Valmac Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1976

225 N.L.R.B. 1296 (N.L.R.B. 1976)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valmac Industries , Inc. and Food Handlers Local 425,
Amalgamated Meat Cutters and Butcher Workmen
of North America , AFL-CIO. Case 26-UC-49
September 14, 1976
DECISION ON REVIEW AND ORDER
CLARIFYING UNIT
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On January 12 and 26, 1976, the Petitioner, which
currently represents a unit of employees at the
Employer's poultry processing plant in Russellville,
Arkansas, filed a petition and an amended petition,
pursuant to Section 9(b) of the National Labor Rela-
tions Act, as amended, requesting clarification of the
unit. The Regional Director for Region 26 made an
administrative investigation of the petition and, on
January 29, 1976, issued a Decision and Order dis-
missing the petition on the ground that the alleged
matter is outside the scope of a unit clarification pro-
ceeding. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Petitioner
timely filed a request for review and the Employer
filed a statement in opposition thereto.
The National Labor Relations Board, by tele-
graphic order dated March 16, 1976, granted the re-
quest for review and remanded the case to the Re-
gional Director for further processing to resolve the
substantive issues raised by the petition. Pursuant to
notice, a hearing was conducted on April 5 and 6,
1976, before Hearing Officer Robert K. Gentry at
Little Rock, Arkansas. Both parties appeared and
participated at the hearing. On April 27, 1976, the
Regional Director transferred the case to the Board
for decision. Thereafter, both parties filed briefs, in-
cluding a reply brief by the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the Hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization within the
meaning of the Act and claims to represent certain
employees of the Employer.
3. The Petitioner currently represents a unit of
employees which the petition describes as including
"all employees of Valmac Industries, Inc., employed
by it at its poultry processing plant located at Rus-
sellville, Arkansas." Petitioner seeks to clarify the
unit to include the following classifications: "All
boxmakers, tank washers, grinder feeders, scalers,
neck skin pullers, neck skinners, fork lift drivers, san-
itation employees, freezermen and bagging offal han-
dlers employed by Poultry Foods Industries, Inc., at
its Russellville, Arkansas, plant." The Petitioner con-
tends that, although the Employer has therefore rec-
ognized the Petitioner as the collective-bargaining
representative of these employees as part of the pres-
ent bargaining unit, the Employer has consistently
since February 1975 refused to continue such recog-
nition and honor the current bargaining agreement
with reference to them. Hence, the Petitioner re-
quests the Board to formally clarify the unit so as to
include them.
The Employer concedes that under the collective-
bargaining agreement, which preceded the current
one, it had recognized the Petitioner as the collective-
bargaining representative for all the requested em-
ployees. It contends, however, that during negotia-
tions for the current contract the parties changed the
recognition clause from "all employees at the Com-
pany facility in Russellville, Arkansas" to "all em-
ployees in its Poultry Processing Plant located at
Russellville, Arkansas." Thus, the Employer con-
tends that the employees employed by Poultry Foods
Industries, Inc., were effectively bargained out of the
unit. We disagree.
In order to properly evaluate the instant request, a
brief description of the events leading up to the re-
quest is in order.
Since 1958, the Petitioner has been party to several
successive collective-bargaining agreements with
Valmac Industries, Inc. (Valmac), and its predeces-
sors. In late 1969 or 1970, Valmac's predecessor, Ar-
kansas Valley Industries, Inc. (AVI), established a
new department, called the Paoli department. It un-
dertook this operation as a joint venture with Poultry
Foods, Inc., of California (PFC). The new operation
was designed to save edible parts of poultry for hu-
man consumption and to prepare the remainder as
pet food. Several unit employees of AVI were as-
signed to work in the new Paoli department but no
new job classifications were established for them.
The new department was located in the same build-
ing as the other AVI poultry processes. It is conceded
that the AVI employees who worked in the Paoli de-
partment were deemed to be included in the bargain-
ing unit covered by the then existing contract be-
tween Petitioner and AVI.
225 NLRB No. 191
VALMAC INDUSTRIES, INC
In May 1970, AVI and Valmac merged and Val-
mac became the surviving corporation. Valmac and
PFC continued the point venture including the appli-
cation of the labor contract to the Paoli department
employees. Subsequently, Valmac itself entered into
a collective-bargaining contract with Petitioner for
the same unit. The parties continued to apply the
terms of this contract to the Paoli department em-
ployees.
In February 1971, Poultry Foods Industries, Inc.,
of Arkansas (PFIA), was organized to take over the
point venture operation of the Paoli department. The
stock in PFIA is owned equally by Valmac and PFC.
The officers of PFIA and its board of directors are
divided equally between officers, directors, and man-
agement employees of Valmac and PFC. Thus, Val-
mac and PFIA established interlocking officers and
board of directors. Valmac and PFIA thereafter en-
tered into an agreement setting forth the terms of
their relationship with respect to the operation of
PFIA. The agreement provides in pertinent part as
follows:
1 ... POULTRY [PFIA] will engage in the
business of deboning poultry parts, fabricating
foods for human and animal consumption, and
processing certain condemned poultry products
for animal consumption. These operations will
take place in both Russellville and Fort Smith,
Arkansas.
