Aquacultural Research Corp.

AQUACULTURAL RESEARCH CORP. 1 Aquacultural Research Corp. and Local 2, Amal- gamated Meat Cutters, Food Store and Allied Work- ers Union, AFL-CIO, Petitioner. Case 1-RC-13368 November 21, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Thomas J. Flynn. Thereafter, the Regional Director for Region 1 trans- ferred this proceeding to the National Labor Rela- tions Board for decision, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended. The Employer filed a brief in support of his respective position. 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 reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. Upon the entire record in this case, including the Employer's brief, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent all permanent and part-time employees of the Employer engaged in the cultivation, planting, tending, and harvesting of the Employer's clam beds in Chatham and Dennis, Massa- chusetts. The Employer contends that these employees are "agricultural laborers" within the meaning of Sec- tion 2(3) of the Act,' and therefore outside the cover- age of the Act.' The Employer is engaged in the spawning or buying and the planting, raising, harvesting, and selling of clams, in the buying or processing and selling of shell- fish and shellfish products. The operation referred to as a "Clam Farm" began operation in 1959. At its incep- tion the Clam Farm was devoted solely to the work of developing a method for spawning and rearing shellfish under controlled conditions. The ultimate goal of the Farm is the developing, growing, planting, and harvest- ing of its own product. In 1962 when it was anticipated that the operation had potential, the Clam Farm began buying clams from outside suppliers and using a por- tion of them for planting in pools or beds on leased property and selling the remainder to other users and outlets. The farming of clams is accomplished as follows: The female clam during the spawning season in late spring and early summer ejects into the water a million or more egg cells. The male will similarly eject sperm cells. Some sperm cells fertilize the egg cells to form larvae. After 8 to 12 days the larvae begin to develop. At this state the clams burrow into what then becomes the clam bed. If there are no implements, the young clam grows and matures. When it reaches the legal size of 2 inches, the clam is called a little neck and as it continues to grow it becomes successively a cherry- stone and finally a large chowder clam. It takes from 2 to 4 years for the microscopic larvae to grow to the legal 2-inch size and another 7 to 20 years for it to become a chowder clam. Between planting and harvesting, the clam beds must be tended. Tending involves removing or keeping predators away from the beds, removing algae growth and other foreign matter, monitoring growth rates, and checking the chemistry of the water. The major har- vesting seasons are in late summer, early fall, and late winter. In performing these functions most of the work is done with standard farm equipment by shell laborers. After the clam crops have been harvested they are trucked to a location where they are then culled, cleaned, stored, and graded. They are then packed and shipped to Employer's customers, including wholesal- ers, hotels, restaurants, and retailers. About 83 percent of the shellfish products are sold in their natural form and the remainder are processed as chowder base, minced clams, clam juice, and related products. I Sec 2(3) of the National Labor Relations Act excludes from the defini- tion of the term "employees" any individual employed as an "agricultural laborer " Annually, since 1946, Congress has added a rider to the appropria- tion for the Board, providing that no part of the appropriation "shall be used in connection with investigations, hearings, directives, or orders con- cerning bargaining units composed of agricultural laborers as referred to in section 3(f)" of the Fair Labor Standards Act, 29 U S C 203(f) Sec 3(I) of the FLSA reads in pertinent part as follows "Agriculture includes farming in all its branches and among other things includes the produc- tion, cultivation, growing, and harvesting of any agricultural commodi- ties .. and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including prepa- ration for market, delivery to storage or to market or to carriers for transpor- tation to market " 2 The Board in Domsea Farms, Inc, 211 NLRB No 125 (1974), found that "fish farming" under facts of that case was "agricultural" within the meaning of sec 3(f) of the Fair Labor Standards Act and that the employees involved therein were exempt from the National Labor Relations Act as "agricultural laborers " As discussed below, the factual situation here differs from that in Domsea and a key issue is whether Domsea is controlling 215 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1974 the Employer for the first time harvested a small percentage of clams from its own hatchery. However, most of the clams used by the Employer in its operation were purchased from outside sources. Of the purchased clams, 65 percent were placed by the Employer in its own clam pools, and 35 percent, after culling, grading, and sorting, were sold in their natural state or in the form of shellfish products to various wholesalers, distributors, or other customers. The Em- ployer estimates that its employees spend an average of about one-third of their time on processing clams for resale. The agricultural and nonagricultural work is inter- mingled and is performed