Cornell University

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cornell University and United Food and Commercial Workers, District Union Local No. 1, affiliated with United Food & Commercial Workers In- ternational Union, AFL-CIO. Case 3-CA-9591 January 14, 1981 ORDER DENYING MOTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On August 21, 1980, the National Labor Rela- tions Board issued a Decision and Order in the above-entitled proceeding' wherein it asserted ju- risdiction over Respondent, having found that Re- spondent meets the jurisdictional standard for pri- vate educational institutions, and granted the Gen- eral Counsel's Motion for Summary Judgment. The Board found that Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain with the certified representative of its full-time meatcutters employed at Respondent's place of business called The Meat Shop in Ithaca, New York. The Board further found that Respondent, inter alia, did not allege any special circumstances which would have required the Board to reexa- mine its decision in the underlying representation case. Finding that Respondent had not raised any issue properly litigable in this unfair labor practice proceeding, the Board granted the Motion for Summary Judgment. Thereafter, on September 9, 1980, Respondent filed a motion for reconsideration asking, for the first time, the Board to consider whether the agri- cultural laborer exemption of Section 2(3) of the Act is applicable to the employees at issue in this proceeding. Respondent called the Board's atten- tion to Case 3-RC-7850 concerning certain other employees of Respondent. The Regional Director for Region 3 transferred that case to the Board after raising, sua sponte, the issue of statutory juris- diction involving the agricultural laborer exemp- tion. Respondent argued that because of certain work contacts between the meatcutters and the em- ployees in Case 3-RC-7850 only an evaluation of the meatcutters' possible agricultural employee status would enable the Board to avoid "possible inconsistent results." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. On November 21, 1980, the Board issued in Case 3-RC-7850 an Order Permitting Withdrawal of Pe- tition With Prejudice. Therefore Respondent's con- tention in its motion for reconsideration insofar as ' 251 NLRB 409. 254 NLRB No. 27 it relates to the issues in Case 3-RC-7850 is ren- dered moot. However, since the issue of statutory jurisdiction may be raised at any time, we address the merits of a Section 2(3) exemption at this time. Respondent operates a retail meat shop located on its campus and administered within the Depart- ment of Animal Science, a subdivision of Respon- dent's College of Agricultural and Life Sciences. The shop employees include among their duties the slaughtering of cows, calves, hogs, and lambs, the butchering of the carcasses into retail cuts, and the selling of the meat at retail to the general public. The record reveals that most of the meat processed through The Meat Shop is derived from animals raised by Respondent at the Harford, New York, Teaching and Research Center of the Department of Animal Science. The record reveals that, in order to provide a full selection of retail cuts each week, some additional boxed, previously slaugh- tered beef is purchased from outside vendors and added to the meat from Respondent's own internal- ly raised livestock. The record does not show, however, what percentage of The Meat Shop's $130,000 to $140,000 annual retail sales volume is derived from animals raised by Respondent.2 Section 2(3) of the National Labor Relations Act excludes from the definition of the term "employ- ee" "any individual employed as an agricultural la- borer." Congress has further provided that the term "agricultural laborer" in the Act shall have the meaning specified in Section 3(f) of the Fair Labor Standards Act. The Board has frequently stated that it considered it its duty to follow, when- ever possible, the interpretations of Section 3(f) adopted by the Department of Labor, the agency which is charged with the responsibility for and has the experience of administering the Fair Labor Standards Act. Section 3(f) reads, in pertinent part, as follows: "Agriculture" includes farming in all its branches . . . [including] the raising of live- stock . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations .... [29 U.S.C. §203.] This statutory definition includes farming in both a primary and secondary sense. The raising of live- stock is primary farming but the slaughtering, butchering, and retail selling of the meat derived 2 The Board has previously established its legal jurisdiction over Re- spondent. See Cornell University, 183 NLRB 329 (1970), for the Board's assertion of jurisdiction over private nonprofit colleges and universities. As to the monetary threshold established in Sec. 103.1 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, see the Board's assertion of jurisdiction in the instant proceeding, 251 NLRB 409. 110o CORNELL UNIVERSITY from livestock is not primary farming. Thus, the question in this case is whether The Meat Shop employees are engaged in activities included within the secondary definition. 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. Section 780.144 of the Department of Labor's Wage and Hour Division interpretive bulletin deal- ing with secondary aspects of the agricultural labor exemption states that, generally, "a practice per- formed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business." We find, assuming, arguendo, that Respondent is a farmer with respect to the raising of livestock at its Harford facility and without here deciding the Section 2(3) status of any Harford employees, that the operation of the retail sales facility, separately staffed and administered, is a commercial enterprise separate from and independent of primary agricul- tural activity. The fact that farmers who raise a commodity on which a given practice is performed do not ordi- narily perform that practice has been considered by the Supreme Court as a significant indication that the practice is not agricultural.3 Neither the 3 Mitchell v. Budd, 350 U.S. 473, 481 (1956). slaughtering nor the butchering of livestock is ordi- narily performed by farmers. Also, the fact that the natural state of the commodity, here a live animal, is significantly changed is another critical factor in- dicating that the practice of meatcutting is not within the secondary definition of agriculture. The record also indicates that there is no interchange between The Meat Shop employees and any em- ployees at Respondent's Harford facility where the animals are raised. We further note that because of the supplemental purchases of boxed meat from independent vendors The Meat Shop employees do not work exclusively on the products of Respondent's farms. In our view, The Meat Shop exists as a commercial enter- prise incidental not to agriculture but to the overall teaching and research mission of the Department of Animal Science, whose general fund is the recipi- ent of The Meat Shop proceeds. We find, there- fore, under all the circumstances that Respondent's meatcutters employed in The Meat Shop are not agricultural employees and are entitled to the pro- tection of the Act. We shall deny Respondent's motion for reconsideration of our Decision and Order in this case. Accordingly, It is hereby ordered that Respondent's motion for reconsideration be, and it hereby is, denied as lacking in merit. 111