McElrath Poultry Company, Inc. v. National Labor Relations Board
Decision Date | 23 May 1974 |
Docket Number | No. 73-3430 Summary Calendar.,73-3430 Summary Calendar. |
Citation | 494 F.2d 518 |
Parties | McELRATH POULTRY COMPANY, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
Court | U.S. Court of Appeals — Fifth Circuit |
J. Roy Weathersby, William B. Paul, Atlanta, Ga., for petitioner.
Elliott Moore, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Reg. Director, N. L. R. B., Region 10, Atlanta, Ga., for respondent.
Before WISDOM, GOLDBERG and GEE, Circuit Judges.
In this enforcement proceeding, with cross-petition for review, the NLRB acknowledges ". . . that disposition of the jurisdictional issue in the present case is controlled by this Court's decision in Abbott Farms, Inc. v. N. L. R. B., 487 F.2d 904 (1973), in which, on similar facts, this Court found that the Board's bargaining order was not entitled to enforcement because the employees in the certified unit were agricultural laborers."1
It nevertheless ". . . adheres to its position that employees like those in the present case are employees covered by the National Labor Relations Act . . ., and are not exempted from that coverage as agricultural laborers under Section 3(f) of the Fair Labor Standards Act . . . and Section 2(3) of the Act."
The Board lacks jurisdiction.2
Enforcement denied.
* Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.
1 Two of the employees involved were primarily truck drivers, as in Abbott. One was a full-time mechanic who maintained the trucks. "By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agricultural exemption." Maneja v. Waialua Agricultural Co., 349 U.S. 254, 263, 75 S.Ct. 719, 725, 99 L.Ed. 1040 (1955).
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Bayside Enterprises, Inc v. National Labor Relations Board
...the feedmill operation and therefore not an agricultural activity. McElrath Poultry Co., 206 N.L.R.B. 354, 355 (1973), enf. denied, 494 F.2d 518 (CA5 1974); Samuel B. Gass, 154 N.L.R.B. 728, 732-733 (1965), enf'd, 377 F.2d 438 (CA1 1967). 12 Samuel B. Gass, supra ; Strain Poultry Farms, Inc......
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N.L.R.B. v. Bayside Enterprises, Inc., 75--1070
...to several cases from other circuits which hold that employees engaged in similar work are exempt from the Act. McElrath Poultry Co., Inc. v. NLRB, 494 F.2d 518 (5th Cir. 1974); Abbott Farms, Inc. v. NLRB, 487 F.2d 904 (5th Cir. 1973); NLRB v. Victor Ryckebosch, Inc., 471 F.2d 20 (9th Cir. ......