5. It is contemplated that Valmac will supply
services to [PFIA]. Poultry [PFIA] will reim-
burse Valmac for all wages paid by Valmac to
its employees for services performed in behalf of
Poultry [PFIA], plus an appropriate additional
sum representative of payroll taxes and other
payroll-related expenses. It is presently con-
templated that Valmac will furnish all employ-
ees at the Fort Smith and Russellville opera-
tions.
The agreement also provides, inter alta, that Val-
mac would construct and lease to PFIA a cooler
building for the Russellville operation and would sell
to PFIA all of its condemned birds, chicken bones,
and surplus supply of backs and necks at fair market
value.
It is conceded that following the establishment of
PFIA, Valmac, PFIA, and Petitioner all treated the
employees who worked for PFIA as being covered
by the labor agreement executed by Valmac and Pe-
titioner. In 1974 Valmac claims that it sought to alter
this situation.
During the 1974 negotiations, Valmac proposed a
recognition clause which would limit its recognition
of Petitioner to "all employees in its Poultry Pro-
1297
cessing Plant located at Russellville, Arkansas." Val-
mac contends that, as PFIA is not specifically en-
gaged in "poultry processing" at Russellville, the col-
lective-bargaining agreement does not apply to what
Valmac considers to be PFIA employees. Petitioner
contends that when it agreed to the new recognition
clause it did not thereby intend to exclude the em-
ployees working at PFIA from the bargaining unit
because it considered them to be employees of Val-
mac. The record indicates that neither party specifi-
cally discussed the inclusion or exclusion of the
PFIA job classifications. PFIA did not take part in
the negotiations and is not a party to the agreement.
By letter dated February 5, 1975, Petitioner's presi-
dent, Jerry McGee, sent a list of the 1975 elected
stewards to Plant Manager Bruce Jones. The list in-
cluded the name of Walter Tucker and designated
him as the department steward for "Poultry Foods
[PFIA]." By letter dated February 25, 1975, C. E.
Dunaway, industrial relations director for Valmac,
inquired as to why a steward for Poultry Foods
[PFIA] had been included on the list. The letter con-
tinued:
That operation is separate and apart from our
operation, is actually owned. by another corpo-
ration that buys product (sic) from us, and to my
knowledge has never been certified as a bargain-
ing unit nor recognized by us as a bargaining
unit....
Until such time as you can provide us with some
answers to the question posed above, we will
continue to deal directly with those employees
and will not recognize the steward as set forth in
your letter.
Thereafter, Petitioner filed a grievance and, upon
receiving no response, attempted to arbitrate the
matter. Valmac has not acceded to Petitioner's re-
quest to arbitrate. Petitioner then filed the present
petitions for clarification of the unit.
The first question to be decided is whether Valmac
and PFIA constitute a single employer We believe
that they do. Valmac owns half of the PFIA stock
and both corporations have interlocking officers and
boards of directors. As noted, after PFIA was orga-
nized the existing labor contract between Valmac
and Petitioner continued to be applied to PFIA em-
ployees. Accordingly, Valmac deducted their union
dues and made health and welfare contributions on
their behalf. Moreover, Valmac agreed to supply
PFIA with all the labor necessary for the PFIA oper-
ation subject to PFIA's reimbursement for the costs
of such labor. When Valmac and Petitioner executed
their next labor contract, effective from July 1, 1971,
to June 29, 1974, they continued to apply it to the
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valmac employees working at PFIA, including the
common seniority roster and contract-bid procedure,
dues checkoff, and health, welfare, and pension fund
contributions. Also, to the extent that the employees
at Valmac and at PFIA combine their efforts to con-
vey produce from Valmac's to PFIA's part of the
plant for processing, there is product and functional
integration. We therefore conclude and find that Val-
mac and PFIA are a single employer.
The second question is whether the Paoli depart-
ment constitutes an accretion to the Valmac bargain-
ing unit. We find that it does. The evidence shows
that from the time of the establishment of the Paoli
department in 1969 or 1970, to 1975, the employees
in that department, now PFIA, have been considered
part of the Valmac unit by both the Petitioner and
the Employer and have been bargained for as such.
They have therefore long since been accreted to the
Valmac unit by the practice of the parties. The
change in the recognition clause of the current col-
lective-bargaining contract was not intended to undo
the effect of the prior bargaining history. The evi-
dence is uncontradicted that the removal of PFIA
employees from the coverage of the current collec-
tive-bargaining contract was not discussed at any
time during the negotiations leading to that agree-
ment and the Petitioner did not understand that the
change in language of the recognition clause was in-
tended to have that effect. Accordingly, we find that
the PFIA employees are part of the unit of Valmac
employees for which the Petitioner is the bargaining
representative and we shall clarify the unit to so
state.
ORDER
It is hereby ordered that the unit of employees of
Valmac Industries, Inc., Russellville, Arkansas, for
which Food Handlers Local 425, Amalgamated
Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, is the collective-bargaining represen-
tative, be, and it hereby is, clarified to include therein
the following employees of Poultry Foods Industries,
Inc., at its Russellville, Arkansas, plant:
All boxmakers, tank washers, grinder feeders,
scalers, neck skin pullers, neck skinners, fork lift
drivers, sanitation employees, freezermen and
bagging offal handlers.