DeCoster Egg Farms

National Labor Relations Board - Board Decisions

Apr 13, 1976

223 N.L.R.B. 884 (N.L.R.B. 1976)

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Austin J. DeCoster d/b/a DeCoster Egg Farms and
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local 385 and Truck
Drivers, Warehousemen & Helpers Union, Local
340, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioners. Cases 1-RC-13911 and 1-RC-13948
April 13, 1976
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hear-
ing was held on August 14 and 15, 1975, before
Hearing Officer Joel Gardiner of the National Labor
Relations Board. The cases had been consolidated by
order of the National Labor Relations Board on Au-
gust 6, 1975. On October 1, 1975, the Regional Direc-
tor for Region I transferred the case to the National
Labor Relations Board . Thereafter, the Employer
and the Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, Local 385
(hereinafter referred to as Meat Cutters) filed briefs.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
The Board has considered the entire record in this
case, including the briefs, and makes the following
findings:
1. The parties stipulated to the fact that the Em-
ployer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act
to assert jurisdiction herein.
2. The Petitioners are labor organizations claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
The Employer argues that the petitions should be
dismissed upon the ground that the Board lacks juris-
diction because the individuals whom the Petitioners
seek to represent are "agricultural laborers" and
therefore specifically excluded from the definition of
"employee" in Section 2(3) of the Act. It has , howev-
er, stipulated to the unit requested by the Meat Cut-
ters should the Board decide to assert jurisdiction.
The Employer does dispute the Union's claim of su-
pervisory status with regard to four individuals.
With regard to the unit petitioned for by the Truck
Drivers, Warehousemen & Helpers Union, Local
340, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(herein Truck Drivers), the Employer asserts that if
jurisdiction is found, the unit should contain not only
the straight truckdrivers but also the fowl drivers,
pullet drivers, farm pickup drivers, feed truckdrivers,
and hatchery driver as well.
The Employer, Mr. Austin J. DeCoster, is a sole
proprietor doing business as DeCoster Egg Farms
engaged in the production and processing of eggs. He
is, in fact, the largest egg producer in New England,
selling approximately 13.5 million eggs per week. On
the Employer's 1,400-acre facility in Turner, Maine,
are located 2 egg-processing buildings, linked by a
public road, in addition to 44 laying houses and 4
pullet houses. Nearby is another parcel of land,
owned by the Employer through a separate corporate
structure,' on which stands its hatchery. The Em-
ployer also controls a feedmill and 12 more laying
houses under another corporation, located 7 miles
from its main facility.
The Employer's egg-producing operation begins
with the purchase of a day old parent breeder chick
from an independent breeder egg producer who
transports these chicks to the Employer. The Em-
ployer then delivers them to the growing farms, some
of which he owns. The chicks remain on these farms
for 20 weeks until maturation during which time the
complete process, including, inter alia, the appropri-
ate feed,2 medication, ventillation, and lighting, is su-
pervised by the Employer's servicemen.
Upon reaching maturity, a fact determined by the
Employer's supervisors, the chicks are transported by
DeCoster Egg Farms employees to breeder houses or
farms. There they are mated with Employer-owned
roosters, resulting in a hatching egg. During this peri-
od, the same degree of control and supervision is ex-
ercised by the Employer over this process as was
exerted by him with regard to the chicks on the grow-
ing farms.
1 Austin J . DeCoster is and has always been the sole shareholder of the
various corporations which comprise his production and processing opera-
tion. These corporations were formed for the single purpose of fulfilling the
requirements for obtaining loans to develop his business . We find that the
Employer's corporate structure has no effect on the question of the agricul-
tural status of the employees herein.
Member Fanning finds it unnecessary to reach the question of possible
impact of corporate structures created by the Employer pursuant to financ-
ing designed for industrial advancement in view of the ultimate finding that
processing plant employees and the drivers involved are not agricultural
laborers.
