Jacobs Engineering Co.

National Labor Relations Board - Board Decisions

Feb 28, 1975

216 N.L.R.B. 828 (N.L.R.B. 1975)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Design Sciences, a Division of Jacobs Engineering Co.
and United Steelworkers of America, AFL-
CIO/CLC. Case 21-RC-13915
February 28, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joseph M.
Connors of the National Labor Relations Board.
Following the hearing, and pursuant to Section
102.67(h) of the National Labor Relations Board
Rules and Regulations, Series 8 , as amended, this
case was transferred to the National Labor Relations
Board for decision. Thereafter, the Petitioner and the
Employer filed briefs which have been duly consid-
ered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings 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.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. The Petitioner seeks to represent the Employ-
er's surveyors including party chiefs, instrument men,
rodmen-chainmen, and crewmen . The Employer
contends that the Board may not assert jurisdiction
over these employees because they are agricultural
laborers within the meaning of Section 2(3) of the
National Labor Relations Act, herein called NLRA,
and section 3(f) of the Fair Labor Standards Act,
herein called FLSA.
The Employer is engaged in the architectural and
engineering business in El Centro, California. The
principal work of the employees involved herein is to
perform survey functions for individual farmers in
the Imperial Valley 1 who are supplied with water by
the Imperial Irrigation District.2
I It appears from the record that only two or three farmers , who have
been in the Imperial Valley for a number of years, do some part of their own
survey work known as staking.
2 This survey work , which fluctuates on a seasonal basis, accounts for
216 NLRB No. 148
Upon receiving a call from a farmer, the Employer
sends out a survey party or crew to do surveying in
preparation for the leveling of the farmer's land or
installation of a tile drainage system.
The leveling operation, which has the purpose of
providing a continuous grade or slope to facilitate
the dispersal of water across the entire field, is
comprised of the following steps:
The crew consisting of a party chief, instrument
man, rodman-chainman, and crewman, begins by
inserting stakes every 100 feet throughout the field. A
benchmark is then fixed so that the relative eleva-
tions of the field may be established. The party chief
thereupon sets up an instrument at the benchmark
while other crew members walk through the field and
stop at each stake. The party chief uses the
instrument to take a reading of the elevation of the
land at the stake. After he marks the locations of the
stakes and the elevations thereof on a plat, the latter
is taken to the Employer's office where the staff
headed by the chief surveyor calculates the height of
the staked areas in order to have them correspond to
the slope desired by the farmer. The survey crew
returns to the field with the plat and marks each
stake to indicate what corrective work must be done
for that area of the field. With the completion of that
task, the crew leaves and the farmer arranges for a
contractor to excavate the land or build embank-
ments so that the staked areas reach the heights
specified by the markers.
As noted above, the Employer is also asked by
farmers to do survey work in connection with
planning for the installation of drainage tiles which
keep the water table low and expedite the flow of
poor quality subsurface water to existing drainage
ditches. At the farmer's request, he is provided with a
design of a tile drainage system by the Imperial
Irrigation District or Soil Conservation Service which
is drafted by employees of the Employer. The farmer
then takes the plat design back to the Employer who
assigns a survey crew to carry out the following
tasks: The instrument man sees to it that all lines
which indicate the subsurface drainage canals are
properly pegged or tagged. He also directs the
activities of the other crew members who measure
the distances specified on the plat and stake the field
to indicate the line and grade of the subsurface canal.
Each stake is marked to show the depth at which the
pipe should be laid for a particular area . Upon the
completion of these tasks, the crew submits the data
to the Employer's office staff which draws up a map
that is given to the farmer. The latter arranges for a
about 80 percent of the employees ' time in the course of each year. Dunng
the balance of the time , the Employer serves other customers on such tasks
as property line surveys,
DESIGN SCIENCES 829
contractor to construct the tile drain system pursuant
to the specifications on the plat.
As already stated, the Employer contends that the
employees sought by the Petitioner are agricultural
employees as defined in NLRA and FLSA. The
Petitioner takes the contrary position that said
employees are not agricultural employees because
their duties do not directly or indirectly involve
planting, caring for, or harvesting of crops.3
Section 2(3) of the NLRA excludes from its
coverage "agricultural laborers." The Board's annual
appropriation rider directs in effect that in determin-
ing whether an employee is an agricultural laborer
within the meaning of that provision of the NLRA,
the Board shall be guided by the definition set forth
in section 3(f) of the FLSA which state in pertinent
part as follows: "Agriculture includes farming in all
its branches and among other things includes .. .
the production, cultivation, growing and harvesting
of any agricultural . . . commodities . . . and any
practices . . . performed by a farmer or on a farm as
an incident to or in conjunction with such farming
operations...."
It is clear from the foregoing description of their
duties that the survey crews are not engaged in direct
farming operations such as those included in section
3(f)'s "primary" definition of agriculture. Therefore,
the issue in the instant case is whether they are
engaged in activities included in the "secondary"
definition of agriculture; namely, practices per-
formed on a farm as an incident to or in conjunction
with the farming operations.4
As the Supreme Court stated in Farmers Reservoir,
supra, the language of the secondary definition of
agriculture was carefully considered by Congress.5
As originally introduced, the exemption extended
only to those practices performed by a farmer. On
the floor of the Senate, it was objected that this
would exclude the threshing of wheat or other
functions necessary to the farmer if those functions
were not performed by the farmer and his employees,
but by separate companies organized for and
devoted solely to that particular job. To deal with
that situation, the words "or on a farm" were added
to the secondary definition of agriculture. Thus, the
legislative history made it plain that independent
contractors such as threshers of wheat, who travel
from farm to farm to assist farmers in what is
recognized as a purely agricultural task, should be
3 The farmers grow such crops as alfalfa, melons, grain , barley, wheat,
sorghum , sugar beets, and cotton.
4 See Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-
763 (1949), regarding the distinction between primary and secondary
agriculture.
5 81 Cong . Rec. 7876, 7888 (1937).
6 See sec . 708.128 of the United States Labor Department 's interpretative
bulletin . 29 CFR 780, dated July I, 1974.
included within the secondary definition of agricul-
tural employees.6
In section 780.144 of its interpretative bulletin, the
Labor Department states that "generally a practice
performed in connection with farming operations is
within the statutory language only if it constitutes an
established part of agriculture, is subordinate to the
farming operations involved, and does not amount to
an independent business." Section 780.145 of bulletin
sets forth the factors to be considered in determining
the relationship of the practice to farming:
The character of a practice as a part of the
agricultural activity or as a distinct business
activity must be determined by examination and
evaluation of all the relevant factors and circum-
stances in the light of the pertinent language and
intent of the Act. . . . The general relationship, if
any, of the practice to farming as evidenced by
common understanding . . . and the prevalence
of its performance by farmers . . . should be
considered. Other factors to be considered in
determining whether a practice may be properly
regarded as incidental to or in conjunction with
the farming operations of a particular . . . farm
include . . . the extent to which the practice is
performed by ordinary farm employees and the
amount of interchange of employees between the
operations . . . and the degree of separation
established between the operations.
On the basis of the legislative history of the FLSA
and the criteria set forth in the Labor Department
bulletin, we find that the survey crews herein do not
come within the exemption of section 3(f). Thus, the
employees of the Employer, an independent engi-
neering and architectural firm, unlike the threshers
referred to by Congress in its deliberations, do not
assist farmers in purely agricultural tasks. Although
the survey work of the crews contributes ultimately
to the productivity of the farm, it is significant that
the Employer operates as a distinct business entity
and that its employees perform technical tasks 7 of an
engineering nature which are not commonly recog-
nized or regarded as agricultural or performed by a
farmer's own employees .8
Accordingly, as the survey crews sought by the
Petitioner do not fall within either the primary or
secondary definition of agriculture as provided in
section 3(f) of the FLSA, we conclude that they are
7 See Monterey County Building & Construction Trades Council (Vito J
LaTorre), 142 NLRB 139 ( 1963), wherein the Board held to be nonagricul-
tural the employees of an independent company which constructed and
equipped new poultry raising buildings.
8 As noted above , few farmers in the Imperial Valley do any of their own
surveying in preparation for leveling or the installation of tile drainage
systems.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not "agricultural laborers" within the meaning of
Section 2(3) of the NLRA. We therefore find that a
question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Sections 9(c)(l) and 2(6) and
(7) of the NLRA.
4. The parties stipulated, and we find , that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the NLRA.
All surveyors of the Employer including party
chiefs, instrument men, rodmen-chainmen, and
crewmen but excluding office clerical employees,
professional employees, guards , and all other em-
ployees, and supervisors as defined in the NLRA.
[Direction of Election and Excelsior footnote
omitted from publication.]