International Multifoods Corp.

IMCO POULTRY 259 Imco Poultry, Division of International Multifoods Corporation and Marty Wines and Merrill E. Dunning and Lloyd D. Baker and Richard E. Tyler II and Michael A. Cassidy and Wallace L. Chit- wood. Cases 25-CA-4907-1, 25-CA-4907-2, 25-CA-4907-3, 25-CA-4907-4, 25-CA-4907-5, and 25-CA--4907-6 March 7, 1973 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 10, 1972, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions to the Administrative Law Judge's Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Administrative Law Judge's Decision in light of the exceptions and the brief and has decided to affirm the Administrative Law Judge's rulings, findings, conclusions, and recommendations to the extent consistent with this Decision. The Administrative Law Judge found that the Charging Parties, who were discharged by the Respondent for engaging in a work stoppage, were "agricultural laborers" within the meaning of Section 2(3) of the Act, and therefore not "employees" within the meaning of the Act. Consequently, he dismissed the complaint without reaching the merits of the Respondent's contention that even assuming the men were statutory "employees," it was legally privileged to sever them from its employment rolls. We disagree and find, contrary to the Administrative Law Judge, for the reasons set forth below, that the charging parties were "employees" within the meaning of Section 2(3) of the Act, and that they were dis- charged in violation of Section 8(a)(1) of the Act. I. JURISDICTION Briefly stated, the stipulated facts show that I The record shows that about 7 to 9 percent of the eggs processed by the Respondent are produced by the 105,000 chickens on this farm However, it is clear that the six employees involved herein are employed at Respon- dent's service crew facility in the western region, and are therefore not involved with either the egg production farm or the feed mill operations - 2 The agreement provides that "Title to said pullets shall at all times be and remain in IMCO, and the Grower shall have no rights or title of any kind whatsoever " 3 The Administrative Law Judge erred by impliedly finding that Respondent's employees in the western region were engaged in transporting Respondent is part of the Agricultural Division of International Multifoods Corporation. The Respon- dent is divided into two divisions, to wit: The operations division and the egg processing division. The operations division is further divided both geographically and functionally into eastern and western regions, which are located in Napoleon, Ohio, and Warren, Indiana, respectively. Employees in the eastern region operate two feed mills and an egg production farm.' In addition, Respondent also operates a hatchery primarily for the purpose of producing egg-laying hens. The hatchery is located within the eastern region and is staffed with eastern regional employees. After the hens have become "spent" or no longer economically productive, they are sold to independent poultry processors. Respondent's egg producing operations begin with the purchase of breeder eggs from an independent breeder egg producer, who transports these eggs to Respondent's hatchery. After the eggs are hatched, eastern regional employees deliver both the male and female breeder chicks to contract farmers who raise them, under an agreement2 with Respondent, for approximately 20 weeks or until they have reached pullet size. At the end of this period, eastern regional employees3 transport the breeder chicks to other contract farmers who operate breeder farms. Eggs produced by the breeder hens are collected by the farmers, and then picked up and delivered by employees in the eastern region to Respondent's hatchery where they are hatched and sexed. The male chicks are destroyed and the female chicks, after being aged, are delivered by eastern regional employees to contract farmers4 who raise them under a "Pullet Growing Agreement" with Respon- dent until they reach pullet size. It is these "second generation" chicks that become the layers. After the chicks have been transported to the pullet farmers, Respondent is no longer involved with the raising- -feeding and care-of the chicks. It is clear that the western region service crew employees involved herein do not take part in Respondent's operations prior to the- time that these "second generation" chicks have reached pullet size. After the chicks have reached this size, they are transported by eastern or western regional employees5 to new independent pullets from pullet growers to other contract farmers who operate breeder farms The parties did stipulate that the function of transporting pullets from pullet grower to egg producing contract farmer may be accomplished by employees of either the eastern or the western region depending upon the location of the contract farmer involved . However, the stipulation made it clear that western regional employees have no function with respect to Respondent's breeder operations 4 These farmers have no relationship with the Respondent other than that provided by the contract 5 The location of the independent farmers involved in the transfer (Continued) 202 