International Multifoods Corp.

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 259 (N.L.R.B. 1973)

IMCO POULTRY 259
Imco Poultry, Division of International Multifoods
Corporation and Marty Wines and Merrill E.
Dunning and Lloyd D. Baker and Richard E. Tyler
II and Michael A. Cassidy and Wallace L. Chit-
wood . Cases 25-CA-4907-1, 25-CA-4907-2,
25-CA-4907-3, 25-CA-4907-4, 25-CA-4907-5,
and 25-CA--4907-6
March 7, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 10, 1972, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions to the Administrative Law Judge's Deci-
sion and a supporting brief.
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 considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and the brief and has decided to affirm
the Administrative Law Judge's rulings, findings,
conclusions, and recommendations to the extent
consistent with this Decision.
The Administrative Law Judge found that the
Charging Parties, who were discharged by the
Respondent for engaging in a work stoppage, were
"agricultural laborers" within the meaning of Section
2(3) of the Act, and therefore not "employees" within
the meaning of the Act. Consequently, he dismissed
the complaint without reaching the merits of the
Respondent's contention that even assuming the men
were statutory "employees," it was legally privileged
to sever them from its employment rolls. We disagree
and find, contrary to the Administrative Law Judge,
for the reasons set forth below, that the charging
parties were "employees" within the meaning of
Section 2(3) of the Act, and that they were dis-
charged in violation of Section 8(a)(1) of the Act.
I. JURISDICTION
Briefly stated, the stipulated facts show that
I The record shows that about 7 to 9 percent of the eggs processed by the
Respondent are produced by the 105,000 chickens on this farm However, it
is clear that the six employees involved herein are employed at Respon-
dent's service crew facility in the western region , and are therefore not
involved with either the egg production farm or the feed mill operations
- 2 The agreement provides that "Title to said pullets shall at all times be
and remain in IMCO, and the Grower shall have no rights or title of any
kind whatsoever "
3 The Administrative Law Judge erred by impliedly finding that
Respondent 's employees in the western region were engaged in transporting
Respondent is part of the Agricultural Division of
International Multifoods Corporation. The Respon-
dent is divided into two divisions, to wit: The
operations division and the egg processing division.
The operations division is further divided both
geographically and functionally into eastern and
western regions, which are located in Napoleon,
Ohio, and Warren, Indiana, respectively. Employees
in the eastern region operate two feed mills and an
egg production farm.' In addition, Respondent also
operates a hatchery primarily for the purpose of
producing egg-laying hens. The hatchery is located
within the eastern region and is staffed with eastern
regional employees. After the hens have become
"spent" or no longer economically productive, they
are sold to independent poultry processors.
Respondent's egg producing operations begin with
the purchase of breeder eggs from an independent
breeder egg producer, who transports these eggs to
Respondent's hatchery. After the eggs are hatched,
eastern regional employees deliver both the male and
female breeder chicks to contract farmers who raise
them, under an agreement2 with Respondent, for
approximately 20 weeks or until they have reached
pullet size . At the end of this period, eastern regional
employees3 transport the breeder chicks to other
contract farmers who operate breeder farms. Eggs
produced by the breeder hens are collected by the
farmers, and then picked up and delivered by
employees in the eastern region to Respondent's
hatchery where they are hatched and sexed. The
male chicks are destroyed and the female chicks,
after being aged, are delivered by eastern regional
employees to contract farmers4 who raise them
under a "Pullet Growing Agreement" with Respon-
dent until they reach pullet size . It is these "second
generation" chicks that become the layers. After the
chicks have been transported to the pullet farmers,
Respondent is no longer involved with the raising-
-feeding and care-of the chicks. It is clear that the
western region service crew employees involved
herein do not take part in Respondent's operations
prior to the- time that these "second generation"
chicks have reached pullet size . After the chicks have
reached this size, they are transported by eastern or
western regional employees5 to new independent
pullets from pullet growers to other contract farmers who operate breeder
farms The parties did stipulate that the function of transporting pullets
from pullet grower to egg producing contract farmer may be accomplished
by employees of either the eastern or the western region depending upon the
location of the contract farmer involved . However , the stipulation made it
clear that western regional employees have no function with respect to
Respondent 's breeder operations
4 These farmers have no relationship with the Respondent other than
that provided by the contract
5 The location of the independent farmers involved in the transfer
(Continued)
202 NLRB No. 44
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract farmers, who under an "Egg Program
Agreement"6 with Respondent, care for and feed the
hens for a period of about 60 weeks. During this
period of egg production by the layers, the independ-
ent farmer first collects the eggs and then packs them
in containers suitable for transportation. Respon-
dent's egg processing division then determines the
price for the eggs before they are sold to egg
processors whose own employees pick up the eggs at
the independent farmer's location. The contract egg
farmers are compensated for their efforts out of the
proceeds of the sale. At the end of the 60-week
period, the hens are deemed to be "spent" or no
longer economically productive. At this time, the
hens are sold by the operations manager in the
western region to independent poultry processors,
and loaded on the processors' trucks at the egg
production farms by Respondent's employees includ-
ing those involved herein. The record shows that the
six service crew employees named herein spend
approximately 75 percent of their time in pullet
transportation,7 25 percent of their time in loading
"spent" hens, and 1 to 2 percent of their time
transporting rice hulls.8
Section 2(3) of the Act excludes any individual
employed as an "agricultural laborer" from the
definition of "employees" covered by the Act.
