in charge of all farm activities. Poultry Processing has an operations manager at the processing plant and a manager at the feed mill. These three managers report directly to Herbert Hutchins, general manager of Bayside. Bernard Lewis, an officer of both corporations, has represented Poultry Processing in bargaining; and Bayside General Manager Hutchins has participated in bargaining and the processing of grievances for Poultry Processing. Lewis and Hutchins also represented Bayside in initial dealings between Bayside and the Union relating to the Bayside drivers. 3. The duties of the feed-truck drivers Bayside employs six feed-truck drivers who work on two shifts, from 3 a.m. to I p.m. and from 1 p.m. to 9 p.m. Their principal duty is to deliver feed to the Bayside contract farmers. Bayside also employs a dispatcher who directs the feed-truck drivers and appears to be a supervisor within the meaning of the Act. The dispatcher works closely with and receives direction from Bayside's broiler department manager and from Poultry Processing Mill Supervisor Merle Weymouth. Feed is the source of protein for the poultry raised by Bayside. It consists primarily of corn and soy, but it may have up to 25 other ingredients added to it in varying proportions to provide vitamins, minerals, amino acids, growth stimulation, and medication. After mixing and grinding, feed may be delivered without further processing as mash, with further processing through a steam pressure system as pellets, or after further cracking as crumbles. The exact composition and type of feed fed poultry depends on the age and health of the birds, outside temperatures, and the type of bird being raised (broiler, roaster, capon). The broiler department manager makes up a feeding schedule for each flock of birds setting forth the type and composition of the feed to be supplied throughout the growth cycle of the flock. From this schedule the dispatcher makes up a delivery schedule designed to ensure that the farmer at all times has the right amount of feed of the proper variety at the farm to feed the poultry in accord with the schedule. During the growth cycle of a flock, there may be changes in the feeding schedule attributable to a variety of factors. These are communicated to the dispatcher by the broiler department manager. The dispatcher then alters delivery schedules accordingly. The drivers are given delivery tickets which tell them the type, composition, and amount of feed to be delivered to each farm. At times they load their trucks and at times the corporate shell. 2 Most of the feed purchased from this source is used on Bayside's own breeder farms or for rooster and capon flocks being raised for Bayside. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispatcher loads for them. The drivers drive from the Thornlike mill to the farms, and unload the feed into farm storage bins. At times farmers orally instruct the drivers as to placement of the feed, but more often the farmers leave notes for the drivers with such instructions. The drivers are expected to unload the proper amounts of feed into the designated bins, to make certain that old feed is shaken to the bottom of the bins to avoid mold, and to keep moisture out of the bins in bad weather. The farmers rely on the drivers to deliver the right quantities of feed to the right places. Delivery of the wrong feed could affect develop- ment of a flock adversely, and a farmer's compensation for raising a flock is affected by the final weight of the flock as well as the cost of feed and other supplies provided by Bayside. The drivers each make deliveries to three to four farms a day. A small portion of their time is spent at the feed mill with the balance divided rather evenly between travel time and unloading time at the farms. While on the farms, the drivers have no direct contact with the poultry, and may or may not have contact with the farmer on any single visit. A major problem in raising chickens is disease, and Bayside takes precautions to try to prevent the spread of disease from one farm to another . Because some diseases may be physically transmitted, the drivers are required to follow specified sanitation procedures upon arriving at and leaving each farm and upon arriving back at the feed mill. Each driver carries disinfectant, a pail, a foot pan, a water bucket, and a sprayer in his truck. Before leaving his truck to unload, he must wash his boots. Upon leaving each farm he must spray the truck tires and scrub his boots. When he arrives back at the mill he must wash the under carriage of his truck. Comparable precautions are required of all those who enter the farms, including the Poultry Processing crews which remove flocks from the farms for slaughter and processing. Since chickens are sensitive to unusual noises and flashes of light, the drivers must drive slowly and quietly while on the farms and avoid reflections of light from their trucks into the poultry houses. On occasion in the past Bayside feed drivers have picked up feed from Bayside's other source, the farmers' coopera- tive, and have delivered it to Bayside's farms. However, for the most part feed from that source is delivered to Bayside's farms by drivers employed by the farmers' cooperative. Bayside's drivers make practically all deliver- ies of feed from the Thorndike mill to Bayside farms, but, in the event of equipment failure, Bayside utilizes an independent contractor, Richard Hodges, to make