Trident Seafoods, Inc.

738 318 NLRB No. 91 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Farwest had several other collective-bargaining relationships which are not at issue here because the Unions involved did not claim that the Respondent hired a majority of employees they rep- resented. Trident Seafoods, Inc. and District Lodge 160, International Association of Machinists and Aerospace Workers, AFL–CIO and In- landboatmen’s Union of the Pacific, Region 37, ILWU, AFL–CIO and Alaska Fishermen’s Union, Seafarers International Union, AFL– CIO. Cases 19–CA–22196, 19–CA–22219, and 19–CA–22287 August 25, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING On January 27, 1995, Administrative Law Judge David G. Heilbrun issued the attached decision. The General Counsel filed exceptions and a supporting brief; the Respondent filed exceptions, a supporting brief, and an answering brief; and Alaska Fishermen’s Union, Seafarers International Union, AFL–CIO filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this De- cision and Order. The Respondent processes seafood at its facilities in Washington and Alaska. In May 1992, the Respondent purchased the assets of Farwest Fisheries, Inc. (Farwest), including the salmon canning facilities at North Naknek (Naknek) and Ketchikan, Alaska. After the purchase, the Respondent’s operation of the Naknek and Ketchikan facilities was virtually indistin- guishable from Farwest’s operation of the business. Salmon, caught by independent harvesters, are trans- ferred to the Respondent’s tender boats, which take the salmon to the canning facilities. The fish are processed at the canning facilities, then shipped to Seattle, Wash- ington, for distribution. Farwest had collective-bargaining contracts with District Lodge 160, International Association of Ma- chinists and Aerospace Workers, AFL–CIO (IAM) covering machinists and cannery operation mechanics at both facilities; Inlandboatmen’s Union of the Pa- cific, Region 37, ILWU, AFL–CIO (IBU) covering processing employees at Ketchikan who are hired in Seattle rather than locally; and Alaska Fishermen’s Union, Seafarers International Union, AFL–CIO (AFU) covering tendermen, beach gang, and culinary employ- ees at Naknek. In June and July 1992, each Union re- quested recognition from the Respondent based on the fact that a majority of employees the Respondent hired in each unit previously had been employed by Farwest.2 The Respondent declined to recognize the unions. The complaint alleges that the three historical units are appropriate and that the Respondent’s refusal to bargain with the three Unions violated Section 8(a)(5) and (1) of the Act. The judge found that the IAM unit was not appro- priate because the two facilities were geographically remote from each other, that the IBU unit was not ap- propriate because it excluded locally hired employees who performed the same duties, and that the AFU unit was appropriate. We agree with the latter finding, but reverse the findings that the IAM and IBU units are inappropriate. I. GENERAL PRINCIPLES We agree with the judge that there was substantial continuity between Farwest and the Respondent within the meaning of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), and NLRB v. Burns Security Services, 406 U.S. 272 (1972). Critical to a successorship find- ing is whether the bargaining unit of the predecessor employer remains appropriate for the successor em- ployer. Regarding the appropriateness of historical units, the Board’s longstanding policy is that ‘‘a mere change in ownership should not uproot bargaining units that have enjoyed a history of collective bargaining unless the units no longer conform reasonably well to other standards of appropriateness.’’ Indianapolis Mack Sales, 288 NLRB 1123 fn. 5 (1988). The party chal- lenging a historical unit bears the burden of showing that the unit is no longer appropriate. Id. The evi- dentiary burden is a heavy one. See, e.g., Children’s Hospital, 312 NLRB 920, 929 (1993) (‘‘‘compelling circumstances’ are required to overcome the signifi- cance of bargaining history’’); P. J. Dick Contracting, 290 NLRB 150, 151 (1988) (‘‘units with extensive bargaining history remain intact unless repugnant to Board policy’’). In Fall River the Supreme Court, quoting Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973), emphasized that in reviewing the facts pertaining to a successorship situation ‘‘the Board keeps in mind the question whether ‘those employees who have been re- tained will understandably view their job situations as 739 TRIDENT SEAFOODS, INC. 3 The judge rejected the Respondent’s argument that the skills, functions, and terms and conditions of employment of the AFU unit employees were indistinguishable from other employees and there- fore only a plantwide unit was appropriate. 4 In sec. II,D, par. 2 of his decision, the judge stated, apparently by inadvertence, that ‘‘all parties’’ recognize that the tender captains are statutory supervisors. This statement is not supported by the record, and we do not adopt it. 5 The judge erred in stating that the Board accords less weight to the factor of bargaining history if the historical unit was never cer- tified by the Board. See, e.g., Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965). 6 Member Stephens notes that the absence of any significant changes in operations distinguishes this case from Banknote Corp. of America, 315 NLRB 1041, 1045 (1994), a successorship case in which he dissented in part on the ground that, in his view, changes in production processes and the organization of the work force ren- dered certain bargaining units no longer appropriate. essentially unaltered.’’’ By requiring the party chal- lenging a historical unit to show the unit is no longer appropriate, the Board recognizes the importance Fall River places on the employees’ perspective in a suc- cessorship analysis. II. THE AFU UNIT For over 20 years the AFU has represented the tendermen, beach gang, and culinary employees em- ployed by Farwest and its predecessors. Applying the above principles, we find, in agreement with the judge’s conclusion,3 that the Respondent failed to show that the historical unit was no longer an appro- priate unit. The Respondent argues that the tendermen, beach gang, and culinary employees do not comprise a sepa- rate identifiable unit. In addition to discredited testi- mony, the Respondent relies on Trident Seafoods, Case 19–RC–12019 (1989) (not included in bound volumes), in which the Regional Director rejected a union’s pro- posed mechanics unit, finding that the proposed unit did not have identifiable interests separate from other employees. In the Trident Seafoods case, however, the Regional Director found no evidence of bargaining his- tory. In contrast, and consistent with the above prin- ciples, in the instant case we are concerned with the continuing appropriateness of an historical unit, not with the appropriateness of a previously unrepresented unit. The Respondent also claims that captains of tender vessels are statutory supervisors and must be excluded from any unit found appropriate. ‘‘It is well estab- lished that the burden of proving supervisory status rests on the party asserting that such status exists.’’ Billows Electric Supply, 311 NLRB 878, 879 (1993). The Respondent did not introduce any evidence to sup- port the claim. We find, therefore, that tender captains are not supervisors and are properly included in the tendermen, beach gang, and culinary employees unit.4 The Respondent argues that the AFU bargaining de- mand was defective because it inaccurately referred to a unit of ‘‘resident’’ tendermen, beach gang, and cul- inary employees. We find this exception without merit. It is clear from the record that when the Respondent received the demand, it understood that the unit sought was the historical unit. Further, the complaint ref- erences the historical unit, and there was no confusion at the hearing concerning the unit over which the par- ties were litigating. Finally, even assuming there was some reason for confusion about the unit in which bar- gaining was demanded, it was the Respondent’s obli- gation to seek clarification, which it did not do. See Hydrolines, Inc., 305 NLRB 416, 420 (1991). Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the AFU. III. THE IAM UNIT Since at least 1970, the IAM has represented a com- bined unit of machinists and cannery operation me- chanics at Naknek and Ketchikan. The judge found that some traditional factors—the unit employees at both facilities perform work different from other em- ployees, and their wages and working conditions are different from other employees—favored a combined unit, while other factors—they are separately super- vised, there is no employee interchange, and the salm- on seasons are different—did not. He concluded from this evidence that the employees at the two locations do not share a community of interest. The judge also found that the geographic separation of the facilities— they are 750 miles apart—militated against a finding that the combined unit was appropriate. Essentially, the judge analyzed factors relevant to the issue of whether a previously unrepresented unit would be appropriate. The judge has misapprehended the Board’s policy regarding historical units. As the general principles discussion makes clear, the issue in a successorship situation is not whether a previously unrepresented unit is appropriate, but whether a histori- cally recognized unit is no longer appropriate.5 The judge concluded that the traditional factors for determining unit appropriateness compel a finding that the two locations are not an appropriate unit. Yet, it is clear from his discussion that the unit employees at each location perform the same jobs supporting the same production process and enjoy similar working conditions. It is also clear from the record that the jobs and working conditions do not differ from the jobs and working conditions in existence before the purchase— in other words, the Respondent made no changes after the takeover.6 From the absence of changes in these factors, we conclude that the Respondent failed to show that ‘‘‘compelling circumstances’ [have] over- come the significance of bargaining history.’’ Chil- dren’s Hospital, supra. Nor do we believe that the 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 E.g., Capital Coors Co., 309 NLRB 322 (1992). 8 The judge hints that the ethnic origin of the nonresident process- ing employees may be the basis for the separate unit. None of the parties make this claim; nor do we believe that the record supports the judge’s suggestion. record warrants a finding that this unit is repugnant to Board policy. The judge placed heavy emphasis on the distance between the facilities. Even when addressing whether an unrepresented multilocation unit is appropriate, however, the Board has found that substantial geo- graphic separation is not a determinative factor.7 Thus, when our focus is whether there are compelling cir- cumstances overriding the multilocation bargaining his- tory or whether the single unit is contrary to Board policy, we cannot conclude simply from the distance between Naknek and Ketchikan that the Respondent has shown the combined unit is no longer appropriate. In sum, we are persuaded that the factors on which the judge relied do not overcome the significance of the long and established bargaining history in the com- bined unit. Accordingly, we find that the record sup- ports the conclusion that this unit continues to be an appropriate unit. Therefore, we conclude that the Re- spondent violated Section 8(a)(5) and (1) by refusing to bargain with the IAM. IV. THE IBU UNIT The IBU has represented a unit of processing em- ployees hired in Seattle rather than locally (nonresident processing unit) at the Ketchikan facility for at least as long as the IAM unit has existed. Another union rep- resented the resident processing employees. The judge, attacking resident and nonresident separate representa- tion as ‘‘a severe incongruity,’’ concluded that ‘‘the processing employees at Ketchikan cannot be seg- regated by bargaining unit based on residency alone.’’ Again, the judge has focused on factors relevant to whether a previously unrepresented nonresident proc- essing employees unit would be appropriate. As stated above, we must decide whether a unit that has enjoyed a history of collective bargaining is no longer appro- priate. That the nonresident processing employees con- stitute a rather unique unit is not tantamount to a find- ing that it is no longer appropriate. Such units have a long history in the industry. Alaska Salmon Industry, 82 NLRB 1395 (1949); Alaska Salmon Industry, 61 NLRB 1508 (1945); and Alaska Packers Assn., 7 NLRB 141 (1938). The record contains no evidence that would warrant finding that this long-recognized unit is repugnant to Board policy.8 Like the employees in the IAM unit, the employees in the IBU unit continue to perform the same work and enjoy the same benefits as they did before the change in ownership. Thus, the Respondent has failed to show any significant changes from conditions in existence before the purchase. In sum, we find that the factors on which the judge relied do not overcome the significance of the bargain- ing history in the nonresident processing