Annually, since 1946, Congress has added a rider to
the Board's appropriation bill which provides that
the term "agricultural laborer" shall be defined in
accordance with Section 3(f) of the Fair Labor
Standards Act. The section defines agriculture in the
following manner:
"Agriculture" includes farming in all its branches,
and among other things includes . . . the raising
of livestock, bees, fur bearing animals, or poultry,
and any practices . . . performed by a farmer or
on a farm as an incident to, or in conjunction
with such farming operations, including prepara-
tion for market, delivery to storage, or to market,
or to carriers for transportation to market.
The Supreme Court has stated that "this definition
has two distinct branches."9 The primary meaning
refers to actual farming operation, such as the raising
usually determines which regional employees are assigned to this task.
However, on occasion , the employees in one region cross regional lines
when the pullet contract farmer is in one region and the egg producing
contract farmer is in another.
6 The Administrative Law Judge found that pursuant to both the "Pullet
Growing Agreement" mentioned above, and the "Egg Program Agree-
ment," title to and control over the pullets remained in Respondent at all
times until they were sold to poultry processors However, neither the record
nor the agreements referred to specify that the Respondent shall have
control over the pullets at all times prior to their sale
7 When the employees were engaged in pullet transportation, they were
divided into three categories designated as loading crew, unloading crew,
and drivers
8 After sacks of rice hulls were delivered by boxcar to the Warren service
center in the western region , employees either loaded them in the warehouse
of poultry. The secondary definition refers to
"practices . . . performed by a farmer on a farm as
an incident to, or in conjunction with such farming
operations."
The Administrative Law Judge found that by
maintaining a hatchery and egg production farm the
Respondent was a farmer engaged in pnmary
agriculture. Furthermore, he determined that the
functions performed by the employees named herein
did not amount to a separate and distinct business
activity, but were part of the overall agricultural
operations of the Respondent.'° Specifically, the
Administrative Law Judge found that the pullets are
the product of the Respondent's hatchery operations,
and are raised to accomplish Respondent's main
business purpose which is the production of eggs. To
accomplish this purpose, Respondent utilizes the
services of independent contract farmers. When
Respondent's employees are engaged in service crew
activities on the farms of independent contractors, in
the opinion of the Administrative Law Judge, their
activities are a part of the Respondent's integrated
egg producing operation. In this way, the Adminis-
trative Law Judge concluded that the second part of
the above definition was determinative, and there-
fore found that the six employees involved herein
were "agricultural laborers," and not "employees"
within the meaning of the Act. As noted above, we
disagree.
The Board has consistently held that when an
employer contracts with independent 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. See Strain
Poultry Farms, Inc., 160 NLRB 236; 163 NLRB 972,
reversed 405 F.2d 1025 (C.A. 5); Victor Ryckebosch,
Inc., 189 NLRB No. 8, and cases cited therein,
reversed 471 F.2d 20 (C.A. 9).ii As the service crew
employees involved herein are engaged in handling
and transporting chicks on the farms of independent
growers only after Respondent' s farming operations
have ended, these employees cannot be performing
practices incident to, or in conjunction with, Respon-
dent's farming operations. More accurately, they are
or onto waiting trucks for delivery to the pullet farmers. When delivery was
scheduled , one driver and a second employee delivered the rice hulls to the
pullet farmer who used them as litter for the chicks
9 See Farmers Resevoir & Irrigation Co v McComb, Wage & Hour
Administrator, 337 U.S. 755, 762, 763, for the distinction between primary
and secondary agriculture
io The General Counsel claimed that the work performed by the service
crew employees on the farms of the independent contractors was incident
to, or in conjunction with, the nonfarming operations of the Respondent,
i e., shipping and marketing
ii To the extent that our finding herein is in conflict with the decisions of
the United States Courts of Appeals for the Fifth Circuit in Strain Poultry
Farms, and for the Ninth Circuit in Victor Ryckebosch, we respectfully
disagree and adhere to our view until such time as the United States
Supreme Court has passed on the matter.
