Bayside Enterprises v. National Labor Relations Board Petitions and Briefs

    The Supreme Court 
of the United States

Bayside Enterprises, Inc.
versus

National Labor Relations
Board

Petition and Briefs

Law Reprints
Labor Series vol. 10, no. 10 
1976/1977 Term



I«  111?

jshtprem? (Emart at % Intitb States?
O ctober T e e m , 1975

No.

BAYSIDE ENTERPRISES, INC., 
PENOBSCOT POULTRY COMPANY, 
AND POULTRY PROCESSING, INC.,

PETITIONEES,

V .

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT

A lan  J oel L evenson  
187 Middle Street 
Portland, Maine 04111 

Attorney for Petitioners



INDEX

Page
Opinions Below.............................................................  1
Jurisdiction ...................................................................  2
Question Presented........................................................ 2
Statutes Involved .......................................................... 2
Statement of the C ase ................................................... 3
The Board’s Decision and O rder..................................  4
The Decision of the Court of A ppeals.........................  5
Reasons For Granting the W r i t ..................................  6
The Employing Entity—Single or M ultiple................  11
The Growout Contract..................................................  12
Agricultural or Commercial.........................................  15
Judicial or Legislative..................................................  17
Conclusion......................................................................  19
Appendix A—(Court of Appeals’ Opinion and Judg­

ment) .............. : ..................................A-l
Appendix B—(Board and Administrative Law Judge’s

Decisions)...........................................AT
Appendix C—(the Bayside Grower Contract).............. A-23

T able oe C ita tions

Cases

Abbott Farms, Inc. v. N.L.R.B., 487 F.2d 904 (5th Cir.
1973)............................................................................ 5

Bowie v. Gonzales, 117 F.2d 11, 18 (1st Cir. 1941) . . . .  13
Colchester Egg Farms, Inc., 214 N.L.R.B. No. 64 (1974)

5, 9, 11
Drummond v. Maine Employment Security Commis­

sion, 157 Me. 404, 173 A.2d 353 (1961) .....................  10
Drummonds Poultry Transportation Service v. Wheeler,

178 F. Supp. 12 (D.C.S.D. Me. 1959) ..........................  10



11 Index

Page
Eastern Sugar Associates, 99 N.L.R.B. 809 (1952) . . . .  14
Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462

P.2d 737 (1969) . , ................................................  16, 19
Farmers Reservoir & Irrigation Co. v. McComb, 337

U.S. 755 (1949) ..................................................  6, 8, 17
Samuel Gass, et al., 154 N.L.R.B. 728 (1965) ................  5
Local Union No. 300. v. McCulloch, 428 F.2d 396 (5th

Cir. 1970) ..................................................................  17
Maneja v. Waialua, 349 U.S. 254 (1961) .....................  16
Maplewood Poultry Company v. Maine Employment 

Security Commission, 151 Me. 467, 121 A.2d 360
1956) ...................................................................... 10, 11

McElrath Poultry Co., Inc., 206 N.L.R.B. No. 9 4 .......  5
McElrath Poultry Co., Inc. v. N.L.R.B., 494 F.2d 519

(5th Cir. 1974) .................................................. 5, 9, 16
Mitchell v. Hunt, 263 F.2d 913 (5th Cir. 1959) ............  13
Mitchell v. Huntsville Wholesale Nurseries, Inc., 267

F.2d 286 (5th Cir. 1959) ........................................... 14
N.L.R.B. v. Bayside Enterprises, Inc.,__F.2d —  (1st

Cir. 1975) ................................................................  6, 9
N.L.R.B. v. Gass, 377 F.2d 438 (1st Cir. 1967)........... 5, 14
N.L.R.B. v. Kent Bros. Transportation Co., 485 F.2d

480 (9th Cir. 1972) ....................................................  6
N.L.R.B. v. Strain Poultry Farms, Inc., 405 F.2d 1025

(5th Cir. 1969) ..................................................  5, 11, 14
N.L.R.B. v. Tepper, 297 F.2d 280 (10th Cir. 1961).......  13
N.L.R.B. v. Victor Ryckebosch, Inc., 471 F.2d 20 (9th

Cir. 1972) ................................................................  5, 18
Norton <& McElroy Produce, Inc., 133 N.L.R.B. 104

(1961) ..........................................................................  13
George I. Petit, Inc., 89 N.L.R.B. 710 (1950) ............  13
Stockbridge Vegetable Producers, Inc., 121 N.L.R.B.

1395 (1961) ................................................................... 13
Vives v. Serralles, 145 F.2d 552 (1st Cir. 1944) ......... 14



Index

Page
Wirtz v. Osceola Farms Company, 372 F.2d 584 (5th

Cir. 1967) ................................................................... 14
Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 (8th Cir. 

1966) .......................................................................... 5

Statutes, Regulations and Interpretative Bulletins

The Clayton Act, 15 TJ.S.C, § 17 (1914) .................... 11,
Capper-Volstead Act, 7 TJ.S.C. §§ 291-92 (1922) ...  11,
F.L.S.A., 29 TJ.S.C. § 203(f) (1964) ........................... 2,
F.L.S.A. Regulation, 29 C.F.R. 780.126 (1972) ......... 4,
Federal Unemployment Tax Act, 26 US.C. § 3306(c) (1)

and § 3306(k) (1954) .................................................
Internal Revenue Regulations, Section 61-4................
Maine Agricultural Marketing and Bargaining Act,

13 M.R.S.A. 1953 (1973) ........................................
National Labor Relations Act, 29 U.S.C. § 152(3) (1935) 
Social Security Act, 42 U.S.C. § 409(h)(2) (1935) . . . .

Miscellaneous

The Broiler Industry, An Economic Study of Structure, 
Practices and Problems, U. S. Department of Agri­
culture (1971) ...........................................................  7

40th Annual Report of the National Labor Relations
Board (1975) .............................................................  5

Legislative History of N.L.R.A., p. 3202 ......................  18
Note: “ Trust Busting Down on the Farm: Narrowing 

the Scope of Antitrust Exemptions for Agricultural 
Cooperatives,” 61 Virginia Law Review 341. (1975) 8

Vertical Coordination via Contract Farming, Economic 
Research Service, U.S. Department of Agriculture, 
Miscellaneous Publication No. 1073 (1968) ......... 11, 12

18
18
10
15

11
11

13
2

11



In the
Court of tlw luttrd #tutro

O ctober T er m , 1975

No.

BAYSIDE ENTERPRISES, INC., 
PENOBSCOT POULTRY COMPANY, 
AND POULTRY PROCESSING, INC.,

PETITIONERS,

V .

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT

Petitioners, Bayside Enterprises, Inc., Penobscot Poultry 
Company and Poultry Processing, Inc., pray that a writ 
of certiorari issue to review a judgment of the United 
States Court of Appeals for the First Circuit entered in 
this case on December 10, 1975.

Opinions Below
The opinion of the Court of Appeals is reprinted as 

Appendix A of this petition. The findings of fact, con- 
cusions of law, and order of the National Labor Relations 
Board are reprinted as Appendix B of this petition and 
reported at 216 N.L.R.B. No. 92 (1975).

1



2

Jurisdiction
The decree of the Court of Appeals was entered on 

December 10, 1975 (Appendix A, p. A-l). The juris­
diction of this Court is invoked under 28 U.S.C. § 1254(1) 
and pursuant to Rule 19-1.(b) of the Rules of this Court.

Question Presented
Whether a poultry organization vertically integrated 

from hatcheries to processing plant is a “ farmer” qualify­
ing its employees who drive feed trucks to its contract 
farms as exempt “ agricultural laborers” within the agri­
cultural exemption of the National Labor Relations Act 
(29 U.S.C. §152(3)) as defined in the Fair Labor Stan­
dards Act (29 U.S.C. § 203(f)).

Statutes Involved
1. The National Labor Relations Act, 29 U.S.C. 

§152(3) “ The term ‘employee’ . . . shall not include any 
individual employed as ah agricultural laborer . . . ”

2. Since 1946, the appropriation acts for the National 
Labor Relations Board have regularly carried a rider 
which provides that the term “ agricultural laborer” shall 
be defined in accordance with Section 203(f) of the F.L.S.A.

3. The Fair Labor Standards Act, 29 U.S.C. § 203(f) 
provides “ 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 com­
modities . . . the raising of livestock, bees, furbearing 
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 transportation to market.”

2



3

Statement of the Case

Petitioners, Bayside Enterprises, Inc. and Poultry Pro­
cessing, Inc., parent and subsidiary, are an integrated 
poultry organization located in four separate towns in 
central coastal Maine. The operation is organized func­
tionally. Bayside carries out the poultry hatching and 
growing and Poultry Processing is responsible for the 
milling, processing and marketing. Specifically Bayside 
has a pedigree hatchery for breeding at Waldo, Maine and 
a commercial hatchery at Unity, Maine to supply chicks 
to its farms.

In addition to Bayside’s own six farms that produce 
hatching eggs, there are 119 independent farmers that are 
under contract with Bayside to raise poultry. The essence 
of the contract is that Bayside provides each farmer with 
chicks, feed, medicine, fuel, litter and vaccines, and makes 
all management and marketing decisions. The farmer is 
required to furnish the housing utilities and feed, and 
look after the birds. For this service he is paid on the 
basis of a guarantee for poultry house square footage 
plus a bonus based on pounds of poultry he produces. The 
title to the birds at all times remains in Bayside.

Besides the hundreds of thousands of broilers, roasters 
and capons located on the contract farms and the chicks 
and eggs in the hatcheries, Bayside owns the grain, the 
medicines and other feed ingredients which are milled 
together at a mill in Thorndike, Maine. This mill is owned 
and operated by Poultry Processing which mixes the feed 
to the specifications of the Bayside broiler department 
manager based on the weather and the age or health of a 
particular flock.

Bayside employs a farm crew whose duties include going 
from farm to farm vaccinating, blood testing and cleaning 
the chicken houses after the flock has been taken out. 
In all there are some 80 employees who work for Bayside

3



4

including a geneticist, four poultry servicemen (who main­
tain standards of animal husbandry and are constantly 
checking for disease) and the six feed drivers that are 
the subject of this case.

Bayside owns four specially constructed feed trucks, 
three of which are used daily on two shifts by the six feed 
drivers. Their job is to shuttle back and forth between the 
feed mill and the 119 contract farms bringing feed and 
medicine in accordance with the schedule made up by the 
Bayside dispatcher.

Poultry Processing has about 400 employees divided 
roughly into 20 in its feed mill and 380 in its Belfast, 
Maine processing plant. The general offices of the two cor­
porations are at a separate Belfast location. Operating 
out of the processing plant with separate supervision is 
a group of drivers whose job is to drive flatbed trailers 
with coops onto the farms, catch the birds and transport 
them back to the processing plant. After processing a 
separate group of drivers at the processing plant with 
I.C.C. permits, take the birds to market. The processing 
plant only processes the Bayside birds. However, at the 
time of this hearing one-third of the production of the 
feed mill was sold to another unaffiliated farm organiza­
tion for its own contract farm requirements. It, however, 
employed an independent feed transportation company to 
pick up at the feed mill and deliver to its growers. Bay- 
side’s feed drivers bring feed to only Bayside’s farms.

The Board’s Decision and Order
The administrative law judge affirmed by the Board 

held that the Bayside-Poultry Processing operation con­
stituted “ a multifaceted organization whose enterprises 
and purposes go far beyond traditional farming” and that 
“ while Bayside’s own farms and hatcheries may constitute 
branches of farming, the overall operations of Bayside 
and Poultry Processing, and more specifically the feed

4



mill and feed delivery operations, may not be removed 
from coverage by the Act by utilizing these aspects of 
Bayside’s operations which are traditional branches of 
farming to characterize Bayside’s entire operation as 
farming” .

The decision then stated that the case was indistin­
guishable from Samuel Gass, et al., 154 N.L.R.B, 728 
enf’d 377 F.2d 438 (1st Cir. 1967) and McElrath Poultry 
Co., Inc., 206 N.L.R.B. No. 94 enf. denied 494 F.2d 518 
(5th Cir. 1974).

The Decision of the Court of Appeals
On the Board’s petition for enforcement the First Cir­

cuit Court of Appeals was faced with a split of authority 
with regard to the applicability of the farm exemption 
as it applies to employees of poultry organizations. On 
the one side was the Board majority and its own N.L.R.B. 
v. Gass, 377 F.2d 438, 444 (1st Cir. 1967) decision holding 
feed drivers not exempt. On the other side were decisions 
of the Fifth, Eighth, and Ninth Circuit Courts of Appeals 1 
and the minority of the Board chastizing the majority for 
being unwilling to file a petition for certiorari, notwith­
standing five years of adverse decisions. The minority 
argued it was now time to acquiesce and declare these 
employees exempt.2

Counsel for the corporations sought to have this Court 
of Appeals confine its Gass, supra to the facts of that 
case; namely, that the employing entity was a trucking 
company and therefore a separately organized business

1 McElrath Poultry Co., Inc. v. N.L.R.B., 494 F.2d 519 (5th
Cir. 1974) ; Abbott Farms, Inc. v. N.L.R.B, 487 F.2d 904 (5th
Cir. 1973) ; Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 (8th
Cir. 1966) ; N.L.R.B. v. Victor Ryckebosch, Inc., 471 F.2d 20
(9th Cir. 1972) ; and N.L.R.B. v. Strain Poultry Farms, Inc..
405 F.2d 1025 (5th Cir. 1969).

2 Colchester Egg Farms, 214 N.L.R.B. No. 64 (1974). See the 
40th Annual Report of the National Labor Relations Board 
(1975), pp. 67-68.



6

not entitled to the farm exemption. See, e.g., N.L.R.B. v. 
Kent Bros. Transportation Co., 485 F.2d 480 (9th Cir. 
1972).

However, the First Circuit Court of Appeals chose 
not to accept this attempt to reconcile its holding in 
Gass, supra with the decisions in the other circuits saying 
it found the other cases “ both distinguishable and unper­
suasive”. The court’s approach was to break down peti­
tioners’ organization into its component parts — feed 
mill, processing plant, chick hatcheries, breeding farms 
and contract farms and then make the judgment that it was 
a commercial rather than agricultural venture since the 
bulk of its capital and personnel were devoted to non­
farming operations. It bolstered its argument with a De­
partment of Labor interpretation at 29 C.F.E. 780.126 
(1972) having to do with feed dealers and processors. 
As for the feed drivers, it declared them part of a separate 
organization “ supportive of agricultural activity, but not 
directly engaged in farming”. N.L.R.B. v. Bay side En­
terprises, Inc., —  F.2d__ (1st Cir. 1975).

The object of this petition is to put into issue under the 
agricultural exemption of the N.L.E.B. the status of the 
vertically integrated poultry organization as an employing 
entity, to wit, is it a farmer under the secondary definition 
of farming in Farmers Reservoir & Irrigation Co. v. 
McComb, 337 IJ.S. 755, 762-63 (1949), and the status of 
its feed drivers as being incidental to that farming.

Reasons for Granting the Writ
This case emerges out of one of the most dynamic in­

dustries in American agriculture. In the 1920’s most 
poultry was produced in small scale farm enterprises, 
almost completely integrated. Poultry producers commonly 
hatched eggs on the farm, used home grown feeds, 
slaughtered and processed poultry. Some even hauled the 
birds to market. A few retailed them.

6



7

Beginning in the 1930’s, various phases of poultry pro­
duction became separate entities and profit centers. Spe­
cialized firms began to emerge in primary breeding, 
hatching, feed milling, processing and marketing. Most 
prominent were the independent feed dealer and poultry 
hauler who had various types of supply contracts with 
processors.

As the scale of specialized firms increased and the in­
dustry began to expand rapidly during World War II, 
problems developed in coordination of firms in various 
vertical stages. Vertical integration emerged as a means 
of minimizing or sharing risks with price and production 
variabilities.

Currently, more than 95 percent of the broilers pro­
duced in the United States are grown under contract in 
integrator-owned or integrator-leased facilities.

A very limited market exists for live broilers produced 
by independent growers. Most live broiler trading is be­
tween integrated firms or processors.

The emerging integrated structure of the broiler in­
dustry brought with it the demise of small independent 
farms. Narrowing profit margins first put specialized 
hatcheries at a disadvantage. Independent feed dealers 
and local feed mill next faced the price-costs squeeze. 
Finally, in the last few years, specialized independent 
processors faced the same problems.

Today the typical firm in the broiler industry is a large 
vertically integrated broiler organization.3

This development has taken place against the general 
background of all agriculture in which mechanization, new 
production technology and sophisticated management sys­
tems have proliferated — all designed to achieve greater 
cost efficiency. In addition, agriculture has begun an ir-

3 The Broiler Industry: An Economic Study of Structure, 
Practices and Problems, U.S. Department of Agriculture (1971).

7



8

reversible course of consolidation accompanied by an in­
crease in size of the average farm.

In the broiler industry this development has seen, in 
the last 20 years, production of broilers go from 1/3 billion 
to more than 2% billion along with a price decline and 
a quality improvement. Per capita consumption of broiler 
meat has increased from 0.5 pound in 1934 to an estimated 
32 pounds in 1966.

The broiler industry is centered in four general areas 
of the United States; the South, Delaware, New England 
and the Far West. Of these, the South is the most im­
portant, producing over two-fifths of the output of the 
industry.4 Nearly all broilers today are produced by con­
tract growers of integrated broiler firms. Production per 
farm averages more than 50,000 birds per year.4A

A typical integrated broiler producing and marketing 
firm has its own hatchery, feed mill and processing plant.5

The petitioners contend that their feed drivers are en­
titled to the agricultural exemption under the secondary 
definition as laid down in Farmers Reservoir & Irrigation 
Co. v. McComh, 337 U.S. 755, 762-63 (1949); namely, “ any 
practices, whether or not themselves farming practices, 
which are performed either by a farmer or on a farm 
incident to or in conjunction with ‘such’ farming opera­
tions ’ ’.

Both the National Labor Relations Board and the First 
Circuit Court of Appeals have denied this position main­
taining essentially that Bayside is : 1) not a single farmer 
because of many contract growers; and 2) is not a farmer 
at all or at least not predominantly a farmer because its 
processing plant gives it a commercial coloration.

