Opposition Brief — Holly Farms Corp. v. NLRB

h \ Supreme Court, U.S

FILED

No. 95-210 CT 6

In the Supreme Court of the UnitedStates

OCTOBER TERM, 1995

HoLLY FARMS CORPORATION, ET AL., PETITIONERS

¥

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

DREW'S. DAys, II

Solicitor General

Department of Justice

Washington. DC. 205246

yyy?

FREDERICK L. FEINSTEIN

. j :

(ri vera ( (did aise

LINDA SHER

Associate General Counsel

NORTON J. COME

De puty Associate (re hie ral (C‘ONMNSe

j

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether substantial evidence supports the Na-

tional Labor Relations Board’s finding that petitioner

Tyson Foods, Inc., became a successor to petitioner

Holly Farms Corporation on the date upon which

Tyson bought all of the stock of Holly Farms.

2. Whether the Board reasonably concluded that

petitioners violated Section 8(a)(5) of the National

Labor Relations Act (the Act), 29 U.S.C. 158(a)(5), by

refusing to bargain with the union about the terms and

conditions of employment of Holly Farms’ drivers, as

an effect of petitioners’ decision to integrate Holly

Farms’ transportation operation into Tyson’s trans-

portation system.

3. Whether the Board properly ordered petitioners

to reinstate with backpay 47 Holly Farms drivers who

were unlawfully discharged for declining employment

under terms and conditions unilaterally imposed by

petitioners.

4. Whether the Board reasonably found that peti-

tioners’ “live haul” employees were not “agricultural

laborer[s],” which are excluded from the Act’s cov-

erage under Section 2(3) of the Act, 29 U.S.C. 152(3).

(I)

TABLE OF CONTENTS

Page

ae l

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EEE 2

Ee 12

aR 26

SIN datiienmeiiansenndenennendseneneenennsecensnsecascncnsenccenncsconseees la

TABLE OF AUTHORITIES

Cases:

ABF Freight System, Inc. v. NLRB, 1148. Ct. 835

IY ditdienimtninnbenepeanessceeetasceessocoseseccccscesecesccsscoocoeses 21

Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298

EE aieedainideiiais 11, 21, 22, 23, 24, 25

Coleman v. Sanderson Farms, Inc., 629 ¥ 2d 1077

EE EE 24

Drug Package Co., 228 N.L.R.B. 108 (1977),

modified, 570 F.2d 1340 (8th Cir. 1978) ................. 20

EPE, Inc. v. NLRB, 845 F.2d 483 (4th Cir. 1988) . 13

Esmark, Ine. v. NLRB, 887 F.2d 739 (7th Cir.

EEE TELE Se a ee TD 13, 16

Fa!l River Dyeing & Finishing Corp. v. NLRB, 482

a cnsnasncins 6, 13

Farmers Reservoir & Irrigation Co. vy. MeComb,

OE 24

First National Maintenance Corp. v. NLRB, 452

EE 8, 18

Hendricks-Miller Typographic Co., 240 N.L.R.B.

SE ae 13

Imco Poultry, 202 N.L.R.B. 259 (1973) ..................... 25-26

Miami Foundry Corp. v. NLRB, 682 F 2d 587 (6th

is aenememncnnnnee 16

NLRB vy. Burns Int'l Security Services, Inc., 406

SE ACA 6, 12-13, 17

IV

Cases—Continued: Page

NLRB vy. Dent, 534 F.2d 844 (9th Cir. 1976) .......... 17

NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969) .. 7

NLRB vy. Miller Trucking Service, Inc., 445 F.2d

, CD CAGE GR FGED ccecncccccncsccasccseccccsssscesesssscsecsessees 15, 16

NLRB vy. Strain Poultry Farms, Inc., 405 F 2d

BN _————————EEE 25

NLRB vy. Victor Ryckebosch, Inc., 471 F.2d 20 (9th

Oe 25

S & F Enterprises, Inc., 312 N.L.R.B. 770 (1993) .... 20

Spencer Foods, Inc., 268 N.L.R.B. 1483 (1984), aff'd

sub nom. United Food & Commercial Workers,

Local 152 v. NLRB, 768 F.2d 14638 (D.C, Cir.

| 13

Tuskegee Area Transportation System, 308 N.L.R.B.

251 (1992), enforced mem., 5 F.3d 1499 (Lith Cir.

1993), cert. denied, 114 S. Ct. 1834 (1994) ............... »”

United Food & Commercial Workers, Local 152 v.

NLRB, 768 F.2d 1468 (D.C. Cir. 1985) .................. 15

Universal Camera Corp. v. NLRB, 340 U.S. 474

GEETIIED énncencncesussindsssnsentechiandemmmeneiademstinatenstaiiiimsabinen 1s

Statutes:

Fair Labor Standards Act § Xf), 29 U.S.C.

SS 21, 22, 23

National Labor Relations Act, 29 U.S.C. 151 ef seq. ... 12

6 SEED, GD UEC. GERRSGD cececcccscccsscscccsccccsscccsssessecsscess 21

$ 8(aX1), 29 U.S.C. UGBaMD) .........cccccccceeereeceeeeeneee 2-3

§ BlaNXS), BB U.S.C. IGBLANMS) .........cccecccccescescesccsccses 2-3

$ 8(a(5), 29 U.S.C. 158A) .........cccccceecseeeeenes 5, 6, 8, 10

In the Supreme Court of the United States

OcTORER TERM, 1995

No. 95-210

HOLLY FARMS CORPORATION, ET AL., PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. Al-A78) is

reported at 48 F.3d 1360. The decision and order of

the National Labor Relations Board (Pet. App. A79-

A205) and the decision of the administrative law judge

(Pet. App. A206-A935) are reported at 311 N.L.R.B.

273. The Board's decision in the representation pro-

ceeding (App., infra, la-6a) is unreported.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

March 10, 1995. A petition for rehearing was denied

on May 9, 1995. Pet. App. A936-A938. The petition for

a writ of certiorari was filed on August 4, 1995. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

l. a. In October 1988, petitioner Holly Farms Corp.

(Holly Farms) was engaged in the production, pro-

cessing, and transportation of poultry. Pet. App. A5.

At that time, petitioner Tyson Foods, Inc. (Tyson), a

firm engaged in similar operations, offered to buy the

stock of Holly Farms. /d. at A4-A5. In anticipation

that its offer would be accepted, Tyson officials

drafted a plan, dated January 24, 1989, to merge the

two companies’ transportation divisions. /d. at A600.