IMCO POULTRY 261
engaged in nonfarming operations which are incident
to, or in conjunction with, a separate and distinct
business activity of the Respondent, i.e., shipping
and marketing. Furthermore, since the activities of
the employees named herein on the growers' farms
are all related to transportation and the employees
have no business relationship with the independent
farmers, we conclude that the employees' activities
were not incidental to the independent farmers'
poultry raising operations. Accordingly, we find that
the service crew loaders, unloaders, and drivers are
"employees" within the meaning of the Act subject
to the jurisdiction of the Board.
II. THE ALLEGED UNFAIR LABOR PRACTICES
With respect to the unfair labor practice charge,
the facts, as stipulated by the parties, show that prior
to their discharges on April 18, 1972, the six
employees involved herein first discussed their
complaints over terms and conditions of employment
among themselves, and then decided on April 17,
1972, to contact Teamsters Local 135 for their
mutual benefit. On the following morning, the
employees proceeded from the Warren service center
to one of the independent egg producing farms where
they were assigned the loading of "spent" hens.
When informed by employee Merrill E. Dunning
that he was unable to contact the union representa-
tive, the employees decided to "take matters into
their own hands." Thus, one group of employees
formulated a list of demands while driving to the
jobsite, which was signed and agreed to by all but
one of the employees scheduled to work on the site
that day. The signers pledged to withhold their
services from the Respondent until someone from
the Company met with them to discuss their
demands. After being presented with the list,
Foreman David Kaiser telephoned Paul Stucky, the
western region division manager, for advice. Stucky's
response to employee Richard E. Tyler II, who was
selected as spokesman for the group, was that it was
essential that the "spent" hens be loaded that
morning. This response included an offer to discuss
the demands immediately after the men returned
from loading the hens. This offer was rejected by the
employees who had signed the demands, and so was
a second offer, which promised that there would be
no discharges if the hens were loaded without
delay.12 After Stucky had been convinced that the
employees could not be persuaded to complete their
assigned tasks, he ordered that they be returned to
the Warren service center.
While the employees were enroute to the service
center, Stucky contacted the employees' supervisor,
Conners, and requested that he also report to the
center. Before the employees arrived, Stucky and
Conners reached a joint decision that the employees
would be terminated for refusing to work. Upon their
arrival, the employees were summoned to a meeting
with Conners and Stucky at which time Conners
responded to their demands, and informed them that
they had been discharged. Shortly thereafter, the
employees jointly decided to contact the National
Labor Relations Board. Before contact was made
with a Board agent Dunning, at the suggestion of a
union agent, telephoned Conners to express his
apologies for the group for engaging in a strike, and
to request reinstatement for all the employees
involved herein. Conners refused to consider rein-
statement, and the conversation ended abruptly.13
The employees' demands, referred to above, dealt
with wages, hours, and other conditions of employ-
ment. More specifically, the demands included
various subjects such as raises in pay, a guarantee of
40 hours per week, overtime, paid holidays, safety
and work equipment, and recognition of an unspeci-
fied union. The Respondent's position as expressed
in the record is that even if the employees were found
not to be "agricultural laborers," their activities were
clearly unlawful for five specific reasons, to wit: (1)
No prior notice of the demands, or of the employees'
desire to discuss them, was given to the Respondent
before the work stoppage; (2) the employees became
trespassers by striking on the contractor's farm, and
demanding a meeting on the farmer's premises
without his permission and at an unreasonable time;
(3) they were engaging in a sitdown strike; (4) they
did not represent a majority of the employees
engaged in that particular operation; (5) their
demand for increased wages exceeded the legal limits
determined by the Federal wage-price guidelines.
