Camsco Produce Co., Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1990

297 N.L.R.B. 905 (N.L.R.B. 1990)

CAMSCO PRODUCE CO 905
Camsco Produce Company, Inc. and Local 951,
United Food and Commercial Workers, AFL-
CIO-CLC, Petitioner. Case 7-RC-17935
March 15, 1990
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held on February 18, 1986, in the above-captioned
proceeding On March 28, 1986, the Regional Di-
rector issued a Decision and Order in which he
concluded that the petitioned-for employees are
exempt from the Act's coverage because they are
"agncultural laborers" within the meaning of Sec-
tion 2(3) of the Act and dismissed the petition
Thereafter, in accordance with Section 102 67 of
the Board's Rules and Regulations, the Petitioner
filed a timely request for review of the Regional
Director's decision By Order dated June 26, 1986,
the Board granted review of the Regional Direc-
tor's decision solely with respect to whether the
Employer's fresh pack department workers are em-
ployees within the meaning of Section 2(3) of the
Act, in all other respects, the request for review
was denied
The Employer, a wholly-owned subsidiary of
Campbell's Soup Company, is an Ohio corporation
engaged in the business of growing, harvesting, and
packaging mushrooms at various farms across the
country, including Glenn Farm in Fennville,
Michigan, the facility involved
When Glenn Farm is unable to fill customer
orders by means of its own harvested mushrooms,
additional mushrooms are obtained from the Em-
ployer's other farms According to the Employer's
farm manager this could occur as often as two to
three times a week or not at all in a particular
week, depending on the level of production as
compared to the level of current orders The farm
manager testified that "I couldn't give you a
number that it could happen regularly" In 1985,
Glenn Farm imported approximately 6 69 percent
of its total stock from four other Employer-owner
farms Of these four, only the Employer's Evans-
ville, Pennsylvania farm purchases mushrooms
from non-Employer growers The Evansville farm,
however, does not keep these outside mushrooms
separate but commingles them with its own stock
In 1985, Glenn Farm received roughly 407 percent
of its total mushrooms from the Evansville farm
which, in turn, received 55 5 percent of its total
stock from outside growers 1
The only employees who handle non-Glenn
Farm mushrooms are the fresh pack department
employees This department includes the sorting
line employees and the heavy equipment operators
who transport the mushrooms from the loading
dock directly to the fresh pack area where the
mushrooms are dumped onto the sorting line along
with the Employer-grown mushrooms Employees
on the line sort the mushrooms by hand, place
them into packages, and weigh the packages Plas-
tic wrapping is applied to the packages by ma-
chine The wrapped packages are quick-cooled to
retard further maturation and placed in a holding
cooler From there, the packages are loaded onto
trucks of independent carriers for delivery to cus-
tomers The majonty of the mushrooms grown at
Glenn Farm are sold as fresh produce, the remain-
der is sold to Campbell Soup's plants
The parties stipulated that should a question con-
cerning representation exist, the appropriate unit
for collective-bargaining purposes would consist of
all full-time and regular part-time hourly paid em-
ployees employed at Glenn Farm, including em-
ployees in the compost, filling, pasteunzation,
spawning, casing, harvesting, fresh pack, material
handling, and maintenance areas, janitors, lab tech-
nicians, and timekeepers, excluding office clerical
employees, confidential employees, casual employ-
ees, and guards and supervisors as defined in the
Act The Regional Director, however, dismissed
the petition because he found that all of these indi-
viduals are "agricultural laborers" specifically ex-
cluded from the definition of "employee" in Sec-
tion 2(3) of the Act
In concluding that fresh pack department em-
ployees are agricultural laborers, the Regional Di-
rector found that the work they perform—sorting,
grading, quick-cooling—is agricultural and that
under Employer Members of Grower-Shipper Vegeta-
Although there was testimony from one employee who stated that
according to his supervisors and some independent carrier truckdrivers,
Glenn Farm sometimes receives mushrooms directly from non-Employer
farms, this testimony was vague as to the frequency and size of the al-
leged shipments Additionally, this testimony, which was hearsay, was
contradicted by the direct testimony of other witnesses
This employee also testified that in approximately 103 instances dunng
the past year Glenn Farm had reshipped mushrooms that It had received
from one Employer-farm to another Presumably this evidence was In-
tended to show, by inference, that It is conceivable that other Camsco
farms engaged in the same practice and, therefore, Glenn Farm actually
received, from these other Camsco farms, mushrooms that they in turn
had received from Evansville, i e, more outside mushrooms If true, the
Employer could conceivably have received more than the estimated 2 26
to 407 percent of its mushrooms from outside farms This evidence, how-
ever, was directly contradicted by other testimony that, in light of the
short shelf life of fresh mushrooms (approximately 5 days), it was "highly
unlikely" that mushrooms received at Glenn Farm from other Employer-
farms were ever reshipped
297 NLRB No 157