employees unit. Accordingly, we find that the record supports the conclusion that this unit continues to be an appropriate unit. Therefore, we conclude that the Respondent vio- lated Section 8(a)(5) and (1) by refusing to bargain with the IBU. ORDER The National Labor Relations Board orders that the Respondent, Trident Seafoods, Inc., Ketchikan and North Naknek, Alaska, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Alaska Fishermen’s Union, Seafarers International Union, AFL–CIO as the exclusive collective-bargaining representative of em- ployees in the following unit: All tendermen, beach bosses, beach gang, beach gang helper/general labor, and members of the Culinary Department classified as cooks, bakers, dishwashers, waiters and bullcooks employed at the Respondent’s North Naknek, Alaska facility, excluding office clerical employees, guards, su- pervisors as defined in the Act, and all other em- ployees. (b) Refusing to bargain with District Lodge 160, International Association of Machinists and Aerospace Workers, AFL–CIO as the exclusive collective-bar- gaining representative of employees in the following unit: All employees engaged in or about the Employ- er’s Ketchikan and Naknek, Alaska facilities per- forming work in the installation, erection and con- struction, dismantling, repair or maintenance of all machinery, mechanical and electrical equipment, except radio equipment, including but not limited to filers, weighing machines, clinchers, seamers, reformers, flangers, iron chinks, indexers, scrub- bing machines, fish elevators and fish conveyors, all refrigeration equipment, labeling and/or casing lines and all the mechanical equipment on boats, lighters, vessels, power scows, pile-drivers, pile- pullers, mooring scows, gear scows and all other floating equipment in or about the facility; the op- eration of machine tools and welding and/or burn- ing equipment in the shop; the operation of all equipment in the fire-room; the operation of all pumps; and the servicing of all jitneys or other transportation equipment and bright stacking equipment. 741 TRIDENT SEAFOODS, INC. 9 If this 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.’’ (c) Refusing to bargain with Inlandboatmen’s Union of the Pacific, Region 37, ILWU, AFL–CIO as the ex- clusive collective-bargaining representative of employ- ees in the following unit: All employees involved in the processing oper- ations at the Employer’s Ketchikan, Alaska facil- ity, including the canning, freezing, processing and handling of seafood or seafood products from the time the produce is unloaded at the facility dock through the several operations until the product is processed, labeled, packed in cartons or cases and stowed in the warehouse, truck, van or delivered to the dock or stowed aboard a vessel. This includes making cans, boxes and cartons, op- erating, feeding and cleaning, but not the installa- tion, upkeep or maintenance of machines and all other work performed by any other recognized union. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Alaska Fishermen’s Union, the Inlandboatmen’s Union, and the Machinists Union as the exclusive representatives of employees in the above-appropriate respective units concerning terms and conditions of employment and, if an under- standing is reached with any of the Unions, embody the understanding in a signed agreement. (b) Post at its facilities in North Naknek and Ketch- ikan, Alaska, and at Ewing Street, Seattle, Washington, copies of the attached notice marked ‘‘Appendix.’’9 Copies of the notice, on forms provided by the Re- gional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain with the Alaska Fishermen’s Union, Seafarers International Union, AFL–CIO as the exclusive collective-bargain- ing representative of employees in the unit of tendermen, beach gang, and culinary workers described in the collective-bargaining agreement that expired February 1, 1994. WE WILL NOT fail and refuse to bargain with Dis- trict Lodge 160, International Association of Machin- ists and Aerospace Workers, AFL–CIO as the exclu- sive collective-bargaining representative of employees in the unit of machinists and cannery operation me- chanics described in the collective-bargaining agree- ment that expired February 1, 1994. WE WILL NOT fail and refuse to bargain with Inlandboatmen’s Union of the Pacific, Region 37, ILWU, AFL–CIO as the exclusive collective-bargain- ing representative of employees in the unit of non- resident processing employees described in the collec- tive-bargaining agreement that expired April 30, 1992. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Alaska Fish- erman’s Union, the Inlandboatmen’s Union and the Machinists Union, as the exclusive representative of the employees in the above appropriate respective units, and put in writing and sign any agreement reached on terms and conditions of employment for our employees. TRIDENT SEAFOODS, INC. Daniel R. Sanders Esq., for the General Counsel. William T. Grimm (Davis, Grimm & Payne), of Seattle, Washington, for the Respondent. Ted Neima, Oakland, of California, for District Lodge 160, IAM. Lawrence Schwerin (Schwerin, Burns, Campbell & French), of Seattle, Washington, for Inlandboatmen’s Union of the Pacific, Region 37. Robert H. Gibbs (Gibbs, Houston & Pauw), of Seattle, Washington, for the Alaska Fishermen’s Union. 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These consolidated cases were heard in Seattle, Washington, on Oc- tober 7 and 8, 1993. Originating charges were filed on July 24, August 6, and September 17, 1992, by District Lodge 160, International Association of Machinists and Aerospace Workers, AFL–CIO (IAM), Inlandboatmen’s Union of the Pacific, Region 37, ILWU, AFL–CIO (IBU), and Alaska Fishermen’s Union, Seafarers International Union, AFL–CIO (AFU), respectively. After original issuance of a complaint on the IAM charge only, a consolidated complaint was issued October 30, 1992. The primary issues of this matter are whether Trident Seafoods, Inc. (Respondent) is a succes- sor employer, if so whether three historical units of employ- ees are in any instance appropriate, and if that also is so whether Respondent’s refusal to bargain with the respective Charging Parties is in violation of Section 8(a)(1) and (5) of the National Labor Relations Act. On the entire record, including my observation of the de- meanor of witnesses, and after considering briefs filed by the General Counsel, AFU, and Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent is a State of Washington corporation with of- fices and places of business in Washington and Alaska, where it is engaged in seafood processing. In the