McAnally Enterprise, Inc.

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.