Colchester Egg Farms, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 612 (N.L.R.B. 1974)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colchester Egg Farms , Inc. and Local 531, Service
Employees' International Union , AFL-CIO, Peti-
tioner . Case 1-RC-13131
November 4, 1974
DECISION AND DIRECTION OF ELECTION
Pursuant to a petition filed on February 1, 1974,
by Petitioner with the Regional Director for Region
1, seeking representation of a unit of the Employer's
employees, described below, a representation hearing
was held before Hearing Officer G. Rosalyn Johnson
on February 13, 1974. Thereafter, the Regional Di-
rector for Region 1 transferred this proceeding to the
Board for a determination as to whether the
Employer's operations constitute agriculture within
the meaning of section 3(f) of the Fair Labor Stan-
dards Act (29 U.S.C.A. 203(f) ), as contended by the
Employer. Subsequently, the Employer filed a brief
in support of its contention.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds they are free from
prejudicial error. They are hereby affirmed.
The Board has considered the entire record in this
case, including the brief, and makes the following
findings:
1. The Employer, a Connecticut corporation, is
engaged in the processing and selling of eggs. Annu-
ally it ships goods valued in excess of $50,000 from
its Franklin, Connecticut, location to points located
outside the State of Connecticut and annually pur-
chases supplies valued in excess of $50,000 from
points located outside the State of Connecticut. We
find in agreement with the parties that the Employer
is engaged in commerce and that it will effectuate the
policies of the Act to assert jurisdiction herein.
We find, contrary to the contention of the Em-
ployer, that the employees sought by the Union are
not "agricultural laborer[s] " as defined in Section
2(3) of the Act.'
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) of the Act for
the following reasons:
The Petitioner seeks to represent a unit of truckdri-
vers and one mechanic engaged in the transportation
of the Employer's product.' The Employer contends
Sec. 2(3) exempts from the definition of "employee" "any individual
em2ployed as an agricultural laborer
The duties of these drivers consists of picking up eggs from the Rytman-
Alfieri Farms and transporting them to the Colchester plant , picking up
eggs from the contract farms and transporting them to Colchester , hauling
that these individuals are "agricultural laborers," ex-
empt from the Act's coverage by virtue of the defini-
tion of "employees" contained in Section 2(3) of the
Act.
The Employer is owned by three individuals; 50
percent of its stock is owned by Julis Rytman, 25
percent by John Fedorowicz, and 25 percent by
Nicholas Alfieri. It is engaged in the processing and
selling of eggs, some of which are produced by chick-
ens on farms owned jointly and separately by Ryt-
man and Alfieri.' The processing plant is on land
owned by Rytman. None of the owners of Colchester
receives a salary except Alfieri, whose time is devoted
almost exclusively to sales and sales promotion of the
processed eggs from Colchester. The eggs are sold to
supermarkets and other dealers. Colchester, in addi-
tion to securing eggs for processing and sale from the
Rytman and Alfieri jointly and separately owned
farms, also secures about 25 percent of its eggs from
contract farms 4 In addition, at the time of the hear-
ing, the Employer received about 10 percent of its
total eggs for processing from farms in Maine.'
The Employer's basic contention is that because
Alfieri and Fedorowicz jointly own Colchester with
Rytman, and they separately and jointly own farms
supplying the eggs Colchester processes for market,
Colchester is engaged in farming operations and thus
its employees are individuals engaged in agriculture
and are therefore exempt from the Act as agricultural
laborers.
