National Labor Relations Board v. Victor Ryckebosch, Inc., 71-2604.
| Decision Date | 28 November 1972 |
| Docket Number | No. 71-2604.,71-2604. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VICTOR RYCKEBOSCH, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Winer, Atty. (argued), Robert A. Giannasi, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Abraham Siegel, Director, NLRB, Region 31, Los Angeles, Cal., for petitioner.
Wayne Jett (argued), George M. Cox, John H. Stephens, of Cox, Castle, Nicholson & Weekes, Gerald Goldman, Los Angeles, Cal., for respondent.
Before MERRILL and GOODWIN, Circuit Judges, and SKOPIL, District Judge.*
The National Labor Relations Board petitions for enforcement of an order which would require Ryckebosch to bargain with the union representing truck drivers. Ryckebosch claims the employees are within the "agricultural laborer" exemption, Section 2(3) of the National Labor Relations Act, 29 U.S.C. § 152(3). Because we agree that the employees are within the exemption, we hold that the Board had no jurisdiction, and its petition for enforcement must be denied.
Ryckebosch buys fertile eggs from breeding farms and incubates them in its hatcheries. After the eggs hatch Ryckebosch debeaks the chicks and transports them to one of many so-called independent growers with whom Ryckebosch has feeding contracts. The growers feed the chicks under the supervision of Ryckebosch field representatives who visit each grower once a week or more. Ryckebosch retains title to the birds. Ryckebosch supplies feed and veterinary services. Ryckebosch pays the growers from one to two-and-one-half cents per pound for all chickens marketed. Ryckebosch determines when the birds are marketable, and transports them to the processing plants. The drivers who transport the grown chickens to market are the employees involved in this case.
Since 1946, the appropriation acts for the NLRB have carried a rider which provides that the term "agricultural laborer" shall be defined in accordance with Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. § 203(f). This provision reads:
"`Agriculture\' includes farming in all its branches and * * * includes * * * the raising of * * * poultry, and * * * practices * * 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."
This definition has two branches. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949). The first relates to actual farming operations; the second "includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with `such' farming operations." 337 U.S. at 763, 69 S.Ct. at 1278.
Ryckebosch has asserted that the activities of its truck drivers fall within the second branch of the definition. Its...
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