Bayside Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1975

216 N.L.R.B. 502 (N.L.R.B. 1975)

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.