Swift & Co.

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By assisting in the preparation and filing of a disaffiliation letter and decertification petition, and by threatening and warning against employees ' union activities, thereby interfer- ing with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning of the Act by an alleged unlawful refusal to bargain. [Recommendations omitted from publication. SWIFT & COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO, Petitioner . Case No. 20 -RC-2045. May 12, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Employer contends that its employees are not "em- ployees" within the meaning of Section 2 (3) of the Act, but are "agricultural laborers" to whom the Act does not apply. The Employer is engaged in the raising and feeding of live- stock, principally cattle, which it buys and fattens for slaughter on its 129-acre feed lot, located approximately 41 miles from Firebaugh, California. The Employer also operates a number of packing plants throughout the United States, the nearest of which is located at San Francisco, approximately 160 miles from the Firebaugh feed lot. The instant case concerns 16 workers, classified as feed truckdrivers, corral workers, shopmen, millworkers, bin feeders, feedmixers, and molasses mixers, who work on this feed lot. The feed lot, situated on a country road, includes a 25-acre piece, on which are various farm buildings, and a 7-acre piece for pasturage for sick animals. The buildings include 13 houses (9 for workers and their families), a grain elevator for storing 2,600 tons of grain, 2 warehouses, a building for grinding barley, a building where feeds are mixed, and a shop for repairing tools and tractors. The feed lot is equipped to feed and fatten approxi- mately 6,500 head of cattle at a given time. Cattle, obtained from breeders from Texas to Wyoming, are intensively fed for 104 NLRB No. 120. SWIFT & COMPANY 923 a period up to 150 days in the case of calves, and from 80 to 120 days in the case of steers and heifers. The feed lot manager is in immediate control of the feed lot, working under the general direction and advice of the Em- ployer's chief veterinarian located at the Employer's research laboratories in Chicagoy Employees at the feed lot have a farming or ranching background. They work in and around the corrals, caring for the livestock. They brand and sort live- stock. They feed the animals, clean stockpens, and repair equipment. They handle, grind, and mix feeds.' Handling of the animals includes medical attention and the final loading of the animals for shipment to the packing plant in San Francisco. Accounting services for the feedlot are handled in a separate office division set up in the San Francisco plant. Expenses for these services are charged to the feed lot, which is handled as an independent operation from a profit-and-loss standpoint. There is no interchange of personnel between the packing plant and the feed lot, either on a permanent or temporary basis. Section 3 (f) of the Fair Labor Standards Act, by which we must be governed in determining the question of coverage under Section 2 (3) of the statute we administer, defines the term "agriculture" to include inter alia, "the raising of live- stock . . . and any practice . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operation . . . ." It is important to note that the "raising of livestock" per se constitutes "agriculture" by this definition. We have been advised by the Department of Labor,2 whose interpretation of Section 3 (f) of the Fair Labor Standards Act it is our policy to follow whenever possible,' that, in determining what con- stitutes the "raising of livestock," it is not material tha* the livestock is raised for the Employer's own commercial or industrial purposes, or that the livestock is not bred on the premises, or that the feed is purchased and not produced. It is the nature of the feeding operation itself which is controlling. The length of time the livestock is held on the feed lot is a determinative factor under the Fair Labor Standards Act definition. Unless performed as an incident to or in conjunction with farming operations, the feeding and care of livestock over a brief period of a few days pending its sale, shipment, or slaughter is not "agriculture" because it cannot reasonably be characterized as the "raising" of livestock. The feeding, fattening, and general care of livestock over a substantial period of time, however, does constitute the "raising of live- stock" and is thus employment in "agriculture" within the 1 None of this food is raised by the Employer , but practically all is obtained from nearby farms. In an earlier case involving the Employer 's feed lot employees at Watertown, South Dakota, the Board found the feed lot employees were "agricultural laborers " within the meaning of the Act . In that case, feed lot employees spent some of their time sowing and harvesting a crop on 22 acres adjoining the feed lot. Swift and Company, 63 NLRB 1227. 'Opinion of the Solicitor of the Department of Labor dated April 1, 1953, addressed to the Solicitor of the National Labor Relations Board. $ Imperial Garden Growers, 91 NLRB 1034. and cases cited therein. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 3 (f) of the Fair Labor Standards Act even though some or all of the fattened livestock are ultimately sold, shipped, or slaughtered by the feeder. Under the principles outlined above, it seems clear that, for purposes of Section 3 (f) of the Fair Labor Standards Act and accordingly of Section 2 (3) of the National Labor Relations Act, as amended, the feeding, fattening, and care of cattle for substantial periods, such as 80 to 150 days, must be regarded as a distinct enterprise--separate and apart from thepacking- plant operations, which are not of course "agriculture." So regarded, the feed lot operations are plainly the "raising of livestock" and thus do constitute "agriculture" under Section 3 (f), even though the cattle are ultimately destined for slaughter and conversion into meat products at the Employer' s meat- packing enterprise. Accordingly, we find that the Employer's feed lot employees are "agricultural laborers" within the meaning of Section 2 (3) of the Act; we shall, therefore, dis- miss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. G. K. LIVESTOCK COMPANY and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO. 368, AFL, Petitioner. Case No. 19-RC-1199. May 12, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Orville W. Turnbaugh, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 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 Herzog and Members Styles and Peterson]. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act.' I We find without merit the Employer 's attack upon the Petitioner 's showing of interest. The Board has consistently held that the adequacy of a showing of interest is a question for administrative determination, not subject to direct or collateral attack . Stokely Foods, Inc., 78 NLRB 842. 2During the past year the Employer sold $2,075,387 worth of livestock to King Packing Company, a company engaged in interstate commerce , which annually ships outside the State goods valued in excess of $25,000. We find, contrary to the contention of the Employer, that these facts would justify the assertion of jurisdiction in this case . Hollow Tree Lumber Company, 91 NLRB 635; Walter G. Brix, Inc., 96 NLRB 519. We dismiss the instant petition, however, for other reasons stated hereinafter. 104 NLRB No. 121.