Stahmann Egg Farms

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1232 (N.L.R.B. 1980)

1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dairy Fresh Products Co., a Division of Cal-Maine
& Foods, Inc., d/b/a Stahmann Egg Farms and
Laborers International Union of North America,
Local Union No. 16, AFL-CIO, Petitioner.
Case 28-RC-3828
August 27, 1980
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on May 6, 1980, before Hearing
Officer Christ D. Lerma of the National Labor Re-
lations Board. On May 19, 1980, the Regional Di-
rector for Region 28 issued an order reopening
record, directing further hearing, and notice of
hearing, and a reopened hearing was held before
Hearing Officer Lerma on June 5, 1980. On July 9,
1980, the Acting Regional Director for Region 28
transferred this case to the National Labor Rela-
tions Board.
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
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby af-
firmed.
The Board has considered the entire record in
this case and makes the following findings:
1. The parties stipulated: "Dairy Fresh Products
Co., A Division of Cal-Maine Foods, Inc., d/b/a
Stahmann Egg Farms, is a Delaware corporation
engaged in the business of producing eggs with a
facility located in Dona Ana County near Las
Cruces, New Mexico. Within the past calendar
year, the employer has had a gross volume of sales
exceeding $500,000 and during that same period of
time the Employer has purchased and received
goods valued in excess of $50,000 from points lo-
cated directly outside the State of New Mexico."
2. The parties stipulated that Petitioner is a labor
organization claiming to represent certain employ-
ees of the Employer.
3. No question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
The Employer is engaged in the production and
processing of eggs at its farm near Las Cruces,
New Mexico, the only location involved in this
proceeding. The Employer raises chickens in its
"grow" operation, from about 2 days to 18 to 22
251 NLRB No. 163
weeks of age, when they begin to lay eggs. The
young chickens or pullets are then moved to the
layer houses, where they remain for approximately
13 months. After that period the "spent" hens are
usually sold to a processing plant. In the grow op-
eration, the Employer normally maintains three
groups of about 50,000 birds each. There are six
groups or units in the egg laying or production op-
eration, each comprised of approximately 50,000
birds. The Employer also operates a feed mill on
this farm, where raw materials are processed and
special medication or rations added as needed. The
feed is then taken to the growing area and egg pro-
duction area for use. Six silos provide storage, with
a capacity of approximately 9 million pounds. The
Employer processes and uses approximately 32 mil-
lion pounds of feed per year, using all of it for its
own grower and layer operations, with the excep-
tion of about 4 tons supplied to New Mexico State
University every 2 months, at cost, in conjunction
with a feed experiment and research project. No
feed is sold commerically. At the Las Cruces farm
location the Employer operates an egg processing
plant. The eggs are brought to the plant from the
layer operation, normally left in the unprocessed
cooler overnight, and processed the following day.
The actual processing of the eggs commences
when the eggs are placed in the processing ma-
chine. Processing consists of washing the eggs with
soap and water, sanitizing to eliminate exterior bac-
teria, and spraying the shell with a light oil to close
the pores. The eggs are then candled, sized, and
placed in cartons according to size. The cartons are
then packed in cases and the eggs then go into a
second cooler ready for distribution. Most of the
eggs are shipped to the Employer's distribution
center located separately in El Paso, Texas.
Petitioner seeks to represent all individuals at the
Las Cruces location involved in the growing and
egg laying operations, as well as those in the Em-
ployer's feed mill and egg processing plant, exclud-
ing sales employees and supervisors. The Employer
contends that the Board lacks jurisdiction, inas-
much as all individuals whom Petitioner seeks to
represent are "agricultural laborers" specifically ex-
cluded from the definition of "employes" in Sec-
tion 2(3) of the Act, hence the petition herein
should be dismissed. We agree.
In determining whether an individual is em-
ployed as an "agricultural laborer," the Board em-
ploys the definition of "agriculture" provided in
section 3(f) of the Fair Labor Standards Act
(FLSA).' Section 3(f) provides in relevant part:
See. e g mployer .embers of Grower-Shipper Vegetable .4ssoiurion
of Central California, et al. 230 NRB 1011 (1977)
STAHMANN EGG FARNISS 1233
"Agriculture" includes farming in all its
branches [including] the raising of . . . poul-
try, and any practices . . . performed by a
farmer or on a farm as an incident to or in
conjunction with such farming operations
This statutory definition includes farming in both a
primary and a secondary sense. 2 The primary
meaning refers to actual farming operations such as
the raising of poultry, while the secondary defini-
tion refers to such practices performed by a farmer,
or on a farm, which will fall within the statutory
definition if performed incident to or in conjunci-
tion with the farming operations.
The Employer here is engaged primarily in the
production and processing of eggs. Eggs are, of
course, a farm commodity, and the Employer's
chicken growing and egg production operations
clearly satisfy the primary definition of agriculture.
The egg processing and feed mill operations, how-
ever, are not within the primary definition. Thus
the determination of whether the employees en-
gaged in those activities are agricultural laborers
depends upon whether the secondary definition is
also fulfilled.
Department of Labor regulation section 780.1413
interprets the phrase "such farming operations"
contained in section 3(f) of the FLSA with respect
to whether the Employer's processing and feed
mill operations satisfy the secondary agricultural
test. Section 780.141, in pertinent part, provides:
"Practices . . . performed . . . on a farm"
must be performed as an incident to or in con-
junction with "such farming operations" in
order to constitute "agriculture" within the
secondary meaning of the term.
Section 780.1514 provides:
2 See Farmers Reservoir & Irrigation Company v McComh, 337 US
755, 762-763 (1949), for the distinction between primary and secondary
agriculture See also Bayside Enterprises. Inc. et al. v. 'L.R.B., 429 U S
298 (1977)
3 2q CFR Sec 780141 (1976).
429 CFR Sec 780 151 (1976)
Subject to the rules heretofore discussed (i.e.,
performance by a farmer or on a farm as an in-
cident to or in conjunction with such farming
operations), the following activities are, among
others, activities that may be performed in the
"preparation for market" of the indicated com-
modities and may come within Section 3(f);
(d)Eggs. Handling, cooling, grading, candling,
and packaging.
It is thus clear that the Employer's preparation of
its eggs for market falls within the above definition
and meets the secondary test for agriculture. 5
The Employer's feed mill operation warrants
some further discussion. No feed is sold to inde-
pendent growners, and to the extent that the feed
mill utilized for the Employer's own farm oper-
ations, it meets the secondary test under section
780.141 recited above. The feed it provides to the
State University in conjunction with a research
project is provided at cost and does not in our
view convert the feedmill operations into a nona-
gricultural commerical endeavor.6
Accordingly, as we have found that the individ-
uals sought by Petitioner are exempt agricultural
laborers, we shall dismiss the petition in this pro-
ceeding.
DIRECTION
It is hereby directed that the petition herein shall
be, and it hereby is, dismissed.
' While it appears that approximately 10 percent of the eggs processed
by the Employer at this location are received sporadically from other
farms, they derive from farms of the same Employer, rather than from
independent farmers, and the Employer does not process eggs from any
independent farmer See Wegman's Food Market, Inc., 236 NLRB 1062
(1978). Cf Austin J DeCoter. d/b/a DeCoser Egg Farms, 223 NLRB 884
(1976).
6 This feed. as noted above, is provided solel5 to an exempt entity, the
State In any event, in view of the small amount of feed provided to the
State in relation to the 32 million pounds per year processed for the Em-
ployer's own use, it would appear that a substantial portion of employee
time in the feed mill is devoted to the preparation and distribution of feed
for the Employer's own facility, and that only an insubstantial amount of
time is devoted to any nonagricultural functions: hence, denial of the stat-
utory exemption as to such employees would be unwarranted Wetgman[r
Food Market, Inc.. supra at 1064; Grower-Shipper Vegetable .sviuiation of
Central California. er al., supra at 1016
STAHMANN EGG FARMS