Amicus Curiae Brief — Holly Farms Corp. v. NLRB

No. 95-210

In the Supreme Court of the

OCTOBER TERM, 1995

HOLLY FARMS CORPORATION;

TYSON Foops, INCORPORATED,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL 391, 29, 71, 355, 592, 657, 988,

AND ALL AFFILIATED WITH THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Intervenors.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE AMERICAN

FARM BUREAU FEDERATION, THE ALABAMA

FARM BUREAU FEDERATION, THE NORTH

CAROLINA FARM BUREAU FEDERATION, AND

THE NATIONAL COUNCIL OF AGRICULTURAL

EMPLOYERS IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER ROBERT P. DAVIS

MICHAEL J. STIENTIES Counsel of Record

American Farm Bureau Mayer, Brown & Platt

Federation 2000 Pennsylvania Ave., N. W.

225 Touhy Avenue Washington, D.C. 20006

Park Ridge, IL 60068 (202) 463-2000

(312) 399-5700

[Additional Counsel are listed on the Signature Page]

THE NLRB’S INTERPRETATION OF THE AGRI-

CULTURE DEFINITION SHOULD NOT BE EN-

FORCED BECAUSE IT IS INCONSISTENT WITH

THE PLAIN MEANING OF THE STATUTE. . .

A. The “On A Farm” Component Of The

Secondary Meaning Of “Agriculture” Does Not

Depend Upon The Employer Of The Laborer.

B. The Live-Haul Employees In This Case Are

ig “Agriculture” Under The Statutory

Forklift drivers are

i under

Live-haul drivers are engaged in

i under the statutory

. THE NLRB’S INTERPRETATION OF THE

FLSA’S DEFINITION OF “AGRICULTURE” IS

INCONSISTENT WITH THE LEGISLATIVE

13

“Agriculture” Covering Wack of Thiet Peny

Employees On A Farm.

(i)

TABLE OF CONTENTS — Continued

I. THIS COURT SHOULD NOT DEFER TO THE

INTERPRETATION OF THE NLRB ......-

B. If The Court Were To Show Deference To The

NLRB’s Decision, The Bargaining Order Should

Not Be Enforced Even Under The Relaxed Stan-

C. Assuming Arguendo That This Court Were To

Defer To The Agency’s Decision In This Case,

The Court Should Expressly Limit Its Holding

To The NLRA Context In Order To Prevent

The Board’s Rationale From Infecting Analysis

16

18

18

TABLE OF AUTHORITIES

Cases

Bayside Enter., Inc. v. N.L.R.B., 429

kk passim

Beth Israel v. N.L.R.B., 437 U.S.

T) sieberereteh nee .

Chevron U.S.A. Inc. v. Natural Resources

Council, yy 467 U.S. 837

EEE 19

Coleman v. Sanderson Farms, 629 F.2d

1077 (Sth Cir. Unit A 1980) ee 12

Farmers Reservoir & Irri Co. v.

McComb, 337 U.S. 755 (1949) ........ 4, 6, 16

oy Doe . v. N.L.R.B., 48 F.3d

le 6, 8, 16

Imco Poultry, 202 N.L.R.B. 259 (1973) ......... 11

Waialua Agric. Co., 349 U.S. .

(1955) DMC ih. pebeGeeecesce passim

Marshall v. Abbott Farms, Inc., 559 F.2d

ea 19, 21

Mitchell v. Budd, 350 U.S 473 (1956) .......... 10

N.L.R.B. v. Brown, 380 U.S. 278 (1965)... ...... 19

N.L.R.B. v. Denver . & Constr. Trades

Council, 341 U.S. a 18

N.L.R.B. vy. Hudson Farms, Inc. , 681 F.2d

duvind a Cir.) (per curiam), cert.

