Domsea Farms, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 832 (N.L.R.B. 1974)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Domsea Farms, Inc. and Teamsters, Chauffeurs and
Helpers Local 672, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Ind., Petitioner.
Case 19-RC-6821
June 21, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed on September 21, 1973,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held before Hearing
Officer Steven B. Frank on October 11, 1973. On
October 16, 1973, the Hearing Officer issued his
report recommending that this matter be transferred
to the Board. On the same day the Regional
Director , by order, transferred this representation
matter to the Board for determination . Subsequently,
the Employer and Petitioner filed timely briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer, a Delaware corporation, is
engaged in a commercial fish farming operation in
two locations, Gorst and Orchard Point, Washing-
ton. During 1972, the Employer shipped goods
valued in excess of $50,000 from its Washington
State locations to points outside the State of
Washington. The parties stipulated on the record
that the Employer is engaged in commerce within the
meaning of the Act. We find in agreement with the
parties that the Employer is engaged in commerce
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. No question affecting commerce exists con-
cerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) of
the Act for the following reasons:
The Petitioner seeks to represent a unit of the
Employer's employees employed in its fish farming
operations. The Employer contends that these
individuals are "agricultural laborers" exempt from
the Act's coverage by virtue of the definition of
"employee" contained in Section 2(3) of the Act.'
The Employer raises coho salmon for commercial
marketing . There are four phases in this operation:
incubation, fresh water cultivation, salt water cultiva-
tion, and harvest. These activities involve the
following operations:
Mature salmon are killed and the eggs and sperm
are removed and transported to the fresh water
facility where artificial insemination occurs by
mixing the eggs and the sperm in water and placing
them into incubating trays. The eggs remain in the
incubation trays until they hatch into what is called
"fry." When the fry develop to the proper stage, the
employees feed them using a special artificial food
prepared by employees under the Employer's formu-
la. These employees are specially trained to properly
care for the fry.
After the fry have grown to the proper stage they
are transferred from the incubation trays into rearing
pools and are fed on the water surface a specially
prepared fine mash according to formulas developed
by the Employer's technician employees. As the fry
grow in size and density they are thinned out and
transferred to "raceways," which are large cement
troughs of fresh water approximately 30 feet long, 4
feet deep, and 16 feet wide. During the period that
the salmon are at the fresh water stage the Employer
requires a staff of specially trained employees to
conduct the biological aspects of the salmon raising.
Trained maintenance employees are used to regulate
water temperature and keep the necessary machinery
or equipment functioning properly.
The salmon are fed and watched until they reach
the stage called "smolting." Smolting is a physiologi-
cal characteristic of the coho salmon . It is the stage
at which the salmon kidney becomes sufficiently
developed for it to handle the osomotic differences in
salt water as compared to fresh water. At the
smolting stage the salmon are transported to salt
water pens . These deep pens are sunk in the salt
water of Clam Bay at Orchard Point, Washington.
The pens are constructed so as to protect them from
both bird and fish predators. As the salmon grow
they are transferred from different pens under a
grading process into categories of small , medium,
and large. This grading is done to prevent cannibal-
ism and to determine the proper pellet size and
amount of food necessary to their maturation. When
the fish reach a marketable size, they are harvested.
This is done by killing them in freezing water, putting
them in tubs, and transferring them to an outside
contractor's processing plant for dressing, packaging,
and distribution for market.
I Section 2(3) of the National Labor Relations Act, as amended, employed as an agricultural laborer .
provides: "(3) The term 'employee' ... shall not include any individual
211 NLRB No. 125
DOMSEA FARMS, INC. 833
Since 1947 the appropriation acts for the Board
have regularily carried a rider which provides that
the term "agricultural laborer" shall be defined in
accordance with Section 3(f) of the Fair Labor
Standards Act (29 USC § 203) which reads in part as
follows: "Agriculture" includes farming in all its
branches and . . . includes . . . any practices .. .
performed by a farmer or on a farm as an incident to
or in conjunction with such farming operations
In light of the above quoted language from the
appropriation acts the Board has followed a practice
of determining under Section 2(3) (NLRA) whether
an employee was an "agricultural laborer by adher-
ing, generally although not exclusively, to the
Department of Labor's interpretation of "agricultur-
al laborer" within the meaning of Section 3(f) of the
Fair Labor Standards Act.
Prior to 1965 the Department of Labor, through
advisory opinions to Board, held that "fish farming"
was not farming within the provisions of Section 3(f)
of the FLSA.2 However, in August 1965, the
Department of Labor issued an interpretative bulle-
tin (29 CFR 780.118) pursuant to Section 3(f)
(FLSA) which in pertinent part reads as follows:
Unlike the specifically enumerated operations,
the phrase "farming in all of its branches" does
not clearly indicate its scope. In determining
whether an operation constitutes "farming in all
its branches", it may be necessary to consider
various circumstances such as the nature and
purpose of the operations of the employer, the
character of the place where the employee
performs his duties, the general types of activities
there conducted, and the purpose and functions
of such activities with respect to the operations
carried on by the employer. The determination
may involve a consideration of the principles
contained in §780.112. For example, fish farming
activities fall within the scope of the meaning of
`farming in all of its branches" and employees
engaged in such operations would be exempt.
(Emphasis supplied.)
In light of the above - quoted portion of the
Department of Labor's regulations, the Board on
January 29, 1974, requested an advisory opinion as
to whether the Employer's operations, as described
above, did in the opinion of the Department of
Labor fall within the meaning of "farming in all of its
branches" under Section 3(f), so as to consider its
employees as being employed in agriculture.
On March 8, 1974, the Department of Labor
advised the Board:
As you point out, at one time we took the
position that fish farming was not "agriculture"
within the meaning of Section 3(f) of the Act
.... However, the similarities of fish farming to
other types of agriculture and the fact that it was
considered "agriculture" under other statutes (see
Internal Revenue Regulations) induced a change
in our Interpretations. Interpretative Bulletin §
780.109 (29 CFR 780.109) points out that "fish
farming activities fall within the scope of the
meaning of `farming in all its branches'." Further,
Interpretative Bulletin § 780.120 (29 CFR
780.120) states that while fish are not "livestock",
fish farm employees are considered to be "em-
ployed in agriculture" within the meaning of
Section 13(a)(6) of the Act. Accordingly, we
would consider that the activities of Domsea
Farms constitute "agriculture" within the mean-
ing of Section 3(f).
In view of the Department of Labor's advisory
opinion, and in accord with our past practices, we
find that the operations of the Employer must be
deemed to be "agriculture" within the meaning of
Section 3(f) of the FLSA. Therefore, its employees
are exempt from the National Labor Relations Act
as "agricultural laborers." Accordingly, we shall
dismiss the petition.
2 See Snake River Trout Company, 129 NLRB 41, In 2 at 42