NLRB v. Strain Poultry Farms, Inc.

• Citation: 405 F.2d 1025
• Decision Date: 03 January 1969
• Docket Number: No. 25692.,25692.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STRAIN POULTRY FARMS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

405 F.2d 1025 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STRAIN POULTRY FARMS, INC., Respondent.

No. 25692.

United States Court of Appeals Fifth Circuit.

January 3, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Morton Namrow, Atty., NLRB, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Glen M. Bendixsen, Atty., National Labor Relations Board, for petitioner.

Warner S. Currie, Swift, Currie, McGhee & Hiers, Atlanta, Ga., for respondent.

Thomas T. Purdom, Decatur, Ga., William B. Spann, Jr., Atlanta, Ga., amici curiae.

Before JOHN R. BROWN, Chief Judge, TUTTLE, Circuit Judge, and FISHER, District Judge.

TUTTLE, Circuit Judge:

The NLRB is here petitioning for enforcement of its order requiring the respondent to cease and desist from unfair labor practices found, and from in any other manner interfering with the employee's rights as granted by the NLRA. Further, the order requires respondent to reinstate and make whole an employee found to be discriminatorily discharged, to bargain with the union and to post notices.

The respondent, Strain Poultry Farms, Inc., ("Strain"), admits there is substantial evidence in the record to support the Board's findings relative to the unfair labor practices charged. However, it asserts that the Board had no power to act because the employees concerned were agricultural laborers and hence exempt from the NLRA.

The Southeastern Poultry and Egg Association has filed a brief as amicus curiae arguing substantially the same position as the respondent.

A reading of the record shows that there is substantial evidence to support all the Board's findings, and its order relative to the unfair labor practices. Therefore, we have only the single issue, which, briefly stated follows:

Respondent's chickens are raised to market size by independent growers who supply the henhouses and who feed, water and generally look after the birds. Respondent supplies the birds and retains ownership of them. It also supplies the feed and medicine and its employees provide specialized services such as debeaking and vaccinations. In light of these facts, are respondent's truck-drivers, who haul the chickens to market, "agricultural employees" within the meaning of 29 U.S.C.A. § 203(f) which defines agriculture to include the raising of poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such poultry raising including delivery to market?

The facts are not in dispute. The respondent is a poultry farm operation which has hatching and growing facilities in Dalton and Acworth, Georgia. It is engaged in the production and marketing of broiler and fryer poultry which it raises and then sells to processers. It has two hatcheries, the principal one at Dalton and a smaller one at Acworth. The small hatchery hatches the pure line chicks, which produce the males and females that become the parents of the broilers. As only part of these chicks grade out well enough to be breeders, some are sold for food consumption. The principal hatchery at Dalton produces the baby chicks that subsequently grow to broiler or fryer size. The corporation has its own farm on which a portion of these chicks are raised to maturity. It hires independent contract haulers to deliver these birds to the processing plants. In addition, some of these baby chicks are hauled to other farms, not owned by the respondent, where they are raised to market age. By dispersing the chicks in this manner, protection against disease is achieved. This is a practice generally followed in the poultry business in the Southeast.

Respondent is organized into three divisions. First, the egg producing division is to produce an egg supply for the hatchery and the replacement birds needed to insure the flow of eggs. That is, this division produces the eggs which become both broilers and laying hens. Chicks selected for the laying operations are grown by a separate group of farmers under the control of this division. These farmers are "separate" as opposed to the growers who raise the chicks which become the broilers. This division employs three or four "coop" truck drivers who haul the poultry between farms and when not engaged in this activity also haul "salvage" poultry to market, i. e., to the respondent's processing plant customer. These drivers are not those whose coverage or exemption is in question.

The seventeen drivers in question are employed in the broiler division, described more fully below. The broiler division drivers are engaged fulltime in hauling to market, while the egg production division drivers do this only on a part-time basis. It appears that the drivers in these divisions use similar equipment and when the egg production division drivers are hauling birds to market perform basically the same job. They are sometimes used as replacements for the broiler division drivers. However, the broiler division drivers do not haul the birds from grower to grower.

Respondent's second division is the hatchery division. It receives the eggs from egg production, hatches them, and delivers the chicks to the broiler grower. This division also employs truck drivers, who, using smaller trucks, transport the eggs from the egg producer's farms to the hatchery and the small chicks from the hatchery to broiler growers. These drivers are also not involved in this case.

As stated above, the third division is the broiler division which has the responsibility of growing broilers from day-old chicks to market age. As indicated, this growing is done mainly by farmers under contract with the respondent. It is here that the seventeen drivers involved in this appeal are employed. They are employed in Dalton and Acworth, the Dalton group being somewhat larger. The drivers may work at either location, depending on the scheduling needs of the respondent. These drivers operate large expensive "coop" trucks. They proceed as directed to the growers' farms where the birds are loaded on the truck. The actual catching of the birds and carrying them to the truck are done by contractors who are paid by respondent on the basis of a given price per thousand birds caught. The driver is responsible for making sure that the birds are properly placed in the coop on the truck by these "catchers." The coops apparently are removed from the truck a few at a time and placed on the ground near the trucks. The "catcher" places the birds in the coop and then, under the direction of the driver, the coop is placed on the truck. From here, the trucks are driven to the respondent's customers — processing plants — in Atlanta and Macon. While performing their duties, the drivers in the broiler division work independently without direct supervision. The drivers have no responsibility for repair and maintenance of the trucks.

The independent farmers feed the birds food purchased by and delivered to them by the respondent. The grower provides the facilities for growing the birds, feeds, waters and in general takes care of them until they are ready for market. The respondent has employees (not the truck drivers in question) who go from farm to farm to provide such services as debeaking and vaccinating. The risk of market loss remains at all times with the respondent. The independent growers are paid a minimum guarantee per pound with increased compensation if they exceed the minimum standards.

The NLRA provides that "the term `employee' * * * shall not include any individual employed as an agricultural laborer." 29 U.S.C.A. § 152(3). Since 1946, Congress has added a rider to the NLRB's appropriation bill providing that no part of the appropriation shall be used in connection with bargaining units composed of "agricultural laborers" as defined in section 3(f) of the FLSA (Fair Labor Standards Act). "Agriculture" is there defined to include:

Farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. 29 U.S.C. § 203(f).

Early cases interpreting Section 3(f) presented the issue of whether the agricultural exemption was to include organizations which, though differing greatly from the traditional family farm, nevertheless produced agricultural products. The answer was "generally yes." Even though the organization employed hundreds of people, and contained its own transportation, maintenance and processing facilities, it still was a farm. Yet, not everything which aids in the eventual marketing of agricultural products is included within the exemption. The difficulty is where to draw the line. As stated by the Supreme Court:

"Both in the employments which the Fair Labor Standards Act covers and in the exemptions it makes the Congress has cast upon the courts the duty of making distinctions that often are bound to be so nice as to appear arbitrary in relation to each other. A specific situation, like that presented in this case, presents a problem for construction which may with nearly equal reason be resolved one way rather than another." Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 770, 69 S.Ct. 1274, 1282, 93 L.Ed. 1672 (1949).

It seems clear that under Section 3(f) if a farmer raises his own birds to market age on his own farm and then hauls them to the processing plant, the employees who do the hauling would be "agricultural employees". On the other hand, if the employees concerned work for a...