In our opinion, Respondent's defenses, as set forth
above, do not support a conclusion that the Respon-
dent was legally privileged to sever the employees
involved herein from its employment rolls. As to (1)
the law is clear that a strike is protected even if the
employer is not informed of the strikers' demands
prior to the work stoppage.14 As to (2) there is no
evidence in the record which would support the
Respondent's claim that the strikers were trespassers,
nor is there any evidence that the strikers were
demanding a meeting on the farmer's premises or
that they were insisting on an unreasonable time for
such a meeting. The employees were on the farmer's
land at the direction of the Respondent, and they left
12 The record shows that the employees feared that they would be agreed that Dunning had done the proper thing by calling Conners to
discharged for their collective activity request reinstatement for the group
13 All of the employees involved herein , with the exception of Tyler, 14 N L.R.B. v. Washington Aluminum Co, 370 U.S 9, 14 (1962).
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only after Stucky ordered them back to the Warren
service center. With respect to (3) the record does not
support a conclusion that the employees were
engaged in a sitdown strike. As to (4) the Board has
never held that concerted activity by less than a
majority of an employer's employees is unprotected.
With respect to (5) the record does not indicate that
meeting the demand for a 25-cent-an-hour increase
would be contrary to the wage-price guidelines. Even
if such an increase would be unlawful, nothing in the
record indicates that the employees would be
unwilling to negotiate this demand.
In view of the foregoing analysis, we find that the
employees named herein were engaged in protected
concerted activity, and by discharging them, Respon-
dent violated Section 8(a)(1) of the Act. Further-
more, by refusing to reinstate the strikers after they
had made an unequivocal request to return,15 and
before they were permanently replaced, Respondent
also violated Section 8(a)(1) of the Act.16
Accordingly, we shall order that Respondent offer
Marty Wines, Merrill E. Dunning, Lloyd D. Baker,
Richard E. Tyler II, Michael A. Cassidy, and
Wallace L. Chitwood immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, and make
them whole by payment of a sum equal to that which
they normally would have earned from the date of
discrimination to the date of offer of reinstatement,
less their net earnings during that period. The
backpay provided herein shall be computed in
accordance with our formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon at the rate of 6 percent per annum in the
manner prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
IMCO Poultry, Division of International Multifoods
Corporation, Huntington, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire or tenure or any
other term or condition of employment for engaging
in any concerted activity protected by Section 7 of
the Act.
(b) Refusing to reinstate employees or otherwise
discriminating in regard to their hire, tenure of
employment, or any term or condition of employ-
ment because they have engaged in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist a union, to bargain collectively
through representatives of their own choosing and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion or to refrain from any and all such activities.
2. Take the following affirmative action:
(a) Offer Marty Wines, Merrill E. Dunning, Lloyd
D. Baker, Richard E. Tyler II, Michael A. Cassidy,
and Wallace L. Chitwood immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings in the manner prescribed in this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its service facility in Warren, Indiana,
copies of the attached notice marked "Appendix." 17
Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, .including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material:
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
is Since Dunning made a valid unconditional request for reinstatement
on behalf of all six employees named herein, which was forcefully rejected
by the Respondent, " 'it was not necessary-indeed, it would have been
futile'-for the other [employees] to have requested reinstatement 'and the
law does not require the doing of a futile act .' " B & P Motor Express
Incorporated, 171 NLRB 1289.
16 We find it unnecessary to decide whether the discharges also violated
Section 8(a)(3) of the Act as the remedy would in any event be the same.
it In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
IMCO POULTRY 263
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee in regard to hire or
tenure or any term or condition of employment
because he has engaged in any concerted activity
protected by Section 7 of the Act.
WE WILL NOT refuse to reinstate employees or
otherwise discriminate in regard to their hire,
tenure of employment, or any term or condition
of employment because they have engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist a union, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection or to refrain from any
and all such activities.
WE WILL offer Marty Wines, Merrill E.
Dunning, Lloyd D. Baker, Richard E. Tyler II,
Michael A. Cassidy, and Wallace L. Chitwood
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of earnings in the
manner prescribed in this Decision.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of a
union.
