Monterey County, Etc., Trades Council

MONTEREY COUNTY, ETC., TRADES COUNCIL 139 In accordance with the above , I recommend that Ralph Regine be paid the sum of $5,988.59. CONCLUSION Upon the foregoing findings, the Trial Examiner finds and concludes that the employees listed hereunder are entitled to payment by the Respondent of the sums listed opposite their names.14 Wilson Brown________ $1,644.54 James Fay_______________ $2,919.25 Carmine Lopez------- $1,890.30 Ralph Regine_____________ $5,988.59 RECOMMENDED ORDER It is recommended that the Board adopt the foregoing findings and conclusions. "Minus any tax withholdings required by Federal and State laws. Monterey County Building & Construction Trades Council and Vito J. La Torre. Cases Nos. 20-CC,-285, 20-CP-66-1, and 20-CP-66-2. April 22, 1963 DECISION AND ORDER On August 22, 1962, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, and on September 5, 1962, an erratum, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed excep- tions to the Intermediate Report and supporting briefs. 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 Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner to the extent that they are consistent with this Decision. 1. The Trial Examiner found that the Respondent, without a Board certification, threatened to and did picket Buckeye and Whiteside for recognition at the Elkhorn Ranch, and that such picketing con- tinued for a period in excess of 30 days without the filing of a repre- sentation petition. We agree with this finding. 1 Respondent's request for oral argument is denied, as In our opinion the record , excep- tions, and briefs adequately present the issues and the position of the parties. 142 NLRB No. 18. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Trial Examiner concluded that the Respondent did not thereby violate Section 8(b) (7) (C), on the ground that the in- dividuals for whom the Respondent sought recognition were em- ployed to construct and equip new poultry raising buildings, and thus were not employees because they were employed as "agricultural laborers," excluded from the definition of the term "employee" in Section 2(3) of the Act. The Board disagrees with this conclusion of the Trial Examiner. In determining whether particular individuals are employed as "agricultural laborers," we believe it to be our duty to follow, when- ever possible, the interpretation of Section 3(f) of the Fair Labor Standards Act adopted by the Department of Labor and its Wage and Hour Division, as that agency, and not this Board, has the re- sponsibility and the experience of administering that Act 2 The perti- nent interpretation, set forth in Appendix B of the Intermediate Report, limits the agricultural-labor exemption to persons perform- ing work on a farm as an incident to or in conjunction with farming operations; and the term "farm" is defined as a tract of land devoted to actual farming activities. The evidence does not show that the Elkhorn Ranch was devoted to actual farming activities during the period pertinent to this proceed- ing. On the contrary, the evidence shows that at the commencement of the picketing, the Elkhorn Ranch was still a tract of land not yet developed into a farm, and that the installation of utilities was not completed until more than 3 months later. Moreover, the construc- tion here appears to be a major independent construction activity in itself, and not part of an agricultural function? In these circumstances, we cannot find that the Elkhorn Ranch was devoted to actual farming activities when the Respondent threat- ened to and started picketing Buckeye and Whiteside for recognition, or for several months thereafter. Since the individuals then employed by Buckeye and Whiteside were not shown to be performing work which was an incident to or in conjunction with actual farming opera- tions, we find that they were "employees" within the meaning of Section 2(3) of the National Labor Relations Act. We further find that the Respondent violated Section 8(b) (7) (C) by the foregoing threats and picketing at the Elkhorn Ranch. z Imperial Garden Growers, 91 NLRB 1034, 1037. See also Oiaa Sugar Company, Limited, 118 NLRB 1442. S As the Supreme Court stated in Farmers Reservoir & Irrigation Company v. McComb, Wage and Hour Administrator, 337 U.S. 755: ". . . the question as to whether a particular type of activity is agricultural is not determined by the necessity of the activity to agricul- ture nor by the physical similarity of the activity to that done by farmers in other situations . The question is whether the activity in the particular case is carried on as a part of the agricultural function or is separately organized as an independent productive activity." MONTEREY COUNTY, ETC., TRADES COUNCIL 141 2. We agree with the Trial Examiner that the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act for the reasons set forth in the Intermediate Report .4 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Monterey County Building and Construction Trades Council, its officers, agents, repre- sentatives, successors, and assigns, shall: 1. Cease and desist from : (a) Engaging in, or inducing or encouraging any individual em- ployed by Granite Construction Company, Sanders Electric Company, Inc., California Motor Express, or any other person, to engage in, a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threatening, restraining, or coercing Granite, Sanders, California Motor Express, or any other person, where, in either case, an object thereof is to force or require the above-named, or any other person, to cease doing busi- ness with Vito J. La Torre, Buckeye Incubator Company (also d/b/a Buckeye Builders), or Jack L. Whiteside d/b/a Jack L. Whiteside Construction Co. (b) Picketing or causing to be picketed., or threatening to picket or causing to be picketed, Buckeye or Whiteside under conditions pro- hibited by Section 8(b) (7) of the Act, where an object thereof is forcing or requiring Buckeye or Whiteside to recognize or bargain with the Respondent, or any of its member unions, as the collective- bargaining representative of their employees, or forcing or requiring the employees of Buckeye or Whiteside to accept or select the Re- spondent or any of its member unions as their representative. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Post at its business offices and meeting halls, copies of the at- tached notice marked "Appendix." 5 Copies of said notice, to be fur- nished, by the Regional Director for the Twentieth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by said Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous *The Trial Examiner declined to find certain additional violations of Section 8(b) (4) (1) and (ii ) ( B), based upon the conduct of Hansen , Shaw, and the Respondent in connection with the Granite and La Torre contract incidents, described in the Intermediate Report. We find it unnecessary to consider these incidents , since they are merely cumulative and would not alter the Order. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be amended by substituting for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places, including all places where notices to its members are custom- arily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director for the Twentieth Region sufficient copies of said notice, to be furnished by him, for posting by Buckeye and Whiteside, if willing. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, 'and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that : WE WILL NOT engage in or induce or encourage any individual employed. by Granite Construction Company, Sanders Electric Company, Inc., California Motor Express, or any other person, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form any services; nor will we threaten, restrain, or coerce Gran- ite, Sanders, California Motor Express, or any other person, where, in either case, an object thereof is to force or require the above-named, or any other person, to cease doing business with Vito J. La Torre, Buckeye Incubator Company (also d/b/a Buck- eye Builders), or Jack L. Whiteside d/b/a Jack L. Whiteside Construction Co. WE WILL NOT picket or cause to be picketed, or threaten to picket or cause to be picketed, Buckeye or Whiteside under conditions prohibited by Section 8 (b) (7) of the Act, with an object of forc- ing or requiring Buckeye or Whiteside to recognize or bargain with us or any of our member unions as the representative of their employees, or forcing or requiring the employees of Buckeye or Whiteside to accept or select us or any of our member unions as their collective-bargaining representative. MONTEREY COUNTY BUILDING AND CON- STRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. MONTEREY COUNTY, ETC., TRADES COUNCIL 143 Employees may communicate with the Board's Regional Office, 830 Market Street, San Francisco, California, 94102, Telephone No. Yukon 6-3500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The hearing in these consolidated proceedings was held on various dates between May 31 and June 15, 1962, in Watsonville and San Francisco, California, before Trial Examiner Eugene K. Kennedy. Issues litigated were whether Respondent Monterey County Building & Con- struction Trades Council violated Section 8(b)(4)(i) and (ii)(B) and 8(b)(7)(C) of the National Labor Relations Act, as amended (herein called the Act).' Respondent denies the alleged violations and further contends that the employees involved are argricultural laborers and hence excluded from the term "employee" in Section 2(3) of the Act and that the 1962 Appropriation Act precludes the Na- tional Labor Relations Board (herein called the Board) from asserting jurisdiction in these circumstances. The question of whether the 1962 Appropriation Act has the effect which Respondent asserts will be considered below. Upon the entire record, my observation of the witnesses, and consideration of briefs filed by all parties, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD AND THE BUSINESS OF THE COMPANIES INVOLVED La Torre, the Charging Party, along with his wife , is the owner of all the stock of three corporations operating poultry ranches in the Watsonville , California, area. The I S(b) It shall be an unfair labor practice for a labor organization or its agents- (4) (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, Or commodities or to perform any services ; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case 'an object thereof is: (B) forcing or requiring any person to cease using , selling, handling , transporting, or otherwise dealing In the products of any other producer , processor , or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9.. . . * * * * * * * (7) . . . to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to rec- ognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organiza- tion as their collective bargaining representative, unless such labor organization is cur- rently certified as the representative of such employeees : * * * * * * * (C) where such picketing has been 'conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election In such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing In this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public ( including consumers ) that an employer does not employ members of, or have a contract with , a labor organization , unless an effect of such picketing is to induce any individual employed by any other person in the course of his em- ployment, not to pick up, deliver or transport any goods or not to perform any services. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elkhorn Ranch, also in the Watsonville area, the site of the dispute, was not incor- porated but owned equally by La Torre and his wife. This ranch did not begin op- erating until early in the year 1962. The cost of the buildings and equipment ex- ceeded one million dollars. The cost of feed originating out of State for use at the Elkhorn Ranch will approximate $500,000 a year annual rate. La Torre manages all four farms and when necessary will transfer poultry from one to another. In 1961, from Watsonville Farms, a La Torre corporation, there was sold in excess of $100,000 worth of eggs to Fort Ord, a military establishment. Buckeye Incubator Company, also doing business under the name of Buckeye Builders, is a Delaware corporation doing business in all States of the Union. It is primarily a manufacturer of poultry equipment and it also acts as a financing agent in connection with the construction and installation of large-scale poultry raising and feeding operations such as the La Torre Elkhorn Ranch operation. Its gross annual business exceeds $4,000,000, and in 1961 and 1962, it shipped products valued in excess of $250,000 direct to the Elkhorn Ranch. Granite Construction Company, a California corporation, is engaged in general engineering work. Its function at the Elkhorn Ranch was primarily to prepare build- ing sites and to construct roads. During 1961, it performed construction work for the United States Government at Fort Ord, Army installation, in an amount ap- proximating $1,00,000, as well as carrying out other substantial contracts for con- struction work with the United States Government. It is a member of the Northern Chapter of the Associated General Contractors, and in 1961, its gross volume of business exceeded $20,000,000. Jack L. Whiteside, doing business as Jack L. Whiteside Construction Co. is a labor contractor. Under a contract with Buckeye, he performed construction work in the fall of 1961 and the spring of 1962 on the Elkhorn Ranch valued at about $175,000. Sanders Electric Company, Inc., had an electrical contract with Buckeye to perform outside wiring on La Torres' Elkhorn Ranch. The contract price was $39,500. It also subsequently performed inside electrical work that Whiteside had originally agreed to perform on the Elkhorn project. In summary, Buckeye was under contract to perform for La Torre the construction of buildings and installation of equipment. It had Whiteside and Sanders as sub- contractors. Granite was under contract with La Torre to perform the site prepara- tion, grading, and roadwork. It is found that La Tone, Granite, Buckeye, Whiteside, and Sanders are employers engaged in commerce or in a business affecting commerce within the meaning of the Act? II. THE LABOR ORGANIZATION INVOLVED Monterey County