4 The Broiler Industry, supra, p. 5.
4A Contract growing has been accompanied by a 900 percent 

increase in output since 1948. “ Trust Busting Down on the 
Farm ; Narrowing the Scope of Antitrust Exemptions for Agri­
cultural Cooperatives” , 61 Virginia Law Review 341, 362 (1975).

5 Ibid, p. 22.

8



9

The issue of essential importance in this case is what 
are vertically integrated poultry organizations in contem­
plation of the law. Since the agricultural exemption of the 
National Labor Relations Act depends on the Fair Labor 
Standards Act for its definition, two important labor 
statutes are involved in this decision. Although the Fair 
Labor Standards Act says explicitly that the raising of 
poultry is an exempt agricultural activity, lias the ver­
tically integrated poultry operation somehow annihilated 
itself as an agricultural entity either by having contract 
farms or by establishing its own processing plant!

This decision by the First Circuit places the issue 
squarely in conflict. In New England henceforth, the chief 
enforcement officers of both the National Labor Relations 
Board and the Wage and Hour Division must rule that a 
vertically integrated poultry operation is not a farmer and 
that therefore, its employees are not eligible for the farm 
exemption. Meanwhile in at least two of the other three 
producing areas (the Far West, 9th Circuit and the South, 
Fifth Circuit), the holding is that a vertically integrated 
organization is a farmer. In a competitive, price conscious 
industry such as this where pennies make the difference 
between success and failure and poultry can be frozen and 
transported across the country in a day as well as to 
foreign countries, any unequal treatment can be ruinous.

It obviously cannot be explained to the layman as to 
why the driver of a feed truck for an integrated poultry 
organization in Georgia is exempt16 and the same man 
working for a similar organization in Maine is not. It is 
little consolation to the corporation that the First Circuit 
finds decisions of other circuits “ unpersuasive” 7 or that 
it “ declines to follow” them.8

6 McElrath Poultry Company, Inc. v. N.L.B.B., 494 F.2d 518, 
per curiam opinion (5th Cir. 1974).

7 N.L.B.B. v. Bayside Enterprises, Inc., —  F.2d —  (1st Cir. 
1975).

8 N.L.B.B. v. Samuel B. Gass, 377 F.2d 438, 444 n. 12 (1st 
Cir. 1967).

9



10

This issue of contract farming and the relationship of 
the farmer to the integrator does not confine itself to the 
poultry industry. The egg industry, although not making 
use of contract farming to the extent of the poultry in­
dustry, is very heavily concerned with the answer to the 
question as to whether the farmers’ contracts amount to 
a total integration of the farmers into the contractor’s 
business or still allow him to be considered independent.9

Within the poultry industry itself there are other, dif­
ferent occupations affected by whether their employer is 
a farmer or a commercial enterprise — the farm, service­
men and the pickup crews, for example.10

In addition, a great many other farm commodities are 
the object of contract farming and have seen a substantial 
proportion of the entrepreneurship function transferred 
from the farmer to the contractor. For example, there are 
tomatoes, green and wax beans, peas, sweet corn and vari­
ous fruits.

Although not controlled by Section 3(f) of the Fair 
Labor Standards Act, there are many other statutes that 
exempt “ agricultural labor” from their provisions. The 
Maine Unemployment Statute is one.111 In speaking on 
this same issue concerning the poultry industry, the highest 
Maine court said “ We are not aware of any decision 
which labels the business of raising poultry as a business

9 Colchester Egg Farms, 214 N.L.E.B., No. 64 (1974).
10 Maplewood Poultry Company v. Maine Employment Security 

Commission, 151 Me. 467, 468, 121 A.2d 360 (1956) ; See also 
Drummons Poultry Transportation Service v. Wheeler, 178 F. Supp. 
12 (D. Me. 1959) and Drummond v. Maine Employment Security 
Commission, 157 Me. 404, 173 A.2d 353 (1961).

11 Title 26 M.E.S.A. 1043 - 1.A (1959) defined argicultural labor 
substantially like Section 3(f) of F.L.S.A. In 1973, the definition 
was changed twice, excluding the agricultural labor exemption, 
unless more than one-half of the product was produced by the 
operator for which the services were performed. The additional 
changes excluded the definition entirely for “ commercial” hatch­
ery processing and transportation of poultry, but specifically 
included services performed on a “ family-type farm” with not 
over 100,000 laying birds.

10



11

enterprise.” 12 Maplewood Poultry Company v. Maine 
Employment Security Commission, 151 Me. 467, 472 (1956). 
The present decision by the First Circuit Court of Appeals 
changes that. There are other acts as well, concerned with 
defining agricultural labor.13

The Employing Entity — Single or Multiple
Although the emphasis in the First Circuit Court of 

Appeals’ opinion denying the agricultural exemption to 
Bayside is on the predominance of the commercial compo­
nents of the business, the decision makes it very clear that 
even if the corporations were not integrated to the proces­
sing plant level that they would not even then be regarded 
as a farmer. The Court says it is not persuaded by the 
rationale of the decisions in the other circuits.

It thus firmly takes a position with the majority of the 
National Labor Relations Board that the raising of the 
poultry is not being done by the integrator, but by its 
contract farms. The Court of Appeals in N.L.R.B. v. Strain 
Poultry Farms, Inc., 405 F.2d 1025, 1033 (5th Cir. 1969), 
says ” . . .  the Board’s finding that the employees were 
not agricultural employees can only be sustained if re­
spondent’s arrangement with the independent growers is 
viewed as removing it from the primary definition of 
agriculture pertinent here ‘the raising of poultry’ ” . The 
dissenters in Colchester Egg Farms, Inc., 214 N.L.R.B. 
No. 64 (1974), say that the courts have repeatedly rejected 
the Board’s attempt to compartmentalize what is essen­
tially a total “ farming” activity.

12 Vertical Coordination via Contract Farming-, Economic Re­
search Service, U.S. Department of Agriculture, Miscellaneous 
Publication No. 1073, p. 91 (1968).

13 Federal Unemployment Tax Act, 26 U.S.C. 3306(c)(1), (k) 
(1954); the Social Security Act 42 U.S.C. 409(h)(2) (1935). 
In addition the Clayton Act, 15 U.S.C. § 17 (1970) and the 
Capper-Volstead Act, 7 U.S.C. 291-92 (1970) allow Bayside to 
join a farm cooperative and Section 61-4 of the Internal Revenue 
Regulations allow it to file on a cash basis as a farmer

11



12

The Growout Contract

As previously mentioned, the poultry industry is now 
almost entirely operating under a system of contract 
farmers. Considerations of efficiency in feed delivery and 
other service activity plus assembly of the final product 
give certain advantages to compact growout territories. 
The result is local monopolies in the market for contracts.

One study published by the Department of Agriculture 
seeks to set up a classification system for these farmer- 
contractor contracts.14 The system is designed to classify 
contracts according to the degree to which various elements 
of entrepreneurship are shifted by contractual agreement 
from the farmer to the contractor. One view of integration 
holds that integration increases as elements of entrepre­
neurship are shifted from the farmer to the contractor, 
chiefly through assumption of management control and 
decision-making. Implicit in this view is a corollary assump­
tion that increased integration results in increased assump­
tion of risk and uncertainty by the contractor and increased 
certainty of price and market for the farmer.

Judged by these standards the poultry industry, in 
general, and Bayside, in particular, are the most highly 
integrated of industries and companies. Dividing decision­
making into input decisions (acquiring the animals), pro­
duction decisions and marketing decisions, in all categories, 
Bayside’s control is almost total. (See Appendix C.)

The Bayside-Poultry Processing Management decides 
what type of poultry to grow and when and where to 
grow it. It owns the flocks and bears the risk of loss 
at all phases. It sets production standards, makes the 
sole decisions as to animal husbandry, including medical 
care of the poultry. It restricts the farmer from handling 
any other poultry. It makes all marketing and pricing

114 Vertical Coordination in Contract Farming, infra, p. 74.

12



13

decisions, including the timing of the processing of each 
flock.15 The feed drivers are controlled by the age and 
health of each particular flock along with the weather 
that affects their eating habits.

The First Circuit Court of Appeals uses its own decision 
in Bowie v. Gonzales, 117 F.2d 11, 18 (1st Cir. 1941), 
for the proposition that the contract farms on which the 
poultry are grown are each separate independent oper­
ations and that they are the farmers and not the contractor 
or integrator. Although the approach is like other past 
Board'16 and Court17 decisions, the application to the

15 The contract farmers complain that their situation is created 
in part because economy demands high density growout areas, 
not allowing any alternative contractor to bid for growers, except 
in fringe areas. There is also lack of information about compar­
able contracts allowing market forces to operate in optimum 
fashion. They also say that even an independent farmer with 
the capital is forced into a contractual arrangement because of 
the impossibility of getting chicks and because the_ system doesn’t 
allow for a live market for independent production. The State 
of Maine has attempted to help these farmers by passing the 
Maine Agricultural Marketing and Bargaining Act of 1973, 13
M. R.S. 1953, to help “ the bargaining position of individual 
farmers” .

George I. Petit, Inc., (1950) 89 N.L.R.B. 710, 711, n. 4. 
(poultry processing employees whose employer purchased all 
poultry and eggs are not exempt) ; Stockbridge Vegetable Pro­
ducers, Inc., (1961), 121 N.L.R.B. 1395 (truckdrivers and box 
stitchers of a grower shipper who packs crops grown by another 
held not exempt) ; Norton & McElroy Produce, Inc., (1961), 133
N. L.R.B. 104 (truckdrivers and stitchers in the fields are not 
agricultural laborers if employed by a firm shipping and market­
ing produce bought from farmers).

17 N.L.R.B. v. Topper, 297 F.2d 280 (10th Cir. 1961) (a dairy 
employee who worked processing milk products, some of which 
came from other farms not exempt) ; Mitchell v. Hunt, 263 F.2d 
913 (5th Cir. 1959) (employees of auction barn selling livestock 
belonging to other farmers than the farmer operator not exempt). 
Mitchell v. Huntsville Wholesale Nurseries, Inc., 267 F.2d 286 
(5th Cir. 1969) (warehouse owners who make advances to 
growers against marketable plants produced for it was not exempt 
as Huntsville did not grow the nursery stock. It bought it from 
independent growers.)

13



14

vertically integrated poultry operation is misconceived.
The important factor in determining whether or not the 

farmer has been truly and totally integrated into the con­
tractor’s business is the substance of their relationship.

The Fifth Circuit in the fact of its own decision in 
Mitchell v. Huntsville Wholesale Nurseries, Inc., 267 F.2d 
286 (5th Cir. 1959), to bolster the denial of the exemption 
looked at poultry industry contract farming, and said:

“ The fact that Strain hired the independent growers 
to raise its birds and contract loaders to catch the 
birds for loading onto its trucks, would not seem to 
destroy its claim to having raised the poultry. . . . The 
trucking operation was a part of an integrated poultry 
raising operation and although unlike poultry farms 
of the past, it is today a typical broiler raising 
operation . . . .

As in all the other cases cited by the Board on this 
point, the distinction between those situations and the 
present one is that these birds belonged to the re­
spondent and although the raising of them was shared 
with independent growers, Strain’s activities were 
more nearly that of one engaged in the ‘raising of 
. . . poultry’ than that of a purchaser jobber; Hunts­
ville clearly did not grow the nursery stock in ques­
tion; it bought it from independent growers.”

N.L.R.B. v. Strain Poultry Farms, Inc., 405 F.2d 
1025, 1032-33 (5th Cir. 1969)18

18 Since Strain was decided after N.L.R.B. v. Gass, 377 F.2d 
438 (1st Cir. 1967), the Fifth Circuit considered it and found 
it to be distinguishable because there the drivers were not 
employed by the farmers nor were they under their control. 
Of course Bayside does employ and control the driver; however, 
the First Circuit chose not to accept the Fifth Circuit’s distinction.

14



15

Agricultural or Commercial

With this case the Board established and the First Cir­
cuit Court of Appeals sustained what was essentially a 
new rationale to achieve the same result—the denial of 
the agricultural exemption to an integrated poultry firm. 
The court decision recast its Gass rationale19 post hoc 
so that the feed drivers were employed by an integrated 
poultry processing company. The interpretative bulletin 
29 C.F.R. 780, 126 (1972)20 having to do with feed dealers 
and processors was used to bolster the argument. And 
finally the poultry firm was dismembered into its component 
parts and pronounced “ not predominantly agriculture”.

The answer to all of this is obvious. Gass was an inde­
pendent trucking company and never entitled to the farm 
exemption under the F.L.S.A. Bayside is neither a feed 
dealer nor a processor, so that the interpretative bulletin 
does not apply. It, along with its subsidiary, Poultry 
Processing, Inc., make up a vertically integrated poultry 
organization whose aim is to prosper raising and selling 
poultry. As such if it—a typical broiler operation of today— 
is not considered a poultry raiser, then there aren’t any. 
Bayside-Poultry Processing is not a mercantile enterprise. 
Common sense tells us it is a farming operation; however, 
rather than being farmer-based, the modern integrated 
farm corporation is management based. It has arisen 
for many reasons, one of the important ones being because 
of the necessity for closer coordination between the pro­
duction and marketing phase than price could supply.2'1

19 377 F.2d 438, 444.
20 The decision states this was promulgated in 1974. Actually 

the date was June 17, 1972, before McElrath, Abbott Farms, 
and Victor Byckebosch ignored it.

21 In addition, individuals are incorporating their operations 
to take advantage of the tax laws, increased bargaining power, 
insulation from risk and continuity of management.

15



16

However, the primary purpose of the petitioners’ poultry 
business is to produce, hatch, raise and sell poultry. The 
various components of the corporation constitute a single 
integrated farming venture producing and processing its 
own poultry. Etchechoury v. Avi-Simplot, Inc., 43 Idaho 
438, 462 P.2d 737, 741.

It is important to understand that the real significance 
of this case and the reason it must be overruled is because 
drawn to its logical conclusion, it disqualifies every off- 
farm employee working for a vertically integrated oper­
ation from qualifying under the secondary definition of 
agriculture. This is because the first requisite is that the 
employee works for a farmer, and if the integrator is not 
regarded as such, you do not get to the next question as to 
whether or not his job is incidental to or in conjunction 
with farming. Just as petitioners do not claim all of its 
employees automatically exempt, so too the First Circuit 
Court of Appeals should not allow them to be regarded as 
automatically covered.

The six feed drivers involved here are controlled by the 
broiler department dispatcher. They are separate from the 
processing plant operation. Their job is completely involved 
in maintaining the growth cycle and health of the birds on 
each individual farm. They along with the farm servicemen 
and the pick-up crews are necessary and essential for the 
raising, feeding, caring for, and management of the poultry 
growing operation.22

22 Mcrneja v. Waialua (1961) 349 U.S. 254 (railroad em­
ployees) ; McElrath Poultry Co. v. N.L.R.B., 494 F.2d 418 (5th 
Cir. 1974) ; Vives v. Serralles, 145 F.2d 552 (1st Cir. 1944); 
Witrz v. Osceola Farms Compamy, 372 F.2d 584 (5th Cir. 1967) ; 
Eastern Sugar Associates (1952) 99 N.L.R.B. 809.

16



17

Judicial or Legislative

This Court in Farmers Reservoir and Irrigation Co. v. 
McComb, 337 U.S. 755, 760 (1949), spoke in general terms 
about the definition of agriculture:

“ Whether a particular type of activity is agricultural 
depends, in large measure, upon the way in which that 
activity is organized in a particular society. The de­
termination cannot be made in the abstract. In less 
advanced societies the agricultural function included 
many types of activity which, in others, are not agri­
cultural. The fashioning of tools, the provision of 
fertilizer, the processing of the product, to mention 
only a few examples, are functions which, in some 
societies, are performed on the farm by farmers as 
part of their normal agricultrural routine. Economic 
progress, however, is characterized by a progressive 
division of labor and separation of function, (empha­
sis supplied)

What has happened in the poultry industry is that it has 
come full circle since the 1920’s from the single farmer 
performing all functions to the corporate organization 
performing all functions. In this case economic progress 
has resulted in a combination rather than a division in the 
form of the vertically integrated farm organization.

The question has arisen of how to treat these organiza­
tions in contemplation of the law because certainly they 
have many of the characteristics of a commercial enterprise 
rather than an agricultural one.23

Petitioners contend that it is the wrong approach by 
judicial fiat to transfer a whole industry from the agricul-

23 However, the agricultural exemption of the N.L.R.A. is not 
measured by the magnitude of the farmer’s planting nor the 
prolificacy of his harvest. Local Union No. 300 v. McCulloch, 428 
F.2d 396, 399 (5th Cir. 1970).

17



18

tural to the commercial column. This is particularly true 
where the statute involved makes particular reference to the 
raising of poultry which is the exact business of these firms.

N.L.R.B. v. Victor Ryckebosch, Inc., 471 F.2d 20, 21 (9th 
Cir. 1972) says:

“ The social and economic problems related to large- 
scale corporate farming are more appropriately re­
solved by debate and committee study in Congress 
than by adversary proceedings in Court. If Congress 
is troubled by the reasoning in Strain, it is free to 
translate its intent into clearer legislation. The N.L. 
R.B. has not demonstrated that we need create a con­
flict between the Circuits on this point.”

The farmer has been the subject of special legislation 
for many decades the origins and rationale for which 
sometimes having no discernible foundation except 
politics.24

The legislature of this country has just recently taken 
a second look at the farm laws and are in the process of 
changing them. Maine is an example with a new bargaining 
act for farmers and modifications of the definition of 
agricultural employee in the Unemployment Compensation 
Law. The federal Congress, although in the past affixing 
the prohibition in the N.L.R.A. against agriculture in an 
appropriations act, has also begun to modify long standing 
agricultural laws.

24 Clayton Act, 15 U.S.C., § 17 (1970), originally passed in 
1914; Capper-Volstead Act, 7 U.S.C. §§ 291-92 (1970), originally 
passed in 1922; “ The committee discussed this matter carefully 
in executive session and decided not to include agricultural work­
ers. We hope that the agricultural worker will be taken care o f... 
I am in favor of giving agricultural workers every protection, 
but just now I believe in biting off one mouthful at a time. 
If we can get this bill through and get it working properly, there 
will be an opportunity later, and I hope soon to take care of the 
agriculutral worker” . N.L.R.A.’s sponsor, Representative Con­
nery, from Legislative History of N.L.R.A., p. 3202.

