Trident Seafoods, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 738 (N.L.R.B. 1995)

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
739TRIDENT 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.
741TRIDENT 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-
743TRIDENT 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
745TRIDENT 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-
747TRIDENT 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.]