It is clear from the record that Colchester is jointly
owned by individuals who are engaged in farming
and their employees would normally be exempt un-
der Section 2(3) of the Act. In the instant case, how-
ever , we conclude that Colchester' s operations inso-
far as it involves the employment of truckdrivers and
a mechanic does not constitute agriculture as that
term is used in section 3(f) of the Fair Labor Stan-
dards Act (29 U.S.C.A. 203(f) )6
Colchester secures 25 percent of its eggs from con-
tract farms. It appears clear that the employees of the
eggs for hatching to Fedorowicz ' hatchery , and transporting processed eggs
to customers of Colchester
i Fedorowicz operates a hatchery on a farm owned by him which hatches
egfs supplied by Rytman
These contract farms produce eggs from poultry furnished by Rytman
and Alfieri
5 These were brown eggs acquired to supply a market demand The record
discloses that the Employer was attempting to obviate the necessity of se-
curing out-of-state eggs by building up its poultry flock so as to be able to
meet the brown egg market demand
6 Since 1947 the appropriation acts for the Board have regularly carried a
nder which provides that the term "agricultural laborer" shall be defined in
accordance with sec 3(f) of the Fair Labor Standards Act (29 U S C A
203(f)) which reads in part as follows
"Agriculture" includes farming in all its branches and includes
. any practices performed by a farmer or on a farm as an inci-
dent to or in conjunction with such farming operations [Emphasis
supplied I
214 NLRB No. 64
COLCHESTER EGG FARMS, INC.
contract farmers would fall within the Section 2(3)
exemption of the Act. It is equally well settled that
the truckdrivers employed to pick up eggs from these
contract farms do not come within the exemption. It
is likewise clear that Colchester is engaged in the de-
livery of processed eggs to various purchasers and
that this is accomplished through an established sales
organization of which Alfieri is the principal sales-
person . In addition, the truckdrivers pick up and de-
liver to Colchester eggs from 12 contract farms.
These eggs are intermingled with those produced on
the Rytman-Alfieri farms.
We conclude that, while Colchester is owned by
individuals who in their other operation may well be
exempt from the Act by virtue of Section 2(3), the
employees employed by Colchester in the pickup and
delivery of eggs to and from Colchester, including
deliveries to retail chains and other retail outlets, are
not exempt from our Act.
The fact that Colchester has maintained a sales
force for the disposal of its product, together with the
fact that a substantial percentage of the eggs comes
from contract farms and are intermingled with its
other eggs which the truckdrivers pick up and deliv-
er, leads us to conclude that they are employees with-
in the meaning of the Act.' Therefore, we shall assert
jurisdiction in this case.'
4. We find upon the entire record, including the
stipulation of the parties, that the following employ-
ees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All truckdrivers and mechanics employed by
the Employer at its Franklin, Connecticut, loca-
tion, excluding all other employees.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
CHAIRMAN MILLER AND MEMBER KENNEDY, dissent-
ing:
7 See Department of Labor's regulations 29 CFR 780, 138, 147, 152, 167,
169, 172
8In arriving at this conclusion , we have given full effect to the United
States Department of Labor Regulations interpreting sec 3 (f) of the Fair
Labor Standards Act (29 U S C A 203 (f)) Although, we recognize that the
Fifth, Eighth, and Ninth Circuit Courts of Appeals have refused to accept
the Department of Labor's interpretation of sec 3(f) of the FLSA, we be-
lieve that sound Government policy requires that we refrain from interpret-
ing this legislation in a manner inconsistent with the expressed views of the
Agency charged with the responsibility for administering that Act We also
believe that , by following such a policy, we are giving full effect to the
direction by Congress that we define the term "agricultural laborer" in ac-
cordance with sec 3 (f) of the FLSA
In arriving at this conclusion , Member Fanning has accorded great
weight to the Department of Labor's interpretation of sec 3(f) of the FLSA
See Bodine Produce Company, 147 NLRB 832 at 840 (1964)
613
The majority decision ignores significant facts,
governing statutory provisions, and judicial authority
construing those provisions. Its rationale has been
repudiated consistently by court decisions. We be-
lieve that the petition must be dismissed because it
seeks an election among agricultural laborers,' and
we, therefore, dissent.
The facts show that the individuals whom Peti-
tioner would include in a bargaining unit are "agri-
cultural laborers" and not employees within the
meaning of Section 2(3) of the Act. They are, there-
fore, not covered by our Act and the Board is pre-
cluded from directing an election in this case.