In December 1988, an organizing campaign was

begun by respondent Chauffeurs, Teamsters and

Helpers Local Unions Nos. 29, 71, 355, 391, 592, 567,

and 988, all affiliated with the International Brother-

hood of Teamsters, AFL-CIO (the Union), among a

unit of drivers and yardmen at Holly Farms’ plants in

North Carolina, Virginia, and Texas. Pet. App. A6,

A81 n.8, A210-A211, A232.' In March 1989, the Union

' The Union also began organizing campaigns among units

of production employees and “live haul” employees at Holly

Farms. “Live haul” employees were responsible for catching,

caging, and transporting petitioners’ chickens from the farms

of independent contract growers to petitioners’ processing

plant in Wilkesboro, North Carolina. See Pet. App. A40-A41,

A787-A7&88 n.268; see also n.4, infra. The National Labor Rela-

tions Board found that, in connection with those campaigns,

petitioners committed numerous violations of Section 8(a)(3)

was elected and certified as the collective-bargaining

representative for the drivers-yardmen unit. /d. at

All, A233. In April 1989, the Union and Holly Farms

began negotiating a labor agreement for that unit. /d.

at All, A597. The negotiations were suspended in

July 1989, however, when Holly Farms decided to

accept Tyson’s bid. Jd. at A598 & n.195.

On July 18, 1989, Tyson acquired 100% of the stock

of Holly Farms, making it a wholly owned subsidiary

of Tyson. Pet. App. All, A61, A715. In a meeting with

the Union in August 1989, Tyson announced that

it had taken “full control” of Holly Farms’ operations

and that it planned to integrate Holly Farms’ western

transportation division into Tyson’s transportation

department. /d. at A95-A96, A602-A603, A607 n.199.

In September 1989, however, Tyson decided instead to

integrate Holly Farms’ entire transportation system,

both its western and eastern divisions, into Tyson’s

transportation system. /d. at A617; see also id. at

A96, A97 n.16, A615-A616, A773, A775-A776.

Tyson announced its full-integration decision in a

meeting with the Union on September 12, 1989. Pet.

App. A620. At that meeting, Tyson also expressed its

view that, after integration, Holly Farms’ trans-

portation divisions would cease to exist, and that the

Union would not have majority support among the

combined group of transportation employees. /d. at

A98, A626. Immediately after the meeting, Tyson

wrote all 209 of Holly Farms’ drivers, offering to hire

and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(3)

and (1), by, inter alia, discharging employees for engaging in

union activity. Pet. App. Al57-A163. The court of appeals

upheld those findings (id. at A&), and petitioners do not chal-

lenge them here.

them, on different terms, as employees of Tyson.

Forty-seven drivers failed to accept the offer by Sep-

tember 22, 1989, and were thereby deemed to have

quit. Jd, at Al2-A13, A739.

Petitioners refused the Union’s later written re-

quests to bargain over (1) a labor agreement for the

Holly Farms drivers-yardmen unit; (2) the decision to

integrate the Holly Farms transportation system

into that of Tyson; and (3) the effects of that decision

upon the Holly Farms drivers and yardmen. On

September 22, 1989, petitioners withdrew recognition

from the Union. Pet. App. A100-A101, A637, A638-

A639, A640-A642, A643-A646, A651-A653. On October

1, 1989, the Union called a strike against petitioners

on behalf of the Holly Farms drivers and yardmen. /d.

at A241, A779-A780.

b. In late December 1988, Union Local 391

launched an organizing campaign in a unit consisting

of Holly Farms’ “live haul” employees. Pet. App.

A211 n.49, A233. In a representation proceeding, the

Board found that two groups of “live haul” employees

together constituted an appropriate bargaining unit:

(1) truck drivers, forklift operators, and “chicken

catchers” at petitioners’ plant in Wilkesboro, North

Carolina; and (2) feed haul, feed mill, and service

center employees at petitioners’ plant in Roaring

River, North Carolina. /d. at A211-A212, A233-A235.

The Board rejected Holly Farms’ contention that the

live haul employees were “agricultural laborer|s],”

which are excluded from the Act’s coverage. App.,

infra, la-6a; see also 29 U.S.C. 152(3) (“The term

‘employee’ * * * shall not include any individual

employed as an agricultural laborer.”). On July 27,

1989, the Board held an election among the live haul

unit, resulting in a tie vote with one challenged ballot.

Pet. App. A235.

2. The Union filed unfair labor practice charges

against Tyson and Holly Farms. The Board’s Gen-

eral Counsel issued consolidated complaints alleging

that Tyson became Holly Farms’ successor on July

18, 1989, when it acquired the stock of Holly Farms,

and that Tyson thereafter violated Section 8(a)(5) of

the Act, 29 U.S.C. 158(a)(5), by refusing to bargain

with, and withdrawing recognition from, the Union.

Pet. App. A208 n.48, A209-A210.

a. After a hearing, the administrative law judge

(ALJ) determined that, as of July 18, 1989, Tyson

became the legal successor to Holly Farms and, as

such, became obligated to bargain with the Union

concerning a labor agreement for the drivers-yard-

men unit. Pet. App. A716, A875. The ALJ found the

requisite continuity of operations to hold that Tyson

was a successor employer because, for about two

months after the July 1989 acquisition, there were no

significant changes in operations “from the stand-

point of [the drivers-yardmen] unit employees” that

would have “affect(ed] their desire for continued

representation by the Unions.” /d. at A716; see also

id. at A713-A715. On the other hand, the ALJ rejected

petitioners’ contention that only a stock transfer,

without any significant internal changes, took place

during that period. The ALJ found, instead, that,

“upon Tyson’s assumption of control, key Holly

Farms executives almost immediately were absorbed

into the Tyson organization” and were required to act

“in accordance with Tyson’s dictates,” including

“what to tell the Unions” about the “major [proposed]

changes affecting the drivers-yardmen unit.” /d. at

A717-A718.

The ALJ observed that, although Tyson was obli-

gated to bargain with the Union as of July 18, 1989,

Tyson was “free to set initial terms” for the drivers-

yardmen unit. Pet. App. A719 (quoting Fall River

Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40

(1987), quoting NLRB v. Burns Int'l Security Servs.,

Inc., 406 U.S. 272, 294 (1972)). Because Tyson failed

to change the existing terms and conditions of

employment of that unit for two months, however,

those terms “became * * * not subject to unilateral

changes.” Pet. App. A721. The ALJ rejected peti-

tioners’ contention that the unit ceased to exist when

Tyson’s full-integration decision took effect on

September 22, 1989. The ALJ found that Holly Farms’

transportation divisions retained separate identities

after the integration. /d. at A735.

Accordingly, the ALJ concluded that petitioners

violated Section 8(a)(5) of the Act by, inter alia,

unilaterally announcing the full-integration decision

to the Union and dealing directly with the drivers-

yardmen unit employees on September 12, 1989 (Pet.