NLRB No. 44 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract farmers, who under an "Egg Program Agreement"6 with Respondent, care for and feed the hens for a period of about 60 weeks. During this period of egg production by the layers, the independ- ent farmer first collects the eggs and then packs them in containers suitable for transportation. Respon- dent's egg processing division then determines the price for the eggs before they are sold to egg processors whose own employees pick up the eggs at the independent farmer's location. The contract egg farmers are compensated for their efforts out of the proceeds of the sale. At the end of the 60-week period, the hens are deemed to be "spent" or no longer economically productive. At this time, the hens are sold by the operations manager in the western region to independent poultry processors, and loaded on the processors' trucks at the egg production farms by Respondent's employees includ- ing those involved herein. The record shows that the six service crew employees named herein spend approximately 75 percent of their time in pullet transportation,7 25 percent of their time in loading "spent" hens, and 1 to 2 percent of their time transporting rice hulls.8 Section 2(3) of the Act excludes any individual employed as an "agricultural laborer" from the definition of "employees" covered by the Act. Annually, since 1946, Congress has added a rider to the Board's appropriation bill which provides that the term "agricultural laborer" shall be defined in accordance with Section 3(f) of the Fair Labor Standards Act. The section defines agriculture in the following manner: "Agriculture" includes farming in all its branches, and among other things includes . . . the raising of livestock, bees, fur bearing animals, or poultry, and any practices . . . performed by a farmer or on a farm as an incident to, or in conjunction with such farming operations, including prepara- tion for market, delivery to storage, or to market, or to carriers for transportation to market. The Supreme Court has stated that "this definition has two distinct branches."9 The primary meaning refers to actual farming operation, such as the raising usually determines which regional employees are assigned to this task. However, on occasion, the employees in one region cross regional lines when the pullet contract farmer is in one region and the egg producing contract farmer is in another. 6 The Administrative Law Judge found that pursuant to both the "Pullet Growing Agreement" mentioned above, and the "Egg Program Agree- ment," title to and control over the pullets remained in Respondent at all times until they were sold to poultry processors However, neither the record nor the agreements referred to specify that the Respondent shall have control over the pullets at all times prior to their sale 7 When the employees were engaged in pullet transportation, they were divided into three categories designated as loading crew, unloading crew, and drivers 8 After sacks of rice hulls were delivered by boxcar to the Warren service center in the western region , employees either loaded them in the warehouse of poultry. The secondary definition refers to "practices . . . performed by a farmer on a farm as an incident to, or in conjunction with such farming operations." The Administrative Law Judge found that by maintaining a hatchery and egg production farm the Respondent was a farmer engaged in pnmary agriculture. Furthermore, he determined that the functions performed by the employees named herein did not amount to a separate and distinct business activity, but were part of the overall agricultural operations of the Respondent.'° Specifically, the Administrative Law Judge found that the pullets are the product of the Respondent's hatchery operations, and are raised to accomplish Respondent's main business purpose which is the production of eggs. To accomplish this purpose, Respondent utilizes the services of independent contract farmers. When Respondent's employees are engaged in service crew activities on the farms of independent contractors, in the opinion of the Administrative Law Judge, their activities are a part of the Respondent's integrated egg producing operation. In this way, the Adminis- trative Law Judge concluded that the second part of the above definition was determinative, and there- fore found that the six employees involved herein were "agricultural laborers," and not "employees" within the meaning of the Act. As noted above, we disagree. The Board has consistently held that when an employer contracts with independent growers for the care and feeding of the employer's chicks, the employer's status as a farmer engaged in raising poultry ends with respect to those chicks. See Strain Poultry Farms, Inc., 160 NLRB 236; 163 NLRB 972, reversed 405 F.2d 1025 (C.A. 5); Victor Ryckebosch, Inc., 189 NLRB No. 8, and cases cited therein, reversed 471 F.2d 20 (C.A. 9).ii As the service crew employees involved herein are engaged in handling and transporting chicks on the farms of independent growers only after Respondent' s farming operations have ended, these employees cannot be performing practices incident to, or in conjunction