459 U.S. 1069 (1982) ............. 16

iv

TABLE OF AUTHORITIES — Continued

Pages

NEI ONC IST) eee cece 12

tog (sth Cer 1993) oo ; — ore 16

Universal Camera Corp. v. N.L.R.B., 340

Wee GOP EEE ccc ewbocecetecoceceees 18

Valmac Indus. v. N.L.R.B., 599 F.2d 246

SG UY 6b 6 6605 cach 6b eweeewe. 16

Statutes and Regulations

y TAA RD fT) eee 8

29 C.F.R. § 780.118(b) (1995) .. 2 2 2 6 we ees 8,9

a Ue EE bcc ccevcecoesceeesaen 5, 21

OO 6 bs oo haces aeeenh ou passim

Pe, DEED ccceeeecs cece en eane 21

_ ) tte) = ee ee 21

EUs UD ccocecoceccsssecesvecnses 21

108 Stat. 2569-2570 (1994) .. 2... cc ees 5

PPE, DPE weccccsccopenseneseens 20

Miscellaneous

| BUREAU OF THE CENSUS, U.S. DEPARTMENT OF

COMMERCE, 1992 CENSUS OF AGRICULTURE,

app. A, at gkeaplpyeelpeteg 6-2, spent mee 8

08 Gs i, TE x 6. cca neu eues ens 13

Vv

TABLE OF AUTHORITIES — Continued

Pages

81 Cong. Rec. 7657-7658 (1937) .............. 7

81 Cong. Rec. 7659 (1937) ................. 15

81 Cong. Rec. 7888 (1937) ................. 15

Allen M. Featherstone & Bruce J

Sherrick, Financing

Coordinated Firms, 74

AM. J. AGric. Econ. 1232 (1992) .......... 17

H.R. . No. 2182, 75th ., 3d Sess

(1998) 7182, 75a pio 16

SL ts ble @ well ere om ie aad ook awk ca *

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 95-210

HOLLY FARMS CORPORATION;

TYSON Foops, INCORPORATED,

Petitioners ,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL 391, 29, 71, 355, 592, 657, 988,

AND ALL AFFILIATED WITH THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Intervenors.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE AMERICAN

FARM BUREAU FEDERATION, THE ALABAMA

FARM BUREAU FEDERATION, THE NORTH

CAROLINA FARM BUREAU FEDERATION, AND

THE NATIONAL COUNCIL OF AGRICULTURAL

EMPLOYERS IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit

2

Corporation Act of the State of Illinois. AFBF was founded

to protect, promote, and represent the business, economic,

social and educational interests of American farmers and

ranchers. It has member organizations in all 50 states and

Puerto Rico, including amici Alabama Farm Bureau and

North Carolina Farm Bureau (collectively, with AFBF,

“Farm Bureau”), representing more than 4.5 million member

families. Farm Bureau first expressed its long-standing

interest in the proper construction of § 3(f) of the Fair Labor

Standards Act of 1938 (FLSA), 29 U.S.C. § 203(f), to this

Court as amicus curiae in Maneja v. Waialua Agric. Co. , 349

U.S. 254, 256 (1955).

The North Carolina Farm Bureau is a non-profit corpora-

tion, organized and domiciled in North Carolina, with its

Carolina Farm Bureau is North Carolina’s largest general

farm organization with a voluntary membership of over

374,000 families. The organization is dedicated to improving

the quality of life for North Carolina’s farmers and rural

residents, including the increase of net farm income.

The Alabama Farm Bureau is a non-profit corporation

organized and domiciled in Alabama, with its principal office

located in Cullman, Alabama. It represents 3,000 member

families. The purposes of the Alabama Farm Bureau are to

promote, protect and represent the business, economic, social

and educational interests of the family farm in Alabama. It

works toward the betterment of conditions of persons engaged

in agricultural pursuits, the improvement of the grade of

agricultural products, and the development of a higher degree

of proficiency in agriculture.

The National Council of Agricultural Employers is a

Washington, D.C.-based association representing growers and

agricultural organizations throughout the United States on

agricultural labor and employment issues. Its membership

includes farm cooperatives, growers, packers, processors, and

agricultural associations in all 50 states. Collectively, they

3

employ about 75 of the nation’ i

pee. percent nation’s total agricultural

The amici and their members have a direct interest in the

outcome of this case. Many of the activities involved in

modern production agriculture, such as irrigation, fertilizer

express language and legislative history of the statutory

definition of “agriculture” and erodes the protections given by

statute to the employers of agricultural laborers who perform

: The parties’ letters of consent to the filing of this brief have

a with the Clerk pursuant to Rule 37.3 of the Rules of this

4

solely at the status of the live-haul unit employer, disregarded

the alternative, “on a farm,” locus-of-services element of the

statutory definition.

Chicken catchers and forklift drivers in live-haul units are

leave storage for processing.

This statutory interpretation is supported by the legisla-

tive history of the FLSA’s definition of “agriculture,” a

source to which this Court has turned at least twice. Farmers

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

(1949); Maneja v. Waialua Agric. Co., 349 U.S. 254, 260

(1955). The bill that became the FLSA was amended during

passage to include in the definition of “agriculture” work

performed “on a farm” and “delivery to storage or to

market.” The Senate debate over these provisions in 1937

clearly shows that the term “agriculture” should be construed

expansively.