App. A748, A885); unilaterally changing the terms and

conditions of employment of unit employees on

September 22, 1989 (id. at A756-A757); and with-

drawing recognition from the Union (id. at A756). In

addition, the ALJ found that the 47 Holly Farms

drivers who declined employment under Tyson’s

unilaterally imposed terms had been constructively

discharged, and that the work stoppage called by the

Union on October 1, 1989, was an unfair labor practice

strike. Jd. at A888-A889.

As a remedy, the ALJ ordered petitioners to re-

cognize and bargain with the Union concerning the

drivers-yardmen unit; to rescind the unilateral

changes to the unit employees’ terms and conditions

of employment, retroactive to September 22, 1989;

to make the unit employees whole for any losses

sustained as a result of the unlawful unilateral

changes; to reinstate and make whole the 47 con-

structively discharged drivers; and, upon receipt of an

unconditional offer to return to work, to reinstate to

his or her former position any employee who par-

ticipated in the October 1, 1989, strike. Pet. App.

A914-A915, A918-A919, A921.

b. The ALJ sustained the challenge to the

determinative ballot cast in the July 27, 1989, election

in the live haul unit; that election thus ended in a tie.

Pet. App. A818-A819, A856-A857. Finding that peti-

tioners’ unfair labor practices precluded the holding

of a fair rerun election, the ALJ ordered petitioners

to recognize and bargain with the Union as the

representative of the live haul employees, pursuant to

NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969). Pet.

App. A794, A817, A919. Relying on the Board’s deter-

mination in the representation proceeding, the ALJ

rejected petitioners’ contention that the live haul

employees were “agricultural laborer[{s]” excluded

from the Act’s coverage. /d. at A786-A787; see p. 4,

supra.

3. In all relevant respects, the Board affirmed the

ALJ’s decision and adopted his remedial order. Pet.

App. A79-A205. The Board found that “Tyson became

a successor of Holly Farms when it purchased a

controlling interest in the corporation on July 18,

[1989}.” Pet. App. Al10-Alll. The Board observed

that “Tyson’s purchase of Holly Farms stock involved

at the outset a broader form of reorganization than a

mere stock transfer.” Jd. at Alll. The Board also

found that Tyson lost its right to set the initial terms

on which it would hire Holly Farms’ drivers when it

failed to change the existing terms of their employ-

ment for two months after it became a successor;

Tyson therefore “could not unilaterally change those

terms on September 12, [1989],” when it offered to

hire the drivers on different terms. /d. at A114.

The Board further found that petitioners violated

Section 8(a)(5) of the Act by refusing to bargain with

the Union “about the September 12 offer of employ-

ment to the Holly Farms unit employees as an effect

of the integration decision.” Pet. App. A124-A125.°

The Board explained that “employers may be obli-

gated to bargain over the effects on unit employees of

management decisions that are not themselves

subject to the obligation to bargain.” Jd. at A121.

That principle applied here, the Board found, because

“the terms at which the Holly Farms drivers were

offered employment were not an inevitable conse-

quence of the functional integration of the transpor-

tation departments, but were only one of a number of

* The Board reversed the ALJ's finding that petitioners

violated Section 8(a)(5) by refusing to bargain with the Union

about the integration decision itself. Pet. App. A120-A121.

Relying on First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981), the Board concluded that the decision to

integrate was not a mandatory subject of bargaining. Pet. App.

A116-A121. That ruling is not at issue in this Court.

responses to changed circumstances.” Jd. at A122

(internal quotation marks omitted).’

The Board concluded that a Gissel bargaining order

covering the live haul unit was appropriate. Pet. App.

A156. In rejecting petitioners’ challenge to the Gissel

order, the Board relied on its prior determination in

the representation proceeding that the live haul

workers were not “agricultural laborer[s]” within the

meaning of the Act. Jd. at A&83 n.8.

4. The court of appeals enforced the Board’s order.

Pet. App. Al-A53.

The court held, first, that “substantial evidence and

the policies of the labor laws support the Board’s

finding here that Tyson came under a duty to bargain

with the Union when it purchased Holly Farms.”

Pet. App. A21. The court explained that “[t]he policy

underlying the Nationa! Labor Relations Act is to

promote industrial peace,” and that “[t]he suc-

cessorship doctrine * * * seeks to promote this

policy by forestalling the employee frustration that

could result if employees found themselves in

substantially the same job, but deprived of the

representation of their union.” /d. at A21-A22

(citations and internal quotation marks omitted). The

court observed that, for two months after purchasing

Holly Farms, Tyson made no changes in operations

* The Board further found that petitioners unlawfully

discharged the 47 drivers who declined Tyson’s September 12,

1989, job offers. Pet. App. Al25. The Board rejected peti-

tioners’ contention that they were free to withdraw recognition

from the Union because the Holly Farms drivers-yardmen unit

ceased to exist after integration. Jd. at Al27-Al131. The Board

accordingly concluded that the strike called on October 1, 1989,

was an unfair labor practice strike. Jd. at A167.

10

that would have caused Holly Farms’ employees to

believe that their job situations had essentially

altered (id. at A25); those employees therefore “could

reasonably be expected to continue their support for

the Union” (id. at A26).

The court held, next, that substantial evidence

supported the Board’s finding that Tyson violated

Section 8(a)(5) of the Act by unilaterally changing the

terms and conditions of employment of the members

of the drivers-yardmen unit in September 1989. Pet.

App. A28. The court observed that, even if an em-

ployer need not bargain over an “‘economically-

motivated’ management decision[],” it must bargain

over “effects” that “are not the inevitable con-

sequence of the underlying management decision

itself.” Jd. at A32-A34 (internal quotation marks and

emphasis omitted). The court found that “it was not

inevitable for the Company to impose Tyson’s pay

plan and working conditions upon Holly Farms’

drivers” (id. at A34); instead, “there was room for

bargaining,” as shown by, inter alia, Tyson’s efforts

“to accommodate the drivers’ individual preferences

as to the duration and mileage of their hauls” (id. at

A35).

Finally, the court upheld the Board’s determination

that the employees in the live haul unit were not

“agricultural laborer|s]” excluded from the Act’s pro-

tection under Section 2(3) of the Act. Pet. App. A52.

On appeal, petitioners challenged the Board’s deter-

mination only with respect to the truck drivers,

forklift operators, and chicken catchers at the

1]

Wilkesboro plant. /d. at A39.‘ Relying on Bayside

Enterprises, Inc. v. NLRB, 429 U.S. 298 (1977), the

court explained that, under the Act, “agriculture is

defined in both a primary and a secondary sense”:

“(t]he primary meaning encompasses farming in all

its branches, including the raising of poultry,” while

“the secondary meaning includes any practices,

whether or not themselves farming practices, which

are performed either by a farmer or on a farm,

incidental{] to or in conjunction with primary farming

operations.” Pet. App. A44-A45 (internal quotation

marks omitted). The court observed that petitioners

conceded that the Wilkesboro workers were not

engaged in “primary” farming activities. Jd. at A46.