18



19

In April of 1974 by amendment to the Fair Labor Stan­
dards Act, it dealt with the exemption from overtime of 
businesses which would include many vertically integrated 
farm operations. It amended Section 13 by adding a 13(g) 
of the Act restricting the exemption from applying to all 
commonly controlled establishments whose annual gross 
volume in sales exceeds ten million dollars.

The point is that if there is a feeling that the large 
farm organization should be covered by the N.L.R.A., 
exactly how and which ones should be the prerogative of 
Congress rather than the courts. This is especially true 
in this area because the origins are so political. See 
Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462 F.2d 737.

Conclusion
Although Belfast, Maine, may not be regarded as the 

center of the farm belt, the truth is that it is the center of 
the Maine poultry industry which makes up a significant 
segment of the state’s economic activity. Maine is the 
largest poultry state in New England.

Bayside-Poultry Processing is a typical vertically in­
tegrated poultry operation. The issue raised herein as to 
whether or not it and others like it are farmers is im­
portant to the industry and most particularly now in light 
of this court of appeals’ decision, to New England.

Wherefore the petitioners pray that this petition for a 
writ of certiorari be granted and that ultimately the com­
plaint against them be dismissed for want of jurisdic­
tion.

Respectfully submitted,
A lan  J oel L evenson 

187 Middle Street 
Portland, Maine 04111 

Attorney for Petitioners

19



APPENDIX

Appendix A—(Court of Appeals' Opinion and Judg­
ment)

Appendix B—(Board and Administrative Law Judge’s 
Decisions)

20



APPENDIX C

BAYSIDE ENTERPRISE, INC.

153 High Street 
Belfast, Maine 

Contract
B ayside E n ter prises , I n c ., and ------------------------------------------
E x c lu siv ely ; B roiler , R oaster and Capon C ontract.

This contract made this -------- day of — ---------- ------- ,
19-----, between Bayside Enterprises, Inc. of Belfast, here­
after referred to as “ Bayside” and-------------------------- ,
referred to hereafter as the “ Grower” . Bayside will de­
liver baby chicks to the Grower’s farm a t ------------------ ,
Maine to be grown out as either Broilers, Roasters, or 
Capons. The number of baby chicks to be placed on the 
farm and the Growing Program to be followed will be 
determined by Bayside. The Grower will give his best 
care and management to the growing of chicks placed on 
the farm in. accordance with Bayside’s Feeding and Man­
agement Programs. This contract shall remain in effect, 
with the following provisions, for successive flocks as may 
be placed by mutual agreement.

B ayside A grees :
Section A:

1. ) To furnish all chicks, feed, fuel, litter, medica­
ments, and vaccines.

2. ) To provide supervision in the care and manage­
ment of the flock.

3. ) To be the sole judge in determining when a
facility shall be sprayed or washed and is ade­
quately prepared for the placement of another 
flock.

21



4. ) To pay for spray, power wash, and disinfectants
used as such which then become apart of the 
Grower’s total cost of production, except the 
cost of powerwash before and/or following a 
flock of Capons, A Grower with proper equip­
ment may wash or spray his own facility, (or 
pay to hire this service), for which no charge 
will be assessed against the flock concerned.

5. ) To furnish the Grower with copies of all charge
slips for feed, fuel medicaments, litter, wash 
and spray, poultry weight tickets, and bonus cal­
culation sheets.

Section B — To Guarantee the Broiler Grower:
1. ) A payment of $0.01 per square foot for the clean­

out period within 10 days after a subsequent 
Bayside flock is placed.

2. ) A payment of $0,007 per square foot per week
to be paid bi-weekly during the growing period.

3. ) A “ Balance of Guarantee Payment” , within 10
days after the flock is marketed, to equal $0.01225 
per square foot per week. (This total includes 
1 & 2 Above.)

4. ) A “ Bonus Payment” based upon an equal in­
crement spread from the lowest cost flock maxi­
mum of $0.01775 per square foot per week to a 
minimum of $0.01225 per square foot per week 
to the highest cost flock settling within a given 
settlement period. (This total includes 1, 2, & 3 
above.)

5. ) An additional ‘‘Electric Power Payment” , within
10 days after the flock is marked, equal to $0.0005 
per square foot per week. This payment to be 
for Windowless facilities with fan capacities 
and equipment in accordance with Bayside spe­
cifications.

22



Section C — To Guarantee Roaster Growers:
1. ) A payment of $0.01 per square foot for the

cleanout period within 10 days after a subse­
quent Bayside flock is placed.

2. ) A payment of $0,007 per square foot per week
to be paid bi-weekly during the growing period.

3. ) A “ Balance of Guarantee Payment”, within 10
days after the flock is marketed, equal to $0.0125 
per square foot per week. (This total includes
1 & 2 above.)

4. ) A “ Bonus Payment” based on an equal incre­
ment spread from the lowest cost flock maximum 
of $0.0185 per square foot per week to a minimum 
of $0.0125 per square foot per week to the highest 
cost flock settling within a given settlement 
period. (This total includes 1, 2, & 3 above.)

5. ) An additional “ Electric Power Payment”, within
10 days after the flock is marketed, equal to 
$0.0005 per square foot per week. This payment 
to be for Windowless facilities with fan capacities 
and equipment in accordance with Bayside spe­
cifications.

Section I) — To Guarantee the Capon Grower:
1. ) A payment of $0.01 per square foot for the

cleanout period within 10 days after a subse­
quent Bayside flock is placed.

2. ) A payment of $0.01 per square foot per week
to be paid bi-weekly during the growing period.

3. ) A “ Balance of Guarantee Payment” , within 10
days after the flock is marketed, to equal $0.0135 
per square foot per week. (This total includes
2 above.)

4. ) An additional “ Electric Power Payment” , within
10 days after the flock is marketed, equal to 
$0.0005 per squire foot per week. This payment

23



to be for Capon Growers with Windowless facil­
ities in accordance with Bayside specifications. 

T h e  Geow ee A g r e e s :
Section E:

1. ) To furnish adequate housing, equipment, water,
labor, feed, and oil storage facilities as necessary 
for an efficient operation, as in accordance with 
Bayside specifications. (See specification sheet 
attached.)

2. ) To maintain an effective rodent and wild bird
control program.

3. ) To provide State approved disposal facilities for
dead birds.

4. ) To have no poultry other than Bayside’s on the
farm during the period of this contract.

5. ) To use only those materials supplied by Bayside
for the purpose of feeding and maintenance of 
birds under this contract.

6. ) To provide suitable facilities for water medica­
tion.

7. ) TO BE PRESENT DURING THE LOADING
OUT OF POULTRY.

8. ) To keep an accurate flock inventory, on sheets
provided by Bayside, and to have these sheets 
available to the “ Load Out Foreman” when 
poultry is loaded.

9. ) To maintain suitable roadways for feed, fuel and
chick deliveries and for the efficient load out of 
flocks. To pay all wrecker service as required by 
live haul, chick, feed, or fuel delivery trucks as 
attributed to unsuitable roadways on Grower’s 
farm.

10.) To follow instructions of the Bayside Supervisor 
in the care and management of Broiler, Roaster

24



or Capon flocks. To allow such personnel to enter 
any facility pertinent to this contract at reason­
able times.

11. ) That Bayside will remain the owner of all poul­
try, feed, and other materials, and may without 
process of law, enter on the premises of the 
Grower to remove or to assume the active care 
and management of the flock—if Bayside believes 
that said flock is not receiving proper care and 
attention. Cost of labor or other expenses thus 
incurred will be deducted from the contract pay­
ment.

12. ) To pay a charge of $10.00 per ton for the removal
of any feed left on the farm, in “ excess” of a 
calculated 1 day supply at the time a flock is 
removed. A one day supply will be considered 
200 lbs. per 1,000 Broilers and 300 lbs. per 1,000 
Roasters and Capons. Feed left on the farm due 
to schedule changes shall not be considered 
“ EXCESS”.

13. ) That a prorated payment will be made based
upon respective guarantees—in lieu of Sections 
B, C, & D—the payment will be prorated on the 
basis of average mortality within a settlement, 
original flock density, and actual percentage sal­
vaged when excessive bird losses resulted from:

a. ) An act of God (including, but not limited
to, fire, winds, snow, or flooding).

b. ) OR, over 4% in excess of the average die
as a result of lack of oxygen and/or heat 
exhaustion.

14. ) That minimum payment will be set at $0.0075
per square foot per week in cases described under 
Item 13 above.

25



S ettle m e n t  C ost A nalysis :
Section F:
Charges for monthly cost calueulations will be as follows:

1.) Broilers—-Chix $0.15
Feed $100/Ton
Fuel $0.20/Gal.
Medicaments Per Type
Litter $8.00/Cord
Wash and Spray Invoice Charge

2.) Roasters--Chix $0.15
Feed $100/Ton
Fuel $0.20/Gal.
Medicaments Per Type
Litter $8.00/Cord
Wash and Spray Invoice Charge

Age to Weight Adjustment factor--$0.00010 per .01 lb.
above and below average ROASTER MALE weight. 
(See attached example.)

B ayside and t h e  Geow eb M utually  A geee :
Section G:

1. ) That the Grower accept full and exclusive lia­
bility for the payment of any and all taxes aris­
ing as a result of the performance of this contract 
including, but not limited to, any and all taxes 
for Workmen’s Compensation Insurance, or Old 
Age Benefits or Annuities now or hereafter im­
posed by any persons engaged in the performance 
of this Agreement on behalf of the Grower, but 
excluding local taxes on birds.

2. ) That the Grower, his agents and employees shall
not be considered to be employees of Bayside for 
any purpose whatsoever.

3. ) That this contract supercedes and replaces all
previous Broiler, Roaster and Capon contracts.

26



4. ) That this contract may be cancelled for sustained
inferior performance, or violation of the terms 
of this contract by either party.

5. ) That notice of contract termination will be given
for a subsequent flock five weeks prior to removal 
of the preceding flock by either party.

In W it n e ss  W h eb eo e , the parties hereto have executed 
these presents th is_________day o f___________ , 19__

BAYSIDE ENTERPRISES, INC.

By :

Gboweb :

Witness

27



No. 75-1267

ttje Supreme (Eourt of ttie United States
October Term, 1975

Bayside Enterprises, Inc., et al., petitioners 
v.

National Labor Relations Board

ON PETITION FOR A W RIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS FOR 

THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT

Robert H. Bork,
Solicitor General, 
Department o f Justice, 
Washington, D.C. 20530.

John S. Irving,
General Counsel,

J ohn E. Higgins, J r.,
Deputy General Counsel,

Norton J. Come,
Deputy Associate General Counsel,

Robert A. Giannasi,
Assistant General Counsel,
National Labor Relations Board,
Washington. D.C. 20570.

29



INDEX

Page
Opinions below ............................ ....................... .............  1
Jurisdiction ........................................................................  1
Question presented .....................   1
Statutes involved ......       2
Statement .....................................     2
Argument ...............................................  5
Conclusion ......................................................................... 10

CITATIONS

Cases:
Abbott Farms, Inc. v. National Labor Relations 

Board, 487 F.2d 904  .....................................8
Bowie v. Gonzalez, 117 F,2d 11 ................................. 6
Boy Is v. Wirtz, 352 F.2d 63 ........................................6
Colchester Egg Farms, Inc., 214 NLRB No. 64 .... 9
Elm Spring Farm v. United States, 127 F.2d 920 .. 7
Farmers Reservoir & Irrigation Co. v. McComb,

337 U.S. 755 ............................................................6
McElrath Poultry Co., Inc. v. National Labor 

Relations Board, 494 F.2d 518 ...............................8
Mitchell v. Hunt, 263 F.2d 913 ................................6
Mitchell v. Huntsville Wholesale Nurseries,

Inc., 267 F.2d 286 .........................................   7
National Labor Relations Board v. Gass,

377 F.2d 438 .......................   6

31



Page
National Labor Relations Board v. Olaa Sugar 

Company, 242 F.2d 714 ................................... . 6
National Labor Relations Board v. Strain Poultry 

Farms, Inc., 405 F.2d 1025 ...............................  7-8
National Labor Relations Board v. Victor

Ryckebosch, Inc., 471 F.2d 20 ............................ 8
Skidmore v. Swift & Co. 323 U.S. 134 .................. 7
Wirtz v. Jackson & Perkins Co., 312 F.2d 48 ........7
Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 .... . 8, 9

Statutes:

Fair Labor Standards Act, as amended (52 Stat.
1060, 29 U.S.C. 201, et seq.) ................... ............ 2

Section 3(f), 29 U.S.C. 203(f) ................... 5-6
National Labor Relations Act, as amended (61

Stat. 136, 29 U.S.C. 151, et seq.) .........................2
Section 2(3), 29 U.S.C. 152(3) ..................... 5
Section 8(a)(1), 29 U.S.C. 158(a)(1) .............5
Section 8(a)(5), 29 U.SC. 158(a)(5) .............. 5

60 Stat. 698   .........................................................5
87 Stat. 763 ................................................................5

Miscellaneous:
Commission on Revision of the Federal Court Ap­

pellate System, Structure and Internal Proce­
dures: Recommendations for Change (1975) ..... 9

32 n



% Supreme Court of tt|r plntierl States
October Term, 1975

No. 75-1267
Bayside Enterprises, Inc., et al., petitioners 

v.
National Labor Relations Board

ON PETITION FOR A W RIT OF CERTIORARI TO 
THE UNITED S T  A TES COURT OF APPEALS FOR THE 

FIRST CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al- 
A5) is reported at 527 F. 2d 436. The Board’s decision 
and order (Pet. App. A7-A22) are reported at 216 NLRB 
No. 92.

JURISDICTION

The judgment of the court of appeals was entered on 
December 10, 1975 (Pet. App. A6). The petition for a writ 
of certiorari was filed on March 8, 1976. The jurisdiction 
of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether truck drivers, who transport feed from their 
employer’s mill to independent farms under contract with 
the employer to raise poultry hatched in his hatchery 
facilities, are employees, rather than agricultural laborers, 
and thus covered under the National Labor Relations Act.

( 1) 33



2

STATUTES INVOLVED

The relevant portions of the National Labor Relations 
Act, as amended (61 Stat. 136, 29 U.S.C. 151, et seq.), 
and of the Fair Labor Standards Act, as amended (52 
Stat. 1060, 29 U.S.C. 201, et seq.), are set forth at page 
2 of the petition.

STATEMENT

1. Petitioner Bayside Enterprises, Inc., operates chick 
hatcheries and breeding farms in Belfast, Maine (Pet. 
App. A10; Tr. 34-37, 129-130).1 Bayside has contracts with 
119 independent growers or farmers in the area around 
Belfast for the care and feeding of the chickens from the 
age of one day until they are ready for processing for 
market (Pet. App. All ;  Tr. 30-31). Petitioner Poultry 
Processing, Inc., a wholly owned subsidiary of Bayside, 
operates a mill at Thorndike, Maine, which supplies feed 
to the independent farms as well as to another poultry 
firm (Pet. App. A11-A12; Tr. 80-81, 84-85). Most of the 
poultry raised by the contract farms for Bayside is sold 
to Poultry Processing and processed for market at a plant 
owned by Poultry Processing (Pet. App. A12; Tr. 54-55, 
190-191).2 Although Bayside and Poultry Processing 
have separate employees, they have common officers and 
directors, a single corporate office, and a single controller

'“Tr.” references are to the transcript of testimony before the 
Board, a copy of which has been lodged with the Clerk of this Court.

Employees at this plant (which operates under the name of 
Penobscott Poultry Company), including crews who transport the 
live poultry from the contract farms to the plant, are jointly 
represented by Truck Drivers, Warehousemen, and Helpers of 
America Local 340, International Brotherhood of Teamsters, and 
Amalgamated Meat Cutters Local 385 (Tr. 54-55, 191).

34



3

(Pet. App. A 13; Tr. 79, 88, 147-148, 152-153). They have 
common management and common control over labor 
relations (Pet. App. A13; Tr. 9-13, 40, 139-140).

Bayside furnishes feed, medicine and other supplies to 
the independent farmers and occasionally sends em­
ployees to the farms to observe the care given to the 
chickens and to determine if medical attention is needed 
(Pet. App. Al l ;  Tr. 40-41). The contract between Bay- 
side and the farmers (“growers”) provides that “the 
Grower, his agents and employees shall not be considered 
to be employees of Bayside for any purpose whatsoever” 
(Pet. App. A28). The farmers provide the land, the 
facilities, and the labor for raising the poultry (Pet. App. 
All ;  Tr. 78). A farmer’s compensation for raising the 
poultry is ordinarily determined by the weight of the 
flock at maturity less the cost of the feed and materials 
supplied (Pet. App. A15, A23-A28; Tr. 101-105, 110-111, 
125). Title to the chickens remains in Bayside until 
after they leave the farms for processing (Pet. App. Al l -  
A12; Tr. 40).

Bayside employs 6 truck drivers to deliver feed from 
the mill at Thorndike to the independent contract 
growers who are situated, on the average, from 12 to 
15 miles from the mill (Pet. App. A13; Tr. 53, 182). The 
drivers are supervised by a mill supervisor and dispatcher 
who makes up delivery schedules (Pet. App. A13-A14; 
Tr. 112, 135, 164-165, 174-179, 213-225).

The feed trucks are loaded and weighed at the mill, 
sometimes by the drivers and sometimes by the dis­
patcher (Pet. App. A 14; Tr. 69, 177, 181-183, 199-200). 
In either case, the drivers are given slips telling them how 
much feed of a particular type to deliver to a given farm 
(Pet. App. A14; Tr. 176-177). The drivers then drive 
to the contract farms where they unload the feed into 
bins designated by the farmers (Pet. App. A14; Tr. 67,

35



4

200). The drivers’ responsibilities include putting the 
proper amounts of feed into the designated bins, trying to 
keep rain out of the bins when unloading in bad weather, 
spraying their boots and trucks with disinfectant to avoid 
spreading poultry diseases, and driving their trucks 
carefully so as to avoid disturbing the chickens by loud 
noises and bright reflections from headlights (Pet. App. 
A14-A15; Tr. 67-68, 74).

