Strain Poultry Farms, Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1966

160 N.L.R.B. 236 (N.L.R.B. 1966)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the multiemployer unit and also the importance of periodic changes
in the number of companies participating in the joint negotiations.
In 1965, Nakat, due to personal differences with Sharpe withdrew
his authority to represent it, although it subsequently signed an
agreement identical to the one he had negotiated for other members
of the unit.h1 However, Nakat was among the companies which
authorized Hirstel in December of 1965, and January 1966, to repre-
sent it. It is evident that, even if Nakat, had withdrawn from asso-
ciationwide bargaining, it rejoined before these petitions were filed,
and has again undertaken the obligations of multiemployer bargain-
ing in 1966 without objection by any of the parties.12
Nor does the fact that there were occasional changes in the employer
group negotiating with the resident cannery workers require us to
conclude that our finding of a multiemployer unit is inappropriate.13
In fact, however, the membership appears to have been fairly con-
stant over the years, except to the extent an employer member did
not operate for a season or in an isolated instance like Nakat's. There-
fore, such changes as occurred in the composition of the multiem-
ployer unit, came about because of periodic changes in business
conditions and without objection by any of the parties engaging in
bargaining negotiations. In these circumstances, we conclude that a
readily definable multiemployer bargaining unit has been established
over the years.
Accordingly, we find that single-employer units of the employees
of Nakat, Neico-Fldalgo, and Ward's Cove are not appropriate and
we shall dismiss the petitions herein.
[The Board dismissed the petitions.]
-'Footnote 4, supra.
12 Cf Thos . De La Rue, hac, 151 NLRB 234.
13 Quality Loinestoue Products, Inc., supra
Strain Poultry Farms , Inc.' and International Union of District
50, United Mine Workers of America, Petitioner . Case 10-RC-
6652. July 26,1966
DECISION AND DIRECTION OF ELECTION
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 P. Harper. The Hearing Officer's rulings made at the
1 The Employer 's name appears as amended at the hearing.
160 NLRB No. 22,
STRAIN POULTRY FARMS, INC. 237
hearing are free from prejudicial error and are hereby affirmed. The
Employer filed a brief in support of its position.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Employer moved to dismiss the petition on the ground that
the "coop" truckdrivers whom the Petitioner seeks to represent are
"agricultural laborers" and therefore specifically excluded from the
definition of "employee" in Section 2(3) of the Act.
The Employer, a Georgia corporation with its principal office and
hatchery in Dalton, Georgia, is engaged in the production and sale
of poultry products. The Employer owns a number of poultry farms
and operates a hatchery where eggs are incubated and hatched. The
chicks are then transported by the Employer to its farms and to
independent farmers who raise the chickens to marketable size. The
farmers are paid on a per pound basis for their work, but at all times
the chickens are owned by the Employer who supplies all feed and
transportation and has employees who visit the farms to vaccinate
and debeak the chickens. When the chickens are ready for market,
between 16 and 18 "coop" truckdrivers haul coops from the Employ-
er's Dalton and Acworth, Georgia, operations to the independent
farms where contract loaders fill the coops and load the trucks with
-the cooped chickens.
Section 2(3) of the Act excludes agricultural laborers from the
definition of employees covered by the, Act. Annually, since 1946,
Congress has added a rider to the Board's appropriation bill provid-
ing that no part of the appropriation shall be "used in connection
with . . . bargaining units composed of agricultural laborers ... "
as set forth in Section 3(f) of the Fair Labor Standards Act. That
:section defines agriculture as follows:
"Agriculture" includes farming in all its branches and includes
... the raising of ... poultry, and practices ... performed by
a farmer or on a farm as an incident to, or in conjunction with,
such farming operations, . . .
The Board has held, with court approval, that a truckdriver is an
-agricultural laborer to the extent he is engaged in regularly hauling
farm produce from his employer's own farm, but not an agricultural
laborer to the extent he regularly hauls the produce for his employer
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from an independent grower's farm.' As indicated in the Norton d
McEZroy Produce 9 case :
... where a driver engages in hauling, itself a nonfarming task,
for an employer who himself grows and cultivates the produce
hauled, then the hauling is incidental to or in conjunction with
such farming operations, but where a driver hauls for an
employer engaged in shipping and selling, nonfarming opera-
tions, his work is incidental to those operations. . . . If his
employer ships from his own farms, but also from other grower's
farms, the driver is not an agricultural laborer to the extent he
regularly hauls from the independent grower's farms. Even
where the shipper engages in some incidental farm practices on
a grower's farm, [or has invested in or owns a share in the farm-
ing operation] his drivers would not thereby be converted into
employees engaged in work incidental to or in conjunction with
these farm operations rather than to the employer's primary
operation, shipping and marketing.
The coop drivers in the instant case are engaged in hauling coops
to independent farms and chickens from independent farms to mar-
ket. We, therefore, find they are not agricultural laborers but are
employees within the meaning of Section 2(3) of the Act, and the
Employer's motion to dismiss the petition is accordingly denied.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Sections 9(c) (1) and 2(6) and (7) of the Act.
4. We find that all coop truckdrivers employed by the Employer
out of its Dalton and Acworth, Georgia, operations excluding all
office clerical employees, watchmen, guards, and supervisors as defined
in the Act, constitute an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.4
[Text of Direction of Election omitted from publication.] 5
2 N.L.R B. v. Olaa Sugar Company, Ltd., et al., 242 F 2d 714 remanding 114 NLRB 070,
Sup. Decision and Order 118 NLRB 1442. Accord Farmers Reservoir & Irrigation Co v
McComb, 337 U.S. 755; Samuel B. Gass ; Lipman Bros . Inc., 154 NLRB 728.
8 No, ton & McElroy Produce, Inc , 133 NLRB 104, 107
* The parties requested the Board to determine the unit placement of four of the Em-
ployer ' s employees who drive pick-up trucks . These drivers engage in some coop driving,
but their principal function is to haul eggs from egg producing farms to the Employer's
hatchery , and chicks from the hatchery to the independent farms. As the record does not
disclose whether the four pick-up truckdrivers regularly spend time driving the coop trucks,
we shall permit them to vote subject to challenge . Waldo Rohnert Company, 120 NLRB 152,
154 at footnote 8.
6 An election eligibility list, containing the names and addresses of all the eligible
voters, must be filed by the Employer with the Regional Director for Region 10 within
7 days after the date of this Decision and Direction of Election . The Regional Director
shall make the list available to all parties to the election. No extension of time to file
this list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear, Inc., 156 NLRB 1236.