IMCO POULTRY,
DIVISION OF
INTERNATIONAL
MULTIFOODS
CORPORATION
(Employer)
Dated By
(Representative)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was tried before me in
Fort Wayne, Indiana, on September 13, 1972, on a
complaint filed by the General Counsel of the National
Labor Relations Board and an answer thereto filed by
Imco Poultry, Division of International Multifoods Corpo-
ration, herein called the Respondent or Imco Poultry.' At
issue is whether Respondent violated Section 8(aX3) of the
National Labor Relations Act, as amended, by discharging
employees Marty Wines, Merrill E. Dunning, Lloyd D.
Baker, Richard E. Tyler II, Michael A. Cassidy, and
Wallace L. Chitwood on April 18, 1972. Briefs have been
received from the General Counsel and the Respondent
which have been duly considered.
Upon the basis of the stipulated record made herein, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Delaware corporation , maintains its
principal office and place of business at Napoleon, Ohio,
and a service crew facility at Warren , Indiana, herein
called the facility, where it engages at said facility and
other locations in the sale of poultry, feed, and other
poultry products, and in the sale of chickens. During the
annual period material to this proceeding, Respondent sold
at its facility products valued in excess of $50,000 which
were shipped from said facility directly to States other than
the State of Indiana. During the same period, Respondent
sold and distributed products valued in excess of $500,000.
The complaint alleges, the answer admits, and I find that
1 The original charge in Case 25-CA-4907-1 was filed on April 25, 1972,
and served on April 28, 1972, and the supplemental charge in that case was
filed and served on June 30, 1972. The original charge in Case
25-CA-4907-2 was filed on April 25, 1972, and served on April 28, 1972.
The original charge in Case 25-CA-4907-3 was filed on April 25, 1972, and
served on April 28, 1972, as were the original charges in Cases
25-CA-4907-4 and 25-CA-4907-5. The original charge in Case
(Title) 25-CA-4907-6 was filed on April 25 , 1972, and served on May 5, 1972.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel maintains that Harry Wines,
Merrill E. Dunning, Lloyd D. Baker, Richard E. Tyler II,
Michael A. Cassidy, and Wallace L. Chitwood were
"employees" within the purview of Section 2(3) of the
National Labor Relations Act, as amended, and that their
discharge on April 18, 1972, by Respondent was violative
of Section 8(a)(3) because the terminations were designed
to inhibit their engagement in rights guaranteed by Section
7. For its part, Respondent contends that the six alleged
discriminatees were "agricultural laborers" within the
meaning of Section 2(3) of the Act and therefore
specifically excluded from the definition of "employee" as
set forth in that section inasmuch as they were engaged at
work in an industry characterized as "Agriculture" as
defined in Section 3(f) of the Fair Labor Standards Act.2
The parties stipulated and I find that IMCO Poultry
constitutes a division of International Multifoods Corpora-
tion, herein called IMC. IMC is composed of several
divisions operating in Canada, South America, and the
United States. The division in the United States is
comprised of smaller separate divisions, one of which is an
industrial foods division which engages in the milling of
wheat purchased from independent farmers and produces
therefrom flour and various byproducts which are vended
at wholesale.
There also exists a consumers' division which prepares
foods for consumption by individual consumers, and an
agricultural division which is concerned with the milling of
animal feeds and the poultry operations to be described
hereinafter. Additionally, within the United States, IMC
conducts operations which have not yet achieved the status
of divisions and have not been assigned to divisions. Those
include the operation of a chain of restaurants, and the
processing of meat which involves the purchase of
carcasses and the breaking down of the carcasses into
salable portions.
IMCO Poultry constitutes a part of IMC Agricultural
Division. IMC has its principal office in Minneapolis,
Minnesota. IMCO Poultry maintains its office in Napole-
on, Ohio, and is divided into two separate operating
divisions-an operations division headquartered in Napo-
leon, Ohio, and an egg processing division which has its
headquarters in the same city. The operations division is
separated into two regions geographically. The first, known
as the eastern region and located in Napoleon, Ohio, is
headed by Manager Norman Drews. The second, styled as
the western region and situated in Warren, Indiana, is
under the supervision of Division Manager Paul Stucky
2 In view of my findings and conclusions hereinafter made that these six
individuals were "agricultural laborers" within the meaning of Sec. 2(3) of
the NLRA and were therefore excluded from its coverage, I deem it
unnecessary to pass upon Respondent's contention that, even assuming the
men were statutory "employees, it was legally privileged to sever them from
its employment rolls
3 Hyline Poultry Farms has no contact with IMCO Poultry other than
the sale of eggs
4 This agreement provides in pertinent part that "Title to said pullets
shall at all times be and remain in IMCO, and the Grower shall have no
who is responsible for the sales, service, credit, and general
management of the western region . Both Drews and
Stucky are accountable to Harold Zuercher, the operations
manager in Napoleon.