The court upheld the Board’s determination that they

also were not engaged in “secondary” farming activi-

ties. Jd. at A52. The court reasoned that the live haul

workers’ activities occurred after “the Company has

turned the broiler chicks over to independent con-

tract growers and the Company’s status as a farmer

engaged in raising poultry (a primary agricultural

activity) has ended.” /d. at A48. The court held that

those activities thus were not incidental to any

4 The court described the duties of those employees as

follows (Pet. App. A40-A41 (footnote omitted)):

A crew consists of a live-haul truck driver, a forklift

operator, and about nine “chicken catchers.” The live-haul

driver drives a flat-bed truck, which carries the entire

crew to the farms of the independent contract growers

who raise the broiler chickens. Under cover of darkness,

the chicken catchers manually catch and cage the

chickens, the forklift operator places the steel cages on the

flat-bed truck. and the truck delivers the chickens to a

storage area * * *.

12

primary farming operations on the part of petitioners.

Id. at A48-A49.5

Judge Niemeyer dissented from the holdings that

Tyson became a successor employee upon the acqui-

sition of Holly Farms’ stock and that the live haul

employer at the Wilkesboro plant were not exempt

from the Act as “agricultural laborer[s].” Pet. App.

A54-A55.°

ARGUMENT

1. The first issue in this case is whether, as of July

18, 1989, the relationship between Tyson and Holly

Farms was that of a “successor employer” to a “pre-

decessor employer,” or, rather, that of a “new stock-

owner” to a “continuing employer.” The Board found

that, on the facts of this case, the relationship

between Tyson and Holly Farms was a successorship.

Pet. App. A110-A114. The court of appeals correctly

held that the Board’s finding was supported by

substantial evidence. Jd. at A13-A27.

a. Under the National Labor Relations Act

(NLRA or Act), 29 U.S.C. 151 et seq., anew employer

is a “successor” to a predecessor employer if there is

“substantial continuity” between the business enter-

prise and workforce of the two employers. NLAB v.

Burns Int'l Security Services, Inc., 406 U.S. 272, 280-

5 The court of appeals rejected petitioners’ other arguments

concerning the entry of a Gissel order covering the live haul!

unit. See Pet. App. A37 n.2. AS2. Petitioners do not renew

those arguments in this Court. Instead, they challenge only the

determination that the live haul employees covered by the Gisse/

order are statutory employees. See Pet. 57.

6 Judge Niemeyer did not, however, dissent from the sub-

sequent denial of petitioners’ petition for rehearing and sug-

gestion of rehearing en banc. Pet. App. A996-A938.

la ee ee a a

13

281 & n4 (1972); see also Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987)

(Burns “approved” the “substantial continuity”

approach of the Board). A “successor” employer is

not bound by the substantive terms of the pre-

decessor’s collective bargaining agreement, but it is

obligated to bargain with the union representing the

predecessor’s workforce. Burns, 406 U.S. at 281-282.

By contrast, a stock transfer “involves no break or

hiatus between two legal entities, but is, rather, the

continuing existence of a legal entity, albeit under

new ownership.” Hendricks-Miller Typographic Co.,

240 N.L.R.B. 1082, 1083 n.4 (1979). A “continuing em-

ployer” must continue to honor a preexisting collec-

tive bargaining agreement, notwithstanding the

transfer of its stock. See Esmark, Inc. v. NLRB, 887

F.2d 739, 751 & n.20 (7th Cir. 1989); EPE, Inc. v.

NLRB, 845 F.2d 483, 487 (4th Cir. 1988).

The determination whether a given case involves a

successorship or a mere stock transfer is highly

factbound. Cf. Burns, 406 U.S. at 274 (“Resolution [of

a successorship issue] turns to a great extent on the

precise facts involved here.”) As the Board has

explained, the relevant inquiry is whether the record

demonstrates “more than the mere substitution of

one owner for another through a stock transfer

within the context of an ongoing enterprise.”

Spencer Foods, Inc., 268 N.L.R.B. 1483, 1484-1485 n.5

(1984), affirmed in relevant part sub nom. United

Food & Commercial Workers, Local 152 v. NLRB,

768 F.2d 1463, 1471 (D.C. Cir. 1985). For where “a

stock sale * * * serve[s] as a vehicle for acquisition

of resources that will be used to operate a sub-

stantially different enterprise from that conducted by

14

the original owners, * * * the corporation might not

be fairly termed a ‘continuing’ employer in any

practical sense.” EPE, 845 F.2d at 490.

Applying those principles, the Board reasonably

found that, as of July 18, 1989, Tyson was a successor

employer to Holly Farms. The Board observed that

“Tyson's purchase of Holly Farms stock involved at

the outset a broader form of reorganization than a

mere stock transfer.” Pet. App. Alll. The Board

explained that, “as early as January 1989, Tyson

officials began formulating tentative plans for

integrating the Holly Farms and Tyson trans-

portation divisions.” /d. at Alll-Al12. In addition,

the Board found that, “at the time of the July 18 stock

purchase, Tyson began to implement steps that would

result in its substitution as the employing entity of

the unit employees.” /d. at Alll. The Board found, in

particular, that, “upon Tyson’s assumption of control,

key Holly Farms executives almost immediately were

absorbed into the Tyson organization, and performed

their duties as part of the Tyson management team

and in accordance with Tyson’s dictates.” Jd. at A112

(internal quotation marks omitted). The Board

further found that Tyson’s assumption of control

affected negotiations with the Union over the labor

agreement for the drivers-yardmen unit. /d. at Al12-

A113.’ Those findings amply supported the Board's

* The Board found: “at the time of the stock purchase,

negotiations between the Union|] and Holly Farms were

suspended to enable * * * Holly Farms to clarify its status

and bargaining position”; “to that end, on July 14 and 15,

[1989,] management representatives from Holly Farms and

Tyson met to discuss the status of the collective-bargaining

negotiations, and also Tyson's corporate goals, which became

- ,

15

conclusion that “Tyson’s involvement in the

operation of the Holly Farms transportation division

as of the time of its acquisition warrants the

application of successorship principles as of that

date.” Id. at A113-A114.

b. Petitioners’ challenge to the Board’s finding of a

successorship does not raise any issue warranting

further review.

Petitioners contend (Pet. 39-40) that “a mere stock

transfer, absent some accompanying substantial

change in operations affecting the employees, does

not make the new stockowner a successor to the

existing employer’s labor obligations.” That con-

tention, even if correct, is inapposite here.” The

the basis for the subsequent integration plans”; Holly Farms

President Lovette “consulted with Tyson officials before

instructing [petitioners’] attorney, Hogg, on how to present

information about integration to the Union{!"; and, “when

collective-bargaining negotiations resumed on August 8, [1989,}

Tyson officials were present to answer questions about the

operational changes that Tyson planned to implement.” Pet.

