Draper Valley Farms

National Labor Relations Board - Board Decisions

Jul 21, 1992

307 N.L.R.B. 1440 (N.L.R.B. 1992)

1440
307 NLRB No. 213
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under this definition, ‘‘agriculture’’ has both a primary and a
secondary meaning. See Farmers Reservoir & Irrigation Co. v.
McComb, 337 U.S. 755, 762–763 (1949).
2 Accordingly, we find it unnecessary to reach the Regional Direc-
tor’s assertion that the Board’s holding in Camsco Produce Co., 297
NLRB 905 (1990), applies to employees found to be engaged in pri-
mary agricultural activity.
3 Member Oviatt adheres to his separate position in Camsco
Produce Co., but finds that it is satisfied in this case.
Draper Valley Farms, Inc. and United Food and
Commercial Workers Union, Local 44, char-
tered by United Food and Commercial Work-
ers International Union, AFL–CIO, CLC, Peti-
tioner. Case 19–RC–12562
July 21, 1992
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election. The re-
quest for review is denied as it raises no substantial
issues warranting review. The Employer’s request for
a stay of the election also is denied.
In denying review, we reject the Employer’s conten-
tion that its chicken catchers are engaged in primary
agricultural activity, namely ‘‘harvesting,’’ as defined
in Section 3(f) of the Fair Labor Standards Act, 29
U.S.C. § 203(f). Although the harvesting of crops is
included in the primary definition of agriculture under
Section 3(f),1 only the ‘‘raising’’ of poultry is covered,
not its so-called harvesting, even assuming, arguendo,
that term is appropriate in any context when applied to
poultry.
Nor do we find that the Employer’s chicken catchers
are exempt under the secondary definition of agri-
culture. Instead, we find that the Employer’s chicken
catchers are engaged in activity incidental to a separate
and nonfarming business activity of the Employer, and
thus do not fall within the agricultural labor exemption
contained in Section 2(3) of the National Labor Rela-
tions Act, 29 U.S.C. § 152(3).2
When employers have claimed that employees are
agricultural laborers because they are engaged in activ-
ity incidental to or in connection with farming oper-
ations (the secondary definition of agriculture), the
courts have generally rejected the claimed agricultural
status when the employees in question were handling
or working on agricultural products raised on farms
other than their own employer’s. Victor Ryckebosch,
Inc., 189 NLRB 40, 45 (1971). For example, in NLRB
v. Olaa Sugar Co., 242 F.2d 714 (9th Cir. 1957), enfg.
118 NLRB 1442 (1957), the court found that hauling
agricultural products from fields of independent grow-
ers should be treated differently from hauling agricul-
tural products from Olaa’s own fields because hauling
cane from the independent growers’ fields could not be
said to ‘‘be an incident . . . to Olaa’s farming oper-
ations.’’
It is against this background that the Board’s deci-
sion in Imco Poultry, 202 NLRB 259, 260–261 (1973),
on which the Regional Director relied, evolved. We
find that holding, cited by the Supreme Court in
Bayside Enterprises v. NLRB, 429 U.S. 298, 302
(1977), clearly on point. In relevant part, the Board
stated:
The Board has consistently held that when an em-
ployer contracts with independent growers for the
care and feeding of the employer’s chicks, the
employer’s status as a farmer engaged in raising
poultry ends with respect to those chicks. As the
service crew employees involved herein are en-
gaged in handling and transporting chicks on the
farms of independent growers only after [the em-
ployer’s] farming operations have ended, these
employees cannot be performing practices inci-
dent to, or in conjunction with, [the employer’s]
farming operations. More accurately, they are en-
gaged in nonfarming operations which are inci-
dent to, or in conjunction with, a separate and dis-
tinct business activity of the [employer], i.e., ship-
ping and marketing.
We think it follows plainly from Imco that the Em-
ployer’s chicken catchers are not, when working on the
farms of independent growers who have concluded
their ‘‘raising’’ activities, exempt as agricultural labor-
ers. Thus, as it is undisputed that 60 percent of the
chickens caught by the disputed employees are raised
by independent growers and caught on their farms, it
is inescapable that the Employer’s chicken catchers
‘‘regularly’’ handle (and not ‘‘harvest’’) farm com-
modities other than those of the Employer, and thus
are not exempt agricultural workers as defined in Sec-
tion 2(3) of our Act. Camsco Produce Co., supra.3