with, Respon- dent's farming operations. More accurately, they are or onto waiting trucks for delivery to the pullet farmers. When delivery was scheduled, one driver and a second employee delivered the rice hulls to the pullet farmer who used them as litter for the chicks 9 See Farmers Resevoir & Irrigation Co v McComb, Wage & Hour Administrator, 337 U.S. 755, 762, 763, for the distinction between primary and secondary agriculture io The General Counsel claimed that the work performed by the service crew employees on the farms of the independent contractors was incident to, or in conjunction with, the nonfarming operations of the Respondent, i e., shipping and marketing ii To the extent that our finding herein is in conflict with the decisions of the United States Courts of Appeals for the Fifth Circuit in Strain Poultry Farms, and for the Ninth Circuit in Victor Ryckebosch, we respectfully disagree and adhere to our view until such time as the United States Supreme Court has passed on the matter. IMCO POULTRY 261 engaged in nonfarming operations which are incident to, or in conjunction with, a separate and distinct business activity of the Respondent, i.e., shipping and marketing. Furthermore, since the activities of the employees named herein on the growers' farms are all related to transportation and the employees have no business relationship with the independent farmers, we conclude that the employees' activities were not incidental to the independent farmers' poultry raising operations. Accordingly, we find that the service crew loaders, unloaders, and drivers are "employees" within the meaning of the Act subject to the jurisdiction of the Board. II. THE ALLEGED UNFAIR LABOR PRACTICES With respect to the unfair labor practice charge, the facts, as stipulated by the parties, show that prior to their discharges on April 18, 1972, the six employees involved herein first discussed their complaints over terms and conditions of employment among themselves, and then decided on April 17, 1972, to contact Teamsters Local 135 for their mutual benefit. On the following morning, the employees proceeded from the Warren service center to one of the independent egg producing farms where they were assigned the loading of "spent" hens. When informed by employee Merrill E. Dunning that he was unable to contact the union representa- tive, the employees decided to "take matters into their own hands." Thus, one group of employees formulated a list of demands while driving to the jobsite, which was signed and agreed to by all but one of the employees scheduled to work on the site that day. The signers pledged to withhold their services from the Respondent until someone from the Company met with them to discuss their demands. After being presented with the list, Foreman David Kaiser telephoned Paul Stucky, the western region division manager, for advice. Stucky's response to employee Richard E. Tyler II, who was selected as spokesman for the group, was that it was essential that the "spent" hens be loaded that morning. This response included an offer to discuss the demands immediately after the men returned from loading the hens. This offer was rejected by the employees who had signed the demands, and so was a second offer, which promised that there would be no discharges if the hens were loaded without delay.12 After Stucky had been convinced that the employees could not be persuaded to complete their assigned tasks, he ordered that they be returned to the Warren service center. While the employees were enroute to the service center, Stucky contacted the employees' supervisor, Conners, and requested that he also report to the center. Before the employees arrived, Stucky and Conners reached a joint decision that the employees would be terminated for refusing to work. Upon their arrival, the employees were summoned to a meeting with Conners and Stucky at which time Conners responded to their demands, and informed them that they had been discharged. Shortly thereafter, the employees jointly decided to contact the National Labor Relations Board. Before contact was made with a Board agent Dunning, at the suggestion of a union agent, telephoned Conners to express his apologies for the group for engaging in a strike, and to request reinstatement for all the employees involved herein. Conners refused to consider rein- statement, and the conversation ended abruptly.13 The employees' demands, referred to above, dealt with wages, hours, and other conditions of employ- ment. More specifically, the demands included various subjects such as raises in pay, a guarantee of 40 hours per week, overtime, paid holidays, safety and work equipment, and recognition of an unspeci- fied union. The Respondent's position as expressed in the record is that even if the employees were found not to be "agricultural laborers," their activities were clearly unlawful for five specific reasons, to wit: (1) No prior notice of the demands, or of the employees' desire to discuss them, was given to the Respondent before the work stoppage; (2) the employees became trespassers by striking on the contractor's farm, and demanding a meeting on the farmer's premises without his permission and at an