Aquacultural Research Corp.

National Labor Relations Board - Board Decisions

Nov 21, 1974

215 N.L.R.B. 1 (N.L.R.B. 1974)

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.]