Building & Construction Trades Council is an organization with delegates from various building trades unions, representing the constituent members of the Council. Its officers include Secretary Harry Foster and Secretary-Treasurer John Mattos, both of whom had prominent roles in the dispute here involved. The Council's printed form labor agreement, which also bears the names of two other Building Trades Councils, reflects that Respondent enters into collective-bargaining agreements with employers in the construction industry. As conceded by the plead- ings, it is found that Respondent Council is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The events Vito La Tone, the Charging Party, in July 1961 entered into a contract with Buckeye for the construction and installation of poultry-raising buildings and equip- ment. In the same month he entered into a contract with Granite for grading, road construction, and for construction of drainage ditches. Buckeye subcontracted the construction work of the buildings to Whiteside. Whiteside employed carpenters, plumbers, laborers, and electricians, none of whom were represented by a labor organization in connection with their employment with Whiteside. Buckeye's own employees installed the poultry-raising equipment. Buckeye also subcontracted the outside electrical work to Sanders. The employees of Granite and Sanders were 2It is clear that La Torre's, Granite's and Buckeye's volume of interstate business brings their operations within the Board's jurisdiction. Sanders and Whiteside, subcontractors to Buckeye, are by that fact alone engaged in a business affecting commerce to bring them within the ambit of the Board's jurisdiction. See Madison Building & Construction Trades Council, et at. (Wallace Hildebrandt & John Kiefer, d/b/a H & K Lathing Co., et al.), 134 NLRB 517. MONTEREY COUNTY, ETC., TRADES COUNCIL 145 represented by labor organizations in the course of their employment with the re- spective companies. Employees of Granite were represented by Teamsters and Operating Engineers locals, and employees of Sanders were represented by an electri- cal union local. The operating engineers and electricians were members of locals that were constituent members of Respondent Council. The teamsters were not members of a constituent local but of another Teamsters local union. The circumstances preceding the picketing which commenced at the Elkhorn Ranch on September 20, 1961, were as follows: On September 1, 1961, Foster, secretary of Respondent Council, telephoned to Stevens, vice president of Buckeye, and requested Stevens to execute Respondent's standard labor agreement. Stevens refused on the basis that Whiteside employed all the personnel within the jurisdiction of Respondent and suggested that Foster get in touch with Whiteside. On September 8, 1961, Respondent by letter requested Buckeye to execute Re- spondent's standard labor agreement. In this connection, it is noted that although Buckeye apparently had no employees working within the jurisdiction of Respond- ent, under the terms of the standard labor agreement, the general contractor, Buckeye in this instance, would be obligated to engage only subcontractors who employed members of Respondent's constituent locals and also to make good the failure of any subcontractor to pay wages or fringe benefits provided by existing labor agreements. The standard labor agreement also provided that any subcontractor must have its employees become union members of constituent locals after 7 working days. On September 8, 1961, Mattos and Foster, officers of Respondent Council, to- gether with Miller, Plumbers local delegate to Respondent Council, and Cornell, Carpenters delegate to Respondent Council, approached Whiteside at the Elkhorn Ranch. Foster at this time asked Whiteside to sign the standard labor agreement. Whiteside replied that if he could get more money from Buckeye he would be glad to sign the proposed agreement. On September 15, 1961, Mattos again asked Whiteside whether he was going to sign the agreement and Whiteside replied in the negative. Mattos then said "Well, if you aren't, we have no alternative then to put a picket at the ranch." The picket- ing commenced on September 20 at the then only entrance to the Elkhorn Ranch which will be characterized herein as the main gate. The picket sign was as follows: THE MONTEREY COUNTY BUILDING & CONSTRUCTION TRADES COUNCIL OR ITS AFFILIATED UNIONS DO NOT HAVE A UNION CONTRACT WITH BUCKEYE BUILDERS, INC., JACK L. WHITESIDE CONSTRUCTION CO. As a result of this picketing, Granite employees (teamsters and operating en- gineers) ceased working on the Elkhorn Ranch project as of September 20, 1961. As a result of an arrangement between Granite and Respondent, a separate entrance at the Elkhorn Ranch was established for Granite employees and as a result of this, on September 25, 1961, Granite employees for the time being resumed work on the Elkhorn Ranch. A separate entrance also was established for Sanders employees on November 8, 1961. The main gate was at the end of a dead-end road and the special entrances permitted access to the Elkhorn Ranch without passing the picket as long as the picket was at the main gate. Special precautions were taken to insure that only the employees of Granite or Sanders used the gates designated for them. On November 10, 1961, Foster and Mattos, officers of Respondent, spoke with Whiteside at the picketing site and asked him what he proposed in connection with having the picket removed from his project. Whiteside said he would be willing to sign an agreement that would put his employees "in the union" on May 1, 1962.3 On the following day, November 11, 1961, Foster and Mattos presented Whiteside with a proposed written agreement as follows: BUILDING AND CONSTRUCTION TRADES COUNCIL OF MONTEREY COUNTY 117 Pajaro Street, Salinas, California Jack L. Whiteside agrees to sign the standard Building Trades Agreement and the Building Trades agrees to give Mr. Whiteside a concession on this job 8It is apparent from the record that Whiteside and La Torre In using the term "union" do not always distinguish between Respondent and its constituent locals. This Is perhaps due to the fact that Respondent was a prospective party to the proposed Standard Labor Agreement, which, however, would have the effect of requiring employees to join various unions depending on the type of work they performed. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Maher Canyon Road) only as follows: Mr. Whiteside to list his present em- ployees by name, approximately thirty in number, of the thirty, ten will be laborers, ten will be carpenters, two cement finishers, one plumber and the re- mainder to be apprentices. These men will join the respective unions having jurisdiction over the classifications they are listed under. The present employees will do any of the work on the above-mentioned job which includes the founda- tions and building erection. Any new or additional employees will be hired under the hiring hall procedures of the various Locals and be paid the wage scale and other benefits covered under the agreement in effect in the area. It is under- stood the paving, electrical work, pipe-fitting, and other specialty work will be sub-contracted by other contractors at the prevailing wage rates and conditions in effect in this area. Five (5) consecutive days, Monday through Friday, shall constitute a week's work. No work shall be let by piece work, contract, or lump sum, direct with employees for labor services. Whiteside found some of the terms unacceptable, and Foster stated he would "rearrange" it and return the next day to have it signed by Whiteside. However, on the next day, November 12, 1961, Foster did not appear but Mattos and Cornell met with Whiteside. Cornell was the business representative of the Carpenters local union and the delegate to Respondent Council. Whiteside was told the tentative agreement reached by Foster and himself was unacceptable to Respondent. Mattos suggested a postdated agreement with Respondent. Whiteside advised Mattos he would discuss the matter with Buckeye to the end of having the payments to him from Buckeye increased "so I could support the labor of the union." Mattos at this time gave Whiteside the printed labor agreement used by Respondent Council which had been signed by Mattos and Cornell and was to be effective April 30, 1962. On November 20; 1961, Respondent moved the picket from the main gate to the area where the special gates had been constructed for Sanders' and Granite's em- ployees. This had the effect of requiring anyone, including Granite's and Sanders' employees, entering the Elkhorn Ranch to cross Respondent's picket line. On this same day Harley Davidson, a business representative of the operating engineers union, a delegate to Respondent Council and a signatory on behalf of Respondent Council, to an agreement executed with La Torre on January 4, 1962, and a par- ticipant in several meetings involving Respondent, told Westwater, a Buckeye official, that the picket had been moved because Respondent had decided "to stop the work on the job." On this record it is found that this statement of Davidson to Westwater is chargeable to Respondent. The employees of Granite and Sanders did not go to work at times when Respond- ent had a picket at the entrances reserved for them which included the periods from November 20 until December 1, 1961; from about December 5, 1961 until January 4, 1962; and from January 24 until about February 9, 1962. The inter- ruptions in the picketing flowed from efforts by Whiteside and La Torre to make arrangements to have the picket removed which Respondent did temporarily, but replaced the picket when the Respondent was not satisfied with interim developments during the cessation of the picketing. La Torre had contracted for a large number of breeder stock chickens which were to be delivered in December 1961. He and Whiteside were particularly anxious to have the picketing removed from the Sanders and Granite entrance so that the construction could proceed on schedule. On November 30, 1961, Whiteside arranged a meeting at the Elkhorn Ranch with Respondent's officers and delegates. Also present were La Torre and officials of Buckeye. An oral agreement was reached between Whiteside and Respondent providing that the picket would be removed, and that on May 1, 1962, Whiteside employees would go into the union. Since Whiteside employed carpenters, laborers, plumbers, and electricians, undoubtedly the agreement contemplated that the em- ployees would join the craft unions having jurisdiction over their work. Mattos, at the end of the November 30 meeting, called Granite's superintendent and in- formed him the picket line would be removed and its employees could return to work the next day. Foster asked Whiteside to meet him at an attorney's office the next day where Whiteside was presented with a proposed written agreement. White- side refused to sign it because he believed its terms varied from the oral understanding of the previous day. There was another meeting at the Elkhorn Ranch on December 2, 1961. Present were La Torre, Whiteside, officials of Buckeye, and Foster and Mattos. At this meet- ing, Foster insisted that Whiteside employees go into the union immediately. White- side insisted this was contrary to the agreement made on November 30, and the picketing was resumed at the Sanders and Granite gate on December 5, 1961. MONTEREY COUNTY, ETC., TRADES COUNCIL 147 La Torre, motivated by the increasing economic problems caused by the delay in the construction of his poultry-raising facilities, initiated another meeting at the Elkhorn Ranch on January 3, 1962, at which Respondent's officers and other union officers were present. As a result of this meeting, La Torre executed the following agreement with Respondent: 1. 777 Maher Road, Watsonville, California, known as Elkhorn Ranch- 59 buildings (poultry houses) and one repair shop building to be completed under present contracts. 2. Poultry Processing Plant to be built in Gilroy by Nu-Laid to be built AFL-CIO. 3. Hatchery building on Elkhorn Ranch to be built AFL-CIO and all equip- ment in the building to be set by AFL-CIO. 4. Mr. La Torre and his associates will meet in San Francisco at 474 Valencia Street within ten (10) days with representatives of the respective crafts. This will include ten (10) of the largest poultry ranchers and Nu-Laid Egg Company. 5. No electrical work will be performed for the next ten (10) days. 6. In consideration of the foregoing, the picket will be removed from the Elkhorn Ranch during this period. Signed this 4th day of January, 1962. [S] HARRY FOSTER, [S] V. J. LA TORRE. Building & Construction Trades Council, [S] JOHN F. MATTOS, [S] WM. HARLEY DAVIDSON. On January 23, 1962, La Torre and other ranchers with large poultry operations met with officers of Respondent and other union officials in the San Francisco Labor Temple. The union officials proposed that the poultry ranchers form an association to deal with the union on behalf of their employees. The representative of the ranchers replied they would have to consider the proposal. On January 24, the picket was again at a position in front of the adjoining Granite and Sanders entrances of the La Torre Elkhorn Ranch. On February 1, 1962, the picket sign was changed to read: JACK L. WHITESIDE CONST. CO. BUCKEYE BUILDERS UNFAIR The employees work under less favorable conditions than the AFL-CIO Building Trades Craftsmen UNFAIR Monterey County Building and Const. Trades Council On February 9, 1962, the picket was removed from the Granite and Sanders en- trances to the original site of the-picketing which is the main entrance to the Elkhorn Ranch. B. The question of the agricultural exemption Respondent contends that the Board is without jurisdiction in this matter because the individuals involved who were working in connection with the construction of the poultry-raising buildings are not employees covered by the Act. The argument rests on the following authorities. Section 2(3) of the Act provides: The term "employee" shall include any employee ... but shall not include any individual employed as an agricultural laborer... . The 1962 Appropriation Act for the National Labor Relations Board provides: ... Provided, That no part of this appropriation shall be available to organize or assist in organizing agricultural