2 The Employer's feed truckdrivers deliver the grain from the Employer's
mill to the farms which are growing the chickens and taking care of the
laying birds . They are also responsible for loading and unloading the feed.
223 NLRB No. 123
DeCOSTER EGG FARMS 885
The eggs are then transported by the Employer's
hatchery driver to the hatchery. There the eggs are
incubated and hatched. The resulting female chicks
or pullets (the male chicks are destroyed) are deliv-
ered to either the Employer's growing farms or con-
tract growing farms 3 by this same driver. Again, the
entire maturation process of approximately 20 weeks
is controlled and supervised by DeCoster Egg Farms.
The contract farmer's responsibility is simply to
physically care for the birds, i.e., feed and water
them, in accordance with the Employer's instruc-
tions. These farmers are paid on the basis of how
many square feet they have in their facility, with the
Employer paying all electrical and heating costs. The
loss of chickens does not affect the payment as the
risk of such a loss is on DeCoster Egg Farms.
When the Employer's supervisors have determined
that the pullets are ready, his pullet drivers transport
them from the growing houses to the laying houses.
Approximately 2.4 million pullets are housed in the
Employer's facilities while 400,000 birds are in con-
tract laying houses. The Employer also has complete
control over the birds' treatment at this stage and
furthermore owns every egg produced regardless of
where it is laid.
The overwhelming majority of the eggs laid by
these pullets are either hauled by the farm pickup
drivers to the egg buildings or transported there by
means of a conveyer belt which connects 12 of the
DeCoster Egg Farms laying houses with one of the
egg buildings. Each week the DeCoster Egg Farms
laying houses produce approximately 11.5 million
eggs which are all processed in the egg building prior
to sale. The weekly yield of the contract farms is ap-
proximately 2 million eggs of which 1.8 million are
shipped unprocessed to Agway, the Employer's cus-
tomer. The remaining 200,000 eggs are processed in
the Employer's plant. Thus, less than 2 percent of the
eggs processed by the Employer are from its contract
farms. Furthermore, the Employer does not process
any eggs from other producers.
It should be noted that the hens laying these eggs
become unproductive after a certain period of time.
At this point these "spent hens," also designated as
fowl, are sold to plants in Massachusetts, Vermont,
and Maine. The Employer's fowl drivers are respon-
sible for hauling the birds to these plants.
The Employer's processing operation begins with
the cooling of the eggs. They are then transferred to
the processing machines where they are washed, can-
dled, graded, and packed for shipping. The end result
of this operation is then transported by DeCoster
Farm employees to the Employer's customers.
The Employer does not have a sales organization
to solicit customers. Mr. DeCoster engages in some
selling as do some of his top managerial personnel.
Only one person, however, has a full-time sales posi-
tion. Furthermore, the extent of DeCoster Egg
Farm's advertising is limited to the display of its
name on its trucks and invoices.
The Petitioner contends that the processing plant
employees and the straight truck and trailer drivers
are not agricultural laborers. Specifically, the Meat
Cutters ^ argues that the Employer's processing of
eggs is a separate commercial activity adding value
to the product and therefore it is not an integral part
of the Employer's farming operations. The Meat
Cutters also claims that while egg processing may be
agricultural, in this case it is not, as it is not farming
performed by a farmer on a farm. On the other hand,
as stated previously, the Employer contends that the
employees petitioned for are agricultural workers.
Section 2(3) of the Act excludes any individual em-
ployed as an "agricultural laborer" from the defini-
tion 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 "agri-
cultural laborer" shall be defined in accordance with
section 3(f) of the Fair Labor Standards Act. While
the Board makes it own determination as to the sta-
tus of any group of employees, as a matter of policy
it gives great weight to the interpretation of section
3(f) by the Department of Labor, in view of that
agency's responsibility and experience in administer-
ing the FLSA.
Section 3(f) of the FLSA defines agriculture in the
following manner:
"Agriculture" includes farming. in all its branch-
es and among other things includes . . . the rais-
ing 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 con-
junction with such farming operations, including
preparation for market, delivery to storage or to
market, or to carriers for transportation to mar-
ket.