unreasonable time; (3) they were engaging in a sitdown strike; (4) they did not represent a majority of the employees engaged in that particular operation; (5) their demand for increased wages exceeded the legal limits determined by the Federal wage-price guidelines. In our opinion, Respondent's defenses, as set forth above, do not support a conclusion that the Respon- dent was legally privileged to sever the employees involved herein from its employment rolls. As to (1) the law is clear that a strike is protected even if the employer is not informed of the strikers' demands prior to the work stoppage.14 As to (2) there is no evidence in the record which would support the Respondent's claim that the strikers were trespassers, nor is there any evidence that the strikers were demanding a meeting on the farmer's premises or that they were insisting on an unreasonable time for such a meeting. The employees were on the farmer's land at the direction of the Respondent, and they left 12 The record shows that the employees feared that they would be agreed that Dunning had done the proper thing by calling Conners to discharged for their collective activity request reinstatement for the group 13 All of the employees involved herein , with the exception of Tyler, 14 N L.R.B. v. Washington Aluminum Co, 370 U.S 9, 14 (1962). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only after Stucky ordered them back to the Warren service center. With respect to (3) the record does not support a conclusion that the employees were engaged in a sitdown strike. As to (4) the Board has never held that concerted activity by less than a majority of an employer's employees is unprotected. With respect to (5) the record does not indicate that meeting the demand for a 25-cent-an-hour increase would be contrary to the wage-price guidelines. Even if such an increase would be unlawful, nothing in the record indicates that the employees would be unwilling to negotiate this demand. In view of the foregoing analysis, we find that the employees named herein were engaged in protected concerted activity, and by discharging them, Respon- dent violated Section 8(a)(1) of the Act. Further- more, by refusing to reinstate the strikers after they had made an unequivocal request to return,15 and before they were permanently replaced, Respondent also violated Section 8(a)(1) of the Act.16 Accordingly, we shall order that Respondent offer Marty Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole by payment of a sum equal to that which they normally would have earned from the date of discrimination to the date of offer of reinstatement, less their net earnings during that period. The backpay provided herein shall be computed in accordance with our formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, IMCO Poultry, Division of International Multifoods Corporation, Huntington, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire or tenure or any other term or condition of employment for engaging in any concerted activity protected by Section 7 of the Act. (b) Refusing to reinstate employees or otherwise discriminating in regard to their hire, tenure of employment, or any term or condition of employ- ment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist a union, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion or to refrain from any and all such activities. 2. Take the following affirmative action: (a) Offer Marty Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner prescribed in this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its service facility in Warren, Indiana, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, .including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material: (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. is Since Dunning made a valid unconditional request for reinstatement on behalf of all six employees named herein, which was forcefully rejected by the Respondent, " 'it was not necessary-indeed, it would have been futile'-for the other [employees] to have requested reinstatement 'and the law does not require the doing of a futile act.' " B & P Motor Express Incorporated, 171 NLRB 1289. 16 We find it unnecessary to decide whether the discharges also violated Section 8(a)(3) of the Act as the remedy would in any event be the same. it In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " IMCO POULTRY 263 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT discharge or otherwise discrimi- nate against any employee in regard to hire or tenure or any term or condition of employment because he has engaged in any concerted activity protected by Section 7 of the Act. WE WILL NOT refuse to reinstate employees or otherwise discriminate in regard to their hire, tenure of employment, or any term or condition of employment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist a union, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. WE WILL offer Marty Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner prescribed in this Decision. All our employees are free to become, remain, or refrain from becoming or remaining, members of a union. IMCO POULTRY, DIVISION OF INTERNATIONAL MULTIFOODS CORPORATION (Employer) Dated