N.L.R.B. v. Karl's Farm Dairy, Inc., 76-1500

• Decision Date: 13 February 1978
• Docket Number: No. 76-1500,76-1500
• Citation: 570 F.2d 903
• Parties: 97 L.R.R.M. (BNA) 2747, 83 Lab.Cas. P 10,365 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KARL'S FARM DAIRY, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 903

570 F.2d 903

97 L.R.R.M. (BNA) 2747, 83 Lab.Cas. P 10,365

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KARL'S FARM DAIRY, INC., Respondent.

No. 76-1500.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Sept. 26, 1977.

Decided Feb. 13, 1978.

Howard F. Fine, Atty., N. L. R. B., Washington, D. C. (Paul J. Spielberg, Deputy Asst. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with him on the Brief), for petitioner.

Harold B. Wagner, Denver, Colo. (Robert R. Post, Jr., Wagner, Wyers & Vanatta, P. C., and James H. Mosley, Mosley, Wells & Dean, Denver, Colo., with him on the Brief), for respondent.

Before SETH, Chief Judge, DOYLE, Circuit Judge, and STANLEY, Senior District Judge. ^*

SETH, Chief Judge.

The respondent, Karl's Farm Dairy, Inc., was charged with violating section 8(a)(1) and (3) of the National Labor Relations Act by discharging Mr. Clarence McCoy because of his activities on behalf of the International Union of Operating Engineers, Local 1, at the dairy farm.

The administrative law judge found the respondent had so violated the Act. The matter is before this court for enforcement of the Board's order. The order requires relief by reinstatement, reparation, and the posting of appropriate notices.

The respondent contends that Mr. McCoy is an "agricultural laborer" within the meaning of section 3(f) of the Fair Labor Standards Act, 29 U.S.C. § 203(f), and therefore not within section 2(3) of the National Labor Relations Act. Respondent also urges that Mr. McCoy was discharged for good cause and not for union membership or activities.

We hold that the conclusion by the Board that Mr. McCoy was an "employee" within the meaning of section 2(3) of the Act, and thus that the Company violated section 8(a)(1) and (3) of the Act is contrary to the prevailing decisions.

The facts are largely undisputed. Mr. C. R. Hinkhouse is the owner of the respondent dairy farm in Eastlake, Colorado. This farm processes its own milk from some 400 milk cows. Respondent owns and operates a retail store adjacent to the dairy farm in Northglenn. The record indicates that respondent sells its own milk and dairy products directly to consumers, as well as receiving and processing an undetermined quantity of milk from at least one other dairy. Respondent's retail sales from delivery routes and retail stores amounted to $1,241,708.42 in the fiscal year 1974-75. It made direct purchases and payments out of state in the amount of $15,602.52 during this period.

Mr. McCoy had been a member of the union since 1969. His work description is not well defined, but it can be best characterized as being a general handyman. The record shows that his duties included running a bottling plant, bottle washer, bottling machine, pulling and filling route drivers orders, and cleaning up milk truck tanks, and the like. According to Mr. Hinkhouse, "He was supposed to do whatever needed to be done. Pick up supplies and anything that needed to be done. He was just a relief man." He was originally employed by the respondent from 1965 to 1967, and again from June 1974 until his discharge on February 28, 1975. The testimony established that nearly seventy percent of his time was spent performing matters immediately necessary around the dairy. About ten percent of his time was spent filling in for sick or absent drivers. This included driving, collection from the customers, unloading the bottles, and filling out orders for the driver's next delivery day. The remaining amount of his time was spent taking cream to creameries for separation, picking up prepackaged dairy products, and miscellaneous mechanic duties. The undisputed testimony shows that he never milked a cow, worked in the fields, or had anything to do with their care and feeding.

The determination of whether this employee was an agricultural employee and so excluded from coverage is dependent upon the definition of "agriculture" in the Fair Labor Standards Act, section 3(f), 29 U.S.C. § 203(f). Section 3(f) provides, in relevant part:

" 'Agriculture' includes farming in all its branches and among other things includes . . . dairying, . . . the raising of livestock, . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, . . ." 29 U.S.C. § 203(f).

The Court in Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 97 S.Ct. 576, 50 L.Ed.2d 494, noted with approval the expanded definition in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672:

"First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices,whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with 'such' farming operations."

After reviewing Farmers Reservoir & Irrigation Co. v. McComb, the administrative law judge in the case before us concluded:

". . . Thus processing, on a farm, of commodities produced by other farmers is incidental to or in conjunction with the farming operation of the other farmers and not incidental to or in conjunction with the farming operation of the farmer on whose premises the processing is done. Such processing is, therefore, not within the definition of agriculture. Bowie v. Gonzales (sic), 1 Cir., 1941, 117 F.2d 11."

The difficulty with concluding that Mr. McCoy was an "employee" within the meaning of section 2(3) of the Act, is that there was no substantial evidence in this record that "foreign"...