laborers or used in connection with investi- gations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in section 2(3) of the Act of July 5, 1935 (29 U.S.C. 152), and as amended by the Labor-Management Relations Act, 1947, as amended, and as defined in section 3(f) of the Act of June 25, 1938 (29 U.S.C. 203), and including in said definition employees engaged in the maintenance and operation of ditches, canals, reservoirs, and waterways when 712-548-64- vol. 142-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintained or operated on a mutual, nonprofit basis and at least 95 percentum of the water stored or supplied thereby is used for farming purposes. (Title III, Act of Aug. 2, 1961, Public Law 86-290, 87th Cong., 1st secs.) The Board as a matter of policy will follow the interpretation of the Department of Labor as to what individuals are agricultural laborers.4 In general, work performed on a farm incident to the operation of a farm is within the agricultural exemption. It is immaterial whether the work is done directly by the farmer or an independent contractor. Employees engaged in building terraces, construction of granaries, or silos are agricultural laborers within the statutory defi- nition of being engaged in employment in practices on a farm. Poultry raising is within the statutory ambit of the agricultural exemption. Hence anomalous as it may seem, I find that under existing decisional precedent the carpenters, electricians, plumbers, and laborers employed by Whiteside, a labor contractor, were agricultural laborers while they were engaged in constructing buildings to be used by La Torre in raising his own poultry. It is also found that the individuals employed by Buckeye to install the poultry feeding and raising equipment were agricultural laborers for the purpose of this proceeding. Appendix B attached hereto contains quotations from authorities which support the finding that individuals employed by Whiteside and Buckeye were "agricultural laborers." It is abundantly clear that a purpose of Respondent's picketing was to have Whiteside and Buckeye recognize Respondent as the representative of the individuals employed by Whiteside and Buckeye. Whiteside employed carpenters, electricians, laborers, and plumbers in connection with the construction of buildings to house La Torre's poultry. Buckeye employed individuals who installed poultry equipment in these buildings. Although not conclusively developed, Buckeye appeared to be the object of Respondent's picketing because his subcontractor Whiteside employed workers within Respondent's jurisdiction. Respondent's standard-labor agreement, if executed by Buckeye, would have obligated Buckeye to have Whiteside conform to Respondent's standard labor agreement, or to engage another subcontractor who would. C. Effect of the agricultural exemption The effect of the exemption will first be considered in connection with Section 8(b) (7) (C) of the Act. (See footnote 1 for text of section.) This section proscribes picketing by unions to obtain recognition by an employer of the picketing union as the representative of his employees. [Emphasis supplied.] It also by its terms eliminates its proscription when the union has filed a ,timely petition under Section 9(c) for an election. Although the record facts here make it clear that the Respondent without a Board certification was picketing for recognition by Whiteside and Buckeye in excess of 30 days without filing a timely petition, it also is true that if their "employees" for the purpose of this proceeding are agricultural laborers, the Board would not entertain a representation petition filed by Respondent with respect to the workers employed by Buckeye and Whiteside. Since for the purposes of this proceeding, Whiteside and Buckeye do not have "employees," it follows that a primary element of Section 8(b) (7) (C) is missing that is necessary to establish a violation. Section 8(b) (7) (C) contemplates a representation proceeding and an election and, therefore, accepting the premise that Respondent could not file a representation petition with respect to the "employees" of Whiteside and Buckeye, the clear implication follows that the action of picketing to obtain recognition as representa- tive of "agricultural laborers" is not covered by Section 8(b) (7) (C) .of the Act. In factual situations such as the case at hand, innocent parties to the dispute have recourse under other sections of the Act. A different situation prevails with respect to the effect of the agricultural exemp- tion as applied to Section 8(b) (4) (i) (ii) (B). (See footnote 1 for text of section). This section proscribes picketing for stated objects aimed at inducing or encouraging individuals employed by a person engaged in commerce or the threatening or restrain- ing of any persons engaged in commerce or an industry effecting. commerce. [Emphasis supplied.] The legislative history of the 1959 amendments to- the Act makes it clear that Congress substituted "individual" and "person" for "employees" because it wished to prohibit secondary picketing even where agricultural laborers or other exempt "employees" were involved as well as to prohibit coercion directed 4 0laa Sugar Company, Limited, 118 NLRB 1442.. MONTEREY COUNTY, ETC., TRADES COUNCIL 149 at a secondary employer where the union bypassed employees, and aimed its coercion at the secondary employer.5 D. Violations of Section 8(b) (4) (i) ( ii) (B) 1. Work stoppage of Granite's employees on September 22, 1961 Granite's employees refused to cross the picket line established at the Elkhorn Ranch on September 20, 1961. On September 21, 1961, Granite rented to Buckeye a ready-mix concrete truck with the Granite sign painted out. This truck crossed the picket line and made deliveries on the Elkhorn project. On the morning of September 22, 1961, Con Hansen, a business representative of a Teamsters local not a member of Respondent Council, appeared at Granite's premises and as a result of his appearance and instructions, all of Granite's some 20 or 25 operating engineers and teamsters stopped working. On this occasion, Hansen also told Westwater, an official of Buckeye, that before Granite's employees could resume work, the truck, rented to Buckeye, had to be "pulled off the job." According to Westwater, this work stoppage was caused "as a consequence of the action taken by the Teamsters Union." Shortly thereafter, Hansen arranged facilities at a restaurant for a meeting attended by Buckeye representatives and other union representatives. At this meeting an arrangement was worked out whereby it was agreed that a separate gate would be established for use by Granite employees which would be free from picketing. Hansen's action at Granite's premises on the morning of September 22 was a violation of Section 8(b) (4) (i) (ii) (B) attributable to Hansen's local union. This local union, however, is not a named respondent, not a member of Respondent Council, and consequently not a party to this proceeding. However, the General Counsel contends that on the basis of the above-recited record facts, Hansen was acting as an agent of Respondent. A determination of this question must be made in accordance with common-law rules of agency.6 The mere fact that Hansen was taking action consistent with an aim of Respondent, I believe, is insufficient to establish that Hansen was acting as agent for Respondent. 