While decisions of the NLRB construing the NLRA are

treated deferentially on judicial review, the broad deference

accorded the Board by the court below is inappropriate. This

case, unlike Bayside Enter., Inc. v. N.L.R.B., 429 U.S. 298,

302 & n.10 (1977), solely involves a question of statutory

interpretation where the NLRB has made legal errors. The

statute being interpreted is the FLSA, which has not been

entrusted to the NLRB to administer. Even under a deferen-

tial standard of review, however, the decision should not

stand because it has no reasonable basis in the language or

legislative history of the statute. Finally, if the Court decides

to defer to the NLRB in this case, it should explicitly limit its

holding to the National Labor Relations Act as administered

5

by the Board, so that lower courts do not defer to the

NLRB’: rationale when construing the definition of “agricul-

ture” in cases arising only under the FLSA.

ARGUMENT

I. THE NLRB’S INTERPRETATION OF THE AGRI-

CULTURE DEFINITION SHOULD NOT BE EN-

FORCED BECAUSE IT IS INCONSISTENT WITH

THE PLAIN MEANING OF THE STATUTE.

The National Labor Relations Act specifically exem

agricultural laborers from the broad scope of its definition of

“employee.” 29 U.S.C. § 152(3). Congress, through annual

appropriations riders, ¢.g., 108 Stat. 2569-2570 (1994), has

tied the agricultural laborer exception to the du..aition of

“agriculture” in § 3(f) of the FLSA. In deciding whether

Holly Farms’ chicken catchers, forklift drivers, and live-haul

drivers were agricultural laborers, it is FLSA § 3(f) “and the

decisions construing it which are relevant even though this

ae arose under the NLRA.” Bayside, 429 U.S. at

n.6.

This Court has explained that the FLSA’s definition of

“agriculture”? has two distinct meanings. The primary

meaning includes farming in all its branches, including those

. “Agriculture” includes farming in all its branches and among

other things includes the cultivation and tillage of the soil, dairying,

the production, cultivation, growing, and harvesting of any

agricultural or horticultural commodities (including commodities

defined as agricultural commodities in section 1141j(g) of Title 12),

the raising > ee bees, fur-bearing animals, or poultry, and

any practices (including any forestry or lumbering ations

performed by a farmer or on a farm as an incideat to or in

conjunction with such farming operations, including preparation for

market, delivery to storage or to market or to carriers for transpor-

tation to market.

29 U.S.C. § 203(f).

6

practices (such as poultry raising) listed specifically in the

definition. Farmers Reservoir, 337 U.S. at 762-763. The

secondary meaning is broader:

Agriculture is defined to include things other

than farming as so illustrated. It includes any

practices, whether or not themselves farming

practices, which are performed either by a

farmer or on a farm, incidentally to or in con-

junction with “such” farming operations.

Id. at 763 (emphasis added). It is the meaning of “on a

farm” which is the principal issue in this case, and which the

NLRB and the court below erred in interpreting.

A. The “On A Farm” Component Of The Secondary

Meaning Of “Agriculture” Does Not Depend

Upon The Employer Of The Laborer.

The NLRB, and the majority below, held that employees

who work “on a farm” can be considered exempt agricultural

laborers only if that work is performed incidental to or in

conjunction with their employer’s primary agricultural

practices. As Judge Niemeyer explained in his partial

dissent, work “on a farm” is covered when it is performed

incident to or in conjunction with primary farming as defined

functionally in the statute (which includes poultry raising),

with no limiting reference to the agricultural practices of the

employer.’ Holly Farms Corp. v. N.L.R.B., 48 F.3d 1360,

1373 (4th Cir. 1995).

> The principal cases from this Court relied upon by the

majority below are inapposite, for they construe the “by a farmer”

component of the test in circumstances where the Court concluded

that the work was not done on a farm. Farmers Reservoir, 337

U.S. at 767-769 (work, not done on the farm, was performed for

an employer who was not engaged in farming); Bayside, 429 U.S.

at 301 (where work not done on a farm, “by a farmer” test

“depends on the character of the employer’s activities.”).

7

The statute limits on-farm work by looking at whether

such work is “incident to or in conjunction with” farming

activities, instead of looking at the activities of the employer.

As Senator Black, the author of the definition of “agricul-

ture,” put it during the Senate debate on the FLSA, “For

instance, a farmer might build on his farm a factory for the

purpose of manufacturing shirts and sending them throughout

the United States * * * * [T]hat would not be considered a

farming activity.” 81 Cong. Rec. 7657-7658 (1937).

This Court construed the “on a farm” test forty years ago

in determining the status of laborers working in a sugar

milling operation located on a large sugar cane plantation.

