John Bagwell Farms & Hatchery, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1971

192 N.L.R.B. 547 (N.L.R.B. 1971)

JOHN BAGWELL FARMS & HATCHERY, INC. '547
John Bagwell Farms & Hatchery, Inc. and Teamsters
Local ' Union 612, affiliated with International
Brotherhood ,, of Teamsters, Chauffeurs, 'Ware-
housemen and Helpers of America , Petitioner. Case
10-RC-8633
August 6, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING 'AND BROWN
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 close of the hearing the Regional Director for
Region 10 transferred this case to the Board for
decision. Thereafter, the Employer and the Petitioner
filed briefs.
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 proceeding toa 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. They are hereby affirmed.
Upon the entire record, including the briefs, the
Board finds:
1. The Petitioner requests an election in a unit of
employees of the Employer's feed mill at Cullman,
Alabama, including various classifications of labor-
ers, operators, and truckdrivers. The Employer
contends that the Board lacks jurisdiction over the
feed mill employees as it is engaged in the raising of
poultry and therefore its employees are agricultural
laborers within the meaning of Section 3(f) of the Fair
Labor Standards Act and Section 2(3) of the National
Labor Relations Act.
The Employer owns and operates two feed mills and
a hatchery. It is one of three corporations under the
parent management company, Spring Valley Foods;
the other two subsidiaries own and operate poultry
trucking and processing plants. The Employer asserts
that the integrated corporate structure is engaged in
producing broiler chickens from day-old to maturity.
1 The record also shows that the Employer also employs servicemen, or
"chicken doctors" who work out of their own homes (not the feed mill)
visiting growers farms to provide technical advice and occasional
vaccinations . They are excluded from the unit . Many of the servicemen as
well as two of the feed mill drivers are also engaged independently in
contract growing.
T The work of the feed mill drivers is distinguishable from that of
drivers for a hatchery since the former transport a commodity for an
employer found herein to be engaged in a nonagricultural pursuit, whereas
the latter haul live produce for an employer engaged in primary
The Employer enters- into .contractual relationships
with farmers, who produce hatching-,eggs from the
Employer's breeder hens and cockerels. The Employ-
er picks up the eggs and delivers them to the
Employer's hatchery where it puts them in incubators
for a 'period of 21 days. It then delivers the baby
chicks to growers with whom the Employer has
contracted. Under the contracts with the growers,'the
Employer retains ownership over the' broilers; the
growers raise the broilers: on' feed processed at the
Employer's mills; and the Employer pays the growers
a -minimum -guarantee per pound` with,'i ncreased
compensation if they exceed minimum standards,
losses being shared by the Employer and the individu-
al grower.'
The unit employees are engaged in activities relating
to the proeessmg of feed at the 'Employer"s "Cullman
mill. -The; feed mill 'employees do not participate I in
any way in the growing activities. The haulers deliver
the feed from the mill to the, growers' farms and pick
up excess feed.2 -The spray truckdriven sprays the
chickenhouses for disease control, but-the responsibil-
ity for cleanirigthe chickenhouses rests solely with the
growers.3
.The Board has consistently held -that' feed mill
employees in situations such as this are not within the
Act's exclusion of agricultural laborers. See Victor
Ryckebosch, Inc., 189 NLRB No. 8, page 14 (TXD);
Cotton Producers Association d/b/a CPA Trucking
Agency, Boaz, 185 NLRB No. 79; Armour Ches-Peake,
120 NLRB 681.
Unlike the employer in Strain Poultry Farms, Inc.,
160 NLRB 236; 163 NLRB 972, reversed 405 F.2d
1025 (C.A. 5), which the Fifth Circuit Court of
Appeals characterized as being within the primary
definition of agriculture4 because it was "engaged in
the raising of poultry," the Employer here "raises" no
broilers in its own farms, and instead contracts with
growers to do so. The only phase of the growing
operation in which the Employer participates is the
hatching of eggs.5 The fact that the hatchery may be
primary agriculture does not mean that the feed mill is
primary agriculture. In accord with Board precedent
above cited, we find that the feed mill operation
involved herein is not primary agriculture. Since it is
not directly related to the Employer's hatching
operations and, as the growing is not done by the
agriculture. Cf. Arkansas VaUey Industries, Inc., 167 NLRB 391, where
drivers for a hatchery (not a feed mill) were found to be excluded from the
Act's coverage.
3 The Employer does not contend that the spray truckdriver alone
should be excluded from the unit.
4 We view the Employer's ownership of the broilers as being in the
nature of a financial investment.
5 See Farmers Reservoir & Irrigation Co. v. McComb, Wage & Hour
Administrator, 337 U.S. 755 , 762, 763, for the distinction between primary
and secondary agriculture.
192 NLRB No. 81
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer, -. We further,find that the feed-mill is not
secondary agriculture.6 In these circumstances; the
agricultural exemption does not apply to theemploy-
ees of the.feed mill.7
Accordingly, we find -that-the Employerisengaged
in commerce,=and it will effectuate the purposes of the
Act to assert jurisdiction herein.
2. The labor, organization - involved claims to
represent certain employees of the Employer.
3. A. question , affecting commerce exists concern-
ing. the representation, of certain employees of the
Employer within the meaning ;of Sections 9(cxl) and
2(6) and (7) of the Act.
e Supra at 768.
s An, oral statement by a Wage and Hour Division investigator to the
Employer that its employees are exempt agricultural laborers is not
controlling as it is contrary to the official policy of the Department of
Labor and the Wage & Hour Administrator which the}Board,is required to
follow. See,- 29 CFR 780, and;McAnal y , Enterprise Inc., 152 NLRB 527.
Nor is the treatment of the Employer as an agricultural business by the
Internal Revenue Service controlling . Accord, Samuel H. Burton and
Pauline, Burton d/b/a Burton'Beverage Ca , 116 NLRB 634. -
Althougb,' as indicated, we believe that cases distinguishable, to the
extent that our finding herein is in conflict with the decision -of the U.S.
Court of Appeals for the Fifth' Circuit in Strain Poultry Farms, Inc., supra,
we respectfully disagree and adhere to our view until such time as the U.S.
Supreme Court has passed on the matter.
I The parties also agreed that Wayne Woodruff, manager, and Ronnie
Stevens, assistant manager and dispatcher, are supervisors as-defined in the
4. We find, in accord= with the, agreement of the
parties,8 that the following. employees constitute a
unit -appropriate' for .: the purposes-of collective
bargaining within the meaning of Section 9(f) of the
Act:
All truck drivers, mechanics, maintenance men,
helpers and night watchmen' at the Employer's
Cullman,, Alabama, operations -including mill
laborers, the pellet-mill operator, the panel board
operator, the loader, the laboratory technician,
and the, inventory clerk; excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
[Direction of Election9 omitted from publication.]
Act.
9' In order to assure that all eligible voters may have the-,opportunity to
be informed- of the issues `in-the exercise of their statutory-right to vote, all
parties to . the election, should have access to a list of voters. and their
addresses which' may be used to communicate with them . Excelsior
Underwear ' Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co.,39C U.S.
759., -Accordingly, it is hereby-directed that an' election eligibility list
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional 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 this list shall be -granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper, objections are
riled.