The Supreme Court has stated that this definition has
two distinct branches.' The primary meaning refers
to actual farming operations, such, as the raising of
poultry. The secondary definition refers to "practices
... performed by a farmer or on a farm as an inci-
dent to or in conjunction with such farming opera-
tions." The employees located in the egg-processing
plants and the truckdrivers are not engaged in direct
3 Although the independent growing farms were referred to throughout as ° The Truck Drivers did not file a brief herein.
contract growing farms , there apparently exists no formal written contract S See Farmers Reservior & Irrigation Co. v. McComb, 337 U.S. 755, 762-
between the Employer and these farmers. 763 (1949), for the distinction between primary and secondary agriculture.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
farming operations such as are included in section
3(f)'s primary definition of agriculture. The question
then arises as to whether they are engaged in activi-
ties included in the "secondary definition." We find
for the reasons which follow that the employees in
question do not fall within the agricultural laborer
exemption.
The Department of Labor Regulation section
780.141 6 interpreting the phrase "such farming oper-
ations" from the section 3(f) definition of agriculture
states that:
No practice performed with respect to farm
commodities is within the language under dis-
cussion by reason of its performance on a farm
unless all such commodities are the products of
that farm. [Emphasis supplied.]
We are of the view that this regulation must be read
as limiting the exemption to those processors who
deal exclusively with their own goods.
The Fifth Circuit has indicated its approval of a
rule such as that set out above. In Mitchell v. Hunt,
d/b/a Galesville Commission Company,' the court
held that the employees working in the employer's
cattle auction barn were not agricultural laborers in
view of the fact that only one-third of the cattle sold
belonged to the employer-farmer. The court also
found in Mitchell v. Huntsville Wholesale Nurseries,
Inc.,' that the employer's warehouse employees were
nonagricultural since approximately one-third of the
employer's nursery stock was acquired from indepen-
dent contract growers. The court stated that, "pro-
cessing on a farm of commodities produced by other
farmers is incidental to, or in conjunction with, the
farming operation of the other farmers and not inci-
dental to, or in conjunction with, farming operations
of the farmers on whose premises the processing is
done." 9
In the present case, although 11.5 of the 11.7 mil-
lion eggs processed by the Employer are laid in
DeCoster Egg Farms laying houses, the remaining
200,000 eggs are received from the contract farmers.
The Board has consistently held that an employer is
not a "farmer" as to products which have been raised
or produced under contract by independent contract
farmers.1° The yield of the contract farms cannot
then be viewed as being the product of DeCoster Egg
Farms. Given our reading of the above regulation,
6 29 CFR § 780.141 (1974).
263 F .2d 913 ( 1959).
267 F.2d 286 ( 1959).
9 Id at 290.
10 See , e.g., Imco Poultry, Division of International Multifoods Corporation.
202 NLRB 259 (1973); Bayside Enterprises, Inc.. 216 NLRB 502 (1975),
enfd . 527 F.2d 436 (C.A. 1, 1975).
since "all" of the eggs processed by the Employer are
not the products of his own farm, his employees are
not engaged in activities falling within the secondary
definition of agriculture. Therefore, the agricultural
exemption does not apply in this case.
4. In Case I-RC-13911, the Meat Cutters seeks to
represent a unit of production and maintenance em-
ployees including cleanup employees, plant clerical
employees, and shipping and receiving employees
employed at the Employer's two egg-processing
buildings. In Case 1-RC-13948, the Truck Drivers,
Warehousemen & Helpers Union, Local 340, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, has peti-
tioned for a unit composed of straight truckdrivers
and trailer drivers excluding all other drivers.