Maneja v. Waialua Agric. Co., 349 U.S. 254 (1955). In

determining whether the workers in the mill were agricultural

employees, the Court remarked that “the question here

presented is a limited one: is the milling operation part of the

agricultural venture?” Jd. at 265. The Court answered the

question by determining whether the type of work was

ordinarily performed by farmers. Id. at 265-266. If the type

of work is ordinarily performed by farmers, it is probably

incident to the farming operation; if not, the process may be

“more akin to manufacturing than to agriculture.” Jd. at 265.

Thus, the relevant inquiry is whether the type of work in

question is ordinarily performed by a farmer, rather than

whether the employer is engaged in farming activities.

B. The Live-Haul Employees In This Case Are

Engaged In “Agriculture” Under The Statutory

Definition.

Under the proper statutory analysis, each of the three

different types of live-haul employees are agricultural

laborers. Chicken catchers and forklift drivers perform

primary farming activity as well as secondary farming activity

on a farm, and live-haul drivers perform secondary farming

activity for a farmer.

Chicken catchers fall squarely within the agriculture

definition because they work “on a farm.” The NLRB

conceded this point below. See Holly Farms, 48 F.3d at

1371. As it is self-evident that catching chickens and putting

them in crates on the farm is farming activity, this work

satisfies the secondary definition of “agriculture.” At a

minimum, under the Maneja test, this activity is more akin to

agriculture than it is to manufacturing.

Primary agriculture includes, inter alia, “the rais-

ing * * * of poultry,” and “harvesting of any agricultural

*** commodities.” 29 U.S.C. § 203(f). The work of

chicken catchers is an essential part of poultry raising.

Chicken catchers also are involved in “harvesting” chickens,

which are agricultural commodities. See WEBSTER’S II NEW

RIVERSIDE UNIVERSITY DICTIONARY at 86 (“agriculture” is

“[t]he science, art, and business of cultivating the soil,

producing crops and raising livestock”); 1 BUREAU OF THE

CENSUS, U.S. DEPARTMENT OF COMMERCE, 1992 CENSUS

OF AGRICULTURE, app. A, at A-6 (including chickens as part

of the “Poultry and eggs” category of agricultural commodi-

ties); 29 C.F.R. § 780.112 (1995) (stating that the term

“agricultural commodity” includes “domesticated animals and

some of their products”). The Secretary of Labor, who is

responsible for interpreting the FLSA, defines “harvesting”

as “the actual process whereby agricultural or horticultural

commodities are severed from their attachment to the soil or

otherwise reduced to possession.” 29 C.F.R. § 780.118(b)

(1995). The activity of catching chickens and putting those

chickens into crates evokes a particularly striking image of

“reduc[tion] to possession,” and those who perform this work

are engaged in primary agriculture.

Forklift drivers also qualify as agricultural laborers. The

forklift drivers on the live-haul crews take the caged chickens

provided by the chicken catchers and load the cages onto a

flat-bed truck. Forklift drivers on live-haul crews work “on

a farm,” as the NLRB conceded. The task of congregating

agricultural materials before shipping them off to market has

been traditionally performed by farmers, and this work is

certainly more akin to agriculture than it is to manufacturing.

Forklift drivers, like the chicken catchers discussed in the

preceding section, also are involved in the primary agricultur-

al activity of harvesting. As the Secretary of Labor interprets

the term, “harvesting” includes “transportation to a concen-

tration point on the farm.” 29 C.F.R. § 780.118(b) (1995).

The forklift drivers meet this test, because they transport the

caged chickens from the point on the farm where the chickens

are caged, to the point on the farm where the cages are

loaded onto the truck.

3. Live-haul drivers are engaged in

“agriculture” under the statuto-

ry definition.

The work of live-haul drivers differs from the work of

chicken catchers and forklift drivers. A live-haul driver

drives a flat-bed truck, which carries the entire live-haul crew

to the farms of the contract growers. Once the chickens have

been loaded onto the truck, the live-haul driver delivers the

chickens to a storage area near Holly Farms’ processing

plant.

Much of the work of live-haul drivers is not, unlike the

work of other members of live-haul crews, performed “on a

farm.” Nevertheless, the statutory definition of “agriculture”

in § 3(f) of the FLSA expressly includes the task of “delivery

to storage” within the boundaries of secondary agriculture.

10

Accordingly, live-haul drivers are engaged in agriculture if

their work is done “by a farmer,” which depends upon

whether Holly Farms, the drivers’ employer, is engaged in

primary agriculture at relevant intervals with respect to the

chickens. See Bayside, 429 U.S. at 301.

The agriculture definition is very broad, and Congress

intended for it to cover all phases of the agricultural process.

Beginning with activities such as cultivating the soil or

undertaking preparatory secindary farming activities incident

to the raising of poultry. agriculture continues until the

agricultural commodity in question has been safely delivered

to market, storage, or a common carrier. As this Court

indicated in Maneja, agriculture ends when the agricultural

commodity is used in a manufacturing process. Until such

time, however, the process of agriculture continues unabated.

