CPA Trucking Agency, Boaz

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cotton Producers Association d/b/a CPA Trucking Agency, Boaz and Teamsters Local Union 612, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 10-RC-8033 August 27, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS MCCULLOCH, BROWN , AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer H. Carlton Bryan, Jr., of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision by direction of the Regional Director for Region 10. Following the hearing the Employer filed a brief in support of its position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 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 organization involved claims to repre- sent certain employees of the Employer. 3. A question concerning commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Cotton Producers Association (herein called CPA) is a cooperative corporation engaged in the handling, processing, and marketing of various agricul- tural commodities, including the raising, processing, and marketing of poultry. In conjunction with its poultry operations, CPA owns and operates feed mills for the production and distribution of poultry feeds. The actual growing of the CPA's poultry takes place on the farms of independent farmers who raise the chickens to marketable size. According to the contrac- tual relationship, title to the chicks remains in CPA which supplies the feed and pays the independent growers according to a formula based on pounds of broilers raised and amount of feed supplied by CPA. The Employer, CPA Trucking, is an operating division of CPA engaged in the hauling of live poultry, poultry byproducts, and poultry feed. The Petitioner requests an election in a unit of all truckdrivers of the Employer at the Boaz facility. Among the classifications sought are twelve to fifteen "live haul" drivers and two "feed haul" drivers. The "live haul" drivers transport live broilers from the farms of the independent growers to the CPA process- ing plant. The "feed haul" drivers transport poultry feed from the CPA feed mill to one of the independent farmers. All of these drivers work out of the same facility and are commonly supervised. The Employer contends that the "live haul" drivers and "feed haul" drivers are agricultural laborers and therefore specifically excluded from the definition of "employee" in Section 2(3) of the Act which excludes agricultural laborers. Annually, since July 1946, Con- gress has added a rider to the Board's annual appropri- ation measure which, in effect, directs the Board to be guided by the definition of "agriculture" provid- ed in Section 3(f) of the Fair Labor Standards Act in determining whether individuals are agricultural laborers within the meaning of Section 2(3) of the NLRA. The Board has frequently stated that it was its policy to consider the interpretation of Section 3(f) adopted by the Department of Labor in view of that agency's responsibility and experience in administering the FLSA.1 Section 3(f) of FLSA reads, in pertinent part, as follows: ... agriculture includes farming in all its branches and among other things includes, ... the produc- tion, cultivation, growing and harvesting of any agricultural ... commodities ... any practices . . . performed by a farmer or oh a farm as an incident to or in conjunction with such farming operation, including preparation for market or to carriers for transportation to market. As the "live haul" and "feed haul" drivers herein are not engaged in direct farming operations, of the type enumerated in the "primary" definition of "agri- culture," the question is whether they are engaged in activities included in the "secondary" definition of that term.2 In order to come within this definition, the operation must be performed either by a farmer or on a farm as an incident to or in conjunction with the farming operations. The determination requires that the character of the particular function McAnally Enterprise, Inc, 152 NLRB 527, 529. Farmers Reservoir & Irrigation Company v McComb, Wage and Hour Administrator, 337 U S 755, 762 185 NLRB No. 79 CPA TRUCKING AGENCY, BOAZ be evaluated to determine whether 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.' We have been administratively advised by the Labor Department that in its opinion the drivers employed by a trucking division of Cotton Producers Association engaged in hauling broilers from the farms of contract growers to CPA's processing plant and in transporting feed from CPA's mill to the contract growers are not agricultural employees within the meaning of the Fair Labor Standards Act. In this connection the Department refers to 29 CFR 780, the Labor Department's current Interpretive Bulletin which pro- vides an official statement of the views of the Depart- ment with regard to the exemption of certain employ- ees under the FLSA when employed in agriculture and certain related activities. Section 780.135 indicates that in situations such as the one herein, when feed dealers or processors enter into a contractual arrange- ment with independent farmers whereby the farmers agree to raise poultry to marketable size and the feed dealer or processor supplies the baby chicks, furnishes the required feed, and retains title to the chickens until they are sold, the activities of the independent farmers and their employees in raising the poultry are clearly exempt but the activities of the feed dealer or processor are not "raising of poul- try" and their employees cannot be exempt on that ground. Section 780.149 states that where commodities are grown on the farm of an "actual grower" under contract with another farmer, practices performed by the contracting farmer on the commodities off the farm where they were grown relate to farming operations of the "actual grower" rather than to any farming operations of the contracting farmer. Section 780.169 emphasizes that when poultry is deliv- ered to market "the delivery must be performed by the employees employed by the farmer in order to constitute an exempt practice." Section 780.172 simi- larly indicates that when poultry feed is delivered to a- farmer for use in his farming operations, the transportation to the farm of such supplies is exempt if the truckdrivers are employed by the same farmer. Accordingly, Section 780.173 concludes that, for the exemption to apply, the practices must be performed on "products produced or raised by the particular farmer or on the particular farm." Under the criteria set forth in the Interpretative Bulletin, the "live haul" and "feed haul" drivers are clearly not performing work in connection with their employer's own farming operations, but are 453 engaged in hauling as an incident to or in conjunction with the farming operations of the contract growers who are actually raising the poultry CPA thus produc- es and supplies the feed which enables the production of the poultry, and then processes and markets the product, with the agricultural function of tending and feeding the live birds performed by the independ- ent growers intervening in the chain. Consequently, in this case it appears that the agricultural phase of the entire operation is an incident of CPA's nonagri- cultural activities rather than the converse. In light of the above-stated facts and particularly the administrative advice of the Department of Labor, we find that the Employer's "live haul" and "feed haul" drivers are not agricultural employees within the meaning of the Fair Labor Standards Act, as amended. With regard to the remaining employees at the Boaz facility, the Employer agrees with the Petitioner as to the inclusion of the three drivers who haul byproducts, but would also include the four mechanics and two dispatchers.' The mechanics perform minor truck repair and maintenance work at the terminal. They have also on occasion hauled feed and bypro- ducts on an emergency basis. They are supervised by the terminal manager, who also supervises all of the truckdrivers. In view of their close community of interest with the drivers, we shall include the mechanics in the unit . Queen City Transports, 141 NLRB 964, 972-973. The dispatchers distribute assignments slips instructing the drivers as to the number of chickens needed, where they are available, and what size truck is necessary for the haul. The dispatchers copy this information from a book prepared by the terminal manager. The record indicates that the terminal man- ager makes the basic decisions with regard to shipment priorities, routes, and driver assignments and that the dispatcher's work in this regard is routine. The dispatchers also perform the work of truckdrivers on occasion. The dispatchers work closely with the drivers in the same facility and are commonly super- vised. As the dispatchers have no evident supervisory or managerial authority and share a close community of interest with the drivers, we shall include them in the unit. Vangas, Inc., 167 NLRB 805, 806. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: ' The Employer also employs three forklift operators and approximately 15 to 25 chicken catchers who are stipulated to be agricultural workers ' McAnally Enterprise, Inc, supra at 530 and are excluded on that basis 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All truck drivers, mechanics, and dispatchers voters and their addresses which may be used to communicate with at the Employer's Boaz, Alabama, operations them Excelsior Underwear Inc, 156 NLRB 1236, N.L R B v Wyman- Gordon Company, 394 U S 759 Accordingly, it is hereby directed that excluding all office clerical employees, supervi - an election eligibility list , containing the names and addresses of all sors, and guards as defined in the Act. the eligible voters, must be filed by the Employer with the Regional [Direction of Electrons omitted from publication.] Director for Region 10 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file In order to insure that all eligible voters may have the opportunity this list shall be granted by the Regional Director except in extraordinary to be informed of the issues in the exercise of their statutory right circumstances Failure to comply with this requirement shall be grounds to vote, all parties to the election should have access to the list of for setting aside the election whenever proper objections are filed