Colchester Egg Farms, Inc., is engaged in a farm-
ing operation and was formed solely to process and
market the eggs produced by its farmer owners. Its
facilities are not available to other egg producers.
Colchester's owners, Julius Rytman, John Fedo-
rowicz, and Nicholas Alfieri, individually and in
partnership, raise poultry for egg production. They
supply their entire production to Colchester and con-
trol and actively manage Colchester. None receives a
dividend and only Alfieri, who devotes substantially
full time to sales, receives a salary. Rytman individu-
ally owns the real estate, owns the building where
Colchester conducts its business, and owns the
equipment.
Rytman and Alfieri own all the eggs produced.
There are 270,000 birds on egg-producing farms
which Rytman owns. Rytman also rents farms under
agreements with farm owners to grow birds owned
by him. Rytman has placed about 650,000 birds on
such farms. About 225,000 of the birds are egg pro-
ducing and 430,000 have not reached the laying
stage. The latter remain on the farms until they are
productive at which time Rytman transfers them to
farms owned by him and Alfieri under the partner-
ship name of Al-Ryt. The Al-Ryt farms have about
300,000 birds. Rytman also has agreements with
other "contract farms" to grow meat birds, a product
which does not involve Colchester. Rytman owns
about 360,000 meat birds under such arrangements.
Rytman has total control over the placement and
removal of birds on his contract farms. He supplies
food,10 water, and veterinary service to the birds and
makes all decisions as to their care. He communi-
cates daily as to the condition of the birds and Ryt-
man pays the farmer for services rendered to his
birds.
Fedorowicz operates a hatchery which receives all
of its eggs from Rytman and Al-Ryt farms. After the
9 Since 1946, Congress has added a rider to the bill governing the Board's
appropriations providing that no part of our appropriation shall be "used in
connection with bargaining units composed of agricultural laborers" as
set forth in sec 3(f) of the FLSA
10 All feed consumed by the birds is produced by Rytman Grain
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eggs are hatched, they are transferred to contract
farms, to Al-Ryt's egg-producing farms, or to
Rytman's meat poultry farms.
Colchester processes Rytman's and Al-Ryt's eggs
before they are sent to the hatchery as well as before
they are sent to market. There is no charge for this
prehatchery processing. When it markets the eggs, it
gives Rytman and Al-Ryt the market price, less the
processing cost of about 10 cents a dozen. The Col-
chester activity includes washing, spraying, candling,
and grading the eggs and placing them in cartons.
Of the eggs processed by Colchester, 90 percent
are owned by Rytman and Al-Ryt, of which 25 per-
cent come from chicks grown on contract farms. Col-
chester does not process eggs for egg producers other
than its owners. When necessary to meet customer
needs, Colchester purchases eggs from other sources.
The bulk of the outside egg buying has been due to a
temporary shortage of brown eggs, which Rytman
and Al-Ryt are now taking steps to produce.
The truckdrivers whom Petitioner seeks to repre-
sent spend about 40 percent of their time transport-
ing eggs from the Rytman-owned or leased farms to
Colchester for processing. There is some delivery to
the hatchery, but the largest portion of the drivers'
work is the delivery of processed eggs from Colches-
ter to retail stores or egg distributors. The drivers also
occasionally perform trucking work for Rytman or
assist in egg processing at the Colchester plant.
The courts have long recognized that raising of
poultry and production of eggs are within the defini-
tion of agriculture and the work performed by truck-
drivers is "incident to or in conduction with" such
raising and the "preparation for market" and the
"delivery to market" of the poultry products." Our
colleagues err, we think, in failing to recognize that
the Employer's operations are a totally integrated
farming operation. The truckdrivers are performing a
transportation function related to the Employer's
farming operation.