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ble Assn , 2 Glenn Farm's purchase of independently
grown mushrooms constituted an insufficient
amount of its aggregate yearly volume of mush-
rooms to divest the fresh pack department employ-
ees of their agricultural status In so concluding,
the Regional Director rejected the Board's holding
in DeCoster Egg Farms3 that the handling of any
farm product not grown by the employer or on the
employer's farm will result in the loss of exempt
status for any employees who handle the outside
product We granted review with respect to the
fresh pack department employees to resolve this
conflict between the two different rules that the
Board has applied, that of Employer Members and
that of DeCoster
Section 2(3) of the Act defines "employer" as ex-
cluding "any individual employed as an agricultur-
al laborer" The Act does not define the latter
term, but beginning July 26, 1946, with the passage
of the "National Labor Relations Board Appropria-
tion Act, 1947" (60 Stat 698), Congress has includ-
ed in the Board's annual appropriation act a provi-
so directing the Board to apply the definition of
"agriculture" found in section 3(f) of the Fair
Labor Standards Act (FLSA), 29 U S C § 203(f),
in construing the term "agricultural laborer" See
Bayside Enterprises v NLRB, 429 U S 298, 300 and
fn 6 (1977)
Section 3(f) of the FLSA provides
"Agriculture" includes farming in all its
branches and any practices per-
formed by a farmer or on a farm as an incident
to or in conjunction with such farming oper-
ations, including preparation for market, deliv-
ery to storage or to market or to carriers for
transportation to market
Under this definition, "agriculture" has both a pri-
mary and a secondary meaning 4 The primary
meaning refers to actual farming operations, i e,
those functions normally associated with farming
such as cultivation, tilling, growing, and harvesting
of agricultural commodities The secondary mean-
ing includes any practices which are performed by
a farmer or on a farm as an incident to or in con-
junction with such farming operations 5
The fresh pack department employees are not
engaged in direct farming activities of the type
enumerated under the primary meaning of "agricul-
ture", thus, the question is whether they are en-
gaged in operations included within the secondary
2 230 NLRB 1011 (1977)
3 223 NLRB 884 (1976)
4 See Farmers Reservoir if Irrigation Co v McComb, 337 U S 755, 762-
763 (1949)
5 Id See also Department of Labor Regulation § 780 105, 29 CFR
§ 780 105 (1985)
definition of the term Clearly, as found by the Re-
gional Director, the operations they perform, such
as sorting and grading, have long been considered
a secondary agricultural function Such practices
do not change the Employer's product or enhance
its value, rather these activities are merely part of
preparing the mushrooms for marketing 6 Quick-
cooling a product to enhance its shelf life has simi-
larly been held to be agricultural 7
These operations, however, must also meet the
requirement that the practice be in conjunction
with "such farming operations" The Department
of Labor (DOL) regulation interpreting the phrase
"such farming operations" from the section 3(f)
definition of "agriculture" states that
No practice performed with respect to farm
commodities is within the language under dis-
cussion by reason of its performance on a farm
unless all of such commodities are the prod-
ucts of that farm Thus, the performance on a
farm of any practice, such as packing or stor-
ing, which may be incidental to farming oper-
ations cannot constitute a basis for considering
the employees engaged in agriculture if the
practice is performed upon any commodities
that have been produced elsewhere than on
such farm 8
In DeCoster, the Board read this regulation as
limiting the agricultural exemption to those proces-
sors who deal exclusively with their own goods
Noting that an employer is not a "farmer" as to
products that have been raised or produced , yin-
dependent farmers, the Board concluded that al-
though only approximately 1 7 percent of the 11 7
million eggs processed by the employer were re-
ceived from contract farmers, the employer's em-
ployees were not engaged in activities falling
within the secondary definition of agriculture be-
cause not "all" of the eggs processed by the em-
ployer were the products of his own farm 9
On the other hand, in Employer Members of
Grower-Shipper Vegetable Assn, relied on by the
Regional Director, the Board held that employees
will not be found to be exempt agricultural labor-
ers if a "regular and substantial" portion of their
5 Rod McClellan Co, 172 NLRB 1458 (1968), D'Arrigo Bros Co of
California, 171 NLRB 22 (1968), Boclme Produce Co, 147 NLRB 832
(1964)
7 D'Arrigo Bros Co, supra
5 9 C F R 780 141 (1974) This interpretive rule appears unchanged in
the most recently published edition of 29 C F R (1986)
2 See also Wegman's Food Market, 236 NLRB 1062 (1978), Bomar
Carrot Co. 228 NLRB 369 (1977), and Draper King Cole Inc , 226 NLRB
941 (1976), in which the Board cited DeCoster with approval Those
cases, however, include the handling of large amounts of nonemployer
products and, thus, the agricultural exemption would not have applied
under either DeCoster or Employer Members -
CAMSCO PRODUCE CO 907
work effort is directed toward processing the crops
of a grower other than the grower-employer by
whom they are employed There the Board found