The drivers have no direct contact with the poultry (Pet. 
App. A15; Tr. 112). Less than half of the drivers’ time is 
spent at the farms; the remainder is spent at the feed mill 
and in driving (Pet. App. A14-A15; Tr. 166-167). The 
drivers deliver feed to three or four farms a day (Pet. App. 
A 15; Tr. 64), spending from half an hour to an hour at 
each farm (Tr. 201). They drive approximately 100 to 120 
rpiles each day (Tr. 224).3

In October 1973, the Union4 requested recognition as 
the representative of Bayside’s drivers who deliver feed 
from the Thorndike mill to the contract farms (Pet. App. 
All).  Bayside recognized the Union and began contract 
negotiations (Pet. App. All ;  Tr. 11). However, after 
several sessions, Bayside broke off bargaining negotia­
tions on the ground that the drivers were agricultural 
employees and hence not covered by the Act (Pet. App. 
All ;  Tr. 13, 16).

2. Upon charges filed by the Union, the Board found 
that Bayside and Poultry Processing constituted a single

’In addition to making deliveries to the contract farms, the drivers 
have also on occasion delivered feed from another feed mill to breeder 
farms owned by Bayside, and have transported feed ingredients from 
Rockland, Maine, and Gloucester, Massachusetts, to the feed mill at 
Thorndike (Pet. App. A15-A16; Tr. 112-114).

4Local 340 of the Teamsters, one of the representatives of the pro­
cessing plant employees (n. 2, supra).

36



5

employer (“Bayside”) for purposes of the National Labor 
Relations Act (NLRA). The Board further found that, while 
Bayside’s own breeding farms and hatcheries may consti­
tute branches of farming, the feed mill and feed delivery 
operations were not farming, and that the feed truck driv­
ers’ duties were incidental to the operation of the feed mill 
and not to Bayside’s farming operations. (Pet. App. A 18- 
A19.) Accordingly, the Board concluded that the drivers 
were not “agricultural laborers” but rather “employees” 
within the meaning of Section 2(3) of the NLRA, that they 
constituted an appropriate unit for bargaining, and that 
Bayside thus violated Section 8(a)(5) and (1) of the NLRA 
when it refused to bargain with the Union for that unit 
(A20). The Board entered a bargaining order (Pet. App. 
A21-A22, A7-A8).

3. The court of appeals enforced the Board’s order (Pet. 
App. A1-A5). The court upheld the Board’s finding that 
Bayside and Poultry Processing were a single employer, 
“a multi-faceted organization whose enterprises and pur­
poses go beyond the bounds of farming” (Pet. App. A4). 
The court also held that Bayside was not a farmer “for 
that portion of its business which supports the raising of 
poultry on contract farms” and that thus the feed mill 
drivers were not employed “incidental to or in conjunc­
tion with” Bayside’s own farming operations (Pet. App. 
A5). Consequently, they were not exempt from the NLRA 
as agricultural laborers {ibid.).

ARGUMENT
1. Section 2(3) of the NLRA excludes from the defini­

tion of employee “any individual employed as an agricul­
tural laborer.” Since 1946, riders to the Board’s appropria­
tion acts (e.g., 60 Stat. 698; 87 Stat. 763) have regularly 
provided that the term “agricultural laborer” shall be 
defined in accordance with Section 3(f) of the Fair Labor 
Standards Act (FLSA), 29 U.S.C. 203(f), which reads:

37



6

“Agriculture” includes farming in all its branches 
and * * * includes * * * the raising of * * * poultry, 
and any practices * * * performed by a farmer or on 
a farm as an incident to or in conjunction with such 
farming operations * * * .

This Court has held that the FLSA definition has two 
distinct parts. The first relates to actual farming operations, 
and the second “includes any practices whether or not 
themselves farming practices, which are performed either 
by a farmer or on a farm, incidentlv to or in conjunction 
with ‘such’ farming operations.” Farmers Reservoir & 
Irrigation Co. v. McComb, 337 U.S. 755, 763. The activi­
ties included in the second portion of the definition, how­
ever, must actually be performed on a farm, and be inci­
dental to the farming operations of that farm. Id. at 766, 
n. 15; Bowie v. Gonzalez, 117 F.2d 11, 18 (C.A. 1); 
Mitchell v. Hunt, 263 F.2d 913 (C.A. 5). See also National 
Labor Relations Board v. Olaa Sugar Company, 242 F.2d 
714, 718 (C.A. 9); cf. Boyls v. Wirtz, 352 F.2d 63 (C.A. 5).

The court of appeals correctly applied these principles 
in rejecting petitioners’ contention that the feed mill driv­
ers came within the second part of the definition because 
they were performing services incidental to Bayside’s 
farming operations.5 As the court stated (Pet. App. A4- 
A5):

The bulk of the capital and personnel of Bayside 
is devoted to the feed mill and the processing plant 
operations which are concededly not farming. The 
company does operate chick hatcheries and breeding 
farms which do constitute farming under the appli­
cable statutes. 29 C.F.R. §780.125(b) (1974). In the 
remaining segment of the business, the raising of

38

5The court followed its earlier decision in National Labor Relations 
Board v. Gass, 377 F.2d 438 (C.A. 1).



7

chickens to maturity, the actual farming activity is 
done by the contract farmers. According to current 
Department of Labor regulations, retention of title to 
the poultry pending maturity on contract farms does 
not entitle a business to be classified as a farmer. 29 
C.F.R. §780.126 (1974).4 Nor does Bayside’s delivery 
of feed, however crucial to the development of poultry 
on the contract farms it may be, justify classifying 
Bayside as a farmer. Rather, the Bayside feed delivery 
system is part of a separate organization, supportive 
of agricultural activity, but not directly engaged in 
farming. See 29 C.F.R. §780.126 (1974) * * * .

4“Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter 
agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed 
and possibly additional items. Typically, the feed dealer or processor retains title to the chickens until they are sold. 
Under such an arrangement . . . [t]he activities of the feed dealer or processor . . .  are not ‘raising of poultry’ and 
employees engaged in them cannot be considered agricultural employees on that ground . . . ."

The court properly relied on the Department of Labor 
regulations; since the regulations were promulgated 
by the agency in charge of enforcing the FLSA, they are 
entitled to great weight. Skidmore v. Swift <& Co., 323 
U.S. 134, 139-140. Moreover, the regulations are con­
sistent with analogous case law involving similar con­
tractual arrangements for growing or processing an 
employer’s product. See Mitchell v. Huntsville Wholesale 
Nurseries, Inc., 267 F. 2d 286 (C.A. 5); Wirtzv. Jackson & 
Perkins Co., 312 F. 2d 48, 51 (C.A. 2); Elm Spring Farm 
v. United States, 127 F. 2d 920 (C.A. 1).

2. While we believe it is correct, the decision of the 
court below is in conflict with decisions of other courts 
of appeals. Thus, in National Labor Relations Board v.

39



8

Strain Poultry Farms, Inc., 405 F. 2d 1025, the Fifth Circuit 
held that, in a poultry raising operation similar to that here, 
the agricultural exemption applied to the employer’s 
(Strain’s) truck drivers, who hauled chickens to market 
from farmers under contract with Strain to grow them to 
maturity. In the court’s view (id. at 1032), “[t]he fact 
that Strain hired the independent growers to raise 
its birds and contract loaders to catch the birds for loading 
onto its trucks would not seem to destroy its claim to hav­
ing raised the poultry.” The Ninth Circuit, following Strain, 
reached the same conclusion in a substantially identical 
situation. National Labor Relations Board v. Victor 
Ryckebosch, Inc., 471 F. 2d 20. Moreover, in Abbott 
Farms, Inc. v. National Labor Relations Board, 487 F. 2d 
904, and McElrath Poultry Co., Inc. v. National Labor 
Relations Board, 494 F. 2d 518, the Fifth Circuit extended 
Strain to exempt from the NLRA feed mill employees and 
employees who transport feed to and from the employ­
er’s mill. See also Wirtz v. Tyson’s Poultry, Inc., 355 F. 2d 
255 (C.A. 8).

The court below purported to distinguish Strain and 
Abbott on the ground that the employers there were 
primarily engaged in traditional agriculture and, unlike 
petitioners, owned no processing plant to slaughter 
and dress the poultry (Pet. App. A5). We submit, however, 
that the underlying rationale for the court’s decision is 
directly at odds with that of Strain and Abbott, as well 
as of the other contrary decisions which the court did not 
specifically attempt to distinguish.6 The analysis of the 
court below rests on the premise that Bayside’s farming

6The court below did indicate that it found the contrary decisions 
unpersuasive (Pet. App. A3).

40



9

operations are limited to its hatcheries, which are sep­
arate from its feed mill operations, and that the inde­
pendent farmers who are under contract to raise Bay- 
side’s poultry to maturity are engaged in their own 
farming. Thus services furnished by Bayside’s feed mill 
drivers are incidental to its feed mill operations, rather 
than to any farming operations. The other courts have 
rejected this basic premise.

3. The question presented is a recurring one in the 
administration of the NLRA. Thus, in Colchester Egg 
Farms, Inc., 214 NLRB No. 64, the Board reaffirmed its 
position in the instant case, and has filed an application 
for enforcement in the Second Circuit (No. 76-4052).7 
As petitioners note (Pet. 9), there are serious practical 
objections to having a conflict in the circuits on this 
issue.8 Moreover, resolution of the issue would have a 
direct impact on cases arising under the FLSA (see Wirtz 
v. Tysons Poultry, supra), as well as on those arising under 
other statutes which refer to agricultural laborers or 
employees (see Pet. 11, n. 13).

7The Board has requested the Second Circuit to hold the proceeding 
in abeyance until this Court rules on the instant petition.

sFor example, petitioners’ earlier attempt to have the instant 
case reviewed in the Fifth Circuit (see 514 F. 2d 475 (C.A. 1), 515 
F. 2d 503 (C.A. 5) ) demonstrates that the conflict among the circuits 
furnishes a strong inducement for forum shopping.

The Commission on Revision of the Federal Court Appellate 
System has identified the question presented here as one that 
has too long escaped authoritative resolution. Structure and Internal 
Procedures: Recommendations for Change (1975), A152-A153.

41



10

CONCLUSION
For the foregoing reasons, the petition for a writ 

of certiorari should be granted.
Respectfully submitted.

Robert H. Bork,
Solicitor General.

J ohn S. Irving,
General Counsel,

J ohn E. Higgins, jr .,
Deputy General Counsel,

Norton J. Come,
Deputy Associate General Counsel,

Robert A. Giannasi,
Assistant General Counsel,
National Labor Relations Board.

April 1976.

42



Intfjoe
Bnpxmt fflmttrt o f %  It u & i S t a t e

Octobeb Teem, 1975

No. 75-1267

BAYSIDE ENTERPRISES, INC., 
PENOBSCOT POULTRY COMPANY, 
and POULTRY PROCESSINGS, INC.

v.

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR PETITIONERS

Alast J. Levenson, Esq. 
Attorney for Petitioners 

187 Middle Street 
Portland, Maine 04111

43



INDEX

Page
Opinions Below .............................................................
Jurisdiction ...................................................................
Statutes Involved .........................................................
Questions Presented ....................................................
Statement ......................................................................
Argument ......................................................................

Tlie Company’s Six Feed Drivers Are “ Agricul­
tural Laborers” and Therefore Exempt Under Sec­
tion 2(3) of the National Labor Relations Act...........

I. Introduction and Summary ..............................
II. Bayside as a F a rm er........................................

A. Bayside as less than a farmer—the growout
contract .......................................................

B. Bayside as more than a farmer—the pro­
cessing plant ..............................................

C. Bayside as a poultry raiser—the employing
entity ...........................................................

III. The Feed Drivers as Being Incidental to and in
Conjunction With Farming ..............................

Conclusion ....................................................................

1
2
2
2
4

5
5
7

7

10

14

19
21

T able op C itations 

Cases
Abbott Farms, Inc. v. National Labor Relations Board,

487 F.2d 904 (5th Cir. 1973) .................................. 12, 20
Birmingham v. Bucher’s Breeding Farm, 152 F.2d 837

(8th Cir. 1945) .........................................................  20
Bowie v. Gonzalez, 177 F.2d 11 (1st Cir. 1941) ............  11
Colchester Egg Farms, Inc., 214 NLRB No. 64 (1974) 19
DiGiorgio Fruit Corp., 80 NLRB 853 (1948) ............  13
Elm Spring Farm v. United States, 127 F.2d 920 (1st 

Cir. 1942) ..................................................................  8

45



ii Index

Page
Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462

I’.2d 737, 741 (1969) ............................................. 13, 18
Farmers Reservoir $  Irrigation Co. v. McComb, 337

U.S. 755 (1949) ................................................  5, 14, 20
Fors Farms, Inc. v. Washington State Employment 

Security Dept., 75 Wash. 2d 383, 450 P.2d 973
(1969) ..................................................................  11, 20

George I. Petit, Inc., 89 NLRB 710 (1950) .................. 18
Hersey Estates, 112 NLRB 1300 (1955) ...................  13
Johnston v. Cotton Producers Association, 244 F.2d

553 (5th Cir. 1957) ................................................  9, 18
Local Union No. 300 v. McCulloch, 428 F.2d 396 (5th

Cir. 1970) ..................................................................  18
Manejav. Waialua, 349 U.S. 254 (1954) .................. 12, 18
Maplewood Poultry Company v. Maine Employment 

Security Commission, 151 Me. 467 A.2d 360 (1956) 13, 20 
McElrath Poultry Co., Inc.v. National Labor Relations

Board, 494 F.2d 519 (5th Cir. 1974) .....................  13, 20
Mitchell v. Huntsville Wholesale Nurseries, Inc., 267

F.2d 286 (5th Cir. 1959) ...........................................  8
NLRB v. Bayside Enterprises, Inc., 527 F.2d 436 (1st

Cir. 1975) ..................................................................  15
NLRB v. Gass, 377 F.2d 438, 444 (1st Cir. 1967) . . . .  11, 15 
NLRB v. John W. Campbell, Inc., 159 F.2d 184 (5th

Cir. 1947) ..................................................................  12
NLRB v. Kelly Brothers Nurseries, Inc., 341 F.2d 433,

435 fn. 2 ...................................................................... 18
NLRB v. Kent Bros. Transportation Co., 458 F.2d 480

(9th Cir. 1972) ................  14
NRLB v. Olaa Sugar Company, 242 F.2d 714 (9th Cir. 

1957) .........................................................................  19
NLRB v. Strain Poultry Farms, Inc., 405 F.2d 1025,

1033, 1032-35 (5th Cir. 1969) ........................... 8, 9, 18
NLRB v. Victor Rychebosch, Inc., 471 F.2d 20 (9th Cir. 

1972) .........................................................................  19

46



Index iii

Page
North Whittier Heights Citrus Assn., 10 NLRB 1269

(1939) ........................................................................  16
Vives v. Serralles, 145 F.2d 552 (1st Cir. 1944) ......... 14
Waldo Rohnert Co. v. NLRB, 322 F.2d 46 (9th Cir.

1963) .......................................................................... 8
Wirtz v. Jackson <& Perkins Co., 312 F.2d 48 (2nd Cir.

1963) .........................................................................  8
Wirtz v. Osceola Farms Co., 372 F.2d 584 (5th Cir.

1967) .......................................................................... 20
Wirtz v. Tyson’s Poultry, Inc., 355 F.2d (8th Cir. 1966) 10

Statutes
Fair Labor Standards Act, as amended (52 Stat. 1060,

29 TT.S.C. 201, et seq.) ..............................................  2
Section 3(f) .................................................... 3, 19
Section 13(a)(6) ..............................................  18
Section 13(g) ...................................................  18

National Labor Relations Act, as amended (61 Stat.
136, 73 Stat. 519, 29 U.S.C. 151, et seq.) .................. 2

Section 2(3) ...................................................... 2, 5
60 Stat. 698 ..................................................................  2
87 Stat. 763 ..................................................................  2

Miscellaneous
Broiler Industry: An Economic Study of Structure, 

Practices and Problems, U.S. Department of Agri­
culture (1971) .............................................- ........  17, 18

54 Cal. L. Rev. 1939, 1955 ............................................. 18
25 Labor Law Journal 241 .........................................  19
Legislative History of NLRA, p. 3202 .......................  18
Vertical Coordination via Contract Farming, Economic 

Research Service, U.S. Department of Agriculture, 
Miscellaneous Publication No. 1073, p. 74, et seq.
(1968) 10

47



lit %
Supreme (Hmtrt of tfr? States

O ctober T er m , 1975

No. 75-1267

BAYSIDE ENTERPRISES, INC., 
PENOBSCOT POULTRY COMPANY, 
and POULTRY PROCESSING, INC.

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the Court of Appeals (Pet. app. A. 1-5) 
is reported at 527 F.2d 436. The Board’s Decision and 
Order (Pet. app. A. 7-22) are reported at 216 NLRB No. 91.

49



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
December 10, 1975 (Pet. app. A. 6). The Petition for a 
Writ of Certiorari was filed March 8, 1976 and was granted 
on May 19, 1976. The jurisdiction of this court rests on 
28 U.S.C. 1254 (1).

Statutes Involved

The relevant provisions of the National Labor Relations 
Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 151, 
et seq.) are as follows:

Sec. 2 * * *
# * #

(3) The term “ employee” shall include any em­
ployee, and shall not be limited to the employees of 
a particular employer, unless the act explicitly states 
otherwise, and shall include any individual whose work 
has ceased as a consequence of, or in connection with 
any current labor dispute or because of any unfair 
labor practice, and who has not obtained any other 
regular and substantially equivalent employment, but 
shall not include any individual employed as an agri­
cultural laborer, or in the domestic service of any 
family or person at his home, or any individual em­
ployed by his parents or spouse, or any individual 
having the status of independent contractor, or any 
individual employed as a supervisor, or any individual 
employed by an employer subject to the Railway Labor 
Act, as amended from time to time, or by any other
person who is not an employer as herein defined.

* * #

50



3

Since 1946, riders to the Board’s appropriation acts 
(e.g., 60 Stat. 698; 87 Stat. 763) have regularly provided 
that the term “ agricultural laborer” shall be defined in 
accordance with Section 3(f) of the Fair Labor Standards
Act (F.L.S.A.) 29 U.S.C. 203(f).

