Sanderson Farms, Inc. v. N.L.R.B.

• Decision Date: 03 July 2003
• Docket Number: No. 02-60522.,02-60522.
• Citation: 335 F.3d 445
• Parties: SANDERSON FARMS, INC. (Production Division), Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.3d 445

SANDERSON FARMS, INC. (Production Division), Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 02-60522.

United States Court of Appeals, Fifth Circuit.

July 3, 2003.

Andrew C. Partee, Jr. (argued), Douglas L. Grundmeyer, Heather M. Valliant, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Petitioner-Cross-Respondent.

Jeffrey Lawrence Horowitz (argued), Aileen A. Armstrong, Deputy Associate Gen. Counsel, Robert J. Englehart, N.L.R.B., Washington, DC, Rodney D. Johnson, N.L.R.B., New Orleans, LA, for Respondent-Cross-Petitioner.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Sanderson Farms, Inc. (Production Division) ("Sanderson Production"), seeks review of a decision of the National Labor Relations Board ("NLRB" or "Board") finding that live-haul and pull-up drivers employed at Sanderson Production's McComb, Mississippi, facility fell outside the National Labor Relations Act's ("NLRA's") exemption to employee status for agricultural laborers. Sanderson Production argues that Coleman v. Sanderson Farms, Inc., 629 F.2d 1077, 1081 (5th Cir. 1980), which held that its drivers were agricultural laborers, controls. The NLRB has filed a cross-application for enforcement of its order. Concluding that Holly Farms Corp. v. NLRB, 517 U.S. 392, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996), controls and that Coleman is overruled, we deny the petition for review and grant the cross-petition for enforcement.

I.

A.

Sanderson Production, a wholly-owned subsidiary of Sanderson Farms, Inc., purchases day-old pullet chicks and places them on independent contract farms, which Sanderson Production flock supervisors monitor. The contract farms grow the pullets to a certain age, at which point Sanderson Production transfers them to hen farms to produce the hatching eggs. Sanderson Production then moves the eggs to its hatchery, where it incubates and hatches the broiler chicks. Day-old broiler chicks are sent to a different set of independent contract farms, which raise them for about seven weeks. This relationship has three noteworthy characteristics: (1) Farmers must raise the broiler chicks in accordance with Sanderson Production's Broiler Production Agreement; (2) Sanderson Production retains title to the chickens; and (3) Sanderson Production's flock supervisors visit the contract farms at least twice a week to ensure they have enough feed and to monitor that the farmers are raising the chickens in compliance with Sanderson Production's extensive requirements.

Once the birds reach a certain weight, Sanderson Production supervisors instruct their live-haul drivers to pick up the chickens to bring them to the live-haul shed next to, and on the same property as, Sanderson Farms, Inc. (Processing Division) ("Sanderson Processing"). Sanderson Production's drivers report to and work out of the live-haul shed, but the drivers have little or no contact with Sanderson Processing. The paychecks that the drivers receive are issued by Sanderson Farms, Inc., the parent company. At the independent contract farms, other employees catch the chickens and load them onto the trucks; the drivers are not involved in this activity.¹ Once the live-haul drivers return to the live-haul shed, the chickens are held there until the pull-up drivers take them to the processing facility for slaughter.

B.

The United Food and Commercial Workers Union, Local 1529 sought an election to become the exclusive bargaining representative for all live-haul and pull-up drivers employed at the McComb facility. At the representation proceeding, Sanderson Production contended that the drivers were exempt as agricultural laborers, but the NLRB Regional Director ("Director") concluded that Sanderson Production was not a "farmer," nor were its drivers "agricultural laborers" within the meaning of the exemption in § 2(3) of the NLRA.² The Director ordered an election, and the NLRB affirmed the Director's finding that Sanderson Production was not a "farmer."

The live-haul and pick-up drivers subsequently elected the union as their bargaining representative, but Sanderson Production refused to bargain. The union filed a complaint with the NLRB and moved for summary judgment. The Board ordered Sanderson Production to bargain.