App. Al1l2-A113 (internal quotation marks omitted). Indeed, as

the ALJ noted, when negotiations resumed on August 8, 1989,

petitioners’ spokesman told the Union that Tyson “had taken

full control over the Holly Farms operations” and was going to

partially integrate Holly Farms’ transportation operation into

its own (id. at A602-A603), over the next several weeks, Tyson

reconsidered that decision and decided instead to fully

integrate Holly Farms’ transportation operation. /d. at A617.

* The decisions cited by petitioners (Pet. 33-40) in support of

their contention do not conflict with the Board’s finding of a

successorship in this case. In NLRB v. Miller Trucking Ser-

vice, Inc., 445 F.2d 927 (10th Cir. 1971), cited at Pet. 34, the

court found on the facts presented that no successorship had

occurred, because “(the transfer of the corporate stock from

[the seller] to [the purchaser] did not change the corporate

16

Board did not base its conclusion of successorship on

the existence of “a mere stock transfer.” Rather, the

Board relied on its determination that “Tyson's

purchase of Holly Farms stock involved * * * a

broader form of reorganization than a mere stock

transfer.” Pet. App. Alll. Furthermore, the Board

cited evidence that that was true both “at the outset”

of Tyson’s plan to acquire Holly Farms, ibid., and in

the wake of the acquisition, id. at All1-All13. See

also pp. 5-6, 14, supra (summarizing evidence).

Petitioners nonetheless assert (Pet. 40) that, “for 2

months following the purchase, nothing changed for

the former Holly Farms employees.” That assertion

entity.” 445 F.2d at 930. In Esmark, Inc. v. NLRB, 887 F.2d

739 (7th Cir. 1989), cited at Pet. 38-39, the court held that,

because “(t]he successorship doctrine is limited to situations in

which the predecessor and successor are unrelated entities,”

887 F.2d at 750, a company could not claim that it had become a

“successor to itself” merely because of a public offering of a

portion of the stock of its corporate parent. /d. at 749-750.

While, in that context, the court stated that “[t)he succes-

sorship doctrine is simply inapplicable to a stock sale trans-

action” (id. at 751), the court affirmed that, as in this case,

“(wihere the parent specifically directs the actions of its

subsidiary, using its ownership interest to command rather

than cajole, the possibility of its violating the federal labor laws

is present.” Jd. at 757. The other cases cited by petitioners are

also consistent with the Board's successorship finding in this

case. See United Food & Commercial Workers v. NLRB, 768

F.2d 1463, 1471 (D.C. Cir. 1985) (agreeing with the Board that

successorship principles were applicable because “the events at

issue here plainly involved a broader form of business re-

organization, and not a mere stock transfer”). cited at Pet. 36-

3x: Miami Foundry Corp. v. NLRB, 682 F.2d 587, 588-589 (6th

Cir. 1982) (where stock purchaser became a “single employer”

with acquired firm, stock purchaser was obligated to recognize

the union and honor the labor agreement), cited at Pet. 35-36.

17

obscures the difference between operational changes

perceptible to the employees and internal changes

that, though not perceptible to the employees, were

nonetheless of significance for their job situation. As

the ALJ found, for two months after the acquisition,

“there had been no significant occurrence from the

standpoint of unit employees.” Pet. App. A716

(emphasis .added). The court of appeals similarly

observed that “the employees [cjould understandably

[have] view[ed] their job situation as essentially

unaltered.” Jd. at A25-A26. As the court explained,

the employees’ perception of no essential change

“establish[ed] [the] substantial continuity between

Holly Farms and Tyson” upon which a finding of

successorship may be premised. /d. at A25; cf. Burns,

406 U.S. at 280 n.4. But the fact that the employees

would not have perceived any changes in their job

situation did not mean that no significant changes

actually occurred. On the contrary, both the ALJ and

the Board found that such changes did occur, as

Tyson asserted dominion over Holly Farms’ execu-

tives and made plans to integrate Holly Farms’

transportation system into that of Tyson. /d. at

A111-A114, A717-A719. Those changes supported the

Board’s conclusion that, upon acquiring Holly Farms’

stock, Tyson replaced Holly Farms as the employing

entity.”

* Because the Board correctly found that Tyson became a

successor employer in July 1989, it properly determined that

Tyson was not entitled unilaterally to change the terms and

conditions of employment of Holly Farms’ drivers in Septem-

ber 1989. See NLRB v. Dent, 534 F.2d 844, 846 n.2 (9th Cir.

1976); see also Burns, 406 U.S. at 294-295. Petitioners’

challenge to the latter determination (Pet. 42-43) is based

18

2. Petitioners contend (Pet. 44-51) that the court

of appeals erred in holding that Tyson was obligated

to bargain with the Union over the terms and

conditiens of employment of Holly Farms’ drivers

upon their integration into Tyson’s transportation

system. Petitioners also contend that the court of

appeals’ holding conflicts with First National Main-

tenance Corp. v. NLRB, 452 U.S. 666 (1981). Those

contentions are without merit.

In First National Maintenance, this Court con-

sidered the bargaining obligations of an employer that

decided to close part of its business. 452 U.S. at 667.

The Court held that, when such a decision has “as its

focus only the economic profitability” of the business,

it is a mandatory subject of bargaining “only if the

benefit, for labor-management relations and the

collective-bargaining process, outweighs the burden

on the conduct of the business.” Jd. at 677, 679. At

the same time, the Court reaffirmed the well-settled

rule that the employer is obligated to bargain with

the union regarding “the results or effects” on

primarily on their erroneous contention that Tyson did not

become a successor until that change occurred in September

1989—a contention contradicted by the Board’s factual

findings. Petitioners also contend (Pet. 43) that Tyson was free

to withdraw recognition from the Union in September 1989

because “(t]he Holly employees were integrated inio the much

larger Tyson unit and lost any separate identity.” See also Pet.

ii (Question 2(b)). That contention, too, reflects merely a

disagreement with the Board's specific finding that “the {Holly

Farms} bargaining unit did not lose its separate identity” upon

integration into Tysen’s transportation system. Pet. App.

A127. Such factbound disputes raise no issue warranting

review by this Court. Universal Camera Corp. v. NLRB, 340

U.S. 474, 490-491 (1951).

19

employees of such non-bargainable decisions. /d. at

677 n.15; see also id. at 681 (“the union must be given

a significant opportunity to bargain about these mat-

ters of job security as part of the ‘effects’ bargaining

mandated by [Section] 8(a)(5)”).