that employees of employers who handled outside
produce constituting less than 10 percent of their
employer's total volume maintained their agricul-
tural exemption as the amount of nonemployer
produce handled was insubstantial 10 However, in
light of the specific language of the FLSA regula-
tion and the Board's findings in DeCoster Egg
Farms, we think the decision in Employer Members
of Grower-Shipper Vegetable Assn, emphasizing the
quantity of outside products handled, is a misappli-
cation of the regulation defining agricultural labor-
er Consequently, to the extent that it is inconsist-
ent with this decision and with DeCoster, Employer
Members of Grower-Shipper Vegetable Assn is over-
ruled 11 liciwever, our inquiry does not stop there
As noted, DeCoster more accurately reflects the
Department of Labor's strict interpretation of the
agricultural exemption under the FLSA However,
for reasons set out below, we do not believe that it
should always automatically follow that employees
who are deemed nonexempt from the coverage of
the FLSA pursuant to the Department of Labor's
interpretation of the agricultural exemption are also
nonexempt under the NLRA In our view, the
proper test for our statute should focus not on the
amount of other-employer produce handled by Ahe
employees in question, but rather should rest on
the regularity with which employees handle such
outside produce Such a test has some support in
Board precedent, and it is justified by the differ-
10 See also Mario Saikhon Inc , 278 NLRB 1289 (1986), in which the
Board, citing Employer Members, found that the employer's field packing
employees were not exempt agricultural laborers as approximately two-
thirds of the products handled by these employees came from outside
sources This case, however, like those cited in fn 9, Involved substantial
amounts of outside products, and thus did not raise the conflict between
DeCoster and Employer Members See also Mikan?' Bros, 188 NLRB 522
(1971), Kelly Bros Nurseries, 140 NLRB 82 (1962), enf denied on other
grounds 341 F 2d 433 (2d Cir 1965), and Garin Ca, 148 NLRB 1499
(1964), in which the agricultural exemption was denied because outside
goods constituted 18-20 percent, 28 percent, and 15 percent, respectively
ii This opinion represents the views of Chairman Stephens and
Member Devaney Member Cracraft, in a concurring and dissenting opin-
ion, joins them in overruling Employer Members, but would affirm DC.
Coster and not add a requirement of regularity Member Oviatt, in a sep-
arate concurring and dissenting opinion, joins Chairman Stephens and
Member Devaney in overruling DeCoster, but would affirm Employer
Members and hold that the agncultural exemption is lost only if a "regu-
lar and substantial" portion of the employees work effort is directed
toward processing the crops of a grower other than their employer
Therefore, to the extent the plurality opinion embraces a requirement of
regularity, Member Oviatt is in agreement with It
In its request for review, the Petitioner argued that the other Camsco
farms are "outside" farms too and, therefore, mushrooms coming from
them should be counted when determining what percentage of "outside"
mushrooms are handled by the Employer's employees All members
reject this contention for the same reasons as did the Regional Director
Contrary to the Petitioner, they find Stahmann Egg Farms, 251 NLRB
1232 (1980), cited by the Regional Director, indistinguishable
ences in purpose and framework between the
NLRA and the FLSA
In Olaa Sugar Co, 118 NLRB 1442 (1957), the
Board was faced- with - the question whether a
truckdnver who spent part of his time transporting
his employer's sugar cane to the employer's mill
and part of his time transporting the cane of other
farmers to the mill was entitled to file an unfair
labor practice cha:rge under the NLRA with re-
spect to his allegedly discriminatory discharge by
the employer In asserting jurisdiction, the Board
announced a rule that "employees who perform
any regular amount of nonagricultural work are
covered by the Act with respect to that portion of
the work which is nonagricultural" Id at 1443
(emphasis in original) The Board purported to be
following a regulation of the Department of Labor
for determination of eligibility for coverage under
the FLSA, and it reasoned that it should give due
respect to the views of that department on the agri-
cultural exemption question because Congress had,
in effect, singled out the Department of Labor as
the "primary' agency" on this issue Id at 1444
In fact, the word "regular" was not mentioned at
all in the DOL regulation cited, 12 and, although
the rule referred to "any" regular amount, the
rule's partial coverage aspect necessarily implied a
requirement of more than a de mimmis amount of
nonexemPt work (It would make no sense, for ex-
ample, to certify a collective-bargaining representa-
tive with respect to "unit" work that an employee
performed perhaps no more than an hour or two
each month ) 13 Nonetheless, the Board's inclusion
' 2 The Board relied on sec 780 5(b) of the FLSA regulations, 29 CFR
§ 780 5(b), which provided Where exempt and non-exempt work is In-
volved, the general rule is that if in any workweek an employee performs
exempt work and other work which is covered and not exempt, the wage
and hour requirements do apply to him during that workweek" Olaa,
118 NLRB at 1444 fn 6
13 Because the Board in Olaa was deciding only whether the employee
in question, Banez, could file an unfair labor practice charge and not