By (Representative) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921. DECISION STATEMENT OF THE CASE MAx ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was tried before me in Fort Wayne, Indiana, on September 13, 1972, on a complaint filed by the General Counsel of the National Labor Relations Board and an answer thereto filed by Imco Poultry, Division of International Multifoods Corpo- ration, herein called the Respondent or Imco Poultry.' At issue is whether Respondent violated Section 8(aX3) of the National Labor Relations Act, as amended, by discharging employees Marty Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood on April 18, 1972. Briefs have been received from the General Counsel and the Respondent which have been duly considered. Upon the basis of the stipulated record made herein, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Respondent, a Delaware corporation , maintains its principal office and place of business at Napoleon, Ohio, and a service crew facility at Warren , Indiana, herein called the facility, where it engages at said facility and other locations in the sale of poultry, feed, and other poultry products, and in the sale of chickens. During the annual period material to this proceeding, Respondent sold at its facility products valued in excess of $50,000 which were shipped from said facility directly to States other than the State of Indiana. During the same period, Respondent sold and distributed products valued in excess of $500,000. The complaint alleges, the answer admits, and I find that 1 The original charge in Case 25-CA-4907-1 was filed on April 25, 1972, and served on April 28, 1972, and the supplemental charge in that case was filed and served on June 30, 1972. The original charge in Case 25-CA-4907-2 was filed on April 25, 1972, and served on April 28, 1972. The original charge in Case 25-CA-4907-3 was filed on April 25, 1972, and served on April 28, 1972, as were the original charges in Cases 25-CA-4907-4 and 25-CA-4907-5. The original charge in Case (Title) 25-CA-4907-6 was filed on April 25 , 1972, and served on May 5, 1972. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel maintains that Harry Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood were "employees" within the purview of Section 2(3) of the National Labor Relations Act, as amended, and that their discharge on April 18, 1972, by Respondent was violative of Section 8(a)(3) because the terminations were designed to inhibit their engagement in rights guaranteed by Section 7. For its part, Respondent contends that the six alleged discriminatees were "agricultural laborers" within the meaning of Section 2(3) of the Act and therefore specifically excluded from the definition of "employee" as set forth in that section inasmuch as they were engaged at work in an industry characterized as "Agriculture" as defined in Section 3(f) of the Fair Labor Standards Act.2 The parties stipulated and I find that IMCO Poultry constitutes a division of International Multifoods Corpora- tion, herein called IMC. IMC is composed of several divisions operating in Canada, South America, and the United States. The division in the United States is comprised of smaller separate divisions, one of which is an industrial foods division which engages in the milling of wheat purchased from independent farmers and produces therefrom flour and various byproducts which are vended at wholesale. There also exists a consumers' division which prepares foods for consumption by individual consumers, and an agricultural division which is concerned with the milling of animal feeds and the poultry operations to be described hereinafter. Additionally, within the United States, IMC conducts operations which have not yet achieved the status of divisions and have not been assigned to divisions. Those include the operation of a chain of restaurants, and the processing of meat which involves the purchase of carcasses and the breaking down of the carcasses into salable portions. IMCO Poultry constitutes a part of IMC Agricultural Division. IMC has its principal office in Minneapolis, Minnesota. IMCO Poultry maintains its office in Napole- on, Ohio, and is divided into two separate operating divisions-an operations division headquartered in Napo- leon, Ohio, and an egg processing division which has its headquarters in the same city. The operations division is separated into two regions geographically. The first, known as the eastern region and located in Napoleon, Ohio, is headed by Manager Norman Drews. The second, styled as the western region and situated in Warren, Indiana, is under the supervision of Division Manager Paul Stucky 2 In view of my findings and conclusions hereinafter made that these six individuals were "agricultural laborers" within the meaning of Sec. 2(3) of the NLRA and were therefore excluded from its coverage, I deem it unnecessary to pass upon Respondent's contention that, even assuming the men were statutory "employees, it was legally privileged to sever them from its employment rolls 3 Hyline Poultry Farms has no contact with IMCO Poultry other than the sale of eggs 4 This agreement provides in pertinent part that "Title to said pullets