The majority opinion of our colleagues simply ig-
nores the court decisions which have held that indi-
viduals performing work similar to the truckdrivers
and mechanics in this case are clearly agricultural
laborers under the standards prescribed by Congress.
ii Sec 3(f) of the FLSA defines "agriculture" as follows
"Agriculture" includes farming in all its branches and among other
things includes the cultivation and tillage of the soil , dairying, the pro-
duction, cultivation, growing, and harvesting of any agricultural or hor-
ticultural commodities (including commodities defined as agricultural
commodities in section [ 15(g) of the Agricultural Marketing Act, as
amended] ), the raising of livestock , bees, fur-bearing animals , or poul-
try, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations , including preparation for market , deliv-
ery to storage or to market or to carriers for transportation to market
129 U S C A 203(f)]
The statute's definition of "agriculture" exempts
"farming in all its branches and among other things
includes . . . the raising of . . . poultry." It further
encompasses "any practices," whether or not they
are farming practices, "performed by a farmer or on
a farm as an incident to or in conjunction with such
farming operations, including preparation for mar-
ket, delivery to storage or to market or to carriers for
transportation to market." 12
The Board has held that egg-processing , mainte-
nance, and truckdriver employees working for an
employer who produced, processed, and sold eggs
were exempt as agricultural laborers because the em-
ployees' activities were incidental to and in conjunc-
tion with their employer's farming operation. See
McAnally Enterprise, Inc., 152 NLRB 527 (1965). Our
colleagues do not follow the McAnally case here.
They reason that the employees who handle or haul
eggs or chickens lose their statutorily exempt status
as agricultural laborers because the chickens are
placed on contract farms. The courts have repeatedly
rejected this Board's attempt to compartmentalize
what is essentially a total "farming" activity. McEI-
rath Poultry Company v. N.L.R.B., 494 F.2d 518 (C.A.
5, 1974); Abbott Farms, Inc. v. N.L.R.B., 487 F.2d
904 (C.A. 5, 1973); N.L.R.B. v. Victor Rykebosch,
Inc., 471 F.2d 20 (C.A. 9, 1972); N.L.R.B. v. Strain
Poultry Farms, Inc., 405 F.2d 1025 (C.A. 5, 1969). See
also Wirtz v. Tyson's Poultry, Inc., 355 F.2d 255 (C.A.
8, 1966); Mitchell v. Georgia Broiler Supply, Inc., 186
F.Supp. 341 (D.C. Ga., 1960)."
A principal decision under the Fair Labor Stan-
dards Act, construing the agricultural definition, is
strikingly similar to this case. In Writz v. Tyson's
12 Farmers Reservoir & Irrigation Co v McComb, 337 U S 755, 762-63
(1949)
U In fn 8 , supra, the majority suggests that we should refrain from inter-
preting sec 3(f) of the FLSA in a manner inconsistent with the views of the
Department of Labor We note that said footnote is inconsistent with the
view expressed by Member Fanning in the dissent in Bodine Produce Com-
pany, 147 NLRB 832, in which he stated "While we agree with our col-
leagues that great weight is to be accorded to the Labor Department 's opin-
ion for which we want utmost respect, in the final analysis we are charged
with responsibility for our own jurisdictional determinations " [Emphasis sup-
plied ] We, too, are unwilling to abdicate to the opinion of the Department
of Labor for the Board is charged by Congress with ensuring that our ap-
propriations are not "used in connection bargaining units composed of
agricultural laborers " Indeed the Department of Labor's Interpretative Bul-
letin for Title 29, part 780 , recognizes that its interpretations are advisory as
to those "matters which have not been determined by the courts " and that
the "ultimate decisions on interpretations of the Act are made by the
courts ." See secs . 780.5 and 780 .6. We note that the Department of Labor
has not revised in pertinent part its interpretation of the agricultural exemp-
tion since 1961 Under these circumstances , the Department of Labor's 1961
Interpretative Bulletin cannot be accorded the controlling weight given it by
the majority
In our view , the above-cited decisions of the Fifth , Eighth, and Ninth
Circuit Courts of Appeals are authorative decisions and should be followed