course and conduct of such business operations, Respondent has annu- ally had gross sales valued in excess of $500,000, while sell- ing and shipping goods and providing services from its fa- cilities within the State of Washington to customers outside that State, or sold and shipped goods or provided services to customers within Washington, which customers were them- selves engaged in interstate commerce by other than indirect means, all such of a total aggregate annual value in excess of $50,000. Respondent admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and, as is further admitted by Respondent, that IAM, IBU, and AFU are each, and have been at all material times, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Industry This matter arises out of the salmon canning business, as here carried out in facilities at North Naknek (Naknek) and Ketchikan, Alaska. These two points are separated by ap- proximately 750 air miles as measured across the Bay of Alaska or North Pacific Ocean. During an annual salmon run, fish are caught and loaded onto the boats of an independently operated harvesting fleet. With the boats of this fleet as a source, tender boats of sea- food processing companies purchase and load fish which are then transported to shore facilities. The shore receiving ca- pacity is such that great quantities of fish pass through dur- ing the annual run, and even more unusual surges in tender deliveries can be handled by drawing on other employees of the facility. After shore delivery and other operational steps, fish are processed through a cannery. The resultant product is palletized for volume shipment out of Alaska, mainly into Seattle, Washington, as the later principal distribution center. B. Background Until May 1992, the two facilities involved were operated by Farwest Fisheries, Inc. The canneries themselves however had been operated for many years under owners predecessor to Farwest. In May 1992, the substantially complete assets of Farwest were purchased by Respondent. This permitted Re- spondent the time to undertake preseason activity necessary to make the cannery and related facilities operational follow- ing an Alaskan winter. Respondent is itself a multifacility en- terprise of this seafood industry, and its acquisition of Farwest assets included a Seattle area location termed the Ewing Street facility. C. Pertinent Labor Contracts This consolidated complaint picks up from several histori- cal collective-bargaining relationships of the industry. At the point of asset sale Farwest was party to various labor con- tracts. The one involving IAM was a multiemployer contract, in which, however, the IAM had independent party status with Farwest because its bargaining had been coordinated with the multiemployer association but was separate and dis- tinct in nature. This resulted in a collective-bargaining agree- ment for a comprehensively described unit of machinists, cannery operation mechanics, and related occupations which was effective with Farwest from 1991 to 1994. By its terms and administration the contract covered both locations. The IBU contract at issue was a multiunion one with an employer bargaining group, covering the processing employ- ees at Ketchikan. It was understood to apply to nonresident processors, meaning those hired out of the lower 48 states without recent or current incidents of domicile in Alaska. This contract with Farwest ran from 1989 to 1992. The AFU contract was one that had been in force with Farwest in all areas of Alaska for the fish purchase, initial shore receiving employees, and stated special occupations. It was a multiemployer contract having a duration from 1991 into 1994, and while fundamentally stated to cover tend- ermen, a related appendix drew the other employees into the recognized unit. In operational terms and settled practices of the industry the collective-bargaining unit covered by this contract was basically for beach gang, culinary employees of the facility, and tendermen. The latter occupation referred to the approximate five-member crew of each tender boat that shuttled between shore and fishing fleet in the constant movement of fish during the brief summer salmon run each year. These several labor contracts also created other units of Farwest that were effective at these two facilities. When the full scope of these contracts is looked to, a complete cov- erage of other than administrative and office employees is seen in terms of cannery operations and the respectively de- scribed bargaining units. None of these further contractual re- lationships however are at issue in this proceeding, because no labor organization claims that on commencement of its own operations Respondent hired a majority of unit employ- 743 TRIDENT SEAFOODS, INC. ees from groups previously having been employed by Farwest. As preseason de-winterizing progressed newly under Re- spondent, and then converted into full-fledged cannery proc- essing of the fish run, each Charging Party made written de- mand for recognition from Respondent. These were dated June 18 and July 23 and 29, 1992, on the part of IAM, AFU, and IBU, respectively. As of the date of each respective de- mand, a majority of employees in the unit for which recogni- tion was claimed by reasonably clear description had been hired by Respondent from those having worked the previous season for Farwest, and in numerous instances at these facili- ties for some to many years still prior. For machinists at Naknek, the numbers were 12 out of 14, for the machinists at Ketchikan 12 out of 13, for nonresident processors at Ketchikan 27 out of 45, and for beach gang, culinary, and tendermen at Naknek 34 out of 64. In each case, Respondent declined to recognize the respective union for the units sought. D. Operations Respondent was successful in operating during the com- plete salmon run of 1992, and relatedly in times thereafter. At Naknek the season ran for about a month from mid-June to mid-July. A longer season existed at Ketchikan, here run- ning from about early July to early September. Respondent had continued the management structure at both locations as existing from at least the 1991 season. At Naknek the plant superintendent was carried over from his recent employment with Farwest. This individual is Jon Heins, and his cannery foreman, Jim Kilborn, was also a car- ryover from Farwest. The former Farwest plant superintend- ent hired by Respondent to start into its 1992 season at Ketchikan was Bruce Eckfeldt, and the carryover cannery foreman here was Dennis Johns. It is recognized by all par- ties that captains of the tender boats are also supervisors within the meaning of the Act. Regarding