National Labor Relations Board v. Tovrea Packing Co., 9254.

• Decision Date: 20 June 1940
• Docket Number: No. 9254.,9254.
• Citation: 111 F.2d 626
• Parties: NATIONAL LABOR RELATIONS BOARD v. TOVREA PACKING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F.2d 626 (1940)

NATIONAL LABOR RELATIONS BOARD v. TOVREA PACKING CO.

No. 9254.

Circuit Court of Appeals, Ninth Circuit.

April 30, 1940.

Rehearing Denied June 20, 1940.

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 respondent.

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 order¹ 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, process 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 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 a 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 plant are maintained as an incident to and not independent of the operation of the packing plant; (b) The nature of the work alone does not determine the status of workers under the provisions of the Act. We are not called upon to determine the status of the employees on the ranches but we do not hesitate to say that while the grinding of the feed and the actual feeding on the ranches may be quite similar to such work done adjacent to the packing plant, divergent circumstances may well throw the employees of the ranches without and those of the packing plant within the terms of the Act.

Labor on a cattle ranch is as agricultural in nature as labor on a wheat growing farm. 3 Corpus Juris Secundum, Agriculture, § 1, pp. 365, 366. But here we do not have stock raising or feeding as an incident to a stock ranch, nor do we have stock feeding or conditioning as a separate activity, but we do have stock ready for conditioning and fattening confined in relatively small corrals and fed intensively for short spaces of time as an incident to a meat slaughtering and packing industrial enterprise. The elements of agricultural labor as distinguished from non-agricultural labor, seems entirely lacking. See North Whittier Heights Citrus Ass'n v. National Labor Relations Board, 9 Cir., 109 F.2d 76 (Jan. 12, 1940), and cited authority. We see no effective relation between the packing plant with its adjacent mill and pens and Respondent's ranches. We hold that none of the laborers therein are agricultural laborers and that all are within the purview of the Act.

The Board found that nine of such employees had been discriminatorily discharged because of their membership in and activity in the interests of a union and that Respondent has engaged in unfair labor practices as defined by § 8(1), (2) and (3) and that said unfair labor practices are unfair labor practices affecting commerce within the meaning of § 2(6) and (7) of the Act.

Briefly the supporting evidence is as follows:

Relevant events date back to October, 1937, when strong hints of dissatisfaction among the feeding pen and mill employees reached the foreman, Walter Le Barron. Le Barron sought information from an employee, B. B. Henry, and learned that the men wanted a raise in wages. B. B. Henry at Le Barron's suggestion arranged for a committee of three employees, Le Barron, B. B. Henry, and Cline, to confer with the plant's general manager, who was also president. For some reason the conference was never held. B. B. Henry testified that shortly after the appointment of the committee he got from Cline that Le Barron thought it would be all right to ask for a little more money for those who handled the teams and the cattle. B. B. Henry according to his testimony disapproved of this to Cline and instead suggested a raise of ten cents an hour for all the employees in the feed lots. The next day Cline told B. B. Henry that he was quitting the committee; that there was "a report up in the office that we were going to have a strike down there, and if we went up we would all get canned". Shortly afterward Le Barron laid B. B. Henry off because he had "too many slick mangers" — he was not giving the cattle enough feed. When B. B. Henry denied the charge Le Barron said, "I'm on the spot. I can't talk." A week or so later the hiring foreman told B. B. Henry that a lot of men lost their jobs because of union activity. B. B. Henry had been in the Respondent's employ for over a year and there was no evidence of any former complaints against him. It cannot be said that this evidence is not substantial in support of the Board's conclusion that B. B. Henry's discharge was discriminatory because of his membership on a committee of employees whose purpose was to induce the payment of higher wages.

An organized Union of some of the employees held its first meeting November 26, 1937, which was followed by another three days later,...