whether a union could petition to represent a unit of employees perform
mg partly exempt work and partly nonexempt work, it had no reason to
focus on relative amounts of exempt and nonexempt work The Board
was probably induced to recite this 'pro tanto coverage rule because
the case was on remand from the Ninth Circuit (NLRB v Olaa Sugar
Co, 242 F 2d 714, 722 (9th Cif 1957)), which had questioned whether
asserting jurisdiction over Banez' charge was proper, given the Board's
decision in Clinton Foods, 108 NLRB 85 (1954), in which the Board had
held that employees who spend a "substantial part of their time' per-
forming an "agricultural function" would be deemed agricultural laborers
entirely exempt from the Act notwithstanding evidence that they also en-
gaged in a substantial amount of nonagricultural work for the employer
Id at 88 The Board had, in fact, overruled Clinton Foods in H A Rider
ii Sons, 117 NLRB 517, 519-520 (1957), and thereby returned to the
practice It had followed in cases overruled sub silentio by Clinton
Foods—permitting dual-function employees to be included in a bargaining
unit under the NLRA with respect to their nonagricultural work E g,
Pepeekeo Sugar Co, 59 NLRB 1532 at 1540 (1945), L Maxey Inc , 78
NLRB 525 (1948), San Fernando Heights Lemon Assn, 72 NLRB 372
(1947)
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of a "regulanty" element in its test made sense and,
whether unconscious or not, represented a reasona-
ble policy of following DOL regulations not slav-
ishly and mechanically, but "whenever possible""
and with appropriate modifications reflecting the
differing purposes and applications of the FLSA
and the NLRA 15
The FLSA focuses on wage standards for par-
ticular workweeks, but, as the Second Circuit has
observed "Labor relations know no such water-
tight compartments" NLRB v Kelly Bros Nurser-
ies, 341 F 2d 433, 438 (2d Cm 1965) The NLRA is
generally concerned with longer periods of time
Thus, for example, when the Board certifies a col-
lective-bargaining representative, it contemplates
coverage by the Act for at least a year, barring un-
usual circumstances Brooks v NLRB, 348 U S 96
(1954) It would make little sense to deem a par-
ticular job classification nonagricultural for NLRA
purposes if the nonagncultural work that caused
the exemption to be lost occurred as a freak event
on only 1 day—perhaps as a result of an emergen-
cy produced by the whims of nature to which
farming is subject
Thus, the conflicting rules of Employer Members
and DeCoster are, in our view, both deficient, be-
cause in neither case did the Board adopt a rule
that represented a reasonable version, for the
Board's purposes, of the relevant DOL regulation
In DeCoster, where the Board focused on the work
of employees who processed eggs laid by their em-
ployer's hens and a small amount of eggs from
other farmers, the Board properly looked to a
DOL regulation that concerned how to classify
commodity handling under the FLSA definition of
agriculture, but, we believe the Board erred insofar
as it omitted a "regulanty" requirement and held
simply that the handling of any commodities from
a farm other than the employer's would result in
the loss of the exemption as to employees engaged
in the handling of the commingled products 223
NLRB at 886 16 In Employer Members, the Board,
,4 Imperial Garden Growers, 91 NLRB 1034, 1037 (1950), cited in Olaa
Sugar Co, supra, 118 NLRB at 1444 fn 8 (Board's duty is to "follow,
whenever possible, the interpretation of Section 3(f) adopted by the
Labor Department and its Wage and Hour Division ")
" It is also well to keep in mind that the DOL regulations that the
Board has typically followed, including the one we follow in this case,
are simply interpretive rules, representing the Labor Department s view
of how the statute should be construed, rather than regulations that Con-
gress had directed it to promulgate in order to Implement the statute As
such they are entitled to deference as the views of an expert agency, but
deference also depends on the validity" of the "reasoning" underlying
them Skidmore v Swift dt Go, 323 U S 134, 140 (1944) Accord General
Electric Co v Gilbert, 429 U S 125, 141-142 (1976) As discussed, Infra,
although the reasoning underlying § 3(f) may be perfectly valid in the
FLSA context, different considerations arise under the NLRA
16 Board thereby relied on the same regulation-29 CFR
§ 780 141—that we rely on in the present case It would appear that this
is a rule of longstanding under the FLSA, even though the Board appar-
citing Olaa Sugar, supra, properly included a regu-
larity requirement, but improperly ignored the rele-
vant DOL regulation and applied the partial cover-
age rule, a rule that makes sense only when the
question is whether the NLRA covers employees
who are conceded to be engaged in some agricul-
tural work to which we cannot extend the NLRA
Thus, our choice is to borrow from both DeCos-
ter and Employer Members and apply a rule that the
Board will assert jurisdiction if any amount of farm
commodities other than those of the employer-
farmer are regularly handled by the employees in
question 17 In such a case, the question, properly
framed, is whether the commodity handling in
question is agricultural work 18 To the extent that
we apply a regularity test, we are returning to the
Olaa rule and also taking due account of the differ-
ent purposes for applying the FI,,SA and the
