National Labor Relations Bd. v. John W. Campbell, Inc.
| Decision Date | 02 January 1947 |
| Docket Number | No. 11255.,11255. |
| Citation | 159 F.2d 184 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. JOHN W. CAMPBELL, Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose, Principal Atty., N.L.R.B., both of Washington, D. C., and LeRoy Marceau, Regional Atty., N.L.R.B., of New Orleans, La., for petitioner.
B. E. Henricks, of Miami, Fla., for respondent.
Before SIBLEY, HOLMES, and WALLER, Circuit Judges.
Three women employees of the Respondent, according to the overwhelming weight of the evidence, failed properly to grade tomatoes in the packing plant of the Respondent and for that reason, and the further reason that they threatened two employees with the loss of their jobs if and when the plant became unionized, were discharged. We are now asked by the National Labor Relations Board to enforce its order that they be offered full reinstatement with back pay and that appropriate notices be posted.
It is necessary to ascertain first, whether or not these employees were agricultural laborers and, therefore, exempt from the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. If so, it will not be necessary to determine whether or not there is any substantial evidence to support the finding of the Board that these women were discharged for union activities.
Respondent is extensively engaged in growing tomatoes on a farm of approximately 1,000 acres near Goulds, Florida, and as an adjunct to which it operates its own packing house wherein the products of its farm are washed, graded, and packed for market.
The growing and packing of tomatoes is seasonal. They are highly perishable, admitting of little delay in gathering, packing, shipping, and marketing. It is essential to the shipper that they not only be promptly packed and marketed but that they be correctly graded so as to prevent the inclusion of worm-eaten, over-ripe, defective tomatoes in shipments, a small percentage of which might cause an entire shipment to be either rejected, classed as of inferior grade, or to be the subject matter of dispute and dissatisfaction.
With the exception of a short while at the end of the packing season in 1944, the Respondent never has engaged in the packing of any agricultural products except those grown on its own farm. The discharge of the three employees took place in February, 1944, at a time when they were engaged in the grading only of tomatoes grown on Respondent's farm. Neither of them was ever engaged in grading or otherwise working on any agricultural products except those grown by the Respondent. After having concluded the packing of its crop in the early part of 1944, Respondent, upon the insistence of the United States, and in order to save, preserve, and conserve foodstuffs necessary to the prosecution of the war, continued, for the remainder of that season, to utilize its facilities and employees in packing tomatoes for others, with the result that approximately twenty per cent. of its total pack for that year came from other growers. This appears to be without significance, however, because the discharged employees were not at any time engaged in working on agricultural products grown by other than Respondent.
Agricultural laborers are excluded from the provisions of the National Labor Relations Act, and it is necessary for us to inquire into the character of the operation of the Respondent at the time of the discharge of the three employees. If the employees were engaged in agricultural labor within the exception in the National Labor Relations Act, then the National Labor Relations Board would be without jurisdiction to make the order which is here sought to be enforced.
Subsection (3) of Section 152, Title 29 U.S.C.A., the Wagner Act, provides that "the term `employee' * * * shall not include any individual employed as an agricultural laborer." The Act was passed July 5, 1935. On August 14, 1935, or forty days later, and during the same session of Congress, the Social Security Act was passed, which also exempted agricultural labor from its provisions. Sec. 1107, Title 42 U.S.C.A. Pursuant to the authority of the latter statute, Regulation 90 was promulgated, and Article 206(1) thereof undertook to define agricultural labor.1
On the 10th of August, 1939, Congress amended the Social Security Act by providing that the term "agricultural labor" See Sec. 1607, Title 26 U.S.C.A. Int.Rev. Code, subsection (l) (4) should include:
We recognize that the definition in the Social Security Act is not a binding definition of "agricultural labor" in the National Labor Relations Act, but in view of the fact that the two Acts were enacted so close together in point of time, we doubt that we would be going far afield in assuming that what Congress thought was agricultural labor on July 5 it probably thought was agricultural labor on August 14, and in assuming furthermore that the purposes that Congress had in making the exemptions of agricultural laborers in both Acts were substantially identical.
It does not take a long memory to recall that in the midst of the depression of 1935, and for a time before and since, the farmer was the object of the deepest solicitude by Congress. It furnished abundant evidence that it believed that no class of citizens of the country was in greater need of Congressional aid than the farmer. Legislation was enacted by which farmers were paid: for plowing up every third row of certain crops; for killing pigs; for adjustments, loans, parities, and moratoriums.
The Fair Labor Standards Act was enacted June 25, 1938, and it likewise exempted, Sec. 213, Title 29 U.S.C.A., any employee within the area of production engaged "in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market."2
These enactments clearly...
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