# # #
The relevant provisions of the Fair Labor Standards Act, 

as amended (52 Stat. 1060, 29 U.S.C. 201, et seq.) 29 U.S.C. 
203(f):

3(f) “ Agriculture” includes farming in all its 
branches and among other things includes the cultiva­
tion and tillage of the soil, dairying, the production, 
cultivation, growing, and harvesting of any agricul­
tural or horticultural commodities (including com­
modities defined as agricultural commodities in Sec­
tion 15(g) of the Agricultural Marketing Act, as 
amended), the raising of livestock, bees, fur-bearing 
animals, or poultry, and any practices (including any 
forestry or lumbering operations) 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.

Question Presented

Whether the Court of Appeals correctly determined that 
the Board’s decision that employees of a poultry organiz­
ation vertically integrated from hatcheries to processing 
plant, who transport feed from the company’s feed mill to 
its contract farms are covered “ employees” rather than 
exempt “ agricultural laborers” under the National Labor 
Relations Act as defined in the Fair Labor Standards Act.

51



4

Statement

Bayside Enterprises, Ine. and Poultry Processing, Inc. 
are parent and subsidiary corporations engaged in poultry 
hatching, breeding, raising, processing, and marketing in 
central coastal Maine. Like many other poultry organiza­
tions these days, the companies, which have been found to 
be one joint enterprise, are made up of several elements.

There is a breeder hatchery at Waldo with six primary 
breeder farms connected to it (A. 11), a commercial hatch­
ery at Unity with eleven farms connected to it (A. 11), 
and a feed mill at Thorndike that produces 80-85 percent of 
the feed required by the Bayside contract farmers (A. 24- 
25). At the time of the hearing, one-third of the production 
of this mill was sold to an unconnected company1 
(A. 26). Also located at Thorndike with a separate office 
for its dispatcher (A. 49) is the feed move operation whose 
drivers are the subject of this case. They deliver all of 
the Bayside medicine and feed produced at the mill to the 
Bayside contract farmers (A. 42). The other one-third of the 
production of the feed mill that is sold to an unconnected 
company, is transported to their contract farms by an inde­
pendent trucker (A. 6). There is also a processing plant 
at Belfast (A. 17-18) that processes all of the Bayside 
Poultry (A. 35), and a general business office at Belfast 
where the General Manager, Comptroller, Breeder Depart­
ment Manager, Broiler Department Manager, and the ac­
counting office is located (A. 8, 60). Over two-thirds of 
the 119 contract farms are located within a 12 to 15 mile 
radius of the feed mill (A. 17).

Beside the feed drivers that deliver the feed and medi­
cines in specialized trucks, the enterprise has other truck 
drivers that transport eggs to breeder farms and chicks 
to the contract farms (A. 18). Attached to the processing

1 The Company’s feed mill now is used exclusively for its own 
production needs.

52



5

plant under separate supervision are truck drivers that 
catch, coop, and deliver the birds from the contract farms 
to the processing plant (A. 50-51). There are farm super­
visors who check the health of the poultry on a regular 
basis at the farms (A. 13, 45), and there is a full time farm 
crew that take blood tests, debeak and vaccinate the poultry, 
and clean the poultry houses after each flock is taken out 
(A. 19). The company also employs a full time geneticist 
to constantly improve the strain (A. 10). The ownership 
of both feed and poultry is at all times in Bayside.

The enterprise has organized itself so that the 400 em­
ployees of the processing plant and the feed mill are paid 
by Poultry Processing, Inc. The other 80 working at and 
for the hatcheries, breeding and contract farm, are paid 
by Bayside Enterprises Inc.2

Argument

T h e  C om pa n y ’s S ix  F eed D rivers A be “ A gricultural 
L aborers”  and T h ebepoee  E xem pt  U nder S ection  2(3) 
op t h e  N ational L abor R elations A ct.

I . I ntroduction  and S um m ary

The combination of Section 2(3) of the NLRA exempting 
“ agricultural laborers” with the annual appropriation 
rider for the NLRB defining those words under Section 
203(f) of the Fair Labor Standards Act have produced 
this controversy over the eligibility of the appellants to 
fall within that definition.1 Farmers Reservoir & Irrigation

2 The Petitioners can accept the factual findings of the Adminis­
trative Law Judge (Pet. app. A. 9-16). In the appendix there is 
a more complete annotated rendition of the facts (A. 66-77).

1 “ ‘ Agriculture ’ includes farming in all its branches and . . . 
includes . . . the raising of . . . poultry and any practices . . . per­
formed by a farmer or on a farm as incident to or in conjunction 
with such farming operations . . . ”

53



6

Co. v. McComb, 337 U.S. 755, 762-63 (1949) has pointed out 
that the FLSA section has two distinct parts — (1), actual 
farming operations and (2), “ any practices, whether or 
not themselves farming practices, which are performed 
either by a farmer or on a farm, incidentally to or in 
conjunction with ‘such’ farming operations.” Id. at 763.

Since the work of the feed drivers in loading, transport­
ing, and delivering feed to their employer’s contract farms 
is not actual farming, Bayside contends that their work 
falls within the secondary branch of farming. To so qualify, 
their employer must be a farmer and their own work must 
be incidental to such farming.

The conflict within the National Labor Relations Board 
and between the circuits centers upon the first of those 
requirements, namely, is a poultry organization such as this 
a “ farmer.” The question of the work being incidental 
to farming in this particular case has much less significance 
because if the company is a farmer it follows that the work 
of the drivers is incidental to that farming.

The rejection of the classification “ farmer” for Bayside 
and companies like it by the NLRB and the First Circuit 
has two distinct generic roots. The first emphasizes the 
contract farmers, maintaining that it is they and not the 
company who are raising the poultry. The second argu­
ment stresses the processing plant, urging that it gives 
the whole company a commercial coloration that pre­
dominates over any farming aspect.

The company maintains that both the contract farmers 
and the processing plant are but parts of a whole, inte­
grated operation that has as its essence the raising and 
marketing of its own poultry and as such it is a “ farmer.”

54



7

II. B ayside as a F abmeb

A. Bayside as Less Than a Farmer — The Growout 
Contract

The principal argument against Bayside being a farmer 
centers upon the growout contract with its farmers. This 
is the arrangement whereby the birds from its hatcheries 
and breeding farms are placed upon farms belonging to 
others until they grow to maturity (a typical contract and 
a duplicate of Exhibit 1 can be found at Page A. 23 of 
Pet. App.)

From the contract farmer’s point of view, he agrees to 
keep and maintain suitable facilities for the flocks, including 
adequate housing, water, feed, oil storage, and dead bird 
disposal facilities, according to Bayside’s specifications. He 
also agrees to follow Bayside’s directions in the care and 
management of each flock, to use only Bayside materials 
for feeding and maintenance, and to have no other poultry 
on his farm during the contract period (Pet. App. A. 26-27).

Bayside furnishes the chicks, feed, fuel, litter, medica­
ments, and vaccines, makes the decision when and what 
kind of poultry are placed on each farm, what they are fed 
(A. 15), what medicines, vaccines, and blood tests are 
administered, and when to remove each flock from the 
farmer’s premises (A. 45). Bayside maintains a farm 
crew that watches over these farms and cleans out the 
poultry houses after each flock is removed (A. 20).

In return for his services and the use of his facilities, 
the farmer is guaranteed payment on the basis of the 
square footage in his poultry house plus a bonus based 
on the pounds of poultry he has produced in relationship 
to his production costs with the rest of the growers (A. 30). 
This contract arrangement between the farmer and the 
company is the focal point in the clash between the argu-

55



8

merits over whether the farmer is an integral part of the 
poultry company or whether he is an independent entre­
preneur.

In the brief for the Respondent, on the petition for 
certiorari in this case, there are cited three cases as 
examples of analogous contract arrangements with the 
Bayside growout contract (p. 7). They are Mitchell v. 
Huntsville Wholesale Nurseries, Inc., 267 F.2d 286 (5th Cir. 
1959) rose growers; Wirte v. Jackson & Perkins Co., 312 
F.2d 48, 51 (2nd Cir. 1963) nursery stock; and Elm Spring 
Farm v. United States, 127 F.2d 920 (1st Cir. 1942) milk 
handler. Petitioners have also found another case favor­
able to the Respondent, Waldo Rohnert Co. v. NLRB, 322 
F.2d 46 (9th Cir. 1963) seed growers.

However, Petitioners feel that these cases not only do 
not support Respondent, but make clearer the distinction 
of a vertically integrated poultry grower.

In Mitchell v. Huntsville, supra, although Huntsville sup­
plied the growers with the plants, it only paid them “ based 
on an agreed amount for each merchantable plant pro­
duced” 267 F.2d 289 for 2.2

In Jackson <fc Perkins, supra, although the growers pro­
vided the land, labor and equipment, they agreed to indem­
nify the company for any claims arising out of the farming 
operations. The growers also bore any loss due to crop 
failures save for the cost of the original understock, and 
the developed stock was sold by them to the defendant at 
a price calculated per saleable plant. 312 F.2d 48, 51.

The Elm Spring Farm case, supra, was a promotion by 
a company to a group of dairy farmers to claim the milk 
received from the farmers was its own and thereby escape

2 The same Fifth Circuit in NLRB v. Strain Poidtry Farms, Inc., 
405 F.2d 1025, 1033 (5th Cir. 1969) distinguished Huntsville 
saying the stock was purchased and that the growers were not 
employees or agents of the company.

56



9

making payments to an equalization pool. The court prop­
erly disregarded what it called an ‘ ‘ elaborate camouflage ’ ’ 
since at any time the cooperative could make the farmer 
take back title to a cow or the farmer himself could demand 
a retransfer of all the cows on 90 days notice. The risk 
of loss in the production of milk remained upon the indi­
vidual farmer. 127 F.2d 920, 926.

In the Rohnert Co. case, supra, the growers also did not 
receive compensation under the seed contract for any crop 
seed which was not as to quality and grade acceptable to 
Rohnert “ as acceptable merchantable seed” and the grower 
had to pay Rohnert for any planting seed supplied by it 
if the planting seed failed to produce a crop or produced 
undergrade crop seed. 322 F.2d 46, 47.

The common thread in these cases was the fact that the 
farm product had to be marketable, saleable, or acceptable to 
the company and thus the risk of loss fell on the farmer.3

The First Circuit looks upon the Bayside-farmer ar­
rangement and labels it in “ support” of the raising of 
poultry, 527 F.2d 436, 438. It thus rejects the argument 
in NLRB v. Strain Poultry Farms, Inc., 405 F.2d 1025 
(5th Cir. 1969) that companies such as Strain, Bayside, and 
other vertically integrated poultry organizations are en­
gaged in farming in its primary sense.

What Strain points out is that it is the poultry company 
that continually retains the ownership of the birds and 
assumes the risk of loss throughout the entire process. 
It also assumes the risk of market fluctuations which affect 
the price of the birds. This is unlike the previous contractor-

3 Even in Johnston v. Cotton Producers Association, 244 F.2d 
553, 554 (5th Cir. 1957), the ease quoted in the Department of 
Labor interpretation 29 C.F.R. 780.126 (1972) relied upon by the 
First Circuit, the Exchange sold the baby chicks to the farmer- 
customer, but retained title as security for the purchase price 
and for advances for feed, supplies or equipment.

57



10

farmer examples in which it is the farmer that accepted 
this risk.

In Wirts v. Tyson’s Poultry, Inc., 355 F.2d 255 (8th Cir. 
1966) the situation is very much like Bayside with a corpo­
ration and two subsidiaries that together make up a single 
integrated egg producer. There the court said at Page 258:

“ . . . the appellees (Tyson) are farmers and the ones 
who initiate the farming operations here involved. 
Without appellees the independent growers arguably 
would never have undertaken the initial and continu­
ing cost of acquiring the birds and producing the eggs. 
The contract growers merely aid the appellees, who 
the District Court found to be the ones qualified to 
claim the agricultural exemption . . . ”

The point is that it is not the poultry company that is 
supporting the farmers, but it is the farmers who are 
aiding the company in raising the poultry.

Whether you define the relationship as an agency, sub­
contractor, or in substance as a lease by the company of 
the farm, equipment, and labor (A. 12), the elements of 
entrepreneurship have been shifted by contractual agree­
ment from the farmer to the contractor-company. Vertical 
Coordination via Contract Farming, Economic Research 
Service U.S. Department of Agriculture, Miscellaneous 
Publication No. 1073, p. 74 et seq. (1968). It is this shifting 
that makes the farmer an integral part of the company. 
The income of the farmer is not affected by the market price 
at the time the poultry leaves his farm and he is guaranteed 
at least a minimum preset price, no matter what the market.

B. Bayside As More Than A Farmer — The Proces­
sing Plant

The Court of Appeals decision in this case although using 
the independent contract farms argument also makes a

58



11

different argument grounded in the company’s ownership 
of a processing plant for its poultry. The decision states 
that the Court’s previous decision in NLRB v. Gass, 377 
F.2d 438, 444 (1st Cir. 1967) was predicated on the 
fact that the truckdrivers there were employed by 
an integrated poultry processing company. The deci­
sion characterizes Bayside as a multifaceted or­
ganization whose enterprises and purposes go be­
yond the bounds of farming. It points to the feed mill 
and processing plant where it says the bulk of the capital 
and personnel are, and notes that these are “ coneededly” 
not farming. Finally, it denies the farm exemption dis­
tinguishing other contrary opinions because those compa­
nies were engaged in “ traditional” agriculture with no 
processing plant. The court finishes by saying Bayside’s 
operations are not “ predominantly” agriculture.

Although there are certain elements in this commercial 
argument that find their root in the independent contract 
farmers argument (i.e. if the farmers were indeed inde­
pendent then the processing plant would actually be a com­
mercial enterprise since it was processing the products 
of different farms and different farmers, Bowie v. Gonzalez, 
177 F.2d 11, 18 (1st Cir. 1941) ) the major point is like that 
articulated by the Supreme Court of Washington in Fors 
Farms, Inc. v. Washington State Employment Security 
Dept., 75 Wash. 2d 383, 450 P.2d 973 (1969). There the court 
said that a corporation engaged in processing chickens and 
manufacturing chicken feed was not an exempt employer 
because basically its operation was a commercial proces­
sing company seeking a stable supply of chickens, rather 
than a farming operation seeking a way of marketing 
products.4

4 The Fors Farms case was a particularly difficult one as it 
involved processing plant employees who had previously been 
covered by the unemployment law and now that their plant had 
been merged with a farmer, he argued that they should be exempt.

59



12

This theory that in a poultry company the entire organ­
ization is incidental to the processing plant rather than 
the reverse is not in keeping with a view of the company 
as a single enterprise concerned with all aspects of grow­
ing, raising, and selling its own product.5

In NLRB v. John W. Campbell, Inc., 159 F.2d 184 (5th 
Cir. 1947) the court said at Page 187

“ no farmer, dependent upon that which he produces to 
sustain his operations, could long exist if he could not 
market that which he produces . . . the wheat farmer 
must thresh his wheat; the cane grower must cut his 
cane and make its juice into syrup; the cotton grower 
must gin and hale his cotton; the citrus grower must 
pick and pack his oranges; and the tomato grower 
must do likewise. So long as these undertakings are 
in preparation and packing by him for market of that 
which he has grown on his farm, the labor necessary 
thereto is agricultural labor.” ’

The court went on to say that if you bought, packed or 
marketed the products of another, that was commercial; 
while if you packed products from your own farm, that was 
agricultural, and that the growing, harvesting, packing, 
and selling of your own product was all part of a single 
enterprise (agriculture) 159 F.2d 184, 187.

5 In Abbott Farms, Inc. v. NLRB, 487 F.2d 904, 905 (5th Cir. 
1973) the court in referring to the trucking operation from the 
feed mill of Abbott said in referring to Strain, “ There, as here, 
the question was whether the poultry raiser was conducting a 
trucking operation (feed mill) on the side or whether the operation 
(mill) was part of a poultry raising venture; — Bayside in this 
case would similarly contend that not only its trucking, but its 
processing plant was part of a whole poultry-raising enterprise. 
This does not necessarily mean that the work of every employee 
automatically is classified as “ agricultural labor” only that Bay- 
side is a “ farmer” under the F.L.S.A. Maneja v. Waialua, 
349 U.S. 254 (1954).

60



13

The Maine Supreme Judicial Court has spoken directly 
on this issue in construing its unemployment statute. In 
Maplewood Poultry Company v. Maine Employment Secur­
ity Commission, 151 Me. 467, 472, 121 A.2d 360 (1956) the 
court said “ we are not aware of any decision which labels 
the business of raising poultry as a business enterprise.”

In Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462 
P.2d 737 (1969) the highest court of that state exempted 
employees of the company processing plant from the em­
ployment law as agricultural laborers where the employer 
owned breeder and poultry farms and processed only his 
own poultry.6

In the McElrath Poultry Co. case, 206 NLRB No. 94 enf. 
denies McElrath Poultry Co., Inc. v. NLRB, 494 F.2d 519 
(5th Cir. 1974) the company was a subsidiary of a parent 
company with a processing plant. There the drivers in 
the feed move operation were ruled exempt as agricultural 
laborers despite the processing plant.

Petitioners question whether in a typical vertically inte­
grated operation that produces all the poultry it processes 
or to put it another way, processes all it produces, it is 
possible to characterize the entire operation by the pre­
dominant motivation (i.e. to assure a stable market for 
poultry; to seek a way to market the product).7

If it is, it would seem the more important aspect would 
be to sell a saleable product; and in the absence of a live 
market for poultry, the birds must be processed (A. 18). 
See DiGiorgio Fruit Corp., 80 NLRB 853, 855-857 (1948).

6 The court said, ‘ ‘ The test as to what constitutes agricultural 
labor turns not on the size of the farming operation involved but 
rather on whether the processor is in reality a farmer-producer, 
and whether the processing is incidental to such farming.” 462 
P.2d 737, 741.

7 There are, however, obvious cases, Hersey Estates, 112 NLRB 
1300 (1955) (a chocolate maker who provided recreational facili­
ties)

61



14

C. Bayside As A Poultry Raiser — The Employing 
Entity

Of extreme importance in all of this discussion and of 
absolute necessity before the question of “ raising poultry” 
can be resolved, is what is the employment entity we are 
discussing. Farmers Reservoir, 337 U.S. at Page 760 says 
that whether a particular type of activity is agricultural,

. . is not determined by the necessity of the activity 
to agriculture nor by the physical similarity of the 
activity to that done by farmers in other situations. 
The question is whether the activity in the particular 
case is carried on as part of the agricultural function 
or is separately organized as an independent produc­
tive activity.”

