Cornell University

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 110 (N.L.R.B. 1981)

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