N.L.R.B. v. Design Sciences, a Div. of Jacobs Engineering Co., 76-1294

• Decision Date: 04 April 1978
• Docket Number: No. 76-1294,76-1294
• Citation: 573 F.2d 1103
• Parties: 98 L.R.R.M. (BNA) 2165, 83 Lab.Cas. P 10,537 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DESIGN SCIENCES, a Division of Jacobs Engineering Co., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1103

573 F.2d 1103

98 L.R.R.M. (BNA) 2165, 83 Lab.Cas. P 10,537

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DESIGN SCIENCES, a Division of Jacobs Engineering Co., Respondent.

No. 76-1294.

United States Court of Appeals Ninth Circuit.

April 4, 1978.

As Amended April 26, 1978.

Elliott Moore, Washington, D. C., for petitioner.

Charles J. Schufreider of Voegelin & Barton, Los Angeles, Cal., for respondent.

Petition to Enforce an Order of the National Labor Relations Board.

Before GOODWIN, WALLACE and HUG, Circuit Judges.

PER CURIAM:

The National Labor Relations Board (board) seeks enforcement of an order to bargain, issued after the board held an election and certified the winner as bargaining representative for certain employees of Design Sciences. Design Sciences refused to bargain, claiming that the employees are "agricultural laborers" and, as such, are beyond the jurisdiction of the board under § 2(3) of the National Labor Relations Act (29 U.S.C. § 152(3)). We enforce the order.

Because of geographical circumstances, farm land in the Imperial Valley of California is watered almost wholly through irrigation. It is therefore necessary that the land be carefully graded or sloped, so that gravity will carry the water to all areas under cultivation. Further, because of a high water table, Imperial Valley farms require subsurface drainage tiles or conduits.

Design Sciences is in the business of designing these grading and drainage operations on a contract basis. It employs surveyors who do 80% of their work on farms. In connection with the grading, the surveyors stake the fields and then indicate (on maps and on the stakes) the amount which the ground level at each spot must be raised or lowered. In connection with the drainage, they work from a map and indicate, by stakes, where and at what depths the tiles must be placed. In both cases, the actual earth moving or installation is done by other persons hired by the farmers.

There is only one question here as to the efficacy of the union certification and subsequent bargaining order. That is whether the employment just described is that of an "agricultural laborer". Agricultural laborers are not "employees" under the Act and therefore have no statutory right to collective bargaining (29 U.S.C. § 157). No "unfair labor practice" may be committed against them (29 U.S.C. § 158), and the board is without power to direct an election (29 U.S.C. § 159) or to act toward their protection (29 U.S.C. § 160).

Whether or not an individual is an "employee" is a question primarily for the board, and the board's determination will be accepted ". . . if it has 'warrant in the record' and a reasonable basis in law". N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944).

We feel especially...