NLRA And we are also faithful to Olaa by fol-
lowing the relevant DOL regulation to the extent
"possible" (See fn 14, supra )
Finally, with respect to practical considerations,
it is not unreasonable to conclude that a farmer-em-
ployer who handles the products of other produc-
ers on a regular basis, however small the quantity
may be, has departed from the traditional model of
the farmer who simply prepares his own products
for market Extending the protections of the Act to
employees who handle commodities for such an
employer is, in our view, consistent with the intent
of Congress 19 At the same time, for the reasons
ently was unaware of it before DeCoster Thus, although It cited no par-
ticular regulation, a district court adjudicating an FLSA case 1942
held that employees performing secondary farming functions on horticul-
tural products partly grown by their employer and partly purchased,from
other growers were covered by the FLSA for the weeks in which
[they] spent any of their time at such labor, however small the percent-
age of horticultural commodities purchased [by the employer] may be
with respect to the total volume handled Jordan v Stark Bros Nurseries
Orchards Co, 45 F Supp 769, 771 -772 (W D Ark 1942)
17 To the extent DeCoster is inconsistent with this formulation of the
appropriate rule, It is overruled
18 different rule for assessing the significance of the proportion of
nonexempt work is properly applied when the employees in question
spend part of their time in what is concededly farming in the primary
sense NLRB v Kelly Bros Nurseries, 341 F 2d 433, 438 (2d Or 1965)
The rule we have adopted in the present case cannot reasonably apply
where an employee is engaged regularly in both primary agricultural
work (e g, tilling or harvesting) and nonagricultural work In those cases
a small amount of nonexempt work would _be inadequate to tip the
scales in favor of bringing men who would be regarded as farmers
on any realistic view, within the National Labor Relations Act ' Id at
439 In such cases, the Board properly Imposes a substantiality require-
ment See, e g, Aquacultural Research Corp, 215 NLRB 1 (1974) (juris-
diction asserted where agricultural and nonagricultural work intermixed
and nonagricultural work was substantial), Light's Tree Ca, 194 NLRB
229 (1971) (jurisdiction not asserted where 90 percent of total worktime
was spend in agricultural work)
19 a case decided shortly after the NLRA exemption for agricultural
laborers was linked to the FLSA definition through the appropriations
rider (see fn 1 supra), the Fifth Circuit, apparently unaware of the nder,
concluded that the Board should look to the definitions of agriculture"
in both the Social Security Act and the FLSA, because those, like the
Continued
CAMSCO PRODUCE CO 909
stated earlier, it makes no sense, given the frame-
work of our statute, to find the agricultural exemp-
tion inapplicable simply because on a single occa-
sion, under circumstances that might never occur
again, a few commodities from another employer's
operation were handled by the employees at issue
In' thus modifying the DOL standard, we reason-
ably exercise our discretion to assert, or decline to
assert, our jurisdiction in a manner that will best ef-
fectuate the policies of our Act See NLRB v Olaa
Sugar Go, supra, 242 F 2d at 719 (acknowledging
Board's discretion to determine the degree to
which it will follow the Labor Department's con-
structions of the sec 3(1) exemption)
In applying the aforementioned test in the instant
case, we find the facts presented weigh in favor of
our asserting jurisdiction The evidence shows that
the employees in question handled mushrooms pro-
duced by a farmer other than the Employer, and
the Employer has not demonstrated that its han-
dling of such mushrooms occurred very rarely, on
only an emergency basis Because the one asserting
such an exemption has the burden of proving its
application, 20 the record does not establish that the
work of the "fresh-pack" employees is within the
agricultural exemption 21 We therefore assert juns-
NLRA, were New Deal statutes NLRB v John W Campbell, Inc , 159
F 2d 184, 186-187 (5th Or 1947) The court discerned in "the general
legislative pattern of those times" an intent of Congress 'to relieve dis-
tressed farmers from burdens which It well knew they were "not
equipped to carry" In fact, the definitions in the statutes to which the
court referred were not the same, but each was offered for consideration
by Congress The version of the rider offered by Representative Elliott,
which the House first adopted, would have defined 'agricultural labor'
as It was defined in the Social Secunty Act Amendments of 1939, 53
Stat 1377, 92 Cong Rec 6689-6692 (1946) As Senator McCarran later
reported, however, the House and the Senate "were in complete dis-
agreement on what is known as the Elliott rider," and the confer-
ence committee finally agreed to substitute a provision referring to the
definition of agriculture in sec 3(f) of the FLSA 92 Cong Rec 9514
(1946) Senator Ball, a member of the conference committee, character-
ized the definition of "agricultural laborer" in the Social Security Act as
"very broad" and the FLSA section as "a much narrower definition" to
which counsel for the NLRB had no real objection because only "a few
minor changes in [the Board's] present procedure and definition" would
be called for Id Thus, although it might be fairly said that the "1946
rider was the product of heated debate and of sharp conflict between the