Consistent with those principles, the Board

reasonably concluded that, while Tyson’s decision to

integrate Holly Farms’ transportation operation into

its own was not a mandatory subject of bargaining

(Pet. App. A120), petitioners were obligated to bargain

about “the various ways in which the integration

might affect the employment status and wages and

benefits of the former Holly Farms drivers” (id. at

A122). Matters such as pay, work locations, and

schedules were proper subjects for “effects”

bargaining with the Union, the Board explained,

because they “were not an inevitable consequence of

the functional integration of the transportation

departments, but were only one of a number of

responses to changed circumstances.” Jhbid. (internal

quotation marks omitted); see also id. at A131 n.29.

The court of appeals agreed, finding that, although

Tyson's integration decision was “non-bargainable”

(id. at A36), “there was room for bargaining over the

drivers’ working conditions, had Tyson been willing

to bargain.” Jd. at A35. That case-specific finding

does not warrant further review.”

” Petitioners argue that effects bargaining cannot include

“bargaining over the terms and conditions of employment that

apply after an employee accepts a transfer elsewhere.” Pet.

51. Petitioners do not cite any authority to support that

argument. Such a restriction on the scope of effects bargaining

would allow an employer unilaterally to alter employees’ terms

20

3. Petitioners contend (Pet. 52) that the Board

lacked authority to award reinstatement and backpay

to the 47 Holly Farms drivers who were illegally

discharged because they refused to accept Tyson's

unilateral terms and conditions of employment.

According to petitioners, the drivers had only two

options: (1) to accept employment under the unlaw-

fully imposed terms and conditions while pursuing

unfair labor practice charges; or (2) to go on strike.

Pet. 53-54. Contrary to petitioners’ view, the drivers

had a third option—to refuse to work under what they

regarded as unlawful terms and conditions of employ-

ment, and to file unfair labor practice charges with

the Board. Choosing that option did not require them

to forgo a Board remedy for the unlawful activity.

See Tuskegee Area Transportation System, 308

N.L.R.B. 251, 252-253 (1992), enforced mem., 5 F.3d

1499 (11th Cir. 1993), cert. denied, 114 S. Ct. 1834

(1994). 3

Nor was it “illogical” (Pet. 56) for the Board to

order the 47 drivers to be reinstated immediately and

paid backpay retroactive to the date of their discharge

(Pet. App. A178-A180), while conditioning the rein-

statement and backpay of the strikers upon their

making an unconditional offer to return to work (id.

at 184). The Board has reasonably determined that a

dischargee’s situation typically differs from that of an

unfair labor practice striker." A dischargee may be

reluctant to apply for reinstatement, and such an

and conditions of employment simply by changing their job

location.

'!' See S&F Enterprises, Inc., 312 N.L.R.B. 770, 770 & n.4

(1993); Drug Package Co., N.L.R.B. 108, 113-114 (1977),

modified on other grounds, 570 F.2d 1340 (8th Cir. 1978).

21

application may well be futile, since the employer has

made clear (by the discharge) that the employee’s ser-

vices are not wanted. Unfair labor practice strikers,

on the other hand, leave their jobs voluntarily. More-

over, an employer may need more time to reinstate

unfair labor practice strikers because of the need to

discharge replacement workers. Because the Roard’s

views as to the appropriate remedy “merit the

greatest deference,” ABF Freight System, Inc. v.

NLRB, 114 S. Ct. 835, 839 (1994), the court of appeals

correctly enforced the Board’s order.”

4. Finally, petitioners and their amicus contend

that petitioners’ live haul workers are “agricultural

laborer(s}” excluded from the Act’s coverage under

Section 2(3) of the Act. Pet. 57-63; National Broiler

Council Amicus Br. (NBC Br.) 10-11. They also

contend that the court of appeals’ decision upholding

the Board’s contrary conclusion conflicts with deci-

sions in other circuits. Pet. 60-61; NBC Br. 6-8.

There is no merit to either contention.

a. Section 2(3) of the NLRA defines “employee” for

purposes of the Act to exclude an “agricultural

laborer.” 29 U.S.C. 152(3). The meaning of “agricul-

tural laborer” for purposes of Section 2(3) is governed

by Section 3(f) of the Fair Labor Standards Act

(FLSA), 29 U.S.C. 203(f). Bayside Enterprises, Inc.

v. NLRB, 429 U.S. 298, 300 n.6 (1977) (“Annually since

® Contrary to petitioners’ suggestion (Pet. 56), the Board’s

remedy for the 47 dischargees is not inconsistent with the

principle of “work now, grieve later.” The dischargees could

not have filed grievances over petitioners’ unilateral decision to

change their terms and conditions of employment, since there

was no labor contract in place at the time between petitioners

and the Union.

22

1946, Congress, in riders to the Appropriations Acts

for the Board, has tied\the definition of ‘agricultural

laborer’ in § 2(3) of the NLRA to § 3(f) of the

FLSA.”). Section 3(f) of the FLSA, in turn, ties the

definition of “agricultural laborer” to that of

“(algriculture,” which it defines to mean “farming in

all its branches” and to include

the raising of * * * poultry, and any practices

* * * performed by a farmer or on a farm as an

incident to or in conjunction with such farming

operations, including preparation for market, de-

livery to storage or to market or to carriers for

transportation to market.

In Bayside, this Court stated that the term

“agriculture” in the FLSA “includes farming in both

a primary and secondary sense.” 429 U.S. at 300. The

Court explained that “[tJhe raising of poultry is

primary farming, but hauling products to or from a

farm is not primary farming.” Jd. at 300-301. Such

hauling may be “secondary farming,” the Court

observed, “if it is work performed ‘by a farmer or on a

farm as an incident to or in conjunction with such

farming operations.’” Jd. at 301 (quoting 29 U.S.C.

203(f)). Applying those principles, the Court upheld

the Board’s determination that truck drivers who

hauled poultry feed from their employer’s feed mill to

the farms on which independent contract growers

raised the employer’s chickens were not engaged in

“secondary farming” and hence were not “agricul-

tural laborers.” Jd. at 301-304. The Court accepted

the Board’s view that the drivers’ activities were not

work performed “by a farmer,” because “their em-

ployer’s operation of the feedmill [was] a non-

agricultural activity,” and the farming activities of

23

the independent contract growers were not attribut-

able to their employer, because its status as a farmer

engaged in raising poultry ended when it contracted

with the independent growers for the care and feeding

of the chicks. Jd. at 302-303.

Petitioners argue that, unlike the truck drivers in

Bayside, the live haul employees in this case work

“on a farm.” Pet. 60-61; see also NBC Rr. 11. The fact

that an employee works on a farm, however, does not

necessarily make the employee an “agricultural

laborer.” The employee’s work must also be per-

formed “as an incident to or in conjunction with [the]

farming operations.” 29 U.S.C. 203(f). That condition

is not met here. The work of the live haul employees

is not performed “incident to or in conjunction with”

the farming operations of the independent growers.

Those operations consist in the raising of chicks into

full-grown chickens. That operation ends when the

chicks have reached maturity, and it is only at that

point that the work of the live haul employees begins.

Thus, the activities of the live haul workers are

incidental, not to the operations of the independent

growers, but instead to petitioners’ poultry slaugh-

tering operation. The latter operation is not

“farming” within the meaning of Section 3(f). See

Bayside, 429 U.S. at 301."

* For the same reason, NBC errs in suggesting (Br. 10) that

the live haul truck drivers, in particular, are “agricultural

laborer{s]” because their work involves “delivery to storage or

to market or to carriers for transportation to market” for pur-

poses of Section 3(f) of the FLSA. Such delivery constitutes

“agriculture” under Section 3(f) only if it is “incident to or in

conjunction with” a “farming operation{].” The work of the

live haul drivers is not “incident to” the farming operations of

24

That conclusion accords with Congress’s purpose

for including the phrase “on a farm” in Section 3(f) of

the FLSA. As this Court has explained, Congress

included that phrase to exempt from FLSA coverage

the employees of specialized independent contractors,

such as an employee who hauls his threshing machine

“from farm to farm” and who “makes a business of

doing nothing but threshing.” Farmers Reservoir &

Irrigation Co. v. McComb, 337 U.S. 755, 766-767 &

n.16 (1949) (internal quotation marks omitted).

Petitioners’ live haul employees do not fall into that

category, because petitioners do not make a business

of providing chicken-catching and hauling services to

farmers for hire.

b. Contrary to petitioners’ contention (Pet. 58-60;

see also NBC Br. 6-8), the decision below does not

conflict with Coleman v. Sanderson Farms, Inc., 629

F.2d 1077 (5th Cir. 1980), or NLRB v. Victor

Ryckebosch, Inc., 471 F.2d 20 (9th Cir. 1972).

Sanderson Farms was an action by live haul em-

ployees to recover overtime wages under the FLSA.

The Fifth Circuit held that the employees were

“agricultural laborers.” 629 F.2d at 1080-1081. The

court acknowledged that this Court had upheld the

Board’s contrary conclusion with respect to the live

haul employees before the Court in Bayside. Id. at

1080. In reaching a different result, the Fifth Circuit

emphasized the “different procedural posture” of the

two cases. Jd. at 1081 n.4. The court explained that

Bayside applied a “policy of judicial deference” to the

Board that was “inapplicable” in the case before it.

the independent growers; rather, it is “incident to” petitioners’

poultry slaughtering operation.

25

Ibid. The Fifth Circuit thus recognized that, in an

enforcement proceeding under the NLRA (such as

Bayside and the present case), considerable deference

would be due to the Board’s determination of whether

a group of employees were agricultural laborers,

“regardless of how [the court] might have resolved

the question as an initial matter.” Jbid. (quoting

Bayside, 429 U.S. at 304). Accordingly, Sanderson

Farms does not conflict with the Fourth Circuit’s

decision in the present case to sustain the Board’s

determination that petitioners’ live haul workers are

not “agricultural laborers.”

Nor does the decision below conflict with that of the

Ninth Circuit in NLRB v. Victor Ryckebosch, Inc.,

471 F.2d 20 (1972). The Ninth Circuit’s decision in

Ryckebosch did not survive this Court’s decision in

Bayside. See Bayside, 429 U.S. at 299 & n.4 (noting

“apparent conflict” between Ryckebosch and lower

court decision affirmed in Bayside). In Ryckebosch,

the court relied on NLRB v. Strain Poultry Farms,

Inc., 405 F.2d 1025 (5th Cir. 1969), to hold that drivers

who transported the employer’s chickens from the

farms of independent contract growers to processing

plants were “agricultural laborers.” 471 F.2d at 21.

Strain Poultry, in turn, had held that an employer is

engaged in the “raising of poultry” even if its

chickens are raised to maturity by independent

growers. 405 F.2d at 1032-1033. That holding cannot

be squared with Bayside’s approval of the Board’s

rule that, “when an employer contracts with inde-

pendent growers for the care and feeding of the

employer’s chicks, the employer’s status as a farmer

engaged in raising poultry ends with respect to those

chicks.” 429 U.S. at 302 n.9 (quoting Imco Poultry,

26

202 N.L.R.B. 259, 260 (1973)). Accordingly, there is no

reason to believe that the Ninth Circuit today would

decide this case any differently than the court below

did.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Drew S. Days, III

Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

OCTOBER 1995

APPENDIX

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

Case No. 11-RC-5583

HOLLY FARMS Foon, INc.', EMPLOYER

and

CHAUFFEURS, TEAMSTERS AND

HELPERS LOCAL UNION

NO. 391, AFFILIATED WITH INTERNATIONAL

BROTHERHOOD OF TEAMSTERS CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

AFL-CIO, PETITIONER

DECISION AND ORDER

Upon a petition duly filed under Section 9c) of

the National Labor Relations Act, as amended, a

hearing was held before a hearing officer of the

National Labor Relations Board.

Pursuant to the provisions of Section 3(b) of

the Act, the Board has delegated its authority in this

proceeding to the undersigned.

Upon the entire record in this proceeding, the

undersigned finds:

1. The hearing officer’s rulings made at the

hearing are free from prejudicial error and are

hereby affirmed.

' The Employer's name appears as amended at the

hearing.

(la)

2a

2. The Employer is in commerce

within the meaning of the Act it will effectuate

the purposes of the Act to assert jurisdiction herein.

3. The labor organization(s) involved claim(s)

to represent certain employees of the Employer.

4. No question affecting commerce exists

concerning the representation of certain employees

of the Employer within the meaning of Section 9(c)(1)

and Section 2(6)(7) of the Act, for the following

reasons: (See Attached)’

2 The Employer is engaged in the operation of an

integrated poultry business with hatcheries located in North

Carolina at Wilkesboro, North Wilkesboro, Hayes, Seaford,

Suncrest, Catawba and Fairplanes. In addition, the Employer

has a feed manufacturing plant in Roaring River, North

Carolina, and a processing plant which produces broilers for

sale to retail stores. The Petitioner, in its petition, seeks a unit

comprised of all hatchery, live haul and feed haul employees,

including the following classifications: driving, maintenance,

blood testers, quality control, injector, primary breeders,

breeders, feather sexing, and chicken catchers at the

Wilkesboro, North Wilkesboro, Hays [sic], Roaring River,

Sea{ford], Suncrest, and Fairplanes, North Carolina facilities;

but excluding all otfice employees, guards and supervisors as

defined in the Act. At the hearing, the Petitioner asserted

that an appropriate unit would in addition to the above

classification, include all feed mill employees and feed mill

mechanics at the Roaring River facility, plus the employees at

the Employer’s Catawba, North Carolina hatchery.

The Employer takes the position that all petitioned-for

employees are agricultural employees specifically excluded

from the definition of “employee” in Section 2(3) of the Act. It

further asserts, in the alternative, that the petitioned-for

employees fall into four separate categories: (a) hatchery

employees, (b) live haul employees; (c) feed haul employees;

and (d) blood test employees, which share a community of

interest only within their separate groups. The Petitioner and

the Employer each filed briefs which have been carefully

considered.

3a

The record indicates that chickens used for breeding

purposes, called pullets or breeder chickens, and chickens

destined for retail stores, called broilers, are both grown from

the same process. Hatchery employees process eggs, which

have been picked up and transported from breeder farms

under contract with the Employer. The eggs are first put into

setters and are then transferred to incubators. When the

chicks hatch, they are vaccinated, de-beaked, sexed, boxed and

shipped to the breeder farms where they are grown. Once

grown, the chickens are separated into the categories of pullets

and broilers. Chicken catchers, as part of live haul crews

(which include, one truck driver, and one fork lift operator),

catch the broilers, box them and transport them to the

processing plant. Pullet movers catch the pullets, vaccinate

them, box and then transport them to laying houses. The

breeder chickens then lay eggs which are gathered by the

contract farmer and hauled by tae Employer’s employees to

the hatchery to start the process again. Additionally, about 80

percent of the breeder chickens are purchased as baby chicks

from farms and are then combined with the hatchery-produced

chickens at the laying house. The record reflect{s] that there

is significant interchange among employees who are based at

the hatchery locations. For example, hatchery employees are

sent to gather eggs and to do the work of blood test depart-

ment employees. The hatchery live haul drivers regularly

perform hatchery and maintenance work. Also, blood test

employees help hauling eggs, and help the pullet crews to

catch chickens.

The record indicates that live haul employees consist of two

separate and distinct groups, broiler catchers and pullet

catchers. The broiler catchers work out of the processing

plant while the pullet catchers and egg haulers work in the

hatchery operations. There is no interchange between these

classifications. Broiler haulers do not haul pullets and pullet

haulers do not haul broilers.

The Employer's feed mill operation at Roaring River,

North Carolina consists of a feed mill, where grain is processed

into feed, and a truck service center. At this location, feed

mill employees process the feed and feed haul drivers trans-

port it to the contract farms. Mechanics at this location service

4a

the trucks used to haul the feed. The record reflects that

there is no interchange between the feed mill employees and

any of the employees working in the hatcheries or the pro-

cessing plant.

Section 2(3) of the Act excludes agricultural laborers from

the classification of employees covered under the Act. Since

1946, Congress has added riders to the Board’s appropriation

bill providing that no part of the appropriation shall be used in

connection with bargaining units composed of agricultural

laborers as set forth in Section 3(f) of the Fair Labor Standards

Acc. Section 3(f) defines agriculture as follows:

Agriculture includes farming in all its branches and

includes . . . the raising of poultry, and practices, .. .

performed by a farmer [or] on a farm as an incident to, or

in conjunction with such farming operations. .. .

The hatchery employees, on the basis of the record herein,

are clearly engaged in the raising of poultry within the

meaning of Section 3(f) of the Fair Labor Standards Act. See,

e.g. Arkansas Valley Industries, Inc., 167 NLRB 391 (1967);

Lindstrom Hatchery and Poultry Farms, 49 NLRB 776 (1943);

Bayside Enterprises, Inc. vs. N.L.R.B., 429 U.S. 298, 50 L. Ed.

2d. 494, 97 S. Ct[.] 576 (1977). As to the employees who engage

in the pickup and delivery operations at the hatcheries (who

also perform hatchery and maintenance duties), it is clear that

their work in the hatchery is likewise agricultural in nature.

Moreover, although hauling, generally, would appear to be a

non-farm activity, the employees making pickups and

deliveries in the circumstances presented here, particularly

considering the process and functional integration in the

hatchery, are similarly engaged in the exempt activity of

raising poultry. Therefore, I conclude that the egg haulers

and pullet haulers are also agricultural workers. Arkansas

Valley Industries, Inc., 167 NLRB 391 (1967).

As to the live haul employees, designated as chicken

catchers, who work out of the processing plant, I conclude that

their position is not included either in the primary or

secondary definition of “agriculture” in Section 3(f) of the

FLSA. In this connection, the Board has consistently held that

when an employer contracts with farmers for the care and

feeding of the employer's chicks, the employer's status as a

Sa

ORDER

IT IS HEREBY ORDERED that the petiti

filed herein be, and it hereby is dismissed. es

farmer engaged in the raising of poultry ends with respect to

those chicks. Impco [sic] Poultry, Division of International

Multifoods Corporation, 202 NLRB 259 (1973). Thus

addressing the unit placement of the chicken catching crews,

the record contains sufficient evidence of their functional

integration, with other processing plant employees to warrant

their inclusion with those employees, and would not otherwise

warrant their inclusion in a separate unit.

Feed haul drivers do nothing but deliver grain to the

contract farmers. These deliveries do not constitute work

incident to the farmer’s farm, but are, rather, work incident to

the feed mill. By the same token, the feed mil] employees and

the mechanics are not involved in farming. Consequently, the

feed mill employees, feed haul employees and the mechanics at

the Employer’s Roaring River, North Carolina factility [sic]

are clearly non-agricultural employees. Bayside Enterprise,

Inc., vs. N.L.R.B., 429 U.S. 298, 50 L.Ed. 2nd. 494, 97 S. Ct.

576 (1977). The Petitioner, however, seeks a multi-location

unit including all of the Roaring River employees along with

the employees at the seven other locations of the Employer

whom I have found to be agricultural employees. Further, the

Petitioner, who for the first time at hearing included the feed

mill employees in its petition, has not expressed a desire to

represent only the Roaring River employees as a separate

single location unit. Accordingly, as to the groups of

individuals whom I have found to be agricultural employees, |

find that no question affecting commerce exists within the

meaning of 9(c)(1) of the Act, concerning the representation of

“employees” as defined in Section 2(3) of the Act.

Moreover, as to those classification [sic] of employees whom

I have concluded to be non-agricultural, and, therefore, subject

to the coverage of the Act, I conclude that either the

Petitioner has not sought their inclusion in an appropriate unit

or as to the Roaring River employees has not expressed its

desire to represent them as a single location unit. Therefore, I

shall dismiss the petition in its entirety.

6a

RIGHT TO REQUEST REVIEW

Under the provisions of ion 102.67 of the

Board’s Rules and Regulations,'a request for review

of this Decision may be filed with the National Labor

Relations Board, addressed to the Executive Secre-

tary, 1717 Pennsylvania Avenue, N.W., Washington,

D.C. 20570. This request must be received by the

Board in Washington by April 10, 1989.

Dated March 27,1989 /s/ Willie L. Clark, Jr.

Regional Director, Region [11]

at Winston-Salem, North Carolina