The opinion
JAMES ALGER FEE, District Judge
(concurring).
We may all agree, without hesitation, that the petitioners, and each of them, engaged in unfair labor practices in respect to certain of their employees in warehouse crews and in respect to the union as found by the Board and by the majority of this court. Both the Board and the majority, however, take away from the farmer the protection which Congress intended to give to him by the language of Section 2, Subdivision (3) of the Act, 29 U.S.C.A. § 152 (3), which prevents control of, and organization of, the “agricultural laborer” under the authority of the National Labor Relations Act. This language is completely swept away by the findings of the Board and the reasoning of the majority. The damage caused by this elision is the more since the rights of the potato growers of Idaho are thus disposed of while they themselves are not directly parties to the litigation. Furthermore, the right of free speech is denied to these farmers in respect to their own interests by the characterization thereof as an unfair labor practice.
These erroneous results in intimating that the activities of farmers, protecting their own rights, were unfair labor practices, and in finding that members of cellar crews were not agricultural laborers, were ren *312 dered possible by two improper processes: first, because of the determination of the union to organize the cellar crews; secondly, because of the improper lumping of utterly diverse interests and issues by the Board, resulting in one set of findings and order.
It may be agreed that the persons hired by the warehousemen and dealers to engage in the operations of sorting and grading potatoes at the warehouse and away from the farms, are employees subject to the Act, even though the farmer may still retain the title to the potatoes and may, indirectly, pay the price of the work, but the differentiation between such employees and those persons engaged as members of cellar crews, is plain. The initial confusion was caused when the attempt was made to organize cellar crews and the warehouse crews in one union, notwithstanding the direct language of the Act preventing organization of the agricultural laborer.
The Board made this confusion worse confounded by entertaining the joinder in one proceeding of a claim of unfair labor practices against (1) a farmer who raised, processed and marketed his own potatoes although he also marketed potatoes of others as a dealer, (2) a non-profit cooperative, grading, sorting and dealing in potatoes of farmer-members, and (3) a traffic association which consisted not only of those above mentioned, but of strict commercial dealers also. (See No. 2 of main opinion.)
The Board also complicated the situation, following the lead of the union, by its consideration of an order based upon, and relating without differentiation to, the various types of work done on the land in the possession of the farmer, or in his cellar, and work done in commercial warehouses and processing of potatoes for shipment in interstate commerce.
In this field there are two interests, each of which is definitely protected by the language of the Act. These interests are those of (a) employees, and (b) farmers. The policy which protects the first is not more strong than that which protects the second. Each policy is clearly set forth, the first by the body of the Act, and the second by the clause relating to the “agricultural laborer”. The rights given by the language of this clause to farmers, in respect to such labor, are substantive and not adjective. It is error to treat this clause as a procedural exemption which must be pleaded and proved by the party seeking to establish rights thereunder.
The Board disregarded the facts that these cellar crews do work which is still generally, and was formerly altogether, done by the farmer and the farmhands as a normal part of the operation of a farm, and that in many cases the farmer and his regular farmhands now engage in the work as part of a cellar crew. The Board disregarded the facts that the operations of the cellar crews are conducted on the land of the farmer with his facilities, in sorting and grading potatoes, which he owns. The Board disregarded the facts that the members of the cellar crews are generally permanent residents of the vicinity and are recruited largely from families of farmers and from agricultural laborers on the farms. The Board disregarded the facts that the farmer pays the members of the cellar crew, sometimes directly, but generally indirectly, and, in any event, retains an indirect control over their operations through his relations with the dealer. It is true, this operation is a preparation for market, but so is the selection of the seed which may be done under supervision, or on advice, of a dealer. It is true that the same crew often works in the warehouse and also in the cellar of a fai-mer, but this is no excuse for confusion as to the respective functions.
As a specific example of the application of the doctrines to one phase of this case, W. P. Wilson grew on his own land, certain potatoes which he harvested and sorted by means of a cellar crew in his own employ on his own land. If the implication of the findings of the Board, as affirmed by the majority, are that he must employ a union crew under such circumstances simply because he also warehouses and sells potatoes bought from others, then no potato grower in Idaho can escape regulation, notwithstanding the plain language of Congress. If as realists, we take any account of the facts, there is then no obstacle to the extension of like organization and regulation of agricultural laborers in the operations of planting the seed and preparing the ground.
The finding of the Board that members of a cellar crew engaged under such circumstances in the work of the farm, were not agricultural laborers, accords neither with the fact nor the law. This court *313 should not lend support to such doctrine based on the fanciful analogy of other cases, or at all.
Whether potatoes so handled upon the farmer’s own land, actually reach the stream of interstate commerce, is beside the point. The plowing and the harrowing of the ground; the cutting and the dropping of the seed; the irrigation and cultivation of the growing crop; and the harvesting and sorting of the potatoes, are all forms of labor traditionally done by the farmer himself, his family and persons whom he hires. Unless we warp this pattern by casuistry, all such labor is local in character, bound to the soil and a part thereof. Unless we warp this pattern, attempted regulations or organization of such labor may well be beyond the pale of congressional or administrative power.
The farmers did attempt to protect their rights under this clause by holding meetings in protest and engaging in other activities to prevent the unionization of this field. Harsh language was undoubtedly used at such meetings and belligerent attitudes were taken by the farmers. (See Note 4 of the majority opinion.) The right of the farmers, inherently and under the language of Congress relating to an agricultural laborer, to demonstrate and to object to the regulation of the activities of themselves and their laborers, is at least on a par with the right of labor to strike. The expressions of the farmers are no more violent than those which are concomitances of the picket line. When such legitimate demonstrations against a destruction of their own rights, guaranteed in this Act, were cited as unfair labor practices, the Board committed error. The belief of the farmers, evinced by these manifestations of distrust, that action inimical to their interests was intended, is made fact by the finding of the Board that a member of a cellar crew is not an agricultural laborer. But the right of freedom of speech should not be a monopoly of the industrial employee. Whether this was a deliberate attempt upon the part of the union to get away from the plain language of the Act by organizing agricultural laborers, and whether the Board deliberately extended the scope of its findings without differentiation over diverse activities, or if, on the other hand, these results were accomplished on either part through an enthusiasm to carry out what they conceived to be the purposes of the National Labor Relations Act, this court should not place the stamp of approval upon the sweeping away of the clause of the Act relating to the agricultural laborer, nor should it, by implication, prejudice the fundamental rights of the farmers who are not parties to this litigation.
No language in the order of the Board expressly directs any of the plaintiffs to do, or to cease and desist from doing, anything with respect to members of cellar crews. There is nothing in the order to preclude plaintiffs from assembling such crews of unorganized workers separately from the warehouse crews, or to prevent farmers, either separately or cooperatively, from hiring their own cellar crews. Therefore, the writer concurs in the result. If the order of the Board could be interpreted by reference to relate to cellar crews, the writer would be compelled to dissent.