two houses, which unfortunately sheds relatively little light on its inter-
pretation" NLRB v Kelly Bros Nurseries, 341 F 2d 433, 435 fn 2 (2d Or
1965), It is at least noteworthy that the exemption chosen was apparently
perceived as the one that would permit more extensive coverage of em-
ployees by the NLRA
20 Corning Glass Works v Brennan, 417 US 188, 196-197 (1973), Phil-
lips, Inc v Walling, 324 U S 490, 493 (1945)
21 Member Oviatt, in dissent, makes the point that it is unfair now to
find that the Employer did not carry its burden of meeting the test we
are applying because the Employer had reasonably relied on Employer
Members as authority for the proposition that the evidence It Introduced
was sufficient to show that it came within the agricultural exemption Be-
cause Employer Members did not expressly overrule DeCoster, however
and because, even after the issuance of Employer Members, DeCoster was
cited (albeit in dictum) as if It were still viable precedent (see, e g, Weg-
man's Food Market, 236 NLRB 1062 (1978), Stahmann Egg Farms, 251
NLRB 1232 (1980)), we do not agree that an applicable rule had been
clearly established by any line of authority In our decision today we are
attempting to resolve the problem of the competing lines of precedent In
diction, reinstate the petition, and remand the case
to the Regional Director for further processing 22
MEMBER CRACRAFT, concurring and dissenting in
part
I agree with Chairman Stephens and Member
Devaney that the definition of secondary agricul-
tural laborer in Employer Members of Grower-Ship-
per Vegetable Assn, 230 NLRB 1011 (1977), should
be overruled as overly broad and a misapplication
of the Department of Labor's regulation defining
agricultural laborer I disagree, however, with
Chairman Stephens and Member Devaney's addi-
tion of a regularity standard to the definition set
out in DeCoster Egg Farms, 223 NLRB 884 (1976)
Instead I would continue to stnctly apply the De-
Coster "exclusively" principle to secondary agricul-
tural laborers and find on that basis that the Board
should assert jurisdiction over the employees at
issue I believe that adhering to DeCoster's strict
limitation of the definition of secondary agricultur-
al laborer fulfills the purpose of the agricultural ex-
emption in Section 2(3) of the Act, better accords
with the Department of Labor's definition of agri-
cultural laborers, and provides a more precise
standard to follow
As my colleagues discuss, the agricultural ex-
emption has both a primary and a secondary defini-
tion Primary agricultural laborers are engaged in
traditional agricultural work and are exempt Sec-
ondary agricultural laborers are not engaged in ag-
ricultural work but in processing or marketing
work such as sorting and packing and are exempt
only if the work is incidental to an employer's
farming operations Thus, the proper focus for de-
termining secondary agricultural status is on the
nature of the employer's operations rather than on
the nature of the work of the laborers in question 2
any event, this is an Issue of statutory jurisdiction, which can be raised at
any time Gateway Motor Lodge, 222 NLRB 851, 852 (1976) If circum-
stances at the present time are such as to divest the Board of jurisdiction
under the regularity test set out above, the Employer is free to make an
appropriate proffer We see no value, however, in remanding for recon-
sideration of the evidence as It existed in 1985
22 Member Cracraft joins in this conclusion, for the reasons set forth in
her separate opinion
' Additionally, I disagree with Member Dylan's retention of the Em-
ployer Members standard In my view, that standard lacks precision and
predictability in application as well as varying from the Department of
Labor's definition Although the Employer Members standard has been in
existence for over 12 years, the same is true of DeCoster In fact, on at
least one occasion the Board found no exemption under either the Em-
ployer Members standard or the DeCoster standard See Valley Harvest Dis-
tributing, 294 NLRB 1166 fn 2 (1989)
2 Technically, there is no such thing as secondary agricultural work In
contrast, there is primary agricultural work for which the focus is on the
nature of the work Thus, the Board has found that a coal mining firm's
revegetation laborers are "engaged in agricultural activities regardless of
whether they are employed by a farmer or on a farm" Drummond Coal
Co, 249 NLRB 1017, 1018 (1980)
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I believe the Act's agricultural exemption was
designed to apply to traditional farming operations
Although no clear line is entirely satisfactory, I be-
lieve that DeCoster's "exclusively" principle draws
the appropriate line DeCoster draws the line be-
tween a farmer who prepares exclusively his own
products for market and a farmer who handles any
produce from other growers In the latter case I
would find that the focus of the employer's oper-
ations has shifted from that of a farmer seeking to
dispose of his own produce to that of a marketer
seeking produce from other growers to satisfy mar-
keting concerns such as pleasing customers or ful-
filling contracts Furthermore, I believe that the
nature of the latter employer's operations has
changed even if the change was due to a fire,
flood, freeze, or "other whims of nature" Thus, I
dissent from my colleagues' addition of regularity
to DeCoster
As more fully explained in DeCoster, 223 NLRB