The operations division of IMCO Poultry maintains a
milling operation and an egg production farm. The milling
operation consists of two feed mills which are staffed by
employees of the eastern region. They process grain
purchased from independent farmers into primarily chick-
en feed. Approximately 5,000 tons of feed per month is
processed at the mills, of which amount almost 400 tons
are sold to independent farmers as an incidental part of the
feed mill operation. The balance of the product is utilized
by IMCO Poultry for the feeding of chickens at its various
operations. The egg production farm, located in the eastern
region and staffed by eastern regional personnel, is
comprised of 40 acres, of which 28 are planted in corn by
persons other than IMCO Poultry employees. The remain-
ing 12 acres bear IMCO Poultry's chicken houses which
contain approximately 105,000 fowl. About 7 to 9 percent
of the eggs processed by IMCO Poultry are derived from
these chickens.
IMCO Poultry purchases breeder eggs from an inde-
pendent company known as Hyline Poultry Farms and
hatches them in a hatchery which is situated within the
eastern region and operated by eastern region employees.3
These breeder eggs are delivered to IMCO Poultry's
hatchery by employees of Hyline Poultry Farms. When the
eggs have hatched, the male and female chicks are
removed from the hatchery by IMCO Poultry's employees
and transported by them to independent farmers who raise
the chicks under a "Pullet Growing Agreement" with
IMCO Poultry until they reach pullet size , a process which
takes approximately 20 weeks.4 The contract farmers have
no relationship with IMCO Poultry other than by virtue of
the agreement to raise the pullets for the designated period.
At the conclusion of the pullet growing period, the pullets
are crated and loaded on IMCO Poultry's trucks by its
employees stationed in the eastern region, and then
transported to other contract farmers who operate breeder
farms.5 Eggs laid by the breeder hens are collected by the
independent farmers and they in turn are loaded and
transported by IMCO's Poultry's employees to the latter's
hatchery where they are hatched and sexed. The male
chickens are thereupon destroyed. The female chickens,
after they have aged, are trucked by IMCO Poultry's
eastern region employees to independent farmers where
they are cared for and fed by the farmers pursuant to the
terms of the "Pullet Growing Agreement." The contract
farmers also collect the eggs produced by the chickens and
pack them in containers suitable for transportation. The
operations division sets a price for the eggs thus produced,
after which they are vended to independent egg processors
rights or title of any kind whatsoever" The contract further provides that
throughout the term of this agreement, the entire egg production of said
pullets is the property of IMCO
5 The parties stipulated that the function of transporting the pullets from
the pullet grower to the egg producing contract farmers may be
accomplished by employees of either the eastern or the western region,
depending generally upon the location of the contract farmer involved.
Although on occasion, if the pullet contract farmer is in one region and the
egg producing contract farmer is in another region , employees of either
region may cross regional lines
IMCO POULTRY 265
by IMCO Poultry. The contract egg farmers are paid for
their efforts out of the proceeds of the sale. The eggs are
retrieved and transported from the egg farms by employees
of the processors. After the 60-week period of laying, the
hens are deemed "spent" or no longer economically
productive. At this point, they are sold by Respondent's
operations manager to independent poultry processors and
are loaded on the processors trucks by Respondent's
employees for transportation to the premises of the buyers.
Within the western region, approximately 70 percent of the
income of that region is derived from the operations of the
contract egg producing farmers. For each chicken on the
egg producing farmer's land, about 94 to 98 percent of the
revenues received by IMCO Poultry from that chicken is as
a result of the egg producers endeavors, and 2 to 6 percent
of the revenues represent the value of "spent" hens.
Prior to the discharge of the alleged discriminatees on
April 18, 1972, the western region maintained a work
complement of between 13 and 16 individuals, including
foremen, which was characterized as the service crew. Of
this number, three employees, Dick Brown, Roger Meekin,
and Ron Meekin, none of whom are among the alleged
discriminatees, devoted approximately 75 percent of their
worktime in debeaking chicks. The balance of their
workday consisted of performing other operations. The
remainder of the service crew was assigned to the tasks of
transporting pullets, loading spent hens, and transporting
rice hulls which is used for litter by the pullet growers.