That case itself demonstrated this principle by example 
when the Court ruled the separately organized water com­
pany there involved to be a non-farmer.8 In NLRB v. Kent 
Bros. Transportation Co., 458 F.2d 480 (9th Cir. 1972) an 
independently organized trucking company that transported 
the produce of others was similarly held covered by the 
NLRA.

Thus, in each case, the answer to the question of which 
entity is the person employed and paid by is sometimes 
determinative of his status, Vines v. Serralles, 145 F.2d 
552, 555 (1st Cir. 1944).

In the poultry industry, whether because of the newness 
of the vertically integrated form of business, the use of

8 The court at Page 766 went on to clarify, “ . . . it is equally 
clear that it does constitute a practice performed as ‘an incident 
to or in conjunction with’ farming. If the act exempted all such 
practices, the company would be exempt. But the exemption is 
limited. Such practices are exempt only if they are performed 
by a farmer or on a farm. ’ ’

62



15

multiple corporations, or the fact that the nature of the 
business requires several quite different elements, there has 
always been some confusion about just what was the em­
ploying entity. In the Gass case before the NLRB, the 
trial examiner wrote that Gass was “ either an integral part 
of this integrated commercial enterprise (Lipman) which 
has engaged in commerce or else it was an independent 
trucking concern hauling for a commercial enterprise which, 
in turn, was engaged in commerce”, 154 NLRB 728, 746. 
The Board said the same feed drivers were employed by 
joint employers, 154 NLRB 728, 732-733. When the case 
reached the Court of Appeals, the court said, “ It is signifi­
cant that these drivers are not employed or paid by the 
farms nor are they under the control of the farmers”, 
NLRB v. Gass, 377 F.2d 438, 444 (1st Cir. 1967).

When the First Circuit decided this case it found Bay- 
side “ a multi-faceted organization” and agreed with the 
administrative law judge “ that Bayside and its component 
parts constitute a single employer with common ownership 
management and control of labor relations.” Further it 
stated that Gass was part of an integrated poultry 
processing company, NLRB v. Bayside Enterprises, Inc., 
527 F.2d 436 (1st Cir. 1975).

The court went on to say, however, that although Bay- 
side could not be classified as a farmer for that portion 
of its business which supports raising of poultry on contract 
farms, it was a farmer in relationship to its chick hatch­
eries and breeder farms. 527 F.2d 438-439.

The court has, therefore, formulated a rule whereby the 
vertically integrated company as a whole would not be 
regarded as engaged in primary agriculture, but parts of 
it would, i.e., the hatcheries and breeder farms.9 In support

9 From the company’s point of view the employing entity has 
also not been free from doubt. The case was tried before the 
Administrative Law Judge on the theory that only the feed drivers’ 
employer, Bayside Enterprises, Inc., was the farmer and that the 
subsidiary Poultry Processing, Inc. was not.

63



16

of the denial of the whole company's status as a farmer, 
the court cited the Department of Labor interpretation 
29 C.F.R. 780.126 (1972) that begins “ Feed dealers and 
processors sometimes enter into contractual arrangements 
with farmers . .

Although Bayside -  Poultry Processing as a single enter­
prise owns a feed mill and a processing plant, it, as an 
organization, cannot be classified as either, nor does the 
statutory exemption depend on the concept of ownership. 
The FLSA makes specific reference to the raising of poul­
try. It is by this standard Bayside seeks to be judged. 
North Whittier Heights Citrus Assn., 10 NLRB 1269 (1939). 
Is it raising poultry!

Bayside begins its poultry program with the hiring of 
a full-time geneticist (A. 10) who selects the basic breeders 
and the traits desired in the birds to be grown. There is 
a breeding hatchery with four or five breeding farms which 
breed and select strains or lines of birds (A. 10) and there 
is a commercial hatchery with eleven breeding farms 
attached to it whose function is to take in eggs and hatch 
chicks (A. 11). When the chicks are one day old, they are 
placed on the contract farms (A. 23) and stay there for 
about nine weeks. Whether on one farm or the other, Bay- 
side’s farm crew debeak, vaccinate, and blood test the flocks 
(A. 19, 20). The company decides which farmers raise which 
birds (A. 43) and initiates a feed program. This requires 
designing the composition of the feed and seeing that it is 
changed at least four times during the growing cycle (A. 13- 
14). In addition, the company has four field supervisors 
to check each farm on a routine basis (A. 13). A preventive 
program is maintained for poultry disease, but should it 
break out, the company treats the poultry using both feed 
and water (A. 64). It delivers the feed to the farms and 
picks it up when no longer needed (A. 22). It delivers the 
chicks to the farms and catches, coops and delivers the

64



17

fully grown birds to the processing plant (A. 51). The 
size of the operation is substantial as at any one time there 
are 3% million birds (A. 20), all of which are subsequently 
processed by the processing plant (A. 35).

It is important to understand that there is a central man­
agement of this whole operation from egg to processing that 
is coordinating and making the strategic economic decisions. 
This emanates from a separate main office in Belfast with 
a general manager (A. 77) and a common controller (A. 76). 
Also located there is the broiler department manager, Avho 
coordinates the scheduling of both feed and chicks to the 
farms. In addition he is in charge of the continued health 
of the flocks (A. 68). This puts him in contact on a daily 
basis with farm managers, farm servicemen, the dispatcher 
at the feed mill, the pick up crews, and the farmers them­
selves (A. 62, 64).

Besides the pick up crew that comes from the processing 
plant to the farms, there is a driver who delivers animal 
by-products from the processing plant to the feed mill for 
inclusion in the feed (A. 74). The feed formula is watched 
very carefully, not just because of the type and age of the 
poultry, but because of the weather and because of price 
changes and availability of ingredients (A. 14).

The advantage of owning all elements of a poultry organ­
ization, besides the coordination advantage, is the oppor­
tunity to control as many variables as possible. Bayside 
does not grow its own grains nor does it retail its chickens, 
but in all other respects, its ownership or control allows it 
more flexibility than otherwise. It is no longer necessary 
to make a profit on the passing from one stage to another. 
This has allowed greater cost efficiency with a consequent 
price decline and a consumption increase. The Broiler 
Industry: An Economic Study of Structure, Practices and 
Problems, U.S. Department of Agriculture (1971).

65



18

There is no doubt that in the past there have been 
different forms used in the poultry industry that arguably 
were not agriculture. Certainly an independent feed dealer10 
or an independent food processor11 were not in agriculture. 
However, where the company is hatching, breeding, par­
ticipating actively in the growing and then processing its 
own product, it should be considered a farmer, NLRB v. 
Strain Poultry Farms, Inc., 405 F.2d 1025, 1032-35 (5th Cir. 
1969); Etchechoury v. Avi-Simplot, Inc.. 43 Idaho 438, 
462 P.2d 737, 741.

There is nothing in the history of the NLRA,12 nor the 
history of the passage of the 1946 rider13 that would deny 
this exemption. When this Court regarded the fact that 
Waialua was using a railroad to transport its sugar cane 
from the field to the mill, it said, “ There is no reason to 
construe the FLSA so as to discourage modernization . . ,”14

The poultry industry has merely borrowed the vertically 
integrated structure from industry, or to put it another 
way, has reverted back to the small, self-contained family 
farm it was in the 1920’s on a much larger scale. The Broiler 
Industry, supra.15

Nor is there any compelling social reason for placing 
the vertically integrated poultry company in the commerce 
column. Through Section 13(a)(6), the agricultural exemp­
tion has been narrowed and most recently in 13(g) the

10 Johnston v. Cotton Producers Association, 244 F.2d 553 (5th 
Cir. 1957).

11 George I. Petit, Inc., 89 NLRB 710 (1950).
12 Legislative History of NLRA, p. 3202 and 54 Cal. L. Rev. 1939, 

1955, fn. 72.
13 NLRB v. Kelly Brothers Nurseries, Inc., 341 F.2d 433, 435, 

fn. 2.
14 Maneja v. Waialua, 349 U.S. 254, 261.
15 The agricultural exemption of the N.L.R.A. is not measured 

by the magnitude of the farmer’s planting nor the prolifigacy of 
his harvest. Local Union No. 300 v. McCulloch, 428 F.2d 396, 399 
(5th Cir. 1970).

66



19

exemptions have been restricted even more, excluding any 
employee who works for a controlled establishment with 
a gross volume of sales exceeding $10,000,000. Congress, 
by modifying 3(f) in the same manner, could include most 
vertical integrators in the NLEA. It, however, has not 
shown the inclination to do so. NLRB v. Victor Ryckebosch, 
Inc., 471 F.2d 20, 21 (9th Cir. 1972). Indeed there is a 
good argument that like the construction industry, because 
of the complex character of the problem, special treatment 
is indicated. 25 Labor Law Journal 241.

To hold this company nonagricultural, is not merely what 
the minority in Colchester Egg Farms, Inc., 214 NLRB 
No. 64 (1974) says is to compartmentalize what is essen­
tially a total farming activity, but is, in effect, to “ process” 
Bayside as Bayside processes its broilers — chopping off 
its head by disregarding the importance of its management 
to the whole organization and then dismembering it into 
parts.

What is needed is an approach viewing the vertical inte­
grator as engaged in primary agriculture and then an 
inquiry as to whether a specific employee’s work is “ inci­
dental to or in conjunction with” that agriculture.

III. T he  F eed D bivebs as B ein g  I ncidental  to and in  
C o n ju n c t io n  W it h  F a em in g .

The employer has centered its feed move operation in 
the middle of its contract farms. With four trucks and six 
drivers. Bayside delivered feed to the farms itself even 
when it did not have a feed mill (R. 89, 222). The drivers 
only deliver Bayside feed. There is a separate office at the 
mill for the dispatcher where the drivers report because it is 
the most central point (A. 17). NLRB v. Olaa Sugar Com­
pany, 242 F.2d 714,718 (9th Cir. 1957). The testimony is that 
the purpose in having your own feed move operation rather

67



20

than subcontracting is to maintain control over contami­
nation (A. 42). This is so because the duties of the drivers 
are not just positive ones such as loading, transporting, 
and unloading, but are also negative ones, such as prevent­
ing the transmission of disease, the contamination of the 
feed, and scaring of the flocks (A. 42).

In Farmers Reservoir, this court said that the delivery 
of water was a practice performed as an incident to or in 
conjunction with farming, 337 U.S. 755, 766. So, too, is 
the delivery of feed to poultry.16 The evidence is that 
each farm must receive a delivery at least once a week 
(A. 20). See Wirts v. Oscealo Farms Co., 372 F.2d 584 
(5th Cir. 1967).

Other courts have held that the feed drivers as well as 
even the feed mill employees themselves are engaged in 
raising poultry, Abbott Farms, Inc. v. NLRB, 487 F.2d 904 
(5th Cir. 1973), McElrath Poultry Co., Inc. v. NLRB, 494 
F.2d 518 (5th Cir. 1974). They are like the field men in 
Fors Farms, Inc. v. Washington State Employment Secur­
ity Dept., 450 P.2d 973, 976 and the servicemen, pick up 
crews, and grain crews (feed truck drivers) in Maplewood 
Poultry Co. v. Maine Employment Security Commission, 
151 Me. 467, 121 A.2d 360 (1956). Basically, each class of 
employee is offering a service to the grower concerned with 
the raising of poultry. See also Birmingham v. Rucker’s 
Breeding Farm, 152 F.2d 837, 840 (8th Cir. 1945). The 
feed driver is intimately involved in the growth and pro­
tection of the birds whose feed and medicine he delivers.

16 The Court of Appeals adheres to its disjunctive approach to 
Bayside, “ . . . the Bayside feed delivery system is part of a separate 
organization, supportive of agricultural activity, but not directly 
engaged in farming.” 527 F.2d 436, 438. This ignores the testi­
mony of the dispatcher concerning the integration of the feed 
delivery with the hatchery, the broiler department manager, and 
the farmers (A. 45, 46). Even the birds themselves have more 
control over feed delivery than the dispatcher (A. 14, 21).

68



21

Conclusion

The judgment of the Court of Appeals should be reversed 
and the case remanded with instructions to enter a decree 
denying enforcement of the Board’s order and dismissing 
the case for want of jurisdiction.

Respectfully submitted,

A lan  J. L even son , Esq.
Attorney for Petitioners 

Bayside Enterprises, Inc., 
Penobscot Poultry Company, and 
Poultry Processing, Inc.

July 15, 1976

69



N o.  75-1267

g# to J&tgrme djuitrt »f to ®tM $iate
October Term, 1976

B ayside E nterprises, I nc., et al., petitioners

v.
N ational L abor R elations B oard

ON W R IT  O F C E R T IO R A R I TO T E E  U N IT E D  S T A T E S  C O U R T  O F  
A P P E A L S  F O R  T E E  F I R S T  C IR C U IT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

ROBERT H, BORK,
S o lic i to r  G en era l, 

D e p a r tm e n t  o f  Ju s t i c e ,
W ash in g ton , D.G. 20530.

JOHN S. IRVING,
G en er a l C ounsel,

JOHN E. HIGGINS, Jr.,
D ep u ty  G en er a l C ou n sel,

CARL L. TAYLOR,
A s s o c ia t e  G en era l C ou n sel,

NORTON J. COME,
D ep u ty  A ss o c ia te  G en era l C ou nsel,

ELINOR HADLEY STILLMAN,
A tto rn ey ,

N a t io n a l L a b o r  R e la t io n s  B o a rd ,
W ash in g ton , D .C. 20570.

71



I N D E X

Page

Opinions below-------------------------------------------------------  1
J  urisdiction-----------------------------------------------------------  1
Statutes involved--------------------------------- -------------------  2
Question presented---------------------------------------------------  3
Statement -------------------------------------------------------------  3

A. The Board’s findings of fact---------------------------  3
B. The Board’s decision--------------------------------------  9
C. The decision of the court of appeals------------------- 10

Summary of argument---------------------------------------------  10
Argument:

Truck drivers who transport feed from their em­
ployer’s mill to independent farms which under con­
tract with the employer raise poultry hatched in his 
hatchery facilities are employees, rather than agri­
cultural laborers, and thus are covered under the 
National Labor Relations Act---------------------------  14

A, Introduction------------------------------------ :----------- 14
B. The drivers’ duties do not constitute practices per­

formed by a farmer as an incident to or in con­
junction with his farming operations---------------  16

1. The independent growers, not the Company,
raise the poultry on the contract farms------  17

a. The division of risk between the grower 
and the Company indicates that the 
grower, not the Company, is the fanning
u n i t______________________________ 20

b. The other factors in the relationship be­
tween the growers and the Company 
indicate the growers are independent 
farm ers----------------------------------------- 25

2. The Company’s feed delivery operation is
not a subordinate part of its farming opera­
tions ______________________________ _— 30

(i)

73



I I

Argument—Continued Page

C. The drivers do not perform work on a farm as an 
incident to or in conjunction with farming oper­
ations within the meaning of the FLSA agri­
cultural exemption--------------------------------------  35

1. The delivery of supplies is not work “on a
farm” within the agricultural exemption—  36

2. The driver’s work is not substantially per­
formed “on a farm”____________________  42

Conclusion________________________________________  44

C IT A T IO N S

Cases:
Abbott Farms, I  no. v. National Labor Relations Board,

487 F. 2d 904________________________________  20
Aquaculture Research Cory., 215 NLRB No. 1, 87

LRRM 1496_________________________________
Bowie v. Gonzales, 117 F. 2d 11___________________, 16
Boyls v. Wirtz, 352 F. 2d 63______________________  38
Calaf v. Gonzalez, 127 F. 2d 934__________________  34
Clinton Foods, Inc., 108 NLRB 8 5 ________________ 42, 43
Elm Spring Farm v. United States, 127 F. 2d 920-__ 21, 23
Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462 

P. 2d 737____________________________________  15
Farmers Reservoir & Irrigation Co. v. McComb, 337

U.S. 755__________________________  11,15,16, 36, 40, 41
Fors Farms, Inc. v. Washington State Employment
Security Dept., 75 Wash. 2d. 383,450 P. 2d 973_______  19
Ileamsberger v. Gillespie, 435 F.2d 926_____________ 43
Hodgson v. Wittenburg, 464 F.2d 1219____________  43
IloltvUle Alfalfa Mills v. Wyatt, 230 F.2d 398___  33, 38-39
Johnston v. Cotton Producers Assn., 244 F.d 553_____  40
Light's Tree Co., 194 NLRB 229_________________  44
McComb v. Super-A Fertilizer Works, Inc., 165 F. 2d

824 _______ v_________________________________  40
McElra-th Poultry Co., Inc., 206 NLRB 354 enforce­

ment denied, 494 F.2d. 518______________________ 19, 20
Maneja v. Waialua Agricultural Co., Ltd., 349 U.S.

254 -------------------------------------------------  12,17, 30, 32,33
Maplewood Poultry Co. v. Maine Employment Security 

Common, 151 Me. 467,121 A. 2d 360_________________  15

74



Ill

Cases—Continued ?a«c
Mitchell v. Budd, 350 U.S. 473___________________  33
Mitchell v. Ilertzke, 234 F. 2d 183______________  26
Mitchell v. Hunt, 263 F. 2d 913__________________ 16,43
Mitchell v. Huntsville Wholesale Nurseries, Inc., 267

F. 2d 286__________________________________21,25, 26
National Labor Relations Board v. Deaton, Inc., 502

F. 2d 1221, certiorari denied, 422 U.S. 1047_______  27
National Labor Relations Board v. Kelly Brothers

Nurseries, Inc., 341, F. 2d 433__________________ 14, 43
National Labor Relations Board v. Olaa Sugar Go.,

242 F. 2d 714 on remanded, 118 NLRB 1442___ 16, 35, 42, 43
National Labor Relations Board v. Ryckebosch, Inc.,

471 F. 2d. 20_________________________________ 19, 20>
National Labor Relations Board v. Strain Poultry

Farms, Inc., 405 F. 2d 1025__________________ 19, 20, 21
National Labor Relations Board v. United Insurance

Co., 390 U.S., 254______________________________ 2T
Parks v. Federal Crop Insurance Corp., 146 F. 2d 833— 21, 26
Rutherford Food Cmy, v. McConib, 331 U.S. 722___ 27,28
Skidmore v. Swift & Co., 323 U.S. 134_____________ 19
Tipton y . Associated Milk Producers, Inc., 398 F.Supp.

