John Bagwell Farms & Hatchery, Inc.

JOHN BAGWELL FARMS & HATCHERY, INC. '547 John Bagwell Farms & Hatchery, Inc. and Teamsters Local ' Union 612, affiliated with International Brotherhood ,, of Teamsters, Chauffeurs, 'Ware- housemen and Helpers of America, Petitioner. Case 10-RC-8633 August 6, 1971 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING 'AND BROWN 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 close of the hearing the Regional Director for Region 10 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. 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 proceeding toa three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record, including the briefs, the Board finds: 1. The Petitioner requests an election in a unit of employees of the Employer's feed mill at Cullman, Alabama, including various classifications of labor- ers, operators, and truckdrivers. The Employer contends that the Board lacks jurisdiction over the feed mill employees as it is engaged in the raising of poultry and therefore its employees are agricultural laborers within the meaning of Section 3(f) of the Fair Labor Standards Act and Section 2(3) of the National Labor Relations Act. The Employer owns and operates two feed mills and a hatchery. It is one of three corporations under the parent management company, Spring Valley Foods; the other two subsidiaries own and operate poultry trucking and processing plants. The Employer asserts that the integrated corporate structure is engaged in producing broiler chickens from day-old to maturity. 1 The record also shows that the Employer also employs servicemen, or "chicken doctors" who work out of their own homes (not the feed mill) visiting growers farms to provide technical advice and occasional vaccinations. They are excluded from the unit. Many of the servicemen as well as two of the feed mill drivers are also engaged independently in contract growing. T The work of the feed mill drivers is distinguishable from that of drivers for a hatchery since the former transport a commodity for an employer found herein to be engaged in a nonagricultural pursuit, whereas the latter haul live produce for an employer engaged in primary The Employer enters- into .contractual relationships with farmers, who produce hatching-,eggs from the Employer's breeder hens and cockerels. The Employ- er picks up the eggs and delivers them to the Employer's hatchery where it puts them in incubators for a 'period of 21 days. It then delivers the baby chicks to growers with whom the Employer has contracted. Under the contracts with the growers,'the Employer retains ownership over the' broilers; the growers raise the broilers: on' feed processed at the Employer's mills; and the Employer pays the growers a -minimum -guarantee per pound` with,'i ncreased compensation if they exceed minimum standards, losses being shared by the Employer and the individu- al grower.' The unit employees are engaged in activities relating to the proeessmg of feed at the 'Employer"s "Cullman mill. -The; feed mill 'employees do not participate I in any way in the growing activities. The haulers deliver the feed from the mill to the, growers' farms and pick up excess feed.2 -The spray truckdriven sprays the chickenhouses for disease control, but-the responsibil- ity for cleanirigthe chickenhouses rests solely with the growers.3 .The Board has consistently held -that' feed mill employees in situations such as this are not within the Act's exclusion of agricultural laborers. See Victor Ryckebosch, Inc., 189 NLRB No. 8, page 14 (TXD); Cotton Producers Association d/b/a CPA Trucking Agency, Boaz, 185 NLRB No. 79; Armour Ches-Peake, 120 NLRB 681. Unlike the employer in Strain Poultry Farms, Inc., 160 NLRB 236; 163 NLRB 972, reversed 405 F.2d 1025 (C.A. 5), which the Fifth Circuit Court of Appeals characterized as being within the primary definition of agriculture4 because it was "engaged in the raising of poultry," the Employer here "raises" no broilers in its own farms, and instead contracts with growers to do so. The only phase of the growing operation in which the Employer participates is the hatching of eggs.5 The fact that the hatchery may be primary agriculture does not mean that the feed mill is primary agriculture. In accord with Board precedent above cited, we find that the feed mill operation involved herein is not primary agriculture. Since it is not directly related to the Employer's hatching operations and, as the growing is not done by the agriculture. Cf. Arkansas VaUey Industries, Inc., 167 NLRB 391, where drivers for a hatchery (not a feed mill) were found to be excluded from the Act's coverage. 3 The Employer does not contend that the spray truckdriver alone should be excluded from the unit. 4 We view the Employer's ownership of the broilers as being in the nature of a financial investment. 5 See Farmers Reservoir & Irrigation Co. v. McComb, Wage & Hour Administrator, 337 U.S. 755, 762, 763, for the distinction between primary and secondary agriculture. 192 NLRB No. 81 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer, -. We further,find that the feed-mill is not secondary agriculture.6 In these circumstances; the agricultural exemption does not apply to theemploy- ees of the.feed mill.7 Accordingly, we find -that-the Employerisengaged in commerce,=and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor, organization - involved claims to represent certain employees of the Employer. 3. A. question ,affecting commerce exists concern- ing. the representation, of certain employees of the Employer within the meaning ;of Sections 9(cxl) and 2(6) and (7) of the Act. e Supra at 768. s An, oral statement by a Wage and Hour Division investigator to the Employer that its employees are exempt agricultural laborers is not controlling as it is contrary to the official policy of the Department of Labor and the Wage & Hour Administrator which the}Board,is required to follow. See,- 29 CFR 780, and;McAnal y , Enterprise Inc., 152 NLRB 527. Nor is the treatment of the Employer as an agricultural business by the Internal Revenue Service controlling. Accord, Samuel H. Burton and Pauline,Burton d/b/a Burton'Beverage Ca, 116 NLRB 634. - Althougb,' as indicated, we believe that cases distinguishable, to the extent that our finding herein is in conflict with the decision-of the U.S. Court of Appeals for the Fifth' Circuit in Strain Poultry Farms, Inc., supra, we respectfully disagree and adhere to our view until such time as the U.S. Supreme Court has passed on the matter. I The parties also agreed that Wayne Woodruff, manager, and Ronnie Stevens, assistant manager and dispatcher, are supervisors as-defined in the 4. We find, in accord= with the, agreement of the parties,8 that the following. employees constitute a unit -appropriate' for .: the purposes-of collective bargaining within the meaning of Section 9(f) of the Act: All truck drivers, mechanics, maintenance men, helpers and night watchmen' at the Employer's Cullman,, Alabama, operations -including mill laborers, the pellet-mill operator, the panel board operator, the loader, the laboratory technician, and the, inventory clerk; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. [Direction of Election9 omitted from publication.] Act. 9' In order to assure that all eligible voters may have the-,opportunity to be informed- of the issues `in-the exercise of their statutory-right to vote, all parties to. the election, should have access to a list of voters. and their addresses which' may be used to communicate with them. Excelsior Underwear' Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co.,39C U.S. 759., -Accordingly, it is hereby-directed that an' election eligibility list containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional 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 this list shall be -granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper, objections are riled.