CPA Trucking Agency, Boaz

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 452 (N.L.R.B. 1970)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cotton Producers Association d/b/a CPA Trucking
Agency, Boaz and Teamsters Local Union 612,
Affiliated With International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America . Case 10-RC-8033
August 27, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer H. Carlton
Bryan, Jr., of the National Labor Relations Board.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, this case was transferred to the National
Labor Relations Board for decision by direction of
the Regional Director for Region 10. Following the
hearing the Employer filed a brief in support of
its position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question concerning commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Cotton Producers Association (herein called
CPA) is a cooperative corporation engaged in the
handling, processing, and marketing of various agricul-
tural commodities, including the raising, processing,
and marketing of poultry. In conjunction with its
poultry operations, CPA owns and operates feed mills
for the production and distribution of poultry feeds.
The actual growing of the CPA's poultry takes place
on the farms of independent farmers who raise the
chickens to marketable size. According to the contrac-
tual relationship, title to the chicks remains in CPA
which supplies the feed and pays the independent
growers according to a formula based on pounds
of broilers raised and amount of feed supplied by
CPA. The Employer, CPA Trucking, is an operating
division of CPA engaged in the hauling of live poultry,
poultry byproducts, and poultry feed.
The Petitioner requests an election in a unit of
all truckdrivers of the Employer at the Boaz facility.
Among the classifications sought are twelve to fifteen
"live haul" drivers and two "feed haul" drivers. The
"live haul" drivers transport live broilers from the
farms of the independent growers to the CPA process-
ing plant. The "feed haul" drivers transport poultry
feed from the CPA feed mill to one of the independent
farmers. All of these drivers work out of the same
facility and are commonly supervised.
The Employer contends that the "live haul" drivers
and "feed haul" drivers are agricultural laborers and
therefore specifically excluded from the definition of
"employee" in Section 2(3) of the Act which excludes
agricultural laborers. Annually, since July 1946, Con-
gress has added a rider to the Board's annual appropri-
ation measure which, in effect, directs the Board
to be guided by the definition of "agriculture" provid-
ed in Section 3(f) of the Fair Labor Standards Act
in determining whether individuals are agricultural
laborers within the meaning of Section 2(3) of the
NLRA. The Board has frequently stated that it was
its policy to consider the interpretation of Section
3(f) adopted by the Department of Labor in view
of that agency's responsibility and experience in
administering the FLSA.1 Section 3(f) of FLSA reads,
in pertinent part, as follows:
... agriculture includes farming in all its branches
and among other things includes, ... the produc-
tion, cultivation, growing and harvesting of any
agricultural ... commodities ... any practices
. . . performed by a farmer or oh a farm as
an incident to or in conjunction with such farming
operation, including preparation for market or
to carriers for transportation to market.
As the "live haul" and "feed haul" drivers herein
are not engaged in direct farming operations, of the
type enumerated in the "primary" definition of "agri-
culture," the question is whether they are engaged
in activities included in the "secondary" definition
of that term.2 In order to come within this definition,
the operation must be performed either by a farmer
or on a farm as an incident to or in conjunction
with the farming operations. The determination
requires that the character of the particular function
McAnally Enterprise, Inc, 152 NLRB 527, 529.
Farmers Reservoir & Irrigation Company v McComb, Wage and
Hour Administrator, 337 U S 755, 762
185 NLRB No. 79
CPA TRUCKING AGENCY, BOAZ
be evaluated to determine whether it is part of the
agricultural activity or a distinct business activity.
The totality of the situation will control, and not
mechanical application of isolated factors or tests.'
We have been administratively advised by the Labor
Department that in its opinion the drivers employed
by a trucking division of Cotton Producers Association
engaged in hauling broilers from the farms of contract
growers to CPA's processing plant and in transporting
feed from CPA's mill to the contract growers are
not agricultural employees within the meaning of
the Fair Labor Standards Act. In this connection
the Department refers to 29 CFR 780, the Labor
Department's current Interpretive Bulletin which pro-
vides an official statement of the views of the Depart-
ment with regard to the exemption of certain employ-
ees under the FLSA when employed in agriculture
and certain related activities. Section 780.135 indicates
that in situations such as the one herein, when feed
dealers or processors enter into a contractual arrange-
ment with independent farmers whereby the farmers
agree to raise poultry to marketable size and the
feed dealer or processor supplies the baby chicks,
furnishes the required feed, and retains title to the
chickens until they are sold, the activities of the
independent farmers and their employees in raising
the poultry are clearly exempt but the activities of
the feed dealer or processor are not "raising of poul-
try" and their employees cannot be exempt on that
ground. Section 780.149 states that where commodities
are grown on the farm of an "actual grower" under
contract with another farmer, practices performed
by the contracting farmer on the commodities off
the farm where they were grown relate to farming
operations of the "actual grower" rather than to
any farming operations of the contracting farmer.