We have refrained from dissenting in earlier cases to afford the Board an
opportunity to petition for certiorari in cases in which we have received
adverse decisions A majority of the Board has been unwilling to file such a
petition
COLCHESTER EGG FARMS, INC
Poultry, Inc., supra, Tyrson's Poultry, a subsidiary of
Tyson's Foods, processed and marketed eggs. It
graded , handled , sized , candled , packed , and shipped
eggs . It did not own any farms but obtained all of its
eggs from a sister farming company, Poultry Grow-
ers, also a subsidiary of Tyson ' s Foods. Twenty-sev-
en percent of the eggs supplied to the processing
plant were grown by independent growers under
contract , whereby Poultry Growers furnished the in-
dependent contractors with the birds (which Poultry
Growers continued to own) and supplied food and
medicine for the birds . Poultry Growers paid the
contractors a price per bird for the service . The court
held that all employees of the three corporations, in-
cluding those working in the egg-processing plant,
were engaged in a "single and completely integrated
farming operation ." It said:
We are here concerned with a single and com-
pletely integrated farming operation carried on
and headed up by appellees through their affili-
ated corporation , Poultry Growers, Inc. As
found by the District Court, the appellees are
farmers and are the ones who initiated the farm-
ing operations here involved . Without appellees
the independent growers arguably would never
have undertaken the initial and continuing cost
of acquiring the birds and producing the eggs.
The contract growers merely aid the appellees,
whom the District Court found to be the ones
qualified to claim the agricultural exemption un-
der the Act as to their employees engaged in the
"handling , cooling, grading, candling and pack-
ing" of eggs . [355 F.2d at 258]
The court concluded that all of the egg-producing
activities, including that of the contract farmers, the
egg raising by Poultry Growers, and the egg pro-
cessing by Tyson's Poultry, constituted a "self-sus-
tained and operated entire `agricultural function' "
and were thus exempt from coverage of the Fair La-
bor Standards Act. 355 F.2d at 261.
The Court of Appeals for the Fifth Circuit fol-
615
lowed the Tyson's Poultry decision in N.L. R.B. v.
Strain Poultry Farms, supra, and held that raising
poultry, whether by the employer or the independent
grower, was a part of the employer's "farming" oper-
ation . The court further held that truckers who
hauled chicken coops to independent growers of the
employer' s chickens and hauled the chickens from
the growers to market were exempt because the haul-
ing activity, like the contract growing, was an integ-
ral part of the employer' s raising of poultry. The
court of Appeals for the Ninth Circuit reached the
same conclusion in the Rykebosch case , supra. The
court held that the drivers who transport the grown
chickens to market are exempt.
In Abbott Farms, Inc., supra, the Fifth Circuit ap-
plied the Strain holding in finding employees of a
feed mill and truckers hauling the feed to indepen-
dent growers were exempt agricultural laborers be-
cause the activities were all a part of the employer's
exempt poultry raising operation . Accord McElrath
Poultry Co., supra, involving both mechanics and
drivers.
We cannot agree with our colleagues ' conclusion
that, because some of Colchester's eggs are produced
on contract farms, the drivers who pick up eggs from
the contract farms are not agricultural laborers. The
Board refuses to seek a definitive answer to the issue
here posed from the Supreme Court. A majority of
the Board has been unwilling to file a petition for
certiorari not withstanding adverse decisions in Mc-
Elrath Poultry Co., supra; Abbott Farms, Inc., supra;
Victor Rykebosch, Inc., supra, and Strain Poultry
Farms, Inc., supra. After 5 years of adverse decisions,
we think we should now acquiesce in the views of the
Fifth, Eighth, and Ninth Circuit Courts of Appeals.
The agricultural laborer exemption forecloses our
protecting individuals included in the unit in their
organizing efforts. We therefore think we do those
individuals a serious disservice in encouraging them
to participate in one of our elections . Elementary
fairness, we believe , requires that we dismiss the in-
stant case.