at 885, since 1946 Congress has mandated that the
Board define agricultural laborers in accord with
section 3(f) of the Fair Labor Standards Act that in
turn defines secondary agricultural laborers as per-
forming work "on a farm as an incident to or in
conjunction with such farming operations" The
Department of Labor's regulation 3 interpreting the
FLSA definition of agricultural laborer states
No practice' performed with respect to farm
commodities is within the language under dis-
cussion by reason of its performance on a farm
unless all such commodities are the products
of that farm Thus, the performance on a farm
of any practice, such as packing or storing,
which may be incidental to farming operations
cannot constitute a basis for considering the
employees engaged in agricultural if the prac-
tice is performed upon any commodities that
have been produced elsewhere than on such
farm
In DeCoster the Board held that this regulation
must be read as limiting the exemption to those
processors who deal exclusively with their own
goods This interpretation fully accords with the
specific language of the regulation 4
Although the Department of Labor's administra-
tion of the FLSA involves different considerations
than the Board's administration of our Act, defer-
ence to the department's interpretation is not to be
3 29 CFR § 780 141 (1974)
4 In applying this interpretation to the facts of the case in DeCoster, the
Board found that although only about 1 7 percent of the 11 7 million eggs
processed by the employer were received from contract farmers, the
processing employees were not engaged in activities falling within the
secondary definition of agriculture because they did not deal exclusively
with eggs produced by their employer
lightly disregarded, especially as Congress has re-
quired that we follow the FLSA definition As the
Department of Labor's regulation properly focuses
on the nature of the employer's operations rather
than on the nature or regularity of the work of the
laborers in question, I would find that there is nei-
ther need nor good reason for the Board to apply a
different standard I would not, as do my col-
leagues, depart from the Department of Labor's
standard by adding a requirement for regularity
Finally, I believe that my colleagues' appendage
of regularity, the meaning of which is not defined
or readily apparent, unnecessarily creates new un-
certainty I prefer the clearer, although stricter,
ruling of DeCoster
I would apply DeCoster and find that the Em-
ployer's fresh pack department employees are em-
ployees within the meaning of Section 2(3) of the
Act From 2 26 to 407 percent of the mushrooms
handled by the Employer's fresh pack department
employees came from outside farms As these em-
ployees do not handle the Employer's mushrooms
exclusively, they are not engaged in activities fall-
ing within the secondary definition of agricultural
laborers, and the agricultural exemption should not
apply to them Accordingly, in agreement with
Chairman Stephens and Member Devaney, but for
different reasons, I would reverse the Regional Di-
rector's decision, reinstate the petition, and remand
the case
MEMBER OvIATr, concurring and dissenting in
part .
The issue is whether farm workers MI6 soft;
grade, and pack mushrooms, nearly all of which
are grown on their employer's mushroom farms,
are employees covered by our statute or "agricul-
tural laborers" whom Congress explicitly excluded
Unlike my colleagues, I would continue to apply
the Employer Members' rule of substantiality and
regularity and find that these workers are agricul-
tural laborers 2
The Employer's Glenn Farm grows, harvests,
and packs mushrooms, most of which are sold as
fresh produce The workers in question are in the
fresh pack department, where mushrooms are
sorted, weighed, and quick-cooled All but some 2
to 4 percent of the mushrooms the Employer ships
to customers are ones it grows itself Only when
Glenn Farm does not have enough mushrooms to
fill customer orders does the Employer obtain addi-
tional mushrooms, both from other farms it owns
' Employer Members of Grower-Shipper Vegetable Assn, 230 NLRB 1011
(1977)
2 I would overrule DeCoster Egg Farms, 223 NLRB 884 (1976), be-
cause It is clearly inconsistent with Employer Members
CAMSCO PRODUCE CO 911
and from farms it does not own Use of mushrooms
grown outside Glenn Farm occurs on an intermit-
tent basis—as much as two to three times a week
or not at all in a particular week Our concern here
is only with mushrooms that the Employer does
not grow itself on Glenn Farm or on other farms
owned by the Employer
Applying the rule announced more than 12 years
ago in Employer Members, and thereafter followed
by the Board and recently by at least one court,3
the Regional Director found that the amount of
other growers' mushrooms handled by the fresh
tack department workers was insufficient to turn
these agricultural laborers into employees covered
under Section 2(3) of our Act In Employer Mem-
bers, the Board held that the agricultural exemption
will be lost only if both a "regular and substantial"
portion of the agncultural products the workers
handle is grown by a farmer other than their em-
ployer There, the Board found that workers who
handled outside produce constituting less than 10
percent of their employer's total were exempt as
agricultural laborers because the amount of nonem-
ployer produce they handled was insubstantial 4
Like Chairman Stephens and Member Devaney,
I find that we are not required to, and should not,