preseason preparatory activity, the pattern at both locations was for machinists, culinary workers, and a few beach gang members to constitute the initial group to re- vive equipment and facilities for the imminent season. As the time for start of a salmon season approached, this group would be progressively augmented by still more employees of the original classifications and finally even a few process- ing employees to better prepare actual cannery capability. The start of a salmon season commences with arduous ac- tivity in terms of the flow and quantity of fish received at each facility, and the long hours of work required of employ- ees during the crucial 1 to 2 months when canning could be done. Tendermen began their constant plying back and forth from the deep water fishing boats, and the beach gang worked to swiftly unload each delivery so as to maximize ef- ficiency in terms of tidal sailing and the number of loads each tender could handle. The principal technique for unload- ing fish from tenders onto the dock was a fish pump. This large, hose-like apparatus literally pumped fish out of a boat hold and into holding tanks preliminary to elevator and con- veyor transport into the hoppers of the cannery building. The fresh salmon canning process begins within hours of fish arriving. The fish passed through an iron chink machine to remove head, tail, and fins, and an egg removal operation either machine or manual depending on how the line (one of several at each location) was equipped. The fish belly is then split for gut and bloodline removal, plus certain machine brushing. There follows another major process at sliming ta- bles, where groups of processing employees perform hand clean up on the fish bodies. The fish is then sliced and di- rected to can filler machines. A hand patching operation fol- lows this, meant to assure that each can contains an equal weight of salmon. Cans are then topped off by seamer and clincher operations, and a check for vacuum seal, after which they are washed down in preparation for cooking. This next process is rigorously separated from all fresh fish activity in the interests of avoiding contamination. The salmon cooking areas at each location, Naknek being some- what smaller than Ketchikan, are operated by a qualified salmon cook with an assistant and further help as needed from processors in the loading and unloading of retorts. After a cooking sequence at prescribed temperatures, the now- canned salmon is cooled, again washed, stacked, and gen- erally prepared for shipment out as finished product. In terms of the overall operations, both plant superintend- ents and several employees testified as to their observations of, or participation in, the process. Heins and Eckfeldt each emphasized the extensive intertwining of duties as between the chief employee groups at all stages of the overall proc- ess. At the rank-and-file level Port Engineer Earl Neuser and Richard Tippie, both experienced in machinist work and both having been employed by Farwest at their respective Naknek and Ketchikan locations, testified as to their duties. Neuser works on vehicles and equipment requiring his motor and hy- draulic capability, as well as the boats used by his employer. He works from a shop sited up the hill from the actual can- nery at Naknek, but below the top of the hill where Re- spondent’s office and administrative functions are located. His preseason 6-day a week, workday of about 10 hours in- creases to 16 hours more or less as the cannery season gets underway. He does not work as an integral member of the beach gang, but does start up the fish pump and monitor its operation while running. Neuser performs no fish processing duties as such, and declared there was no significant dif- ference between his work at Farwest and that with Respond- ent. Tippie’s duties are quite comparable to Neuser’s. He termed himself a kind of deputy to the Ketchikan port engi- neer named Paul Buck, and emphasized how his work en- tailed the maintenance of power skiffs. This is a vessel used in the seining or net harvesting type of fishing. His preseason and canning run hours of work were the typical 10-hour day and approximate 16-hour day, respectively, while he denied the performance of any processing-type work. When ques- tioned about his relationship to the beach gang, Tippie de- scribed his role as working on the crane that they use at the dock and assuring that equipment needed for the tenders was in working order. Tippie denied that the advent of Respond- ent as his employer had resulted in any significant change in duties. Two other machinists also testified. Jim Weygandt had worked for three seasons at Naknek, including the first year of operations by Farwest. His work station is at the butcher- ing machine (‘‘R & G’’ or iron chink), where he maintains, sharpens, or repairs saws, chains, and brushes. He is one of the early arrivals of the machinist category for preseason work of about 2 months, and after canning gets underway is 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD assisted by counterpart chink machinist Al Perry. As to pre- season duties, his testimony was among the more detailed, in which he described starting up the heat in buildings, check- ing pipes for cracks, performing exterior plumbing work, and toward the end of this phase putting cannery machinery through trial runs. As with others, his preseason workday is about 10 hours, increasing to roughly 18 hours when canning starts. Weygandt denied doing any processing work, except to occasionally slime fish if he was ‘‘bored’’ at work. How- ever, he did signify to helping the beach gang more often by the driving of a forklift. He denied that employees of either of these other occupations ever performed his own machinist duties in return, or that his duties for Respondent had par- ticularly changed from before. Employee Richard Austin testified as the first machinist at Ketchikan, and a person who has worked the location for four seasons. He corroborated the description of duties by Weygandt, terming his work as the same sharpening and changing of saws and knives, plus maintaining chains, gears, and bearings. He also adjusts machine tolerance so as to maximize the amount of product recovered from each fish. Austin distinguished these duties from routine daily lubrica- tion of machinery, a function carried out by the processor employees. He also made the point that his job involved ac- cess to the machine shop, in which traditional metal working tools such as lathe, mill, and drill press are located. In his own 6-to 8-week stint of preseason work at Ketchikan, Aus- tin generally tears down cannery