743 _______ _____________________________ ____  39
Tobin v. Blue Channel Corp., 198 F. 2d 245________43
United States v. American Trucking Assn., 310 U.S.

534 _________________________________________  18
Victor Ryckebosch, Inc., 189 NLRB 40_____________ 20
Vines v. Serralles, 145 F. 2d 552__________________  34
Wabash Radio Corp. v. Walling, 162 F. 2d 391_____  43
Waldo Rohnert Co. v. National Labor Relations Board,

322 F. 2d 46______________________________  16, 20, 26
Wirtz v. Jackson & Perkins Co., 312 F. 2d 48_______  21
Wirtz v. Lyon Flying Service, 16 W II Cases 414_____  42
Wirtz v. Osceola Farms Co., 372 F. 2d 584_________  39
Wirtz v. Ti Ti Peat Humus Co., 373 F. 2d 209, certiorari

denied, 389 U.S. 834----------------------------------------- 4 0 .
Wirtz v. Tyson’s Poultry, Inc., 355 F. 2d 255_____ 19, 20, 21
Wirtz x. Von'Carstedt, 362 F. 2d.-67________________  43,

75



IV

Statutes and regulations: Page
Fair Labor Standards Act of 1938, Section 3 (f), 52

Stat. 1060, as amended, 29 U.S.C. 203(f)-----------passim
Fair Labor Standards Amendments of 1966, Section

203(a), 80 Stat, 833, 29 U.S.C. 213(a)___________26,28
National Labor Relations Act, as amended (61 Stat,

136,73 Stat. 519,29 U.S.C. 151 et seq.) :
Section 2(3)------------------------------------------------ 2,14
Section 8 (a )(1 )------------------------------------------  10
Section 8(a)(5)------------------------------------------  10

Social Security Act Amendments of 1939, 53 Stat, 1360,
1377 ____________________________1___________  14

90 Stat, 23_________________________________  2
42 U.S.C. 410(f)____________________________ 14

29 C.F.R,:
Section 780.11______________________________ 43
Section 780.126--------------------------------------------- 12,18
Section 780.134_____________________________  42
Section 780.136______________________________ 37
Section 780.137______________________________ 16

Miscellaneous:
81 Cong. Rec. 7653, 7659 (1937)__________________  37
81 Cong. Rec. 7888 (1937)______________________ 36,37
92 Cong. Rec. 6689-6692 (1946)__________________  14
92 Cong. Rec. 9514 (1946)________________________  14
112 Cong. Rec. 20819-20820 (1966)________________  27
26 Fed. Reg. 10386______________________________ 17
S. Rep. No. 1487, 89th Cong., 2d Sess. (1966)________ 27
B. W. Marion and H. B. Arthur, Dynamic Factors in 

Vertical Commodity Systems: A Case Study of the 
Broiler System (Ohio Agricultural Research and
Development Center, 1973)____________________  23

F. D. Reed, The Maine Poultry Industry: Its Impact, 
Growth and G ompetitive Position (Univ. of Maine, 
Cooperative Extension Service, Circular 394, Rev.
July 1970)--------------------------------------------------  33

U.S.D.A., Packers and Stockyards Administration,
The Broiler Industry: An Economic Study of Struc­
ture, Practices and Problems (1967)_____________  22

76



Hit flit djjrart 4  i t  In M  States
October Term, 1976

No. 75-1267
B ayside E nterprises, I nc,, et al., petitioners

v.
N ational L abor R elations B oard

ON W R IT  O F C E R T IO R A R I TO T H E  U N IT E D  S T A T E S  
C O U R T O F A P P E A L S  F O R  T H E  F I R S T  C IR C U IT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 
A1-A5) is reported at 527 P. 2d 436.1 The Board’s 
decision and order (Pet. App. A7-A22) are reported 
at 216 NLRB 502.

JURISDICTION

The judgment of the court of appeals was entered 
on December 10, 1975 (Pet. App. A6). The petition 
for a writ of certiorari was filed on March 8, 1976, 
and granted on May 19, 1976. The jurisdiction of this 
Court rests on 28 U.S.C. 1254(1).

1 “Pet. App.” refers to the appendix to the petition and “A.” 
to the separate appendix printed pursuant to Rule 36. “Tr." refers 
to the original transcript of the Board hearing.

(1)

77



2
STATUTES IITVOLVED

1. Section 2(3) of the National Labor Relations 
Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 
151, et seq.), provides in pertinent part that “ The 
term ‘ employee’ * * * shall not include any indi­
vidual employed as an agricultural laborer * * *.”

2. Since 1946, the appropriation acts for the 
National Labor Relations Board have regularly car­
ried a rider linking the definition of the term 
“ agricultural employee” to the definition of “agri­
culture” in Section 3(f) of the Fair Labor Standards 
Act, 52 Stat. 1060, as amended, 29 U.S.C. Sec. 203(f). 
The latest such rider (90 Stat. 23) provides in rele­
vant part as follows:

P rovided , 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 agricultural laborers as referred to in sec­
tion 2(3) of the Act of July 5, 1935 (29 IT.S.C. 
152), and as amended by the Labor-Manage­
ment Relations Act, 1947, as amended, and 
as defined in section 3(f) of the Act of June 
25, 1938 (29 U.S.C. 203) * * *.

3. Section 3(f) of the Act of June 25, 1938 (29 
U.S.C. 203; the Fair Labor Standards Act) provides 
in pertinent part, as follows:

“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 harvest-

78



3

ing of any agricultural or horticultural com­
modities * * * the raising of livestock, bees, 
fur-bearing animals, or poultry, and any prac­
tices * * * 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.

QUESTION PRESENTED

Whether truck drivers, who transport feed from 
their employer’s mill to independent farms that are 
under contract with the employer to raise poultry 
hatched in his hatchery facilities, are employees, 
rather than agricultural laborers, and thus covered 
under the National Labor Relations Act.

STATEMENT

A. THE BOARD’S FINDINGS OF FACT

1. Petitioner Bayside Enterprises, Inc. operates 
chicken hatcheries and breeding farms near Belfast, 
Maine, the site of its corporate offices (Pet. App. 
A-10 to A—11; A. 8-10, 18). As detailed below, Bay- 
side has contracts with 119 independent farmers 
(hereinafter “the growers”) in the area around Bel­
fast for the care and breeding of the chickens from 
the age of one day until they are ready for processing 
for market. Petitioner Poultry Processing, Inc., a 
wholly-owned subsidiary of Bayside, operates a mill 
at Thorndike, Maine, which supplies feed to the 
growers as well as to another poultry firm ( in fra ,

79



4

pp. 6-7).2 The truck drivers whose status is at issue 
here haul feed from the mill to the growers. Poultry 
Processing also owns a processing plant at Belfast, 
which handles the poultry raised by the growers 
(Pet. App. A - l l  to A-13; A. 8-9).

Employees on the processing plant payroll trans­
port live poultry from the farms to the plant, slaugh­
ter and dress the poultry, and ship it out to buyers 
(Pet. App. A-12; A. 8-9).3 These employees, including 
the crews who collect the grown birds from the grow­
ers and transport them to the processing plant, are 
members of a bargaining unit jointly represented by 
the Amalgamated Meat Cutters Local 385 and the 
Truck Drivers, Warehousemen and Helpers Union, 
Local 340.4 The latter organization (the Union) also 
represents the feed truck drivers (Pet. App. A-10 to 
A -ll;  A. 17, 51).

2 The court of appeals affirmed the Board's finding that Bayside 
and Poultry Processing constitute a single employer, and peti­
tioners are not challenging that finding in this Court (Br. f> n. 2; 
cf. 15 n. 9). The term “Company,” as used herein, refers to both 
Bayside and Poultry Processing.

Petitioner Penobscot Poultry Company is a defunct subsidiary 
of Bayside, providing a trade name for products sold by Poultry 
Processing (Pet. App. A-12; A. 39).

3 The plant employees, together with those on the Poultry Proc­
essing payroll who work at the feed mill, total over 400 (A. 17). 
The feed track drivers are carried on Bayside’s payroll (Pet. Br. 
5).

4 In the printing of the appendix, the agreement of petitioners’ 
counsel to a stipulation on this matter was inadvertently omitted. 
The omitted sentence, which would appear as the last line on A. 51, 
is “MB. LEVENSON: Yes.”

80



The 119 independent growers who contract with 
Bayside take chickens from its hatchery and raise 
them for a specified time, at the end of which they 
are marketable as broilers, capons, or roasters (Pet. 
App. A - ll ,  A-23 to A-29, A. 8-11).5 Bayside retains 
title to the poultry throughout this operation; title 
passes to its processing subsidiary when the chickens 
are cooped for delivery to the processing plant (Pet. 
App. A-27 A. 9-10). The grower furnishes housing 
for the flock, water, storage areas for supplies, and 
the equipment and labor required to raise the chickens 
to maturity (Pet. App. A -ll , A-26).

In addition to supplying the chicks, Bayside pro­
vides poultry feed, fuel, and medications, and it makes 
available the services of four of its employees who 
periodically check on the health of the flocks and vac­
cinate the poultry against diseases when this appears 
necessary (Pet. App. A - l l ;  A. 13, 19-20). These em­
ployees are under the supervision of Bayside’s broiler 
department manager, who also determines the compo­
sition of the feed supplied to the growers (Pet. App. 
A-13, A-14; A. 13-14, 40).

Although the contracts between Bayside and the 
growers guarantee the growers fixed payments per 
square foot of space occupied by the flocks at given 
intervals, a grower’s total compensation includes a 
“ bonus” determined by the weight of the poultry he

5 The contract expressly provides “[t]hat the Grower, his agents 
and employees shall not be considered to be employees of Bayside 
for any purpose whatsoever” (Pet. App. A-28).

81



6

raises to maturity and his production costs in rela­
tion to the corresponding figures for the other growers 
(Pet. App. A-15, A-24 to A-25 to A-28; A. 30, 34). 
Payments are normally calculated separately for each 
successive flock placed on a farm, although the terms 
of each contract remain in effect “for successive flocks 
as may be placed by mutual agreement” (Pet. App. 
A-23 to A -27; A. 30).

In addition to contracting with the growers for 
the raising of poultry, Bayside owns and operates, 
using its own employees, six breeder farms on which 
new poultry strains are bred and two hatcheries— 
the “commercial” hatchery from which chicks are 
supplied to the growers and a “pedigree” hatchery 
connected with the breeder farms (Pet. App. A - l l ;  
A. 8-11).6 The feed for flocks on Bayside’s own 
breeder farms and on a few of the contract farms 
which raise capons and roasters rather than broilers 
is supplied by the feed mill of Knox-Lincoln Parm­
er Co-op (KLF) (Pet, App. A-12, n, 2; A. 24-25, 
34, 69). The deliveries of feed from this source are 
generally made by drivers employed by KLF (Pet. 
App. A-15 to A—16; A. 25, 49).

Most of the growers, however, are supplied with 
feed from the Company’s mill at Thorndike. At the 
time of the Board hearing, approximately two-thirds 
of the mill’s output went to the contract growers,

6 Ihe Bayside employees who work on the breeder farms and in 
the hatcheries are among the approximately 80 persons petitioners 
identify as employees of Bayside (A. 17, 60-62).

82



7

and the remaining one-third was sold to the Fort 
Halifax Packing Co., an unrelated poultry company 
which, like Bayside, contracts with independent 
growers for the raising of poultry to be processed in 
its processing plant, but which does not have its own 
feed mill (Pet. App. A-12; A. 5-7, 25-26).7

The feed supplied to the contract growers by the 
Company’s mill is delivered to the farms by truck 
drivers working in two shifts; at the time of the 
Board hearing there were six such drivers (Pet. App. 
A-13; A. 44-45). Feeding schedules for the various 
flocks are made up by the Company’s broiler depart­
ment manager and copies are sent to the dispatcher 
at the mill, who is responsible for preparing delivery 
schedules for the farms (Pet. App. A-15; A. 45-46, 
59). The dispatcher supervises the feed drivers, and 
reports to the assistant feed mill manager (Pet. 
App. A-13; A. 47-48).

The drivers begin their regular duties by loading 
their trucks with feed at the mill and then weighing 
the loaded trucks; the drivers are given slips telling 
them how much of a particular type of feed to deliver 
to the farm or farms they are scheduled to visit that 
day (Pet. App. A-14; A. 22, 46, 48, 53). The drivers 
then drive to the contract farms, where they dis-

7 Feed deliveries to farms under contract with Fort Halifax are 
made by an independent hauler, who is paid by Fort Halifax for 
this service (Pet. App. A-12; A. 6-7). On some occasions, in the 
event of equipment failure, Bayside has that hauler deliver feed 
from its mill to some of its contract growers (Pet. App. A-16; 
A. 35).

83



8

charge the feed into bins.8 I f  a grower is not present 
to indicate which bins he wants filled, he may leave 
a note for the driver (Pet. App. A-14; A. 22, 54). 
The drivers’ responsibilities include putting the pro­
per amounts of feed into the bins, keeping raim out 
of the bins when unloading in bad weather, spraying 
their boots and trucks with disinfectant to avoid 
spreading poultry diseases, and driving their trucks 
carefully to avoid disturbing the chickens with loud 
noises and bright reflections from headlights (Pet. 
App. A-14 to A-15). The drivers wash their trucks 
after they return to the mill (Pet. App. A-15).

The drivers have no direct contact with the poultry 
(Pet. App. A-15; A. 32). Less than half their time is 
spent at the farms, since a small portion is spent at 
the mill and the remainder is equally divided between 
driving on the road and unloading at the farms (Pet. 
App. A-15; A. 43-44). The contract farms are approx­
imately 12 to 15 miles from the mill, and the drivers 
deliver to three or four of these farms on each work 
day (Pet. App. A-15; A. 17, 21). The drivers spend 
between half an hour and an hour on each farm, and 
they drive approximately 120 miles each day (A. 54, 
58).

In addition to making deliveries to the contract 
farms, the drivers have also on occasion delivered 
feed from the KLF feed mill to the six breeder farms 
owned by Bayside, and have transported feed ingredi­
ents from Rockland, Maine, and Gloucester, Massa-

8 The discharge is accomplished by power equipment, and takes 
two and one half to three minutes per ton (A. 16-17).

84



9

ehusetts, to. the Company’s feed mill (Pet. App. A.15
to A-16; A. 25, 32-33, 54-56).

2. In October 1973, the Union requested recogni­
tion as the representative of the drivers. Bernard 
Lewis, the president of Bayside and Poultry Process­
ing, recognized the Union on behalf of Bayside and 
began contract negotiations. However, after several 
negotiating sessions, the Company broke off bargain­
ing. Lewis informed a Union representative that the 
Company believed it was not obligated to bargain fur­
ther because the drivers were agricultural employees 
and hence were not covered by the National Labor 
Relations Act (Pet. App. A-10 to A - l l) .

B. THE BOARD’S DECISION

The Board, adopting the decision of its Adminis­
trative Law Judge, found that Bayside and Poultry 
Processing were a single employer for purposes of 
the Act, and that, taken together, they “ constitute a 
multifaceted organization whose enterprises and pur­
poses go far beyond the bounds of traditional farm­
ing” (Pet. App. A-18). The Board further found 
that the operation of the Company’s feed mill was not 
farming within the meaning of the definition in Sec­
tion 3(f) of the FLSA, and that the work of the feed 
truck drivers was incident to the operation of that 
mill (Pet. App. A-18 to A-19).

The Board found that the feed truck drivers are 
not “agricultural laborers,” that they constitute an 
appropriate unit for purposes of collective bargain-

85



10

ing, and that the Company violated Section 8(a) (5) 
and (1) of the Act by refusing to bargain with the 
Union which was the representative of the drivers. 
I t  issued an appropriate remedial order. (Pet. App. 
A-7 to A-8, A-20 to A-22.)

C. THE DECISION OE THE COURT OP APPEALS

The court of appeals enforced the Board’s order. It 
found that “ the bulk of the capital and personnel of 
the Company is devoted to the feed mill and process­
ing plant operations, which are coneededly not farm­
ing” (Pet. App. A-4). Although the Company “does 
operate chick hatcheries and breeding farms which 
do constitute farming,” in respect to “the raising of 
chickens to maturity, the actual farming activity is 
done by the contract farmers” (ib id .). The feed truck 
drivers are not agricultural laborers, the court held, 
because they are not employed in work incidental to 
the Company’s own farming operations, but rather 
perform duties which are part of a “ feed delivery 
system” which functions as “a separate organization” 
(Pet. App. A-4 to A-5).

SUMMARY O F  ARGUMENT

I
The National Labor Relations Act does not apply to 

“ any individual employed as an agricultural laborer,” 
as defined in Section 3(f) of the Pair Labor Stand­
ards Act, which defines “ agriculture” to include 
“farming in all its branches and any practices * * * 
performed by a farmer or on a farm as an incident

86



11

to, or in conjunction with, such farming operations, 
including preparation for market.” The work per­
formed by the feed truck drivers whose status is at 
issue here does not come within either the “primary” 
branch of this exemption, covering actual farming 
operations, such as the cultivation of crops or the 
raising of poultry, or the “secondary” branch, com­
prising “ any practices” performed either “by a 
farmer or on a farm, incidently to or in conjunction 
with ‘such’ farming operations.” See F arm ers R eser­
vo ir & Irrig a tio n  Co. v. M cComb, 337 U.S. 755, 762- 
763.

II
1. It is well settled that, in order to constitute “prac­

tices * * * performed by a farmer * * * as an inci­
dent to, or in conjunction with such farming opera­
tions,” the work in question must relate to the 
farming operations of the employer claiming the ex­
emption, as distinguished from the farming opera­
tions of other farmers. The Company’s farming oper­
ations are limited to its hatcheries and breeder farms 
and do not include the operations on the 119 contract 
farms where the independent growers raise the Com­
pany’s poultry.