For example, in Mitchell v. Budd, 350 U.S. 473 (1956),

the Court held that a bulking plant changed the nature of

tobacco, and thus was “‘more akin to manufacturing than

agriculture.’” Jd. at 481-482 (quoting Maneja, 349 U.S. at

265). Because the bulking plant engaged in manufacturing,

the agricultural process ended “with the delivery of the

tobacco at the receiving platform of the bulking plant. That

is the ‘delivery * * * to market’ within the meaning of § 3(f)

of the Act.” Mitchell, 350 U.S. at 481 (quoting 29 U.S.C.

§ 203(f)). In the case at bar, Holly Farms’ poultry process-

ing plant engages in manufacturing, and the agricultural

process ends at the storage sheds, from which the chickens

are taken for processing.‘

* The Board may argue that the agricultural process ends on the

farm of the contract grower rather than at the storage shed.

Alternatively, the Board may attempt to characterize the live-haul

drivers’ work as incidental to Holly Farms’ poultry processing

work rather than incidental to Holly Farms’ raising of poultry.

(continued...)

* (...continued)

Such arguments should be rejected as being flatly inconsistent with

tt. language and intent of the agriculture definition. The statutory

language expressly includes “delivery to storage” as agricultural

activity; amy attempt by the Board to end the process sooner is in

flagrant derogation of the wording of the definition. Similarly, the

Board cannot point to any indication that Congress intended for

manufacturing to be construed broadly, or that Congress recognized

the concept of “secondary manufacturing” that would incorporate

practices incident to manufacturing.

12

Status with respect to the birds, through “delivery to storage,”

29 U.S.C. § 203(f), to the point in the process where

Thus, Holly Farms is engaged in the primary agricultural

activity of raising poultry when the live-haul drivers do their

work. Because live-haul drivers are employed by a firm

engaged in primary agricultural activity, their secondary

agricultural activity qualifies as work performed “by a

farmer” under the definition. The inescapable nature of this

conclusion has been addressed by the Fifth Circuit:

Transportation of grownout broiler chickens

from the contract farms where they are raised to

the processing plants where they are sold is

clearly work performed “by a farmer * * * as

an incident to or in conjunction with” [a verti-

cally integrated poultry firm's] primary farming

task of raising poultry. Any doubt that this is

the case is removed by the express statutory

language including “preparation for market” and

“delivery to storage or to market” as practices

incidental to any agricultural enterprise.

Coleman v. Sanderson Farms, 629 F.2d 1077, 1081 (Sth Cir.

Unit A 1980) (quoting 29 U.S.C. § 203(f)). See also

N.L.R.B. vy. Victor Ryckebosch, Inc., 471 F.2d 20 (9th Cir.

1972) (live-haul drivers are agricultural laborers). Therefore,

when live-haul drivers perform the statutorily-defined

secondary agricultural activity of “delivery to storage,” they

are agricultural laborers excluded from the scope of the

13

0. THE NLRB’S INTERPRETATION OF THE FLSA’S

DEFINITION OF “AGRICULTURE” IS INCONSIS-

TENT WITH THE LEGISLATIVE HISTORY OF

THE STATUTE.

A. Congress Intended a Broad Definition of

“Agriculture” Covering Work of Third-

Party Employees On A Farm.

Senator Black, the author of the agricultural exception in

the FLSA, explained on the floor of the Senate that his bill

had been drawn carefully to exclude agricultural laborers of

all kinds from the scope of the Act:

It ificall ud — oe

ture of all kinds and of all types. There is con-

tained in the measure, perhaps, the most com-

enstee Gafiattien of enttent hich has

been included in any one legislative proposal.

We have placed together in the bill defini-

tions of agricultural work which have been fixed

from time to time in other legislative enact-

ments, and in addition to that we have drawn

liberally from Mr. Webster’s definition of

agriculture.

81 Cong. Rec. 7648 (1937) (statement of Senator Black).

Notwithstanding Senator Black’s assurances, other

senators became concerned that the proposed definition was

not sufficiently comprehensive. When the bill was first

introduced, secondary agriculture was defined as “any

practices ordinarily performed by a farmer as an incident to

such farming operations.” 81 Cong. Rec. 7653 (1937). The

senators knew that farmers frequently found it necessary to

engage others to perform on-farm agricultural work. These

senators were concerned that the work of persons employed

by such businesses would not fall within the scope of the

definition as originally drafted:

14

Mr. TYDINGS: The threshing of wheat and

similar crops on the farm would be classed as

coming within the agricultural exemption; would

it not?