shall at all times be and remain in IMCO, and the Grower shall have no who is responsible for the sales, service, credit, and general management of the western region. Both Drews and Stucky are accountable to Harold Zuercher, the operations manager in Napoleon. The operations division of IMCO Poultry maintains a milling operation and an egg production farm. The milling operation consists of two feed mills which are staffed by employees of the eastern region. They process grain purchased from independent farmers into primarily chick- en feed. Approximately 5,000 tons of feed per month is processed at the mills, of which amount almost 400 tons are sold to independent farmers as an incidental part of the feed mill operation. The balance of the product is utilized by IMCO Poultry for the feeding of chickens at its various operations. The egg production farm, located in the eastern region and staffed by eastern regional personnel, is comprised of 40 acres, of which 28 are planted in corn by persons other than IMCO Poultry employees. The remain- ing 12 acres bear IMCO Poultry's chicken houses which contain approximately 105,000 fowl. About 7 to 9 percent of the eggs processed by IMCO Poultry are derived from these chickens. IMCO Poultry purchases breeder eggs from an inde- pendent company known as Hyline Poultry Farms and hatches them in a hatchery which is situated within the eastern region and operated by eastern region employees.3 These breeder eggs are delivered to IMCO Poultry's hatchery by employees of Hyline Poultry Farms. When the eggs have hatched, the male and female chicks are removed from the hatchery by IMCO Poultry's employees and transported by them to independent farmers who raise the chicks under a "Pullet Growing Agreement" with IMCO Poultry until they reach pullet size, a process which takes approximately 20 weeks.4 The contract farmers have no relationship with IMCO Poultry other than by virtue of the agreement to raise the pullets for the designated period. At the conclusion of the pullet growing period, the pullets are crated and loaded on IMCO Poultry's trucks by its employees stationed in the eastern region, and then transported to other contract farmers who operate breeder farms.5 Eggs laid by the breeder hens are collected by the independent farmers and they in turn are loaded and transported by IMCO's Poultry's employees to the latter's hatchery where they are hatched and sexed. The male chickens are thereupon destroyed. The female chickens, after they have aged, are trucked by IMCO Poultry's eastern region employees to independent farmers where they are cared for and fed by the farmers pursuant to the terms of the "Pullet Growing Agreement." The contract farmers also collect the eggs produced by the chickens and pack them in containers suitable for transportation. The operations division sets a price for the eggs thus produced, after which they are vended to independent egg processors rights or title of any kind whatsoever" The contract further provides that throughout the term of this agreement, the entire egg production of said pullets is the property of IMCO 5 The parties stipulated that the function of transporting the pullets from the pullet grower to the egg producing contract farmers may be accomplished by employees of either the eastern or the western region, depending generally upon the location of the contract farmer involved. Although on occasion, if the pullet contract farmer is in one region and the egg producing contract farmer is in another region, employees of either region may cross regional lines IMCO POULTRY 265 by IMCO Poultry. The contract egg farmers are paid for their efforts out of the proceeds of the sale. The eggs are retrieved and transported from the egg farms by employees of the processors. After the 60-week period of laying, the hens are deemed "spent" or no longer economically productive. At this point, they are sold by Respondent's operations manager to independent poultry processors and are loaded on the processors trucks by Respondent's employees for transportation to the premises of the buyers. Within the western region, approximately 70 percent of the income of that region is derived from the operations of the contract egg producing farmers. For each chicken on the egg producing farmer's land, about 94 to 98 percent of the revenues received by IMCO Poultry from that chicken is as a result of the egg producers endeavors, and 2 to 6 percent of the revenues represent the value of "spent" hens. Prior to the discharge of the alleged discriminatees on April 18, 1972, the western region maintained a work complement of between 13 and 16 individuals, including foremen, which was characterized as the service crew. Of this number, three employees, Dick Brown, Roger Meekin, and Ron Meekin, none of whom are among the alleged discriminatees, devoted approximately 75 percent of their worktime in debeaking chicks. The balance of their workday consisted of performing other operations. The remainder of the service crew was assigned to the tasks of transporting pullets, loading spent hens, and transporting rice hulls which is used for litter by the pullet growers. These employees worked approximately 75 