G. K. Livestock Co.

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." 1 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. G. K. LIVESTOCK COMPANY 925 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Employer contends that its employees are not "employees" 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 livestock, principally cattle, which it buys and then fattens for market on its approximately 50 acres of feed lots, which are located near Nampa, Idaho. The Employer leases pasture- land and other farmland, on which it grows pasture and crops, mainly corn, for this livestock. On its feed lots, the Employer feeds and fattens cattle for various periods of time: 75 percent of its cattle is fed and held by it for periods in excess of 90 days and up to 150 days; 15 percent of its cattle is fed and held for periods in excess of 150 days and up to a year or more; and most of the remainder are fed and held for periods of 90 days or less. The record does not disclose the number of cattle at the feed lots at any given time. On the feed lots are some small storage facilities and a grinder mill. The Employer employs both seasonal and regular full-time employees. The seasonal employees, admittedly agricultural laborers, are employed principally, if not entirely, to prepare the soil and plant crops on the leased land and to harvest the crops, all of which are later transported to the feed lots. The Petitioner does not seek to represent the seasonal employees. The 5 regular full-time employees (whom the Petitioner seeks to represent) transport, prepare, and feed the crops to livestock at the feed lots. Although they spend some of their time performing work of the same character as that performed by the seasonal employees, this work is for them sporadic in nature and limited to the growing and harvesting seasons. Their year-round work is essentially at the feed lots. Feeding is the principal job for 2 of the 5 employees in the requested unit;3 a third employee, classified as a millman, spends all his time at the feed lots, where he operates the feed mill; and the 2 remaining employees assist with feeding but, when not so employed, perform work of an agricultural nature on the leased land, which requires considerable fertilizing. 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 cultivation and tillage of the soil . . . , cultivation, growing and harvesting of any agri- cultural or horticultural commodities . . . 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 operations . . . ." It should be noted that the "raising of livestock" per se constitutes "agriculture" by this definition. Thus, with respect 3The testimony is somewhat contradictory. "For only a small percent of the year," it would take more than one to do all the actual feeding. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to activities which constitute the "raising of livestock" there is no basis for distinction on the ground that the livestock is raised for commercial or industrial purposes--in this case, for sale to packing plants.4 The length of time the livestock is held at the feed lot is normally a determinative factor under the Fair Labor Standards Act definition, when the feed is not grown by the feed lot operator.5 The term "agriculture" includes, however, as a separate factor, any practice performed by a farmer or on a farm as an incident to or in conjunction with "such farming operations." The feeding and care of livestock which is per- formed as an incident to or in conjunction with the plainly agricultural operation of growing and harvesting of the feed will be considered "agriculture" entirely apartfrom the length of feeding time involved.6 Here, the Employer is engaged in the cultivation and tillage of the soil, the cultivation, growing, and harvesting of agricultural commodities as well as in the "raising of livestock." Thus, although the Employer may not hold and feed some of the cattle a sufficient length of time to be considered as engaging in the "raising of livestock" with respect to those cattle, his entire holding and feeding opera- tions nonetheless constitute "agriculture" by virtue of the fact that they are performed as an incident to or in conjunction with his farming operations. Accordingly, we find that the regular full-time employees employed at the Employer's feed lots are "agricultural laborers" within the meaning of Section 2 (3) of the Act; we shall, therefore, dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 4See Swift & Company, 104 NLRB 922. 5See Swift & Company, supra. 6opinion of the Solicitor of the Department of Labor, dated April 1, 1953, addressed to the Solicitor of the National Labor Relations Board. SOUTHERN COLORADO POWER COMPANY and INTERNA- TIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 1, AFL, Petitioner. Case No. 30-RC-863. 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 Clyde F. Waers, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case 104 NLRB No. 108.