feed deliveries from the Thorndike mill to the contract farmers. Hodges is regularly used by Fort Halifax Packing Co., to make deliveries from the Thorndike mill to its farms. Bayside's feed drivers in the past have occasionally but infrequently been used to haul feed ingredients from suppliers in Gloucester, Massachusetts, and Rockland, Maine, to the Thorndike mill. 3 Samuel B Gass, et a!, 154 NLRB 728 (1965), enfd 377 F.2d 438 (C.A. 1, 1967), Strain Poultry Farms, Inc, 163 NLRB 972 ( 1967), enforcement denied 405 F 2d 1025 (C.A 5, 1969); Victor Ryckebosch, Inc, 189 NLRB 40 (1971), enforcement denied 471 F 2d 20 (C.A. 9, 1972), Abbott Farms, Inc, 199 NLRB 472 (1972), enforcement denied 487 F.2d 904 (C.A. 5, 1973); B. Concluding Findings The only issue in this case is whether the six feed-truck drivers are agricultural laborers within the meaning of the Act. If they are, Bayside had no obligation under Section 8(a)(5) of the Act to bargain with the Union with respect to them. If they are not agricultural laborers, Bayside in effect concedes that they constitute an appropriate unit for collective bargaining, that the Union represents them, and that Bayside is obligated to bargain with the Union with respect to their wages, hours, and working conditions. Section 2(3) of the Act excludes from the definition of an employee "any individual employed as an agricultural laborer." Since 1946 riders to the appropriation acts for the Board have regularly provided that the term "agricultural laborer" shall be defined in accordance with Section 3(f) of the Fair Labor Standards Act (29 U.S.C. §203) which reads: Agriculture includes farming in all its branches and ... includes . . . the raising of . . . poultry, and any practices . . . performed by a farmer or on a farm as an incident to in conjunction with such farming opera- tions. The General Counsel contends that the operations of Bayside and Poultry Processing constitute a single integrat- ed enterprise, that those operations as a whole do not constitute farming within the meaning of the Fair Labor Standards Act, and that the feed-truck drivers are neither engaged in farming nor do they perform duties incidental to or in conjunction with farming. Bayside contends that it is engaged in farming, that its operations are separate from those of Poultry Processing, and that in any event its feed- truck drivers perform duties incidental to or in conjunction with farming. The issue in this case is not novel. In several decisions the Board has considered the status of feed-truck drivers and other drivers performing services for poultry raising enterprises similar in whole or in part to those of Bayside. The Board has generally found such drivers to be employees within the meaning of the Act.3 Although Courts of Appeals for the Fifth and Ninth Circuits have expressed disagreement with the Board's conclusions in these decisions, the Court of Appeals for the First Circuit has enforced one of these decisions and to this point the Board continues to adhere to the approach expressed in them .4 The reasoning of the Board is set forth in detail in these decisions and need not be retraced here. It seems clear that following these decisions the Board would not regard Bayside's operations in the aggregate as farming and would not view the feed drivers as directly engaged in farming or in the performance of duties incidental to or in conjunction with farming. While Bayside contends that it is an agricultural enterprise, Bayside is much more than that. True, it owns Imco Poultry Division of International Multifoods Corporation, 202 NLRB 259 (1973); McElrath Poultry Co., Inc., 206 NLRB 354 (1973), enforcement denied 494 F.2d 518 (C.A. 5, 1974). 4 See Imco Poultry, Division of International Multifoods Corporation, supra, 260, fn 11. BAYSIDE ENTERPRISES, INC. and directly operates hatcheries and farms , and these activities undoubtedly qualify it for membership in a farmers' cooperative and for designation as an agricultural enterprise for certain other purposes. But Bayside's operations are, as contended by the General Counsel, highly integrated with those of its subsidiary Poultry Processing, and the evidence set forth above clearly supports the conclusion that they constitute a single employer for purposes of the Act. There is common ownership, management, and control of labor relations, and close interrelation and integration of operations. Taken together Bayside and Poultry Processing constitute a multifaceted organization whose enterprises and purpos- es go far beyond the bounds of traditional farming. While Bayside's own farms and hatcheries may constitute branches of farming, the overall operations of Bayside and Poultry Processing, and more specifically the feed mill and feed delivery operations, may not be removed from coverage by the Act by utilizing these aspects of Bayside's operations which are traditional branches of farming to characterize Bayside's entire operation as farming.5 It is also self-evident that the drivers themselves are not engaged directly in farming in the performance of their duties. The question remains whether the delivery of feed to the farms under contract to Bayside should be considered the performance of practices on a farm incidental to or in conjunction with farming. The General Counsel contends, and I believe correctly, that the facts in this case are indistinguishable from those in Samuel B. Gass, et al., supra, in which the Board with