II.

A.

It is the NLRB's "`special duty' to apply the [NLRA's] exemption for agricultural laborers to varying fact patterns." NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (5th Cir.1993).

In performing that duty, the Board is charged with construing the [NLRA] — including its incorporation of the term "agricultural laborer" as used in the Fair Labor Standards Act — liberally in favor of the workers for whose protection those laws were designed, and[] any exemption from the terms of those laws must be narrowly construed.

Id. (citations and internal quotation marks omitted).

Because the Board engages in an expert construction of the agricultural laborer exemption, its decision is entitled to deference on review. Id.

If a statute's meaning is plain, the Board and reviewing courts must give effect to the unambiguously expressed intent of Congress. When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reasonable interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law to varying fact patterns, even if the issue with nearly equal reason might be resolved one way rather than another.

Holly Farms, 517 U.S. at 398-99, 116 S.Ct. 1396 (citations and punctuation omitted). To reverse the Board's legal interpretation of a statute, we must decide that the plain meaning of the statute unambiguously contradicts the Board's interpretation or that it is inconsistent with prior Board holdings.³

We review the Board's factual determinations for substantial evidence. Cal-Maine Farms, 998 F.2d at 1339. We must "consider the totality of evidence in the record, including `that which fairly detracts from the [Board's] decision.'" Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). There must be "more than a scintilla" of evidence, or "such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Id. (citations and internal quotation marks omitted).

B.

The protections of the NLRA, including the right to bargain through a union, extend only to "employees;" this term, as defined by the Act, excludes "any individual employed as an agricultural laborer." 29 U.S.C. § 152(3). The NLRA contains no definition for "agricultural laborer," but Congress has long provided that this term derives its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act ("FLSA"),⁴ which provides, in relevant part:

Agriculture includes farming in all its branches and among other things includes... the raising of livestock, bees, fur-bearing animals, or poultry, and any practices ... performed by a farmer or on a farm as 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.

29 U.S.C. § 203(f) (emphasis added).

This definition "includes farming in both a primary and secondary sense." Bayside, 429 U.S. at 300, 97 S.Ct. 576.

"Primary farming" includes the occupations listed first in § 3(f): "the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ... [and] the raising of livestock, bees, fur-bearing animals, or poultry." 29 U.S.C. § 203(f). "Secondary farming" has a broader meaning, encompassing, as stated in the second part of § 3(f): "any 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."

Holly Farms, 517 U.S. at 397, 116 S.Ct. 1396.

Though the raising of poultry falls squarely within the ambit of primary farming, "hauling products to or from a farm is not primary farming" and may be considered secondary farming only "if it is work performed `by a farmer or on a farm as an incident to or in conjunction with such farming operations....'" Bayside, 429 U.S. at 300-01, 97 S.Ct. 576. Discussing poultry producers, the Court has found that "[a]n employer's business may include both agricultural and nonagricultural activities." Id. at 301, 97 S.Ct. 576. Thus, even though a poultry producer may be characterized as a farmer with respect to some of its operations, that status does not extend automatically to all of its operations.

C.

Sanderson Production contends that because the company is engaged in raising poultry, it is a farmer engaged in primary farming. It argues that its drivers are employed to assist in the raising of poultry, and thus are engaged in secondary farming activities in conjunction with Sanderson Production's primary farming operations, including "delivery to storage or to market."

The Supreme Court has affirmed the Board's consistent conclusion that "when an employer contracts with independent growers for the care and feeding of an employer's chicks, the employer's status as farmer engaged in raising poultry ends with respect to those chicks." Id. at 302 & n. 9, 97 S.Ct. 576 (quoting In re Imco Poultry, 202 N.L.R.B. 259, 260 (1973)). The Board has characterized the activities of poultry producer employees who handle and transport chicks on independent farms as engaged "in nonfarming operations which are incident to, or in conjunction with, a separate and distinct business activity of the [poultry producer], i.e., shipping and marketing." Imco Poultry, 202...