percent of their time transporting pullets, 20 to 25 percent of their time loading spent hens, and 1 to 2 percent of their time transporting rice hulls. With respect to the transportation of pullets, the employees so engaged were divided into three categories designated as loading crew, unloading crew, and drivers. The loading crew, composed of alleged discriminatees Marty Wines and Richard E. Tyler II, were under the supervision of Foreman David Kaiser. The unloading crew, manned by alleged discriminatees Lloyd D. Baker and Merrill E. Dunning, were supervised by Foreman Sid Alper. The drivers consisted of alleged discriminatees Michael A. Cassidy and Wallace L. Chitwood, and employee Howard Penrod. In describing the operation of pullet transportation, the stipulation recites that the loading crew reported daily at the service center in Warren, Indiana, where they were conveyed to a farm at which the loading was to take place. Upon arrival at the farm, the loaders were met by one of Respondent's truckdrivers. The loading crew would proceed to erect wire pens into which its members would drive the 20-week old pullets. The employees in the crew would then catch the pullets and hand a specified number of them to the driver until all of the pullets scheduled for shipment had been loaded. Upon completion of this chore, the loading crew would gather up the pens and any other equipment, and either travel to their next assignment or return to Respondent's Warren service center and clock out. The drivers'- duties were comprised of reporting each morning to the Warren service center where they would obtain one of Respondent's trucks and load it with empty chicken crates. They would travel to a designated farm at which the pullets were to be loaded. Upon arrival, the drivers would stack the crates in such a fashion as to facilitate the loading of the truck. As heretofore described, the loading crew would deliver the pullets to the drivers who would thereupon place them into the crates until the requisite number of chickens had been procured, and then stack the containers in their trucks. Following this operation, the drivers would proceed to the site where the pullets were to be unloaded. Upon arrival, they would spot the trucks in the proper position and move the crates of live chickens to the tailgate. Although their official function ceased at this juncture, it occasionally was their practice to assist the unloading crew in their work. Once the crates were emptied, the drivers reloaded them on the trucks and either drove to the next worksite or returned to the Warren service center and punched out. The unloading crew usually arrived at the farm of the egg producer at which the pullets were to be delivered and await the delivery of the crated chickens. When the trucks appeared, the unloading crew would assist the drivers in setting up the unloading equipment, remove the crates from the trucks, and stack them on wheeled dollies. The dollies would be pushed into the laying houses and the chickens removed and placed in cages in those edifices. The crew would then return the empty crates to the truck. After these chores were completed, the unloading person- nel would venture to another assignment or report to the service center and sign out. Regarding the loading of "spent" hens, these tasks could be performed by any employee in the service crew, who would be dispatched by private automobile from the Warren service center to the farms where the hens were to be loaded. At the farms, the service crew employees would assist the truckdrivers employed by the independent poultry processors who had purchased the hens in loading the chickens on the processors' vehicles. When the hens were loaded, the service crew would move on to another site or return to the Warren service center and clock out. Rice hulls utilized as chicken litter by the contract pullet farmers were delivered in sacks by rail to Respondent's Warren service center where they were unloaded by any member of the service crew who was available for duty. The sacks were then loaded on IMCO Poultry's trucks, conveyed to the independent pullet farmers by Respon- dent's drivers, and unloaded at the farms for the use of the farmers. With the exception of the members of the service crew who performed debeaking duties and who have heretofore been identified, the remaining crew members were regularly assigned only to transporting pullets, loading hens, and transporting rice hulls. The stipulation between the parties further recites that all employees on the service crew lived within 35 miles of the Warren service center where they reported for work each morning to clock in and returned each afternoon to clock out. They received an hourly wage rate ranging from $2.25 to $2.50, with compensation at time-and-a-half for any hours worked in excess of 40 per week, regardless of the task which they performed. With the exclusion of the truckdrivers and the debeakers, the service crew received no special training in the care and handling of chickens and no extraordinary skills were required. Each service 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crew employee occupied a probationary status for 60 days after