Section 780.169 emphasizes that when poultry is deliv-
ered to market "the delivery must be performed by
the employees employed by the farmer in order to
constitute an exempt practice." Section 780.172 simi-
larly indicates that when poultry feed is delivered
to a- farmer for use in his farming operations, the
transportation to the farm of such supplies is exempt
if the truckdrivers are employed by the same farmer.
Accordingly, Section 780.173 concludes that, for the
exemption to apply, the practices must be performed
on "products produced or raised by the particular
farmer or on the particular farm."
Under the criteria set forth in the Interpretative
Bulletin , the "live haul" and "feed haul" drivers
are clearly not performing work in connection with
their employer's own farming operations, but are
453
engaged in hauling as an incident to or in conjunction
with the farming operations of the contract growers
who are actually raising the poultry CPA thus produc-
es and supplies the feed which enables the production
of the poultry, and then processes and markets the
product, with the agricultural function of tending
and feeding the live birds performed by the independ-
ent growers intervening in the chain. Consequently,
in this case it appears that the agricultural phase
of the entire operation is an incident of CPA's nonagri-
cultural activities rather than the converse.
In light of the above-stated facts and particularly
the administrative advice of the Department of Labor,
we find that the Employer's "live haul" and "feed
haul" drivers are not agricultural employees within
the meaning of the Fair Labor Standards Act, as
amended.
With regard to the remaining employees at the
Boaz facility, the Employer agrees with the Petitioner
as to the inclusion of the three drivers who haul
byproducts, but would also include the four mechanics
and two dispatchers.' The mechanics perform minor
truck repair and maintenance work at the terminal.
They have also on occasion hauled feed and bypro-
ducts on an emergency basis. They are supervised
by the terminal manager, who also supervises all
of the truckdrivers. In view of their close community
of interest with the drivers, we shall include the
mechanics in the unit . Queen City Transports, 141
NLRB 964, 972-973.
The dispatchers distribute assignments slips
instructing the drivers as to the number of chickens
needed, where they are available, and what size truck
is necessary for the haul. The dispatchers copy this
information from a book prepared by the terminal
manager. The record indicates that the terminal man-
ager makes the basic decisions with regard to shipment
priorities, routes, and driver assignments and that
the dispatcher's work in this regard is routine. The
dispatchers also perform the work of truckdrivers
on occasion. The dispatchers work closely with the
drivers in the same facility and are commonly super-
vised. As the dispatchers have no evident supervisory
or managerial authority and share a close community
of interest with the drivers, we shall include them
in the unit. Vangas, Inc., 167 NLRB 805, 806.
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
' The Employer also employs three forklift operators and approximately
15 to 25 chicken catchers who are stipulated to be agricultural workers
' McAnally Enterprise, Inc, supra at 530 and are excluded on that basis
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All truck drivers, mechanics, and dispatchers voters and their addresses which may be used to communicate with
at the Employer's Boaz, Alabama, operations
them Excelsior Underwear Inc, 156 NLRB 1236, N.L R B v Wyman-
Gordon Company, 394 U S 759 Accordingly, it is hereby directed that
excluding all office clerical employees , supervi - an election eligibility list , containing the names and addresses of all
sors, and guards as defined in the Act. the eligible voters, must be filed by the Employer with the Regional
[Direction of Electrons omitted from publication.]
Director for Region 10 within 7 days of the date of this Decision
and Direction of Election The Regional Director shall make the list
available to all parties to the election No extension of time to file
In order to insure that all eligible voters may have the opportunity this list shall be granted by the Regional Director except in extraordinary
to be informed of the issues in the exercise of their statutory right circumstances Failure to comply with this requirement shall be grounds
to vote, all parties to the election should have access to the list of for setting aside the election whenever proper objections are filed