Mr. BLACK: I so understand.

Mr. TYDINGS: What I am thinking of is that

quite often the threshing crew is not a part of

the farmer’s organization. There are men who

make a business of going around with threshing

and baling machines with enough help to come

upon a farm and make a contract with the

farmer to thresh his wheat. I should like to

know if in such a case it is the Senator’s opinion

that the threshing crew would be exempt, or

whether they would be under the operation of

the hours provision of the bill. * * *

I am asking this question because I believe,

inadvertently, a loophole has been left which I

am sure the proponents of the bill do not mean

to leave. * * * [A]}s I understand, farming in all

its Operations, from the time the grain is put

into the ground until it leaves the farm, is to be

exempted from the provisions of the measure;

but under the bill such a man as I have indicated

is not exempt.

15

is engaging in a cold-blooded business opera-

tion, going from one farm to another, precisely

as a huckster goes around and sells tinware to

farmers.

81 Cong. Rec. 7659 (1937) (statement of Senator Bone).

In order to clarify that workers performing agricultural

work on farms were to be included in the definition, the

Senate adopted Senator McGill’s amendment, which added

the words “or on a farm” and “including delivery to market”

to the secondary meaning of “agriculture.” 81 Cong. Rec.

7888 (1937). Although the independent-contractor wheat

thresher was the paradigm example of an agricultural laborer

to be included under the amendment, Senator McGill clearly

indicated that the amendment applied to any farm commodity:

Mr. GEORGE: Is it the purpose of the amend-

ment to exempt those who thresh grain?

Mr. McGILL: Those who thresh grain, who

harvest grain and deliver it to market.

Mr. GBORGE: Would the amendment also

apply to the harvesting of any other crop?

Mr. McGILL: It would apply to any commodi-

ty produced on a farm.

Ibid. Senator McGill also explained that the amendment was

intended to apply broadly to on-farm work:

81 Cong. Rec. 7653 (1937). Mr. McGILL: I may say to the Senator from

At least ome senator, however, believed that such Georgia aid other Senators that it is my object

employees should not be considered agricultural laborers: to make the language of the amendment broad

I think the business experience of us all will

justify the conclusion that if a man operates a

threshing outfit, and goes from one farm to

another farm, such a man is an independent

contractor. He is not a farmer. That is not an

operation incident to farming, because the man

enough to include all work done on a farm, so

long as it is incidental to agricultural purposes

* * * * and the language would also include all

labor performed in making delivery to market.

Ibid. The Senate approved Senator McGill’s amendment,

16

of § 3(f) of the FLSA. See 29 U.S.C. § 203(f). The House

of Representatives subsequently expanded the agriculture

definition even further by adding the “delivery to storage”

language. See H.R. Rep. No. 2182, 75th Cong., 3d Sess.

(1938).

B. The NLRB’s Decision is Contrary to the Legisla-

tive History, Renders the Agriculture Exception

Meaningless, and Burdens American Farmers.

The legislative history of the FLSA shows clearly that

Congress intended the term “agriculture” to include on-farm

farming work and delivery to storage, performed by third-

party employees. This Court has used the legislative history

as an aid to interpreting the agriculture provision in Farmers

Reservoir, 337 U.S. at 767, and in Maneja, 349 U.S. at 260.

The Fifth Circuit provided a thorough analysis of the legisla-

tive history in an FLSA case construing § 3(f). Reich v.

Tiller Helicopter Serv., 8 F.3d 1018, 1023-1027 (Sth Cir.

1993). Significantly, none of the cases adopting the NLRB’s

present construction of the statute even mention the legislative

history. See, e.g., Holly Farms Corp. v. N.L.R.B., 48 F.3d

1360 (4th Cir. 1995); N_.L.R.B. v. Hudson Farms, Inc... 681

F.2d 1105 (8th Cir.) (per curiam), cert. denied, 459 US.

1069 (1982); Valmac Indus. v. N.L.R.B., 599 F.2d 246 (8th

Cir. 1979). Thus, none of these courts has faced the impossi-

ble task of reconciling the NLRB’s construction with the

agriculture definition’s legislative history.

The erroneous reasoning in the NLRB’s interpretation

and the decision of the court below can be seen clearly in the

following example. Assume that a farmer wishes to engage

a non-farmer third party and his or her employees to perform

secondary agricultural tasks on a farm. The laborers thus

hired are precisely those to whom Senator McGill’s amend-

ment was designed to apply. Under the decisions of this

Court, the laborers would be employed in “agriculture.”