the agreement of the First Circuit held that feed-truck drivers' duties were incidental to the operation of the feed mill rather than to the operation of any farm. While superficially Gass may be distinguished in that there the drivers were employed by a separate corporation which acted ostensibly as an inde- pendent contractor to haul feed, that corporation was found to constitute a joint employer of the drivers along with several other integrated corporations found to be a single employer and engaged in an enterprise substantially the same as that of Bayside and Poultry Processing. The facts in McElrath Poultry Company, Inc., supra, also are indistinguishable on any meaningful basis from those in this case. Bayside contends that these decisions rest on an assumption that the delivery of feed is similar to the delivery of electricity or water, that the evidence in this case shows that assumption is unwarranted, and that Gass should not be followed for that reason. Bayside relies on the evidence that feed-truck drivers must take precautions to avoid transmission of disease, unusual noises, and sudden reflections of light in the delivery of feed, and must deliver the right kind of feed to the right bin in the right amount while exercising care to see that old feed is shaken to the bottom of the bin and that precipitation does not get into the bins. Of course, there are differences between the delivery of feed and the delivery of electricity and water, but these differences cannot be presumed to have been unknown to the Board in the past,6 do not involve more 3 McElrath Poultry Company, Inc, supra 6 See Victor Ryckebosch, Inc, supra, fn. 4, see also McElrath Poultry 505 than routine action on the part of the drivers, and do-not involve the performance of duties bearing any special relationship to farming. The enumerated aspects of the drivers duties do not alter the basic character of their duties. Following Gass and McElrath I conclude that the feed- truck drivers employed by Bayside are not agricultural laborers but are employees within the meaning of the Act. As there is no issue as to unit, majority, or withdrawal of recognition, I further conclude that the Union is the exclusive representative of the drivers and that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union for them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents, Bayside Enterprises, Inc., and Poultry Processing, Inc., set forth in section III, above, occurring in connection with the operations described in section I, 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 and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, Bayside Enterprises, Inc., and Poultry Processing, Inc., engaged in certain unfair labor practices , I shall recommend that they be required to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondents, Bayside Enterprises, Inc., and Poultry Processing, Inc., constitute a single employer and are engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All feed truckdrivers of Respondent Bayside Enter- prises, Inc., employed out of its Thorndike Maine, location, excluding all office clerical employees, professional em- ployees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since on or about October 21, 1973, the Union has been and now is the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to meet with the Union to engage in collective bargaining since on or about December 14, 1973, Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Company, Inc, supra, fn. 6 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER? Respondents, Bayside Enterprises, Inc., and Poultry Processing, Inc., their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with Truck Drivers, Warehouse- men and Helpers Union, Local No. 340, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of this Decision entitled "Conclusions of Law." (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclusive bargaining representative of the employees in the previously described appropriate unit, and, if an under- standing is reached , embody such understanding in a signed agreement. (b) Post at their Thorndike, Maine, place of business copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondents' authorized representative, shall be posted by them immedi- ately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision , what steps Respondents have taken to comply herewith. 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. B 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 recognize Truck Drivers, Warehousemen and Helpers Union, Local No. 340, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and bargain collectively with it as 'the exclusive representative of the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and, if any future understandings are reached , embody such understandings in signed agreements. All feed truckdrivers employed by Bayside Enterprises, Inc. out of its Thorndike, Maine, location, excluding all office clerical employees, guards, professional employees and all supervi- sors as defined in the Act. WE WILL NOT refuse to bargain collectively with said Union as the exclusive bargaining representative of the employees in the above-described unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. r In the event no exceptions are filed as provided by Sec. 102.46 of the BAYSIDE ENTERPRISES, INC., Rules and Regulations of the National Labor Relations Board, the findings, POULTRY PROCESSING, INC.