machinery and rebuilds it in a manner sufficient to survive the near-constant and heavy usage of a summer salmon run. Austin saw no change in his duties because Respondent was now operating the cannery. David Titterness, the salmon cook at Naknek, also testi- fied, and provided elaboration on the description of duties made above, as well as noting that he performs certain plumbing duties. He has worked in this occupation at the Naknek location for several seasons while Farwest was the operator, and stated that his duties remained the same with Respondent as they had been at Farwest. Titterness is cer- tified for retort operation, and works an estimated 20 hours per day. This begins with an early morning start and work through until around 3 a.m. after a night cleanup crew closes down the cooking room. He also appears for about a 2- month preseason period to carry out plumbing functions in terms of water supply and heat. During this period he esti- mates his workday at only 10 hours, but perhaps for 7 days a week. There is also a regular and recurring postseason period of activity, in which the reverse of the de-winterizing takes place and by much the same group of employees. Here, the facilities are winterized and generally closed down in a man- ner best suitable for startup in a following season. Just as a buildup of employees occurs preseason, the postseason ac- tivities are a build-down in terms of a decreasing number of individuals utilized for what there is to be done. The actual winter time months are also a period in which various activities take place in the Seattle area at the Ewing Street location. This is a shipyard and maintenance center at which boats and cannery equipment undergo maintenance work by persons seasonably employed at the canneries as machinists, beach gang members, and tendermen. In comparing operations under Respondent versus those carried out by Farwest, a number of differences were testi- fied about. At Naknek a different type of tendering took place, in that Respondent’s style was to share tenders with other shore locations, including their own adjoining one at South Naknek. An accounting change was also implemented by Respondent, whereby tender purchasing was acted on at a central Seattle office rather than the Naknek location. Heins described ‘‘new [and] upgraded’’ equipment as a change at Naknek, but when pressed for details limited this to machine inspection for vacuum seal rather than manual micrometer readings. He also testified that during the 1992 season at Naknek Respondent briefly processed fresh fish by a sequence of hand butchering, boxing, and shipping. This resulted however in only about 10,000 pounds of product out of total seasonal salmon canning of over 6 millon pounds. At Ketchikan Respondent dispensed with a ‘‘tent city’’ on company premises that had been used in past years as hous- ing by some of the Farwest employees. In its place Respond- ent outfitted and provided a housing barge, which augmented the dormitory housing that had also existed before. Eckfeldt testified to the adding of equipment at Ketchikan, and rear- ranging the production flow for greater efficiency. He speci- fied too that after the takeover Respondent discontinued cer- tain types of roe production. Respondent also experimented with the canning of frozen fish, an undertaking that created burdensome production adjustments but very little impact on cannery output. This activity at Naknek resulted in less than 1 percent of overall production, while at Ketchikan the ex- periment was discontinued after only 1 day out of the sea- son’s 40-odd days of production. As applicable to both locations, the employees hired by Respondent were required to sign an individual agreement of employment and to undergo drug testing. A point of hire physical examination was also initiated by Respondent, ap- parently first being done for the 1993 season. E. Successorship Issue The consolidated complaint alleges that Respondent has continued the employing entity of Farwest as a successor, by operating in basically unchanged form, while employing a majority of previous Farwest employees in the several assert- edly appropriate units that are also at issue. In NLRB v. Burns Security Services, 406 U.S. 272 (1972), the court found a successor status, noting the applicability of all factors such as continuation of the same types of product lines, departmental organization, employee identity, and job functions. This focus on ‘‘substantial continuity’’ was aug- mented by the opinion in Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), in which the factors to be examined were itemized as whether the business of both employers is essentially the same, whether the employees of the new com- pany are doing the same jobs in the same working conditions under the same supervisors, and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See also Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). Here the applicable factors are amply met. Even a cursory review of this record shows the business at both locations to be indistinguishable in any significant regard. Not only were the same jobs utilized from tender boat purchase through preparation for shipment of canned salmon in distribution quantities by the same customers as before, but in major re- gard the same persons were performing these functions for 745 TRIDENT SEAFOODS, INC. Respondent as had been done for Farwest and with no change in key supervision. Cannery locations, processes, and equipment were continued without appreciable change. The fleet deployment, minor equipment changes, as with a new ‘‘dud detector’’ at Naknek, accounting, hiring procedure, em- ployee housing arrangements, and the like are but insignifi- cant refinements to an overall situation in which a true con- tinuity resulted from the 1991 season into the 1992 season and beyond as a matter of business and employment reality. The tightly drawn employment agreement and Respondent’s employee handbook which were each entered into evidence have been considered, but these documents are fundamentally routine and have no effect on the question of whether any true differences have severed the substantial continuity of business activity. For these reasons, I hold that the General Counsel’s allegation of successorship status attaching to Re- spondent is adequately supported by the proofs of this case. F. Appropriateness of Units I. THE IAM UNIT The General Counsel contends as to this issue that a com- bination of both locations, one that has existed for many years, constitutes a history of bargaining that becomes the dominant factor in determining appropriateness. The General Counsel however also