5Illustrative of the considerations leading to the 1959 amendments are the following comments : Senator CuRTISS. Sophisticated unions avoid the proscriptions of the act by directly threatening or coercing the secondary employer or his supervisory personnel. They also avoid these proscriptions by inducing individual employees or workers not de- fined as employees by the act-railroad and agricultural workers-to refuse to handle the products of the primary employer or by preemployment inducement of workers not to handle certain products. None of these activities is prohibited, because the means used are not those prohibited by the act. (105 Daily Congressional Record, 1176, January 28, 1959, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, U.S. Govt. Printing Office, 1959, vol. II, p. 989.) Senator GOLDWATER. The word "person" is used in the proposed amendment to the secondary boycott provision rather than "employer." in order to extend the protec- tion of the secondary boycott provisions of the act to public employers, railroads, or agricultural enterprises without subjecting them to other provisions of the act. (105 Daily Congressional Record, 5764, April 21, 1959, Legislative History of the Labor- Managenient Reporting and Disclosure Act of 1959, U.S. Govt. Printing Office, 1959, vol. II, p. 1079.) Senator MORSE. Similarly, a secondary boycott carried out by inducing railroad employees should not be permitted , merely because the employees' employer is not covered by the Act. (105 Daily Congressional Record, 1163917, 'September 3, 1959, Legislative History of the Labor-Management Reporting and Disclosure Act of '1959, U.S. Govt. Printing Office, 1959, vol. II, p. 1426.) Congressman RHODES. As the statute is now worded it is unlawful for a union to induce or encourage "employees of employer" to engage in a strike or "concerted refusal" to do their work for one of the forbidden objects listed in section 8(b) (4), such as to force their, employer to cease doing business with a "primary" employer. Since farm laborers, railway labor, and supervisors are not "employees" within the meaning of the act, unions may now without penalty induce them to engage in secondary boycotts. The Landrum-Griffin bill corrects this by changing the word "employees" in the phrase quoted above to "any individual employed by any person." This change appears in clause 4(1). :(105 Daily Congressional Record, 4208, Au- gust 11, 1959, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, U.S. Govt. Printing Office, 1959, vol. II, p. 1581.) House, Conference Rep. 510, '80th Cong. 1st Session, 93 Congressional Record 3 7: 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition there is the plausible hypothesis that Hansen was acting in the interest of his own drivers who were deprived'of-work by the rental of the truck to Buckeye by Granite which occasioned it being operated by some one other than a member of Hansen's local. Although his members refused to cross the picket line of Respondent, the action of Hansen in compelling Granite not to rent a truck to Buckeye and his arrangement of a meeting whereby a separate, nonpicketed entrance was provided for Granite employees at the Elkhorn Ranch eventuated in restoring the members of Hansen's local to the operation of the trucks sent by Granite to the Elkhorn Ranch. Accordingly, the contention that Hansen's actions on September 27, 1961, are binding on Respondent is rejected, since the General Counsel has not established an agency relationship by an adequate measure of proof. 2. Picketing at the Granite and Sanders entrances On November 20, 1961, Respondent moved its picket to a location where anyone entering either the main gate or the gates established for Sanders' and Granite's employees would have to pass such picket. On this same day Harley Davidson told Westwater, a Buckeye official, that Respondent Council had decided to "stop the work on the job," referring to the construction at La Torre's Elkhorn Ranch. As found above, Davidson was a responsible agent of Respondent. His union was a member of Respondent Council and he was a delegate to the Council. He partici- pated in several meetings with officers of Respondent and with Whiteside, Buckeye, and La Torre, where the subject was recognition of Respondent by Whiteside. Moreover, he was a signatory to an agreement, along with Foster and Mattos, entered into on January 4, 1962, with La Torre, which agreement was made on behalf of Respondent. It is apparent that the special gate picketing in the context of the facts here related was action engaged in by Respondent to induce and encourage individuals employed by a person engaged in commerce or in an industry affecting commerce to refuse to transport goods or perform work with an object of forcing persons, including Granite and Sanders, to cease doing business with La Torre, Buckeye, and Whiteside. Con- sidering that Granite's employees had previously refused to cross the picket line, and they and the employees of Sanders had been using nonpicketed, separate en- trances until November 20, there can be no reasonable doubt that this picketing violated Section 8(b)(4)(i)(B). See Highway Truck Drivers and Helpers et al. (Riss and Co.), 130 NLRB 943. The question remains as to whether the picketing for this proscribed object also comes within the interdiction of Section 8(b)(4)(ii)(B) where it is made unlawful for a labor organization to "threaten, coerce, or restrain any person ...... An exam- ination of decisional precedents appears to bear out the conclusion that picketing un- lawful under Section 8(b) (4) (i) is also unlawful under (ii).7 The picketing from January 4 to 24, and from January 24 to February 9, 1962, conducted at the Sanders and Granite entrances when the negotiations between Whiteside and Respondent proved fruitless also constituted violations of Section 8(b) (4) (ii) (B) inasmuch as the identical factors were present in the two latter episodes of picketing, as were present in connection with the picketing commencing on Novem- ber 20, 1961, at the special entrances. 3. Claimed additional violations Although not alleged as violations in the complaint, the General Counsel urges three episodes as establishing separate violations. (a) The Granite incident It is argued that during a time when Respondent was picketing at Granite's sep- arate entrance, the refusal by Respondent to agree that Granite could do some work 7For example, Construction, Production 4 Maintenance Laborers Union Local 383 at al. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650; Photostat d Photo Em- ployees Union, 135 NLRB 106; Upholsterers International Union of North America, 132 NLRB 40; however, in Fruit Packers Local 760 v. N.L.R.B. (Tree Fruits Labor Relations Committee, Inc.), 308 F. 2d 311 (C.A.D.C.), the District of Columbia Circuit in a case involving handbi'ling at the site of the secondary employer held that a violation of Section 8(b) (4) (ii) was not established because "there was no work stoppage, no interruption of deliveries, no violence or threat of violence." It rejected, apparently, the ,per se rule that picketing inevitably threatens, coerces, or restrains the employer at whose site the picket- ing is conducted. Since in the case at hand there were work stoppages and interruption of deliveries, the distinction made in the Tree Fruits case need not be considered. MONTEREY COUNTY, ETC., TRADES COUNCIL 151 to repair rain damage behind the picket line is a separate violation of Section 8(b) (4). (ii) (B). I find that this refusal was a refusal to stop existing unlawful conduct and. not a separate violation. In other words, it seems illogical to find a separate viola- tion by reason of Respondent's refusal to discontinue its illegal conduct. In any event, finding this conduct to be a separate violation would in no manner affect the remedy which will be recommended herein. (b) The La Torre contract incident As an inducement for Respondent to remove its picket on January 4, 1962, La Torre executed a contract with Respondent in which, among other things, he agreed that no electrical work would be performed on the Elkhorn Ranch for a period of 10 days. The picketing that precipitated this agreement was unlawful. The contract, although perhaps voidable as being caused by illegal activity, does not warrant a separate finding of Section 8(b)(4)(ii)(B); and further, it appears ques- tionable whether La Torre was agreeing to anything more than what the illegal picket- ing had already accomplished. Moreover, La Torre's control over the electrical work, if any, was indirect as both Sanders and Whiteside who employed electricians were subcontractors of Buckeye. The contract was executed at a meeting initiated by La Torre who was looking for a "deal" to get the picket removed. No extra threat or coercion actuated the agreement. It was the picketing that provided the coercing and I am unable to find the execution of this agreement by La Torre and Respondent was a separate violation of Section 8(b) (4) (ii) (B) on the part of Respondent. (c) Alleged illegal conduct of Shaw, the business representative for the electricians local The initial inquiry is directed to the question of whether Shaw was acting for Respondent. He was a delegate to the Respondent Council commencing on Decem- ber 7, 1961, and a business representative for several years prior thereto. He told Stevens, Buckeye's representative, that unless Buckeye executed Re- spondent's standard labor agreement, he (Shaw) would personally see there was no additional electrical work done on the Elkhorn facility. Shaw also participated in some meetings Respondent's officers had with Whiteside and La Torre. On Janu- ary 15, 1962, he forced Whiteside to abandon part of his electrical contract with Buckeye and to assign it to Sanders as a condition for Shaw going back to work. Other employees joined Shaw when he threatened to walk off unless Whiteside's nonunion electricians were removed from the job so that Shaw and his fellow em- ployees of Sanders would resume their work. Since Shaw was the business repre- sentative of the local, I find his announcing he would not work until Sanders obtained Whiteside's electrical work was a signal to his fellow electrical workers to also quit. This finding is also fortified by Shaw's statement at the time addressed to Sanders and Whiteside ". . . before we go back to work I want to see that contract," referring to the contract executed then by Sanders and Whiteside in which Sanders was to perform the electrical work previously done by Whiteside. All of Shaw's conduct is consistent with furthering the interest of his local union. Urging Buckeye to sign Respondent's standard labor agreement would result in hav- ing the electrical work placed within his union's jurisdiction. I do not find his posi- tion as delegate to Respondent Council, nor his participation in meetings with Re- spondent's officers, establishes that he was here acting on behalf of Respondent Council rather than his local union. My observation of Mr. Shaw as a witness, and a close examination of his testimony suggested he was probably more interested in his own union than the aims of Respondent. Consequently, I find the General Counsel has failed to sustain his burden of proof in establishing Shaw was acting for Respondent. Moreover, whether or not a separate violation is predicated on Shaw's action, the recommended remedy would be the same. E. Effect of picketing on employers other than Granite and Sanders The complaint alleges that the effect of the picketing was to stop deliveries to the Elkhorn project involving trucks driven by employees of California Motor Express and the Merchants Express. These allegations will be discussed as they are related to the scope of a recom- mended order. In view of the fact no violation of Section 8(b)(7)(C) has been found, this stoppage of deliveries is not relevant under that section of the Act. This picketing by Respondent at the special "entrances clearly had an unlawful objective aimed at inducing and encouraging the employees of Sanders and. Granite 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to cause their respective employers to cease doing business with La Torre, Buckeye, and Whiteside. As far as this record reflects, this enmeshing of an employer other than Granite and Sanders was reasonably within the contemplation of Respondent. Respondent's avowed purpose in picketing at the special entrances was to shut the job down. It is noted here that the picketing position at the special entrances as far as neutral employers were concerned was the same as if the pickets were at the main entrance. This is because the Granite and Sanders entrances were reserved for the exclusive use of their respective employees, and the main entrance was at the termination of a dead-end road. Thus, positioning the picket at the special entrances instead of at the main gate would only specifically affect Granite's and Sanders' employees and, any one else entering the project would have to pass the picket irrespective of whether the picket was located at the special entrances or the main gate. Accepting the premise that the picket at the special entrances illegally stopped deliveries by California Motor Express on November 22 and December 11, 1961, the question is suggested as to the legality of picketing on February 20, 1962, when the driver of a Merchants Express vehicle refused to make a delivery when Respondent's picket was at the main gate. Inasmuch as the picketing at the main gate prior to November 20, 1961, met the permissible standards of common situs picketing 8 and the moving of the picket on February 9, 1962, from the special entrances to the main gate is consistent with the abandonment of an unlawful purpose by Respondent, this record does not adequately spell out a violation of Section 8(b) (4) (i) (ii) (B) on February 20, 1962, because a driver of a neutral employer refused to make delivery because of the picket at the main gate. It is recognized that the driver was a member of a constituent member of Respondent Council, and his action in refusing to make the delivery because of the picket was reasonably foreseeable by Respondent. How- ever, since Respondent was exercising its right to truthfully proclaim a situation at the only entrance permissible to do so, and since its picket sign made it clear that its dispute was with Whiteside and Buckeye, and since it was picketing the entrance used by their employees, the interested employers must accept the burden of having deliveries stopped as an incident to lawful concerted activity. If the picketing were at an entrance reserved for employees of neutral employers, then an object of unlaw- fully inducing and encouraging employees of neutral employers would be more recognizable and the balance of considerations in connection with the common situs picketing of February 20, 1962, would require further examination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in con- nection with the operations of the employers set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. La Torre, Buckeye, Granite, Whiteside, and Sanders are, each of them, engaged in commerce, or in a business affecting commerce, within the meaning of the Act. 2. Respondent Monterey County Building & Construction Trades Council is a labor organization within the meaning of the Act. 3. By inducing and encouraging employees of Granite and Sanders to strike, and by threatening and coercing Granite and Whiteside with an object of causing Granite and Sanders to cease doing business with La Torre, Buckeye, and Whiteside, Re- spondent Monterey County Building & Construction Trades Council has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (ii) (B) of the Act. 4. By inducing and encouraging employees of California Motor Express to refuse to make deliveries, and by threatening and coercing California Motor Express, with an object of forcing Granite and Sanders to cease doing business with La Torre, Buckeye, and Whiteside, Respondent Monterey County Building & Construction Trades Council has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (ii) (B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. $In the matter of Sailors' Union of the Pacific, AFL ( Moore Dry Dock Company), 92 NLRB 547. MONTEREY COUNTY, ETC., TRADES COUNCIL 153 .6. Respondent Monterey County Building & Construction Trades Council did not violate Section 8(b) (7) (C) of the Act, by picketing Buckeye and Whiteside at La Tone's Elkhorn Ranch, nor did it violate Section 8(b) (4) (i ) (ii) (B) of the Act except insofar as set forth above. [Recommended Order omitted from publication.] APPENDIX B U.S. DEPARTMENT OF LABOR Wage and Hour and Public Contracts Divisions Washington 25, D.C. Title 29-LABOR Chapter V-Wage and Hour Division, Department of Labor SUBCHAPTER B-STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS PART 780-EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESS- ING OF AGRICULTURAL COMMODITIES , AND RELATED SUBJECTS [Federal Register November 3, 1961] STATUTORY PROVISIONS § 780.103 "Agriculture" as defined by the Act. Section 3 (f) of the Act defines "agriculture" as follows: "Agriculture" includes farming in all its branches and among other things in- cludes the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) per- formed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. § 780.134 Raising of poultry in general. (a) The term "poultry" includes domesticated fowl and game birds. Ducks and pigeons are included. Canaries and parakeets are not included. (b) The "raising" of poultry includes the breeding, hatching, propagating, feeding and general care of poultry. Slaughtering, which is the antithesis of "raising", is not included. To constitute "agriculture", slaughtering must come within the secondary meaning of the term "agriculture". The temporary feeding and care of chickens and other poultry for a few days pending sale, shipment or slaughter is not the "raising" of poultry. However, feeding, fattening and caring for poultry over a sub- stantial period may constitute the "raising" of poultry. § 780.138 Required relationship of practices to farming operations. To come within this secondary meaning, a practice must be performed either by a farmer or on a farm. It must also be performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the practice is performed. In addition, the practice must be per- formed "as an incident to or in conjunction with" the farming operations. No mat- ter how closely related it may be to farming operations, a practice performed neither by a farmer nor on a farm is not within the scope of the "secondary" meaning of "agriculture". PRACTICES PERFORMED "ON A FARM" § 780.143 Performance "on a farm" generally. If a practice is not performed by a farmer, it must, among other things, be per- formed "on a farm" to come within the secondary meaning of "agriculture" in sec- tion 3(f). Any practice which cannot be performed on a farm, such as "delivery to market", is necessarily excluded, therefore, when performed by someone other than farmer (see Farmers Reservoir Co. v. McComb, 337 U.S. 755; Chapman v. Durkin, 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 214 F. 2d 360, cert. denied 348 U.S. 897; Fort Mason Fruit Co . v. Durkin, 214 F. 2d 363, cert. denied 348 U.S. 897 ). Thus, employees of an alfalfa dehydrator en- gaged in hauling chopped or unchopped alfalfa away from the farms to the dehydrat- ing plant are not employed in a practice performed "on a farm". § 780.144 Meaning of "farm". A "farm" is a tract of land devoted to the actual farming activities included in the first part of section 3 (f) . Thus, the gathering of wild plants in the woods for trans- plantation in a nursery is not an operation performed "on a farm". (For a further discussion, see § 780.176.) The total area of a tract operated as a unit for farming purposes is included in the "farm", irrespective of the fact that some of this area may not be utilized for actual farming operations (see NLRB v. Olaa Sugar Co., 242 F. 2d 714; In re Princeville Canning Co ., 14 WH Cases 641 and 762). It is immaterial whether a farm is situated in the city or in the country. However, a place in a city where no primary farming operations are performed is not a farm even if operated by a farmer (Michell v. Huntsville Nurseries , 267 F. 2d 286). § 780.145 Employment in practices on a farm Employees engaged in building terraces or threshing wheat and other grain, em- ployees engaged in the erection of silos and granaries , employees engaged in digging wells or building dams for farm ponds , employees engaged in inspecting and culling flocks of poultry, and pilots and flagmen engaged in the aerial dusting and spraying of crops are examples of the types of employees of independent contractors who may be considered employed in practices performed "on a farm". Ferrell-Hicks Chevrolet, Inc. and Andrew Burinskas. Case No. 13-CA-4886. April 22, 1963 DECISION AND ORDER On November 23, 1962, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in certain of the Respondent's exceptions. The prime issue in this case is whether the Charging Party, known as Andy Burns, was discharged for his union activities or for what the Respondent regarded as good cause. The Trial Examiner credited Burns' testimony in many respects and discredited Respondent's wit- nesses who testified otherwise. Although we accept his resolutions of 142 NLRB No. 21. .