111 F.2d 626 (9th Cir. 1940), 9254, N.L.R.B. v. Tovrea Packing Co.

Docket Nº:9254.
Citation:111 F.2d 626
Case Date:April 30, 1940
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 626

111 F.2d 626 (9th Cir. 1940)




No. 9254.

United States Court of Appeals, Ninth Circuit.

April 30, 1940

Rehearing Denied June 20, 1940.

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Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Bertram Edises, Samuel Edes, and Ramey Donovan, Attys., National Labor Relations Board, all of Washington, D.C., for petitioner.

William A. Evans and Denison Kitchel, both of Phoenix, Ariz., for petitioner.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

The National Labor Relations Board, acting under authority of the National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 151, et seq., 29 U.S.C.A.§ 151 et seq.), herein referred to as the Act, is here petitioning for an order of enforcement of its order (Sec. 10(e) Act) against Tovrea Packing Company, an Arizona corporation, herein referred to as Respondent. The Tovrea Employees' Association appears as intervenor.

Following conventional procedure, the Board found the Respondent company guilty of unfair labor practices (Sec. 8(1)(2)(3) Act) and issued its order 1 to cease and desist certain practices and to reinstate nine discharged workmen with back pay under facts which may be briefly stated as follows:

Respondent is engaged in the general meat packing business. It purchases, feeds, slaughters, processes and markets livestock. A large percentage of such stock and essential materials used in the business are shipped in interstate commerce. Respondent operates and maintains feeding

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pens, retaining pens, and a feed mill adjacent to its packing plant. The cattle at the feeding pens are fed chopped hay, higera ensilage, cotton seed meal, cotton seed hulls, barley, and molasses in varying quantities. This feed is mixed by hand and distributed by men employed as cattle feeders. The cattle fattened in the feeding pens are moved from one section of the feeding pens to another section thereof until they reach the retaining pens and are then ready for the killing floor in the plant. At the time of the hearing the Respondent had approximately 10,000 head of cattle in the plant pens. The major portion of such fattened stock is slaughtered and processed in Respondent's adjacent packing plant while substantial portion is shipped to market on the hoof. There is one general manager over the affairs of this packing plant and the mill and feeding pens. Respondent is not only in the business just described but operates four cattle feeding ranches. The ranch known as Topaco No. 2 was taken at the hearing before the Board as typical, and its manager testified that it 'consists of 640 acres divided up into various fields, and in the southeast corner it contains three feed lots sections comprising about 35 acres in all * * * . We raise general agricultural crops such as hay, alfalfa hay, grain hay, higera, and sometimes sedan grass for hay and pasture * * * '. A large portion of the cattle food consumed on each one of the ranches is grown thereon or in its vicinity. While some stock is moved from ranch to packing plant, most of the stock fattened on the ranches is not marketed in any way through the packing plant and most of the stock fattened in the feeding pens adjacent to the packing plant comes to it from sources other than the ranches to which reference has been made. As stated in Respondent's brief, 'There are no transfers of employees between the feed lots and the plant and there are no duties common to employees in the two operations'.

The nine employees whose reinstatement has been ordered were working in the mill and feeding pens at the time of their discharge, and Respondent claims that their work was agricultural in character and that according to the terms of the Act (sec. 2(3)) the Board's order could not properly apply to them. The viewpoint of Respondent is, that the adjacent mill and feeding pens are operated separately and practically independently of the packing plant, and that the work performed is practically the same as that done on Respondent's stock feeding ranches, which of course is agricultural work. That, so runs the argument, since the status of the employee 'depends entirely on the nature of the work which he is employed to perform', it follows that the mill and feeding pen employees occupy the status of agricultural employees.

The difficulty with Respondent's position is: (a) The feed mill and feeding pens adjacent to the packing...

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