hire, and worked exclusively for IMCO Poultry. In the normal course of events, Respondent's service crew would not usually encounter the independent farmers or the latter's employees during the workday. Section 2(3) of the National Labor Relations Act expressly excludes from the definition of "employee" any individual employed as an agricultural laborer. Since July 1946, Congress has added a rider to the Board's annual appropriations measure which, in essence, directs the Board to be guided by the definition of "agriculture" as set forth in Section 3(f) of the FLSA in determining whether an individual is employed as an "agricultural laborer" within the meaning of Section 2(3) of the NLRA. The Board has consistently proclaimed as its policy to consider the interpretation of Section 3(f) adopted by the Depart- ment of Labor in view of that Agency's responsibility and experience in administering the FLSA. Section 3(f) of the FLSA reads, in pertinent part, as follows: Agriculture includes farming in all its branches and among other things includes . . . the raising of livestock, bees, fur bearing animals, or poultry, and any practices . . . performed 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 transporta- tion to market. The statutory definition of "agriculture" thus has a "primary" and "secondary" connotation. The "secondary" meaning covering "practices ... performed 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" is thus determinative of whether the six individuals involved in this litigation fall within the exclusion set forth in this aspect of Section 3(f). In his brief, the General Counsel concedes that "Respon- dent is unquestionably engaged in primary agriculture in its operation of a hatchery and an egg production farm, and is thus a farmer."s His main bone of contention resides in his assertion that the service crew does not perform work which is an incident to, or in conjunction with, farming operations. I do not agree. In D'Arrigo Bros. Co. of California,7 the Board observed that "The determi- nation [as to whether an operation is performed as an incident to or in conjunction with farming operations] requires that the character of the particular function be evaluated to see if it is part of the agricultural activity or a 6 This status had been previously determined by the Regional Director for Region 25 when Respondent was then known as Nuehauser. On August 17, 1967, the Cannery and Allied Workers Union filed a petition with the Board in Case 8-RC-6865 seeking an election among "all regular full-time and regular part-time employees in the production and maintenance departments in the employer's hatchery in Napoleon, Ohio " This petition was dismissed by the Regional Director on September 19, 1967, "Because the employees involved herein are commercial hatchery employees and as such are agricultural laborers within the meaning of Section 2(3) of the Act distinct business activity. The totality of the situation will control, and not mechanical application of isolated factors or tests." It is undisputed and I find that, pursuant to the "Pullet Growing Agreement" and the "Egg Program Agreement," title to and control over the pullets remained in Respondent at all times until their sale by it to poultry processors. These pullets were the product of Respondent's hatchery operations. To facilitate its egg production operations, Respondent utilized the services of independ- ent contractors. The service crew's activities, including those of the truckdrivers, were not divorced from those operations and did not entail the exclusive engagement in the transportation of fowl. Indeed, the record shows that the loading and unloading crews physically collected the pullets on the contractors' farms and released them at the hen laying farms in conjunction with Respondent's main business purpose, i.e., the production of eggs. Even the three drivers here involved assisted in these activities. Moreover, while the General Counsel points out that the service crew operated out of the eastern region and the hatchery was located in the western region, it is uncontro- verted that the service crew performed services for its sister region. Under the circumstances presented, I am con- vinced that the functions of the service crew at the Warren service center did not constitute a business activity distinct from Respondent's farming operations. I therefore con- clude that Wines, Dunning, Baker, Tyler, Cassidy, and Chitwood were "agricultural laborers" and were therefore excluded from the coverage of the National Labor Relations Act at the time they were discharged.8 Conclud- ing, therefore, that these individuals were not employees within the meaning of Section 2(3) of the NLRA, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Marty Wines, Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy, and Wallace L. Chitwood, Respondent has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. ORDERS It is hereby ordered that the complaint in this proceeding be dismissed in its entirety. who are specifically excluded as 'employees.' r 171 NLRB 22, 23 8 See Arkansas Valley Industries, Inc, 167 NLRB 391 9 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes