Domsea Farms, Inc.

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Domsea Farms, Inc. and Teamsters, Chauffeurs and Helpers Local 672, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind., Petitioner. Case 19-RC-6821 June 21, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed on September 21, 1973, under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Steven B. Frank on October 11, 1973. On October 16, 1973, the Hearing Officer issued his report recommending that this matter be transferred to the Board. On the same day the Regional Director, by order, transferred this representation matter to the Board for determination . Subsequently, the Employer and Petitioner filed timely 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 authority in this proceeding to a 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 in this proceeding, the Board finds: 1. The Employer, a Delaware corporation, is engaged in a commercial fish farming operation in two locations, Gorst and Orchard Point, Washing- ton. During 1972, the Employer shipped goods valued in excess of $50,000 from its Washington State locations to points outside the State of Washington. The parties stipulated on the record that the Employer is engaged in commerce within the meaning of the Act. We find in agreement with the parties that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9(c)(1) of the Act for the following reasons: The Petitioner seeks to represent a unit of the Employer's employees employed in its fish farming operations. The Employer contends that these individuals are "agricultural laborers" exempt from the Act's coverage by virtue of the definition of "employee" contained in Section 2(3) of the Act.' The Employer raises coho salmon for commercial marketing. There are four phases in this operation: incubation, fresh water cultivation, salt water cultiva- tion, and harvest. These activities involve the following operations: Mature salmon are killed and the eggs and sperm are removed and transported to the fresh water facility where artificial insemination occurs by mixing the eggs and the sperm in water and placing them into incubating trays. The eggs remain in the incubation trays until they hatch into what is called "fry." When the fry develop to the proper stage, the employees feed them using a special artificial food prepared by employees under the Employer's formu- la. These employees are specially trained to properly care for the fry. After the fry have grown to the proper stage they are transferred from the incubation trays into rearing pools and are fed on the water surface a specially prepared fine mash according to formulas developed by the Employer's technician employees. As the fry grow in size and density they are thinned out and transferred to "raceways," which are large cement troughs of fresh water approximately 30 feet long, 4 feet deep, and 16 feet wide. During the period that the salmon are at the fresh water stage the Employer requires a staff of specially trained employees to conduct the biological aspects of the salmon raising. Trained maintenance employees are used to regulate water temperature and keep the necessary machinery or equipment functioning properly. The salmon are fed and watched until they reach the stage called "smolting." Smolting is a physiologi- cal characteristic of the coho salmon. It is the stage at which the salmon kidney becomes sufficiently developed for it to handle the osomotic differences in salt water as compared to fresh water. At the smolting stage the salmon are transported to salt water pens. These deep pens are sunk in the salt water of Clam Bay at Orchard Point, Washington. The pens are constructed so as to protect them from both bird and fish predators. As the salmon grow they are transferred from different pens under a grading process into categories of small, medium, and large. This grading is done to prevent cannibal- ism and to determine the proper pellet size and amount of food necessary to their maturation. When the fish reach a marketable size, they are harvested. This is done by killing them in freezing water, putting them in tubs, and transferring them to an outside contractor's processing plant for dressing, packaging, and distribution for market. I Section 2(3) of the National Labor Relations Act, as amended, employed as an agricultural laborer . provides: "(3) The term 'employee' ... shall not include any individual 211 NLRB No. 125 DOMSEA FARMS, INC. 833 Since 1947 the appropriation acts for the Board have regularily carried a rider which provides that the term "agricultural laborer" shall be defined in accordance with Section 3(f) of the Fair Labor Standards Act (29 USC § 203) which reads in part as follows: "Agriculture" includes farming in all its branches and . . . includes . . . any practices .. . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations In light of the above quoted language from the appropriation acts the Board has followed a practice of determining under Section 2(3) (NLRA) whether an employee was an "agricultural laborer by adher- ing, generally although not exclusively, to the Department of Labor's interpretation of "agricultur- al laborer" within the meaning of Section 3(f) of the Fair Labor Standards Act. Prior to 1965 the Department of Labor, through advisory opinions to Board, held that "fish farming" was not farming within the provisions of Section 3(f) of the FLSA.2 However, in August 1965, the Department of Labor issued an interpretative bulle- tin (29 CFR 780.118) pursuant to Section 3(f) (FLSA) which in pertinent part reads as follows: Unlike the specifically enumerated operations, the phrase "farming in all of its branches" does not clearly indicate its scope. In determining whether an operation constitutes "farming in all its branches", it may be necessary to consider various circumstances such as the nature and purpose of the operations of the employer, the character of the place where the employee performs his duties, the general types of activities there conducted, and the purpose and functions of such activities with respect to the operations carried on by the employer. The determination may involve a consideration of the principles contained in §780.112. For example, fish farming activities fall within the scope of the meaning of `farming in all of its branches" and employees engaged in such operations would be exempt. (Emphasis supplied.) In light of the above - quoted portion of the Department of Labor's regulations, the Board on January 29, 1974, requested an advisory opinion as to whether the Employer's operations, as described above, did in the opinion of the Department of Labor fall within the meaning of "farming in all of its branches" under Section 3(f), so as to consider its employees as being employed in agriculture. On March 8, 1974, the Department of Labor advised the Board: As you point out, at one time we took the position that fish farming was not "agriculture" within the meaning of Section 3(f) of the Act .... However, the similarities of fish farming to other types of agriculture and the fact that it was considered "agriculture" under other statutes (see Internal Revenue Regulations) induced a change in our Interpretations. Interpretative Bulletin § 780.109 (29 CFR 780.109) points out that "fish farming activities fall within the scope of the meaning of `farming in all its branches'." Further, Interpretative Bulletin § 780.120 (29 CFR 780.120) states that while fish are not "livestock", fish farm employees are considered to be "em- ployed in agriculture" within the meaning of Section 13(a)(6) of the Act. Accordingly, we would consider that the activities of Domsea Farms constitute "agriculture" within the mean- ing of Section 3(f). In view of the Department of Labor's advisory opinion, and in accord with our past practices, we find that the operations of the Employer must be deemed to be "agriculture" within the meaning of Section 3(f) of the FLSA. Therefore, its employees are exempt from the National Labor Relations Act as "agricultural laborers." Accordingly, we shall dismiss the petition. 2 See Snake River Trout Company, 129 NLRB 41, In 2 at 42