argues that industry practice, certain commonalties between the two locations, and the randomly marshaled machinists doing winter work at Ewing Street are significant matters to consider. Respondent’s chief contention is that the IAM unit is not the smallest appropriate one, in terms of an incomplete showing of distinct function and community of interest rel- ative to production employees. Respondent particularly cites Bellingham Cannery, 223 NLRB 915 (1976), as a case of close application, and one in which the Board declined to find machinists at a seafood processing plant to be an identi- fiable group warranting separate representation. I view the situation here as limited to whether the two lo- cations may in combination constitute an appropriate unit. The principle here is that on a showing of successor status, the new enterprise is only required to bargain with respect to an appropriate unit. Renaissance West Mental Health Cen- ter, 276 NLRB 441 (1989). With the detailed jurisdictional statement of its last con- tract as a basis for description, the IAM demand was clear as to functions claimed to be represented, and that the bar- gaining unit sought was to cover all such employees ‘‘en- gaged in or about the employer’s Ketchikan and Naknek, Alaska facilities . . . .’’ It is satisfactorily shown that the machinists at each facility perform work distinguishingly dif- ferent from other employees, and are so recognized in terms of wages and working conditions. Their hourly rate range is from $7.50 for the single apprentice up to $20 based on skill and length of service. This contrasts greatly with the wage range for processors, with whom machinists often work in close physical and operational proximity. This latter group has hourly rates running only from $5 to $11.25. The beach gang employees, with whom only specialized machinists such as Neuser work in occasional close proximity, have a wage range not all that dissimilar from processing employees of approximately $5 to $16. Machinists are also entitled to preference in regard to housing accommodations, as at Naknek where they more spaciously occupy that portion in which administrative and clerical employees also live. The key focus however is whether similarities of unique status at each location permits and requires a finding of a single combined unit as the IAM has requested. The sheer distance apart militates against this. Both locations are firmly supervised by their respective plant superintendents and can- nery foremen. There is a total absence of machinist classi- fication interchange during the near round-the-clock oper- ations of a salmon run. The two seasons are themselves not identical, meaning that machinists at Ketchikan are still in- volved in seasonal duties of the run, while those at Naknek have begun the winterizing activities. After the full off-sea- son is in calendar effect, a few machinists from each location may end up together at the Seattle winter operation, but not in a manner as supports a community-of-interest showing. While engaged at Ewing Street, the several machinists per- form a variety of maintenance tasks, and do not necessarily work for a similar duration during this off-season time. Tippie worked there the 1992–1992 winter program, but under the same supervisory duo of Buck and Johns as were in place at his regular Ketchikan job. A further instance of this off-season period is the explanation by Neuser of having worked at Ewing Street for Farwest in the 1991–1992 winter, but being employed by Respondent for their first winter sea- son of 1992–1993 at Anacortes, Washington, a facility of Re- spondent’s overall enterprise. While there he performed mis- cellaneous engine overhaul on machines, fishing equipment, and a crane, while supervised by Bob Deere, the chief ma- chinist at Respondent’s South Naknek cannery. Finally, Weygandt testified that he had not worked the winter season at all. The preponderance of factors is such that a requested bar- gaining unit of machinists at both the Naknek and Ketchikan locations is not appropriate because of the vivid lack of any appreciable community of interests between the two groups. I so hold, emphasizing first that the factor of historical rec- ognition is present, but weakened by the fact that the histori- cal unit was never certified by the Board. In doing so, I ac- cord attention to the dual contentions of the General Counsel that only an appropriate unit need be found, not a most ap- propriate one, and that a longstanding history of bargaining will not be disturbed unless clearly repugnant to the Act. While citing P. J. Dick Contracting, 290 NLRB 150 (1988), in support of the first point, I note in that case the Board considered ‘‘transfer of employees . . . among . . . other construction sites,’’ and that the unit adopted was limited to 11 contiguous counties of western Pennsylvania. This geo- graphic contrast is a strong instance of why two skilled pro- duction classifications separated both by extreme distance and normal accessibility should not be perpetuated as a bar- gaining unit of respectable appropriateness. In this sense, the General Counsel’s reliance on cases such as Marion Power Shovel Co., 230 NLRB 576 (1977), and Continental Can Co., 217 NLRB 316 (1975), is insufficient to overcome the basic infirmity of claiming such a unit. Finally, P. S. Elliott Services, 300 NLRB 1161 (1990), cited by the General Counsel on the principle of whether a unit for which a suc- cessor should recognize its bargaining obligation must ‘‘rea- sonably well [conform] to other standards of appropriate- ness,’’ illustrates a converse point that absence of common supervision over ‘‘frequent employee interchange’’ is a vital 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD factor in issues of multisite operation. This factor was also highlighted in Dezcon, Inc., 295 NLRB 109 (1989), where some but a ‘‘not overwhelming’’ amount of employee inter- change had occurred was found to be significant. II. THE IBU UNIT This issue involves the IBU’s interest in reasserting rec- ognition by Respondent for a bargaining unit of processing employees at Ketchikan, which is distinguished only by the residency characteristics of its members. In conflict with this request is the established fact that such a distinction is utterly without significance in regard to how the processing employ- ees of Respondent are hired, utilized, and phased out of em- ployment at the end of each season (or postseason activities). The General Counsel engages in some speculation as to the relative stability of the groups, their cultural incidents, and the greater likelihood that the nonresidents might have a higher rate of return or consecutive periods of employment. These factors are insufficient to overcome the significance of employees who work side by side during the long and ardu- ous hours of a salmon run canning season being viewed as without the self-evident community of interest in such a sce- nario. Volt Technical Corp., 232 NLRB 321 (1977), provides a useful analogy here. In that case employees hired out of a labor pool on a day-to-day basis by the employer’s cus- tomers are seen as a homogeneous group by skill and wages earned. The resultant analogy is to consider that if mis- cellaneous individuals appearing from a labor pool are grouped together, so too should individuals performing the same functions as others with whom they differ only as to the personal attribute of residency. It is also significant that another union represents the resident processing employees at Ketchikan. This causes a severe incongruity to the prospect that the nonresident workers should have separate representa- tion, particularly where the production processes in which they engage are so closely focused and repetitive. Cf. Davis Supermarkets v. NLRB, 2 F.3d 1162, 1171–1172 (D.C. Cir. 1993). The General Counsel has cited no authority of reason- ably recent vintage that would tend to show the Board as sympathetic to a unit of a character sought by the IBU Illus- tratively, when viewed in the eyes of the General Counsel witness Weygandt, the processing employees at his Naknek location (not at issue) were termed those ‘‘Filipinos that come up from California.’’ I believe that proofs bearing on this issue are such that the processing employees at Ketch- ikan cannot be segregated by bargaining unit based on resi- dency alone. I therefore hold the IBU request as relating to a not appropriate unit. III. THE AFU UNIT Here, the beach gang, culinary, and tendermen have also enjoyed historical, noncertified recognition by Farwest and its predecessors for over 20 years. Of this group the most unconnected to shore operations is the tendermen. They have little or no involvement with machinists, and none of signifi- cance with processors. Even the machinists who perform work which benefits and supports the tendermen function, does not ordinarily involve close interplay between the occu- pations. The beach gang is a group having different charac- teristics. They interrelate during the fish unloading process with the port engineer, and even some processor employees as necessary. Most of their work however is the initial shore and outdoor function of moving fish to or at the verge of the cannery building for handling in that interior space. There is little evidence regarding the culinary employees, except to note that they are necessarily early preseason arrivals to sup- port the necessary employee feeding at remote locales, and have a settled tradition of inclusion within this unit. Re- spondent did not call witnesses from any classification of this group to aid in meeting its burden of proof that the histori- cally recognized unit was not an appropriate one. As AFU has persuasively contended, the skills of machin- ists and basically unskilled nature of processor work distin- guishes both of these classifications from the beach gang. As to comparability, the tendermen are paid on a daily rate basis, fundamentally therefore different from other hourly employees. Hours of work by the beach gang are dictated not by repetitive production processes, but by the happenstance nature of tender arrivals, complicated still further by impact of the daily tides. As to the key aspect of medical benefits, Eckfeldt testified that for beach gang and tendermen their benefits were uniquely ‘‘designated by management.’’ Respondent does, however, advance several contentions in resisting a finding that the claimed AFU unit is appropriate. I first of all distinguish its reliance on Joint Employers at the Port, 175 NLRB 502 (1969). There is no showing that the supervisory authority recited in that case for occupations of first mates, chief engineers, and pilots is at all present here. Respondent also asserts that a considerable amount of cross- assistance is rendered the beach gang by both mechanics and processors. This assertion, however, is based largely on the thrust of testimony by Heins. I discount Heins’ testimony, in the nature of a credibility assessment, because he manifested as overstating the true operational facts and susceptible to both prompting of his answers and indirectness. I note par- ticularly that he termed certain claimed beach gang work of Joe Berens was utilized as he ‘‘flipped back and forth’’ be- tween his machinist classification and duties traditionally viewed as those of a beach gang member. Such imprecise description does little to counteract the more credible evi- dence that interrelating of this kind is for the most part infre- quent. I acknowledge that the record made as to exact cir- cumstances off preseason activity at Naknek is sparse on this issue, but consider that preseason activity should not in the last analysis be of great weight in contrast to what is done after the season begins. Finally, I am not convinced other- wise by Respondent’s observation that the General Counsel called no beach gang member as a witness, for the burden of proof impressed on Respondent here was not sufficiently met from its reliance on Heins’ suspect testimony alone. I believe the historical bargaining unit of AFU, as plainly enough described in its request for recognition, constitutes an appropriate unit under the Act, and the allegation of Re- spondent having unlawfully failed and refused to recognize this union is supported by credible proofs of the case. CONCLUSIONS OF LAW 1. Trident Seafoods, Inc. is an employer within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. The IAM, IBU, and AFU are each a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to bargain collectively with the AFU as exclusive collective-bargaining representative of em- 747 TRIDENT SEAFOODS, INC. ployees in the tendermen, beach gang and culinary unit, Re- spondent has violated Section 8(a)(1) and (5) of the Act. 4. Respondent has not violated the Act in any other re- spect. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I shall therefore order it to bargain with the AFU, on request, as exclusive collective- bargaining representative of employees in the tendermen, beach gang, and culinary unit concerning terms and condi- tions of employment, and, if an understanding is reached, embody that understanding in a signed agreement. I shall also order Respondent to post an appropriate notice to em- ployees. [Recommended Order omitted from publication.]