by the same employees. The Employer concedes that it would be difficult and im- practical to attempt to segregate jobs or departments on the basis of specific time allocated to strictly clamming farm duties and nonfarming work.3 Although the Em- ployer anticipates that sometime in the future it will be harvesting clams mainly produced on its own farms, the year in which this will occur is uncertain. The Board has held in similar circumstances, where the purchased product represents a substantial part of the employer's regular business and the agricultural and nonagricultural work is intermingled, that the business as a whole is classified as not coming within the proscription of Section 2(3) of the Act, and that the employees involved are not "agricultural laborers." For example, in Cherry Lane Farms, Inc., 190 NLRB 299 (1971), the Board held that an employer who pur- chased one-half of the eggs it processed from other farmers did not come within the "term and the spirit" of the agricultural exemption. In Kelly Brothers Nurser- ies, Inc., 140 NLRB 84 (1962), the Board found that the exemption did not apply to an employer who derived 29 percent of its gross annual income from the resale of purchased items. In The Garvin Company, 148 NLRB 1499 (1964), 15 percent was considered a sub- stantial amount of packing of a product by a farmer other than the packer. We recognize, of course, that the Board in Domsea Farms, Inc., supra, relying in part on an advisory opin- ion of the U.S. Department of Labor, held "fish farm- ing" was farming within the provision of section 3(f) of the Fair Labor Standards Act. We agree that the clam farming involved herein is not unlike the fish farming in Domsea (coho salmon). However, in view of the Employer's substantial operations involving the pro- ducts of other producers we cannot make a similar finding here and we conclude that the Domsea case is not herein controlling. Accordingly, we find that the employees employed in the Employer's Clam Farm operation are not "agricultural laborers" within the meaning of Section 2(3) of the Act.' While the Petitioner and the Employer agree on the scope of the appropriate unit, they disagree as to the unit placement of certain job categories. Upon the basis of the entire record, we make the following findings as to unit placement of the contested categories.' Temporary employees.- Temporary employees are usually hired during the summer for periods of several weeks. Most of such employees are students and at the end of the season return to school. The Employer main- tains no roster of seasonal employees, makes no at- tempt to rehire them, and their return rate is low. Seasonal employees receive no fringe benefits and their wage rates are lower than the rates for regular em- ployees. We find in the circumstances that the tempo- rary employees are not eligible voters and shall exclude them from the unit. Packers and maintenance man: As to both job categories we find that the record shows that their work involves rank-and-file duties of the nature described in their job titles, and that their duties lack sufficient supervisory indicia to warrant their exclusion as "supervisors." We shall, therefore, include them in the unit. Dispatcher, planting and harvesting supervisor, and supervisor of the meat department:: The record shows that the employees in these categories responsibly di- rect the work of other employees and can effectively recommend pay increases and the discharge of em- ployees. Accordingly, we find that the employees in those jobs qualify as supervisors within the meaning of Section 2(11) of the Act and shall exclude them from the unit. Salesman: The salesman's primary task is outside selling and he spends approximately 80 percent of his time away from the plant, and the rest of the time mainly in the office. Accordingly, we find that the salesman lacks a community of interest with other em- ployees and shall exclude him from the unit. Receiver supervisor of shell group: As the record con- cerning the responsibilities and duties regarding this job category is unclear and conflicting, we shall make no determination at this time, but shall permit the em- ployee holding this job to vote subject to challenge. Accordingly, we find that the following employees of the Employer at its Chatham and Dennis , Massa- chusetts, Clam Farm constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: 3 Cf O1aa Sugar Company, Limited, 118 NLRB 1442 (1957) in the circumstances involved herein, are not employed in agriculture within 4 We have been informally advised by the Department of Labor, whose sec. 3(f) of the pertinent act interpretation of sec 3(f) of the Fair Labor Standards Act it is our policy 5 The parties stipulated that part-time employees and the supervisor of the to follow whenever possible, that the employees engaged in "clam farming," chowder department be excluded AQUACULTURAL RESEARCH CORP. 3 All permanent or regular full-time employees of the Employer engaged in the cultivation , planting, tending, and harvesting of the Employer's shell- fish beds, or in the production of shellfish pro- ducts, including the packer, truckdrivers, and maintenance man, but excluding temporary em- ployees, part-time employees, the dispatcher, shellfish buyer, the planting and harvesting super- visor, supervisor of the meat department, the supervisor of maintenance, the supervisor of chowder department, the salesman, the marketing manager, laboratory employees, guards, office clerical, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.]