These employees worked approximately 75 percent of their
time transporting pullets, 20 to 25 percent of their time
loading spent hens, and 1 to 2 percent of their time
transporting rice hulls.
With respect to the transportation of pullets, the
employees so engaged were divided into three categories
designated as loading crew, unloading crew, and drivers.
The loading crew, composed of alleged discriminatees
Marty Wines and Richard E. Tyler II, were under the
supervision of Foreman David Kaiser. The unloading
crew, manned by alleged discriminatees Lloyd D. Baker
and Merrill E. Dunning, were supervised by Foreman Sid
Alper. The drivers consisted of alleged discriminatees
Michael A. Cassidy and Wallace L. Chitwood, and
employee Howard Penrod. In describing the operation of
pullet transportation, the stipulation recites that the
loading crew reported daily at the service center in Warren,
Indiana, where they were conveyed to a farm at which the
loading was to take place. Upon arrival at the farm, the
loaders were met by one of Respondent's truckdrivers. The
loading crew would proceed to erect wire pens into which
its members would drive the 20-week old pullets. The
employees in the crew would then catch the pullets and
hand a specified number of them to the driver until all of
the pullets scheduled for shipment had been loaded. Upon
completion of this chore, the loading crew would gather up
the pens and any other equipment, and either travel to
their next assignment or return to Respondent's Warren
service center and clock out.
The drivers'- duties were comprised of reporting each
morning to the Warren service center where they would
obtain one of Respondent's trucks and load it with empty
chicken crates. They would travel to a designated farm at
which the pullets were to be loaded. Upon arrival, the
drivers would stack the crates in such a fashion as to
facilitate the loading of the truck. As heretofore described,
the loading crew would deliver the pullets to the drivers
who would thereupon place them into the crates until the
requisite number of chickens had been procured, and then
stack the containers in their trucks. Following this
operation, the drivers would proceed to the site where the
pullets were to be unloaded. Upon arrival, they would spot
the trucks in the proper position and move the crates of
live chickens to the tailgate. Although their official
function ceased at this juncture, it occasionally was their
practice to assist the unloading crew in their work. Once
the crates were emptied, the drivers reloaded them on the
trucks and either drove to the next worksite or returned to
the Warren service center and punched out.
The unloading crew usually arrived at the farm of the
egg producer at which the pullets were to be delivered and
await the delivery of the crated chickens. When the trucks
appeared, the unloading crew would assist the drivers in
setting up the unloading equipment, remove the crates
from the trucks, and stack them on wheeled dollies. The
dollies would be pushed into the laying houses and the
chickens removed and placed in cages in those edifices.
The crew would then return the empty crates to the truck.
After these chores were completed, the unloading person-
nel would venture to another assignment or report to the
service center and sign out.
Regarding the loading of "spent" hens, these tasks could
be performed by any employee in the service crew, who
would be dispatched by private automobile from the
Warren service center to the farms where the hens were to
be loaded. At the farms, the service crew employees would
assist the truckdrivers employed by the independent
poultry processors who had purchased the hens in loading
the chickens on the processors' vehicles. When the hens
were loaded, the service crew would move on to another
site or return to the Warren service center and clock out.
Rice hulls utilized as chicken litter by the contract pullet
farmers were delivered in sacks by rail to Respondent's
Warren service center where they were unloaded by any
member of the service crew who was available for duty.
The sacks were then loaded on IMCO Poultry's trucks,
conveyed to the independent pullet farmers by Respon-
dent's drivers, and unloaded at the farms for the use of the
farmers. With the exception of the members of the service
crew who performed debeaking duties and who have
heretofore been identified, the remaining crew members
were regularly assigned only to transporting pullets,
loading hens, and transporting rice hulls.
The stipulation between the parties further recites that all
employees on the service crew lived within 35 miles of the
Warren service center where they reported for work each
morning to clock in and returned each afternoon to clock
out. They received an hourly wage rate ranging from $2.25
to $2.50, with compensation at time-and-a-half for any
hours worked in excess of 40 per week , regardless of the
task which they performed. With the exclusion of the
truckdrivers and the debeakers, the service crew received
no special training in the care and handling of chickens
and no extraordinary skills were required. Each service
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crew employee occupied a probationary status for 60 days
after hire, and worked exclusively for IMCO Poultry. In
the normal course of events, Respondent's service crew
would not usually encounter the independent farmers or
the latter's employees during the workday.
Section 2(3) of the National Labor Relations Act
expressly excludes from the definition of "employee" any
individual employed as an agricultural laborer. Since July
1946, Congress has added a rider to the Board's annual
appropriations measure which, in essence, directs the
Board to be guided by the definition of "agriculture" as set
forth in Section 3(f) of the FLSA in determining whether
an individual is employed as an "agricultural laborer"
within the meaning of Section 2(3) of the NLRA. The
Board has consistently proclaimed as its policy to consider
the interpretation of Section 3(f) adopted by the Depart-
ment of Labor in view of that Agency's responsibility and
experience in administering the FLSA.
Section 3(f) of the FLSA reads, in pertinent part, as
follows:
Agriculture includes farming in all its branches and
among other things includes . . . the raising of
livestock, bees, fur bearing animals, or 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, delivery
to storage, or to market, or to carriers for transporta-
tion to market.
The statutory definition of "agriculture" thus has a
"primary" and "secondary" connotation. The "secondary"
meaning covering "practices ... performed by a farmer or
on a farm as an incident to, or in conjunction with such
farming operations, including preparation for market,
delivery to storage, or to market, or to carriers for
transportation to market" is thus determinative of whether
the six individuals involved in this litigation fall within the
exclusion set forth in this aspect of Section 3(f).
In his brief, the General Counsel concedes that "Respon-
dent is unquestionably engaged in primary agriculture in
its operation of a hatchery and an egg production farm,
and is thus a farmer."s His main bone of contention
resides in his assertion that the service crew does not
perform work which is an incident to, or in conjunction
with, farming operations. I do not agree. In D'Arrigo Bros.
Co. of California,7 the Board observed that "The determi-
nation [as to whether an operation is performed as an
incident to or in conjunction with farming operations]
requires that the character of the particular function be
evaluated to see if it is part of the agricultural activity or a
6 This status had been previously determined by the Regional Director
for Region 25 when Respondent was then known as Nuehauser. On August
17, 1967, the Cannery and Allied Workers Union filed a petition with the
Board in Case 8-RC-6865 seeking an election among "all regular full-time
and regular part-time employees in the production and maintenance
departments in the employer's hatchery in Napoleon, Ohio " This petition
was dismissed by the Regional Director on September 19, 1967, "Because
the employees involved herein are commercial hatchery employees and as
such are agricultural laborers within the meaning of Section 2(3) of the Act
distinct business activity. The totality of the situation will
control, and not mechanical application of isolated factors
or tests." It is undisputed and I find that, pursuant to the
"Pullet Growing Agreement" and the "Egg Program
Agreement," title to and control over the pullets remained
in Respondent at all times until their sale by it to poultry
processors. These pullets were the product of Respondent's
hatchery operations. To facilitate its egg production
operations, Respondent utilized the services of independ-
ent contractors. The service crew's activities, including
those of the truckdrivers, were not divorced from those
operations and did not entail the exclusive engagement in
the transportation of fowl. Indeed, the record shows that
the loading and unloading crews physically collected the
pullets on the contractors' farms and released them at the
hen laying farms in conjunction with Respondent's main
business purpose, i.e., the production of eggs . Even the
three drivers here involved assisted in these activities.
Moreover, while the General Counsel points out that the
service crew operated out of the eastern region and the
hatchery was located in the western region, it is uncontro-
verted that the service crew performed services for its sister
region . Under the circumstances presented, I am con-
vinced that the functions of the service crew at the Warren
service center did not constitute a business activity distinct
from Respondent's farming operations. I therefore con-
clude that Wines, Dunning, Baker, Tyler, Cassidy, and
Chitwood were "agricultural laborers" and were therefore
excluded from the coverage of the National Labor
Relations Act at the time they were discharged.8 Conclud-
ing, therefore, that these individuals were not employees
within the meaning of Section 2(3) of the NLRA, I shall
recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Marty Wines, Merrill E. Dunning,
Lloyd D. Baker, Richard E. Tyler II, Michael A. Cassidy,
and Wallace L. Chitwood, Respondent has not engaged in
and is not engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
ORDERS
It is hereby ordered that the complaint in this proceeding
be dismissed in its entirety.
who are specifically excluded as 'employees.'
r 171 NLRB 22, 23
8 See Arkansas Valley Industries, Inc, 167 NLRB 391
9 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes