McAnally Enterprise, Inc.

National Labor Relations Board - Board Decisions

May 10, 1965

152 N.L.R.B. 527 (N.L.R.B. 1965)

McANALLY ENTERPRISE, INC. 527
Relations Act, as amended. The Supreme Court of Texas did not
disturb the reversal. On March 29, 1965, the Supreme Court of the
United States denied the Petitioners' petition for writ of certiorari.
Petitioners are filing a motion for rehearing.
In the petition for advisory opinion, the Petitioners have requested
that the Board issue an opinion that their "causes of action have not
been preempted by the `Labor Management Relations Act."' No
responses as provided by the Board's Rules and Regulations have been
filed by the Unions.
The National Labor Relations Board has duly considered the allega-
tions of the petition. The Board's advisory opinion procedures "are
designed primarily to determine questions of jurisdiction by applica-
tion of the Board's discretionary standards to the `commerce' opera-
tions of an employer." 1 As the issue posed herein by the Petitioners
relates to whether the subject matter of the State court proceedings
is preempted by the Act and does not concern questions of the appli-
cability of the Board's discretionary commerce standards, it does not
fall within the intendment of the Board's Advisory Opinion rules 2
For these reasons, we shall dismiss the Petition for Advisory Opinion
herein.
[The Board dismissed, for the reasons set forth above, the Petition
for Advisory Opinion.]
' Broward County Port Authority, 144 NLRB 1539 ; Interlake Steamship Company
and Pickands Mather & Co ., 138 NLRB 576 and cases cited therein.
2 Ibid.
McAnally Enterprise , Inc.' and Meat Cutters Local 439, Amal-
gamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO;' and Sales Drivers & Dairy Employees Local 166,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, ' Joint Petitioners . Case No.
01-RC-9179. May 10, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 ( c) of the National Labor
Relations Act, as amended , a hearing was held before Hearing Officer
Robert Arey. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. Thereafter, the
Employer and Joint Petitioners filed briefs with the National Labor
Relations Board.
'The names of the Employer and the Joint Petitioners appear in the caption as
amended at the hearing
152 NLRB No. 50.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
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 organizations involved seek to represent production
and maintenance employees including shipping and receiving employ-
ees and truckdrivers at the Employer's two egg processing plants.
3. The Employer moved to dismiss the petition upon the ground
that the Board lacks jurisdiction because the individuals whom the
Petitioners seek to represent are "agricultural laborers" and therefore
specifically excluded from the definition of "employee" in Section 2(3)
of the Act.
The Employer, owner and operator of five chicken ranches, is
engaged in the production and processing of eggs. The Employer
operates two egg processing plants, one located on its Yucaipa ranch
and the other located on its Moreno ranch. At each plant, there are
two egg grading machines, valued at $9,000 each at the time of pur-
chase, two egg washers, valued at $4,000 at the time of purchase, and
four cooling units of two horsepower, two tons each, the value of which
is unknown.
Egg processing starts with the eggs coming from the coops to the
plant. The eggs are transferred from trucks to dollies which transport
the eggs to a cooling room where they are cooled a minimum of 24
hours. The eggs are then loaded onto washers, are washed, and follow
through the process on spools to the candlers who remove defective
eggs. After that the eggs are weighed over the grader and ultimately
placed in cartons, cased, and placed on a pallet which puts them on the
Employer's trucks. The eggs are then delivered by the Employer's
drivers to customers' warehouses.
Besides delivering eggs, truckdrivers do various duties around the
ranches and the plants, such as hauling chickens, fertilizer, trash, and
equipment. Drivers do not haul for others.
The Employer repairs and maintains his own equipment at a main
repair shop at the Yucaipa location which employs from 2 to 12 per-
sons. Any employee from any ranch who has the ability assists in a
maintenance and repair capacity when needed.
At the Yucaipa plant, there are a leadman and a leadlady who are
each responsible for a designated group of employees. The leadman
and leadlady normally hire and fire employees who work in the proc-
essing plants, and seldom hire employees who work on the ranches.
There are also two foremen at Yucaipa, one of whom spends 90 percent
McANALLY ENTERPRISE , INC . 529
of his time in the plant and the rest of his time on the ranches. There
are ranch foremen as well who spend the greater part of their time on
the ranches and they normally hire and fire workers at the ranch sites.
There is occasional interchange of employees between the two process-
ing plants as well as permanent transfers between the plants and the
ranches.
Approximately 56 employees work in the two processing plants
doing the washing, candling, grading, and packing processes. Employ-
ees are rotated in their jobs and may do any job at any time, except
that candlers must develop some skill and are paid more for this skill,
even when performing other jobs. Personnel policies, such as insur-
ance, holidays, and vacations, are common to all employees whether
they work in the plants or on the ranches. Employees are paid accord-
ing to the duties assigned with an hourly rate of pay differential of
about 30 cents.
The processing and distribution of eggs are confined to eggs that
come from the Employer's ranches. However, about 2 or 3 years ago
the Employer did some processing for Safeway Stores, and in May
or June 1963, the Employer processed eggs for a neighboring rancher
for about 30 minutes a day for 10 days. At present the Employer does
not contemplate processing eggs for anyone else.
Petitioner contends that the Employer's egg processing plants are
an industrial activity conducted for general business purposes. They
rely mainly on the sizable investment in buildings and machinery and
the separate supervision between the ranches and plants. They argue
therefrom that the individuals sought are "employees" within the
meaning of the Act. On the other hand, the Employer, pointing to the
Board's recent case, Bodine Produce Company, 147 NLRB 832, con-
tends that the employees petitioned for are agricultural laborers.
Section 2(3) of the Act excludes from the definition of the term
employee "any individual employed as an agricultural laborer." Annu-
ally since 1946, Congress has added a rider to the bill governing the
Board's appropriations providing that no part of the appropriation
shall be "used in connection with ... bargaining units composed of agri-
cultural laborers . . ." as set forth in section 3(f) of the Fair Labor
Standards Act. On numerous occasions, the Board has stated that it
was its policy to consider the interpretation of section 3(f) by the
Labor Department in view of that agency's responsibility and experi-
ence in administering that section. Section 3(f) defines agriculture
as including "any practices ... performed by a farmer or on a farm as
an incident to or in conjunction with such farming operations, includ-
ing preparation for market, delivery ... to market or to carriers for
transportation to market."
7 8 9-730-6 6-v of 152-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 'determining whether the workers employed in the- egg processing
pl'ant's herein are. engaged in activities included in the "secondary" 2
definition of agriculture, the character of the practice must be evalu-
ated'to "See if 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 .3
The Labor Department Interpretative Bulletin, 1963, Section
780.742 4 exempts employees who are engaged in "preparing in their
raw or natural` state" agricultural commodities for market. Section
780.754 states : "Candling, sizing, grading, cooling, waxing, and oiling
are included in the preparing of * eggs in- their- raw or natural state.
Breaking, separating , mixing, and freezing are excluded." The Inter-
pretative Bulletin further states that employees who engage in "han-
dling," "packing," or delivery to market of agricultural commodities
are exempt from the Fair Labor Standards Act applications.5 Exemp-
tion-'is granted to maintenance workers employed by a farmer or on' a
farin'if their work is part of the agricultural activity and is subordinate
t&the farming operations.6
In -the light of the foregoing criteria set forth in the Labor 'Depart-,
'interp'retative Bulletin and the facts as found herein, we con-
clude that the Employer's egg processing operations are performed
as an incident to or'in conjunction with the Employer's farming opera-
tions. Thus, the eggs that are processed come from the Employer's
chicken ranches, and the record shows that most large producers proc-
ess their own eggs. Too, although the nature of the work in the proc-
essing plant enhances the eggs' value to some degree, the eggs them-
selves 'undergo relatively little change.'
With respect to other factors that the Board often examines to deter-
mine whether workers in analogous situations are employees or agri-
cultural laborers, we note that the Employer's investment in buildings
and equipment in his egg processing plant appears to be much less than
his overall investment in his farming operations, and not great in abso-
lute terms. Also, although the employees here are separately super-
vised, it appears that permanent transfers are made between the
ranches and the processing plants, and the record indicates temporary
transfers are sometimes made. " Finally, although the Employer has
2 The distinction between the primary definition and the secondary" definition of
agriculture was recognized by the Supreme Court in Farmers Reservoir & Irrigation Co.
v. McComb, 337 U.S. 755, 762-763
See Maneja v Wasalua, 349 U S. 254 ; U S Department of Labor Interpretative
Bulletin, 1963, part 780, section 780 154.
129 C.F R. Part 780
5 See sections 780 726, 780 . 730, and 780.167-780 169 of latest Interpretative Bulletin.
See section 780 173 of latest Interpretative Bulletin
° Cf. Oxford Royal Mushroom Products, Inc., 139 NLRB 1015
Cf. Dof7lemyer Bros., 101 NLRB 205, reversed 206 F 2d 813 (C.A. 93
LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 531
in the past processed eggs for others, he has not done so to any substan-
tial degree in recent years and contemplates no such processing in the
future .9
For, the foregoing reasons, we find. that the egg processing workers,
maintenance workers, and truckdrivers are agricultural laborers
employed in conjunction with,and incidental to the Employer's farm-
ing operation.10 Accordingly, as no question affecting commerce exists
concerning the representation of "employees". of the Employer within
the meaning of Section 9(c) (1) of the Act, we grant the Employer's
motion to dismiss the petition.
[The Board dismissed the petition.]
R K. Malofy & Son and Ray Hart, 107 NLRB 943; B. F. Maurer, doing bus
John C. Maurer & Sons, 127 NLRB 1459; ef. The Garin Co., 148 NLRB 1499.
to Bodine Produce Company, 147 NLRB 832.
ess as
Local 25, International Brotherhood of Electrical Workers, AFL=
CIO and Sarrow-Suburban Electric Co., Inc. and Brunswick
Hospital Center, Inc. and Industrial` Workers of Allied Trades,
Local 199, affiliated with-the National Federation of Independ=
ent Unions , Parties in Interest . Case No. 29=CD-7 (formerly
,-CD,-314). May 10, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended,- following a charge filed by Sarrow-Sub-
urban Electric Co., Inc., herein called Sarrow, and by Brunswick Hos-
pital Center, Inc., herein called Brunswick, alleging a violation of
Section 8 (b) (4) (D) of the Act by Local 25, International Brother-
hood of Electrical Workers, AFL-CIO, herein called Local 25. A
hearing was held before Hearing Officer Jacques Schurre on Novem=
ber 12, 1964, at which all parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evidence
bearing upon the issues. The rulings of the Hearing Officer made at
the hearing are free from prejudicial errors and are hereby affirmed.
Thereafter, Sarrow, Brunswick, and Local 25 filed briefs which the
National Labor Relations Board has duly considered.
Upon the entire record in the case, the Board 1 makes the following
findings:
1Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Fanning and Brown].
152 NLRB No. 52.