apply the pertinent Department of Labor (DOL)
interpretive rule3 mechanically I do not agree
with them, however, that the Board should assert
jurisdiction if any amount of farm commodities
other than those of the employer-farmer are regu-
larly handled by the workers in question In my
view, Employer Members provides a practical and
common sense approach to determining whether an
employer is engaged in "farming operations"
within the meaning of section 3(f) of the Fair
Labor Standards Act Thus, where a farmer has in
effect become a jobber or wholesaler for other
products the Employer Members rule recognizes
that fact any substantial amount of agricultural
goods from another producer that are handled by
that farmer's workers on a regular basis will forfeit
the agricultural exemption But the Employer Mem-
bers rule also implicitly recognizes that a farmer's
"products are not manufactured, but are products
of the soil, subject to the caprices of nature" Wirtz
v Jackson & Perkins Co, 312 F 2d 48, 51 (2d Or
1963), see Damutz v William Pinchbeck, Inc , 158
3 See Valley Harvest Distributing, 294 NLRB 1166 (1989), Spirit Moun-
tain Farms, 259 NLRB 1016, 1017 fn 1 (1982), Careau Group v United
Farm Workers of America, 716 F Supp 1319, 1324 (CD Cal 1989)
4 Even prior to Employer Members, the Board had followed a de mini-
m's approach See Lee A Consaul Ca, 192 NLRB 1130, 1135 (1971), enf
denied on other grounds 469 F 2d 84 (9th CH. 1972), John C Maurer &
Sons, 127 NLRB 1459 (1960)
5 Congress has required that the Board be guided by the definition of
"agnculture" in the Fair Labor Standards Act, sec 3(f), which is admin-
istered by DOL
F 2d 882, 883 (2d Cir 1946) Unseasonably bad
weather, insect blight, and disease must be consid-
ered because these conditions may limit a farm's
production and thus substantially affect a farmer's
ability to meet his obligations to his customers, not
just over the short term, but over the course of a
growing season Such unforseen events may re-
quire a farmer regularly to acquire small quantities
of the product he farms from other farmers until
his own farming facilities can once again provide
all his customers' requirements But today's farmer
is no less engaged in "farming operations" because,
in the circumstances I have described, he regularly
ships quantities of the product he farms that con-
tain very small amounts of that same product
coming from other farmers 6 Thus, I would contin-
ue to follow the Employer Members rule and to
exempt farm laborers who happen to work on
products from other farmers, unless the work on
outside products is regular and substantial
In this case, the Employer obtained no more
than some 4 percent of its mushrooms from other
growers, an insubstantial amount 7 Although in my
view this alone would be enough to warrant the
Board's declining jurisdiction over this Employer, I
note that the Employer did not receive mushrooms
from other growers every week, the shipments
were intermittent Thus, even under the plurality's
more restrictive "regularity" test, there is a ques-
tion whether the Board should assert jurisdiction
The plurality asserts jurisdiction because the Em-
ployer did not satisfy its burden of demonstrating
that it handled outside mushrooms "very rarely, on
only an emergency basis" But I do not equate a
lack of regularity with a very rare happening
Something can happen irregularly without taking
place very rarely And even if the Board now
wants to apply this new, more restrictive test, it is
unfair simply to assume that the intermittent mush-
room shipments from other farmers were not in re-
6 The DOL rule, 29 CFR § 780 141, interpreting the phrase such
farming operations" in sec 3(f), states that, in order to retain the agricul-
tural exemption, the farmer in question must not handle any commod-
ities that have been produced elsewhere than on his farm The regulation
thus appears to preclude a de minims test For judicial authority, howev-
er, the regulation cites only Mitchell v Gatesvdle Commission Co, 263
F 2d 913 (5th Cll . 1959) In Mitchell, the court of appeals in fact applied
a de minims test The district court had found that individuals working
in a cattle auction barn were exempt from provisions of the FLSA as ag-
ricultural workers On appeal, the Fifth Circuit reversed In doing so,
however, the court noted that to bring himself within the exception, the
appellee must prove that not merely some but substantially all of the
farming operations to which the practices are incident were operations of
the appellee farmer himself ' 263 F 2d at 917 (emphasis added) Plainly,
substantially all is not "all
7 I do not necessarily agree with the finding in Employer Members that
where 10 percent of the agricultural product comes from another farmer
this amount is still insubstantial Employer Members, supra, 230 NLRB at
1015-1016 Here, however, the amount of mushrooms grown by others is
less than 5 percent, plainly an insubstantial amount
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponse to emergencies at the Employer's farm The
Employer participated in the representation hearing
believing that Employer Members was good law
At the very least, the Employer should have the
opportunity to introduce additional evidence on
this point
I would affirm the Regional Director's finding
that the Glen Farm fresh pack department employ-
ees are agricultural workers exempt from the Act's
coirerage and also affirm his dismissal of the peti-
tion