In Case 1-RC-13911, the parties are in dis-
agreement as to the placement of four processing em-
ployees, Punch, Dickey, Carver, and Durgin; the
Meat Cutters contending that these individuals are
supervisors and should be excluded from the unit,
and the Employer contending that they should be
included in the unit as employees. The record estab-
lishes that these individuals spend all of their work-
ing time performing basically the same task as unit
employees, work alongside unit employees, wear the
same or similar work attire as unit employees, and
enjoy the same fringe benefits as unit employees. In
addition, the record establishes that these individuals
do not possess any authority to hire, fire, transfer, lay
off or grant time off to unit employees or effectively
recommend same. All recommendations made by
them are subject to an independent investigation.
Punch, Dickey, and Durgin are hourly paid as are
unit employees; Carver is salaried because he lives in
a company trailer. While these individuals receive
higher rates of pay than other employees, the differ-
entials are related solely to their better skills. Accord-
ingly, based on the above evidence, we find that
Punch, Dickey, Carver, and Durgin are not supervi-
sors within the meaning of Section 2(11) of the Act
and we shall include them in the unit.
In Case 1-RC-13948, the Truck Drivers seeks to
limit the unit to approximately 30 over-the-road and
straight truckdrivers. The Employer, on the other
hand, would include in the unit approximately 13 lo-
cal drivers and 6-7 feed truckdrivers. The record in-
dicates that all of these drivers make deliveries and/
or pickups at farms or buildings which are not part of
the Employer's immediate operations and, accord-
ingly, they are not agricultural employees," Howev-
11 See, e .g.. N. L. R. B. v. Bayside Enterprises, Inc., 527 F.2d 436 (C.A. I.
1975). enfg. 216 NLRB 502: Colchester Egg Farms, Inc., 214 NLRB 327
(1974).
DeCOSTER EGG FARMS
er, we conclude that the unit of over-the-road drivers
sought by Petitioner is appropriate.12
Although the record does not discuss with great
specificity the duties and functions of each of the
various categories of local drivers, it is apparent that
their interests are different from those of the over-
the-road drivers. Fowl drivers deliver spent hens to
Massachusetts, Vermont, and parts of Maine; pullet
drivers haul pullets from the growing houses to the
laying houses; farm pickup drivers haul eggs from
the laying houses to the processing buildings; the
hatchery driver hauls hatching eggs to the hatchery
and delivers the chicks to the Employer's growing
farms or to contract farms; and the feed truckdrivers
deliver feed to the various growing farms and laying
houses.
While the local and the over-the-road drivers
spend virtually all their working time on the road, the
feed truckdrivers spend only half of their time driv-
ing. In addition, the feed truckdrivers are under sepa-
rate immediate supervision.
However, notwithstanding the fact that all of these
drivers share some conditions of employment such as
fringe benefits and hourly rates of pay, the over-the-
road drivers are paid by the trip as well as by the
12 Member Fanning agrees that this unit , as sought , which is a traditional
unit of over-the-road truckdrivers , is supported by the record . He finds it
unnecessary to make a nonagricultural finding as to the local drivers who
are not sought by the Petitioner and who are not being included in the unit.
887
hour and receive advances for necessary out-of-town
expenditures . They are required to keep logs and
take mandatory rest periods . We therefore find that
the over-the -road drivers have separate interests and
constitute a separate unit.
Accordingly, upon the entire record and for the
aforementioned reasons, we find that the following
groups of employees of the Employer constitute units
appropriate for purposes of collective bargaining
within the meaning of Section 9(c) of the Act:
UNIT A (Case 1-RC-13911)
All production and maintenance employees, in-
cluding cleanup employees , plant clerical em-
ployees, and shipping and receiving employees
employed at the Employer 's two egg-processing
buildings on Plains Road , Turner , Maine, but
excluding office clerical employees , professional
employees , guards, and supervisors as defined in
the Act.
UNIT B (Case 1-RC-13948)
All over-the-road drivers (straight truckdrivers
and trailer drivers) employed by the Employer,
excluding all inside processing employees, all
other drivers , clerical employees , guards, and su-
pervisors as defined in the Act.
[Direction of Elections and Excelsior footnote om-
itted from publication.]