Under the NLRB’s interpretation, however, the laborers

would be dragged within the scope of the NLRA as “employ-

17

ees” because the laborers’ employer (the third party with

whom the farmer contracts) does not perform primary

aeuke, Geeaaetemate eutnenediatiel

labor exception meaningless. The fact that the NLRB’s

interpretation reaches an incorrect result in a case explicitly

anticipated by a legislative amendment shows that the Board's

decision does not have a reasonable basis in law.

By tuming its back on clear congressional intent, the

NLRB destroys the value of the agricultural exemption to

farmers. In today’s economic environment in production

agriculture, farmers are increasingly finding it necessary to

seek out the specialized efficiency of third parties to perform

secondary agricultural tasks. If, contrary to Congress’

desires, the NLRB succeeds in placing such third parties

outside of the agricultural exemption, the contractors will be

subject to vastly increased costs in the form of unionization

costs and overtime costs under the FLSA. Such costs will

almost certainly be passed through to the farmer employing

the independent contractor, and will add significantly to the

cost of production agriculture.

ized by increased vertical integration. Vertical integration

allows farmers to reduce costs that would otherwise become

prohibitive. See Allen M. Featherstone & Bruce J. Sherrick,

Financing Vertically Coordinated Agricultural Firms, 74 AM.

J. AGRIC. ECON. 1232, 1235 (1992) (referring to cost

efficiencies resulting from the reduced transaction and agency

costs, improved scale, and improved technology adoption).

Vertical integration has also become necessary to obtain

maximum productivity from agricultural assets. See id. at

1237 (observing that vertical integration in the hog sector

could release between 20% and 40% of assets from a

farmer’s balance sheet and allow for more productive use of

those assets). The evolving challenges of modern production

agriculture will continue to require farmers to internalize

some agricultural production functions and to contract others

18

away. By reading the words “on a farm” out of the agricul-

ture definition, the NLRB is imposing huge costs on the

farming community.

Ill. THIS COURT SHOULD NOT DEFER TO THE

INTERPRETATION OF THE NLRB.

This case comes to the Court after deferentially limited

review by the court below. Several factors in this case point

away from judicial deference to the NLRB’s decision. Even

if the most deferential standard were to be applied, however,

the NLRB’s decision cannot survive scrutiny.

A. Under The Circumstances Of This Case, The

NLRB Does Not Deserve Extensive Deference

From This Court.

Although this Court deferred to the NLRB in analogous

circumstances in Bayside, 429 U.S. at 303-304, several

circumstances in this case indicate that deference is not

appropriate. First, the NLRB in this case is interpreting

statutory language, not making fundamental policy choices or

finding facts. Second, the language that the NLRB is

interpreting has not been committed to that agency s iscre-

tion. Finally, Congress has announced in a separate statutory

command that the NLRB is not to expand its jurisdiction at

the expense of farming in America.

The NLRB is entitled to broad deference when making

factual determinations, N.L.R.B. v. Denver Bldg. & Constr.

Trades Council, 341 U.S. 675, 691 (1951) (citing Universal

Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951)), or

developing fundamental national labor policy. Beth Israel

Hosp. v. N.L.R.B., 437 U.S. 483, 500 (1978). In the case at

bar, however, the facts are agreed upon, and the NLRB has

construed unambiguous statutory language. This Court has

made clear that:

Reviewing courts are not obliged to stand aside

and rubber-stamp their affirmance of administra-

19

tive decisions that they deem inconsistent with a

statutory mandate or that frustrate the congres-

sional policy underlying a statute. Such review

is always properly within the judicial province,

and courts would abdicate their responsibility if

they did not fully review such administrative

decisions

N.L.R.B. v. Brown, 380 U.S. 278, 291-292 (1965). It is the

judiciary, not the NLRB, that is the final authority on

statutory construction, and this Court must reject administra-

tive constructions that are contrary to clear i

intent. Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843 n.9 (1984).

Courts should defer to an agency’s interpretation of a gap

in a statute that Congress entrusted the agency to administer.

Id. at 842-843. In the present case, however, the NLRB

interpreted a provision of the FLSA, a statute entrusted by

Congress to the Secretary of Labor. According to the

Secretary of Labor’s interpretation of the FLSA (discussed

supra in section I.B), it appears likely that the Secretary

would at least find chicken catchers and forklift drivers to be

employed in “agriculture” under the FLSA. Indeed, substan-

tive interpretation by the NLRB of § 3(f) of the FLSA may

intrude inappropriately into construction of this section in

FLSA cases. See, ¢.g., Marshall vy. Abbott Farms, Inc. , 559

F.2d 1006, 1007 & n.1 (Sth Cir. 1977).

The appropriations rider that directs the use of § 3(f) of

the FLSA also suggests that deference should not be granted

here. The appropriations rider contains the following

cautionary language:

Provided, That no part of this appropriation

shall be available to organize or assist in orga-

nizing agricultural laborers or used in connec-

tion with investigations, hearings, directives, or

orders concerning bargaining units composed of

20

agricultural laborers as referred to in section

2(3) of the [NLRA], and as defined in section

3(f) of the [FLSA] * * * *

108 Stat. 2570 (1994). The fact that Congress felt so

strongly about protecting the boundaries of the agriculture

definition that it made the NLRB’s operating funds contingent

upon the NLRB abiding by the statutory language is strong

evidence that Congress did not want courts deferring to the

Board’s decisions in this area.° The appropriation, set forth

in a statute not committed to the NLRB’s discretion, express-

es deep congressional concern that the NLRB will illegiti-

mately attempt to expand its jurisdiction at the expense of the

agriculture definition. In order for this Court to effectuate

this clearly expressed congressional intent, it must scrutinize

the NLRB’s decisions construing the agriculture definition.

B. If The Court Were To Show Deference To The

NLRB’s Decision, The Bargaining Order Should

Not Be Enforced Even Under The Relaxed Stan-

dard Of Review.

Earlier this Term, this Court indentified the factors it will

consider when applying deferential review to a decision of the

NLRB. See N.L.R.B. v. Town & Country Elec., Inc., No.

94-947, slip op. (November 28, 1995). In that case, the

Court evaluated the NLRB’s decision against the statutory

language, the statutory purpose, the legislative history, and

the relevant precedent. See id. at 5-6. As has been demon-

strated supra, the Board’s decision in this case contravenes

the statutory language and violates manifest congressionai

intent. It runs foul of precedent such as Maneja, and runs

* The appropriations rider may not be dismissed as a lonely

indication of subsequent congressional intent. Congress has

consistently maintained this policy for almost 50 years by inserting

identical language in the NLRB’s appropriation every year since

1946. Bayside, 429 U.S. at 300 n.6.

21

counter to the congressional policy of limiting the Board’s

jurisdiction to non-agricultural employees. See 29 U.S.C.

§ 152(3). Thus, the Board’s decision does not have a reason-

able basis in law, and this Court should refuse to enforce the

Board’s order.

C. Assuming Arguendo That This Court Were To

Defer To The Agency’s Decision In This Case,

The Court Should Expressly Limit Its Holding To

The NLRA Context In Order To Prevent The

Board’s Rationale From Infecting Analysis Under

The FLSA.

If, notwithstanding the above compelling reasons not to

defer, this Court were to decide in this case that it should

defer to the Board, the Court should expressly limit its

holding to the NLRA context. As stated above, the agricul-

tural definition is located in the FLSA and materially affects

many provisions in that statute of great interest to the farming

community. See, e.g., 29 U.S.C. § 213(a)(6) (family farm

exemption); 29 U.S.C. § 213(b)(12) (agricultural exemption);

29 U.S.C. § 213(c) (agricultural child labor exemption). The

FLSA has been entrusted by Congress to the Secretary of

Labor. Given an opinion by this Court deferring to the

NLRB’s interpretation of the FLSA, many lower courts

would likely apply the Board’s rationale when applying the

FLSA. See Marshall vy. Abbott Farms, Inc., 559 F.2d 1006,

1007 & n.1 (Sth Cir. 1977) (applying NLRA precedent to an

FLSA case).

There is no conceivable argument that the Board’s views

on the agriculture definition should constitute precedent under

a separate statute committed to the discretion of a different

agency. Accordingly, if the Court should decide to defer to

the NLRB in this case, it should expressly limit its holding to

the NLRA context in order to prevent the NLRB’s rationale

from infecting lower courts’ analysis under the FLSA.

22

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JOHN J. RADEMACHER ROBERT P. DAVIS

MICHAEL J. STIENTJES Counsel of Record

American Farm Bureau Mayer, Brown & Platt

Federation 2000 Pennsylvania Ave., N. W.

225 Touhy Avenue Washington, D.C. 20006

Park Ridge, IL 60068 (202) 463-2000

(312) 399-5700

ALABAMA FARM BUREAU MICHAEL F. ROSENBLUM

4250 Ala. Highway 157 Timothy S. BISHOP

Suite D Mayer, Brown & Platt

Cullman, AL 35055 190 S. LaSalle Street

Chicago, IL 60603

NORTH CAROLINA FARM NATIONAL COUNCIL OF

BUREAU AGRICULTURAL EMPLOYERS

5301 Glenwood 1112 16th St., N.W.

Raleigh, NC 27612 Suite 920

Washington, D.C. 20005

Counsel gratefully acknowledge the assistance of

Robert L. Bronston in the preparation of this brief.

DECEMBER 1995