The Company’s contrary contention relies on deci­
sions by the Fifth, Eighth, and Ninth Circuits hold­
ing that, in similar contract farming relationships, 
the farming operations of the growers are the opera­
tions of the contracting company which owns the 
poultry. But these decisions are inconsistent with

87



12

an interpretive ruling by the Department of Labor 
(29 C.F.R. 780.126) and with court decisions dealing 
with contract farming arrangements for the produc­
tion of other agricultural and horticultural commod­
ities. Furthermore, the cases on which the Company 
relies oversimplify or misconceive important elements 
of the contract farming relationship, such as the divi­
sion of risk of loss and the existence of supervisory 
services. In the present case, the relationship between 
the Company and its growers indicates that the 
growers are independent contractors rather than 
agents or employees of the Company and that the 
Company is not the “farmer” raising the poultry. 
This conclusion is also consistent with the legislative 
history of a 1966 amendment of the FLSA relating to 
the agricultural exemption, which indicates that Con­
gress considers the growers, and not the integrated 
poultry producers with which they contract, to be the 
farm unit.

2. Since the Company’s farming is limited to its 
hatcheries and breeder farms, the feed delivery op­
eration is not “part of the [Company’s] agricultural 
venture” (see M aneja  v. W aia lua  A gricu ltu ra l Co., 
L td ., 349 U.S. 254, 264-265), and the drivers are not 
performing practices incident to the Company’s farm­
ing operations. Less than twenty percent of the Com­
pany’s workforce is involved in its actual farming- 
operations : the Company’s business, in the aggregate, 
is not farming. The record shows that the drivers 
in question have relatively little contact with the

88



13

small farming segment of the enterprise, and that 
they are supervised by individuals at the Company’s 
feed mill, which supplies feed to farms other than 
those which the Company owns and operates.

I l l

The drivers are not within the other half of the 
secondary branch of the agricultural exemption, since 
they do not perform work “on a farm as an incident 
to, or in conjunction with such farming operations”. 
The legislative history of that portion of the defini­
tion of agriculture in Section 3 (f) of the Fair Labor 
Standards Act reveals that Congress wished to ex­
empt work, such as the threshing of wheat, which is 
performed substantially, if  not entirely, on a farm 
by an employee of a company performing a special­
ized agricultural function and which is carried out 
as part of actual farming operations, even though not 
performed by the farmer or his employees. The de­
livery of supplies such as poultry feed to a farmer is 
essentially the final phase of a separately organized 
manufacturing operation.

Moreover, the most significant portion of the driv­
ers’ work takes place off the farm, and thus is not 
done “on a farm”. Since the National Labor Relations 
Act covers workers whose work is substantially non- 
agricultural, even though they perform some agri­
cultural work, the drivers’ on-farm work is not in 
any event sufficient to bring them within the agricul­
tural exemption.

89



14
ARGUMENT

TRUCK DRIVERS WHO TRANSPORT FEED FROM THEIR EM­

PLOYER^ MTTL TO INDEPENDENT FARMS W HICH UNDER 

CONTRACT WITH THE EMPLOYER RAISE POULTRY 

HATCHED IN HIS HATCHERY FACILITIES ARE EMPLOYEES, 

RATHER THAN AGRICULTURAL LABORERS, AND THUS ARE 

COVERED UNDER THE NATIONAL LABOR RELATIONS ACT

A . IN T R O D U C T IO N

Section 2(3) of the National Labor Relations Act 
provides that the term “employee” shall exclude “any 
individual employed as an agricultural laborer.” Since 
1946, the appropriation acts for the Board have car­
ried a rider which provides that the term “agricul­
tural laborer” shall be defined in accordance with 
Section 3(f) of the Fair Labor Standards Act, 
(“FLSA”).9 Section .3(f) of the. FLSA defines the 
term agriculture in pertinent part as follows:

9 As one court has observed, “The 1946 rider was the product of 
heated debate and of sharp conflict between the two-houses, which 
unfortunately sheds relatively little light on its interpretation.” 
National Labor Relations Board v. Killy Brothers Nurseries, Inc., 
341 F. 2d 433, 435 n. 2 (C.A. 2). However, it is noteworthy that 
the version offered by Congressman Elliott, which the House first 
adopted, would have defined, “agricultural labor” as it was defined 
in the Social Security Act Amendments of 1939, 53 Slat. 1377. 
92 Cong. Rec. 668-9-6692 (1946). (A modified version of that pro- 
vision is now codified in 42 U.S.C. 410(f).) As Senator Me- 
Carran later reported, however, the House and the Senate “were 
in complete disagreement * * * on what is known as the Elliott 
rider,” and the conference committee finally agreed to substitute a 
provision referring to the definition of agriculture in Section 3(f) 
of the FLSA. 92 Cong. Rec. 9514 (1946). Senator Ball, a member 
of the conference committee, characterized the definition of “agri­
cultural laborer” in the Social Security Act as “very broad” and

90



15

“Agriculture” includes farming in all its 
branches and among other things includes the 
cultivation and tillage of the soil * * 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 trans­
portation to market.

As this Court noted in Farm ers R eservo ir & Irriga tion  
Co. v. M eComb, 337 U.S. 755, 762-763, this definition 
has “two distinct branches.” The “ primary” branch— 
“farming in all its branches”—includes actual farm­
ing operations such as the raising of produce from 
the soil or the raising of poultry; and the “secondary” 
branch includes “any practices, whether or not them­
selves farming practices, which are performed either 
by a farmer or on a farm, incidently to or in con­
junction with ‘such’ farming operations” (ib id .).

Petitioners properly concede (Br. 6) that the feed 
truck drivers do not perform work that would bring 
them within the “primary” branch of the agricultural 
exemption, i.e., that delivering truckloads of poultiy

the FLSA section as “a much narrower definition” to which coun­
sel for the National Labor Relations Board had no real objection 
because only “a few minor changes in [the Board s] present pro­
cedure and definition” would be called for. Ibid.

The language of the state statutes construed in two cases relied 
upon by the Company (Br. 13) is virtually identical to language 
of the “broad” definition incorporated in the Elliott rider which 
the Senate rejected. See Etchechowy v. Avi-Simplot, Inc., 93 
Idaho 438, 462 P. 2d 737, 739; Maplewood Poultry Co. v. Maine 
Employment Security Common, 151 Me. 467, 121 A. 2d 360, o61- 
363.

91



16

feed from a mill is not equivalent to raising poultry. 
Accordingly, petitioners must satisfy the “secondary” 
branch of the definition by showing that those drivers 
perform work by a farmer or on a farm, and also 
that the work is an incident to or in conjunction with 
the farming operations involved. As we show below, 
neither of these tests is met.

B. T H E  DRIVERS’ D U T IE S DO N O T C O N S T IT U T E  PRA CTICES PER FO R M E D  B Y

A F A R M E R  AS A N  IN C ID E N T  TO OR I N  C O N JU N C T IO N  W IT H  H IS

F A R M IN G  O PERA TIO N S

From the earliest days of the FL'SA the Wage and 
Hour Division of the Department of Labor, which is 
responsible for administering the statute, and the 
courts have construed the phrase “practices * * * per­
formed by a farmer * * * as an incident to, or in con­
junction with, such farming operations” to refer to 
practices related to the farming operations of the 
farmer claiming the exemption, as distinct from the 
farming operations of other farmers. W aldo R ohnert 
Co. v. N ational Labor Relations B oard, 322 F. 2d 46, 
48-49 (C.A. 9); M itchell v. H u n t, 263 F. 2d 913, 916- 
917 (C.A. 5), quoting from Department of Labor In­
terpretive Bulletin No. 14, para. 10(f) (August 1939), 
1940 WHM 185; N ational Labor R ela tions B oard  v. 
Olaa S u gar Co., 242 F. 2d 714, 718 (C.A. 9) ; B ow ie  v. 
Gonzales, 117 F. 2d 11, 18 (C.A. 1), cited with ap­
proval in F arm ers R eservo ir & Irr ig a tio n  Co. v. 
McCornb, supra, 337 TT.S. at 766-767 n. 15; Depart­
ment of Labor Interpretive Bulletin, 29 C.F.R. 
780.137.

Indeed, the Company (Br. 11-12) concedes this 
point. Thus, the thrust of its argument (Br. 6, 7-10)

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17

is that the raising of poultry on the contract farms is 
part of its own operations and that the duties of the 
truck drivers are performed as an incident to or in 
conjunction with this poultry raising. Stated other­
wise, it is the Company’s contention that the poultry 
feed delivery operation is a subordinate part of the 
Company’s agriculture venture—that venture being 
defined to include the raising of poultry by the grow­
ers on the contract farms.

We submit that the Board and the court of appeals 
properly found, to the contrary, that the Company’s 
farming operations were limited to its own breeder 
farms and hatcheries, and that the duties of the truck 
drivers were practices incident to the operation of the 
Company’s feed mill rather than to its farming op­
erations. Cf. M aneja  v. W aialua  A gricu ltu ra l Co., 
L td ., 349 U.S. 254, 263, 265.

1. The independent growers, not the Company, raise the poultry 
on the contract farms

The Company contracts with growers to raise its 
chickens in the growers’ facilities located on the grow­
ers’ farms. This operation is connected at one end to 
the Company’s hatcheries and feed mill and at the 
other end to the Company’s processing plant where 
the poultry is slaughtered and dressed for sale. In 
1961, the Wage and Hour Division of the Depart­
ment of Labor issued an interpretive bulletin con­
cerning the status of such arrangements under Section 
3(f) of the FLSA (26 Fed. Reg. 10386), and the 
interpretation is still adhered to by that agency in

93



18

substantially the same form. The interpretation pres­
ently states (29 C.F.R, 780.126) :
§ 780.126 Contract arrangements for raising poultry.

Feed dealers and processors sometimes enter 
into contractual arrangements with farmers 
under which the latter agree to raise to market­
able size baby chicks supplied by the former 
who also undertake to furnish all the required 
feed and possibly additional items. Typically, 
the feed dealer or processor retains title to the 
chickens until they are sold. Under such an 
arrangement, the activities of the farmers and 
their employees in raising the poultry are 
clearly within section 3(f).  The activities of 
the feed dealer or processor, on the other hand, 
are not “raising of poultry” and employees en­
gaged in them cannot be considered agricul­
tural employees on that ground. Employees of 
the feed dealer or processor who performs work 
on a farm as an incident to or in conjunction 
with the raising of poultry on the farm are em­
ployed in “secondary” agriculture (see §§ 780.- 
137 et seq., [explaining that work must be per­
formed in connection with the farmer-employ­
er’s own farming to qualify as “secondary” 
agriculture by a farmer] and Johnston  v. Cot­
ton Producers A ssn., 244 F. 2d 53).10 

An interpretation such as this—made by the agency 
responsible for administering the statute in ques­
tion—is “ entitled to great weight.” U nited S ta tes  v. 
A m erican  T rucking  A ssn., 310 U.S. 534, 549. As this

10 In Section C, infra, we show that the truck drivers are not 
employed in “secondary” agriculture by virtue of the fact that 
part of their work is performed on the growers’ farms.

94



19

Court has observed, interpretations of the FLSA by 
the Department of Labor, “ while not controlling upon 
the courts by reason of their authority, do constitute 
a body of experience and informed judgment to which 
courts and litigants may properly resort for guidance.” 
S kid m o re  v. S w i f t  <& Co., 323 TT.S. 134, 140. Both the 
court of appeals ( Pet. App. A-4 n. 4), and the Board 
thus properly relied on this interpretation.11

However, the administering agency’s conclusion that 
contractors like the Company are not themselves en­
gaged in the raising of poultry has been rejected by 
the Fifth, Eighth, and Ninth Circuits in decisions 
relied upon by the Company (Br. 8-10, 19). N ational 
Labor Relations B oard  v. R yckebosch, Inc., 471 F. 2d 
20 (C.A. 9); N ational Labor R ela tions B oard  v. S tra in  
P o u ltry  F arm s, Inc., 405 F. 2d 1025 (C.A. 5) ; W ir tz  
v. T yson’s P o u ltry , Inc ., 355 F. 2d 255 (C.A. 8).12 As

11 The Board’s decision does not cite the interpretation, but it 
relies on an earlier Board decision, McElrath Poultry Go., Inc., 
206 NLRB 354, enforcement denied, 494 F. 2d 518 (C.A. 5), in 
which the interpretation is cited (206 NLRB at 355 n. 4).

12 Tyson's, the earliest of these decisions, is not flatly incon­
sistent with the Labor Department’s interpretation, since the con­
tracting arrangement there was somewhat different from the one 
described in the interpretation: the contractor placed laying hens 
with growers for the production of eggs, which were then handled, 
cooled, graded, candled, and packed by the contractor’s employees 
(who were found to be agricultural laborers). Moreover, as one 
state court has pointed out, only 27 percent of the eggs handled by 
the contractors’ employees were produced by the growers; the re­
maining 73 percent came from the contractor’s own farms. Fors 
Farms, Ino. v. Washington State Employment Security Dept., 75 
Wash. 2d 383, 450 P. 2d 973, 977. However, Strain, supra, which

95



20
we show below, the Company’s contention, based on 
these authorities, that it is engaged in the raising of 
poultry by virtue of its arrangements with the con­
tract growers is inconsistent with court decisions 
dealing with contract farming arrangements for the 
production of other agricultural and horticultural 
commodities, and it misconceives the contract farming 
relationship.
a. The division of risk between the grower and the Company

indicates that the grower, not the Company, is the farming unit
The Company (Br. 8-10), tracking the rationale of 

T yson’s, supra, 355 F. 2d at 260, and S tra in , supra, 
405 F. 2d at 1033, stresses that it retains title to the 
chickens from the day they are hatched to the time 
they are sold as processed broilers. The Company does 
not—nor can it properly—-contend that continuing 
ownership of the poultry itself suffices to make the 
Company a farmer, for the courts have generally 
rejected this proposition.13

involved a contractor-feed dealer like those described in the inter­
pretation, relied and elaborated upon the Tyson’s rationale; and 
Ryckebosch, supra, in which the poultry contractor owned not 
only a feed mill, but also a processing plant and a few farms of 
its own (see Victor Ryckebosch, Inc., 189 NLRB 40, 41-42), relied 
on Strain without substantial discussion. The Fifth Circuit subse­
quently relied on Strain in Abbott Farms, Inc. v. National Laboi■> 
Relations Board, 487 F. 2d 904, and on Abbott Farms in McElrath 
Poultry Go., Inc. v. National Labor Relations Board, 494 F. 2d 
518. Neither decision turns on the extent of integration of the 
poultry contractor involved, although the court in Abbott noted 
that the contractor there owned no processing plant.

13 Waldo Rohnert Go. v. National Labor Relations Board, supra, 
322 F. 2d at 47 (seed mill company not a farmer by virtue of its 
contracts with farmers to grow vegetable seed crops using com-

96



21

The Company instead asserts (Br. 9), again re­
flecting the analysis in T yso n ’s, supra, 355 F. 2d at 
259-61 and S tra in , supra, 405 F. 2d at 1031, 1033, that, 
under its contracts with the growers, ownership of the 
poultry carries with it the entire risk of loss in the 
farming operations, whereas in the cases in which the 
contracting company was held not to be a farmer, 
“the farm product had to be marketable, saleable, or 
acceptable to the company and thus the risk of loss 
fell on the farmer.” In addition, the Company argues 
(Br. 9-10), citing S tra in , that, in a contract rela­
tionship like the one it maintains with its growers, 
the contractor, and not the growers, “assumes the risk 
of market fluctuations which affect the price of the 
birds.” Both of these arguments represent a consid­
erable over-simplification of the economic realities.

The grower bears a substantial share of the risk 
of loss. He is able to enter into contracts with the

pany-supplied seed, even though the company retained legal title 
to the growing crops and seed); Wirts v. Jackson & Perkhis Go., 
312 F. 2d 48 (C.A. 2) (contractor not a farmer although it pro­
vided understock to growers raising plants for the contractor’s 
nursery business); Mitchell v. Huntsville 'Wholesale Nurseries, 
Inc., 267 F. 2d 286, 289 n. 2 (C.A. 5) (contractor not a farmer by 
virtue of its agreements with growers which provided “crop to be 
property of Huntsville at all times”). See also Parks v. Federal 
Crop Insurance Corp., 416 F. 2d 833 (C.A. 7) (farmers wTho grew 
corn from hybrid seed corn furnished by contractor that re­
tained legal title to portion of crops were the actual producers of 
all the corn under a provision of the Federal Crop Insurance Act, 
7 U.S.C. 1508(c)); Elm Spring Farm v. United States, 127 F. 
2d 920 (C.A. 1) (milk handling corporation that held title to 
dairy cows tended by farmers not a milk producer within the 
meaning of orders issued under the Agricultural Marketing 
Agreement Act of 1937,50 Stat. 246).

97



22

Company only after making a sizeable investment in 
land, poultry housing facilities, and related equip­
ment.14 Moreover, in carrying out his obligations 
under the contract, the grower incurs expenses not 
reimbursed by the Company under the contract. Thus, 
the grower pays the wages of any hired hands, the 
interest on any mortgage payments on the farm, any 
taxes other than local taxes on birds, and all main­
tenance and repair costs of his facilities and equip­
ment (Pet. App. A-28).

While a grower is guaranteed a certain minimum 
payment based on square footage of his facilities 
supplied for housing the flock, he has no assurance 
that this fee will exceed his costs in any given con­
tract period, much less that he will recover his origi­
nal investment in land and farm facilities. More­
over, if  for any reason the grower loses his farm, he 
is out of business, whereas the Company can simply 
switch to another contract grower or contract with the 
new owner of the farm for the raising of poultry. As

14 The growers’ combined investment probably exceeds that of 
the Company. A 1967 report issued by the U.S. Department of 
Agriculture stated that studies of broiler production in New Eng­
land showed that for an annual output of 19.76 million birds, the 
investment of the growers would be approximately 6.4 million 
dollars, v'hile the investment of the integrator (i.e., the poultry 
contractor) in its hatchery, feed mill and processing operation 
would be about 2.3 million dollars. Because of “the large invest­
ment required,” the report noted, “most integrators have not in­
vested greatly in growout operations.” U.S.D.A., Packers and 
Stockyards Administration, The Broiler Industry: An Economic 
Study of Structure, Practices and Problems (1967), p. 13 and Ap­
pendix 3. See also the description of grower investment in Ar­
kansas, id. at 14, n. 13.

98



23

the First Circuit noted in E lm  S p rin g  F arm  v. 
U nited S ta te s , supra, 127 F. 2d at 927:

[The company] might have become a producer 
by acquiring a farm and milk cows and going 
into the business of operating a dairy farm 
with the attendant risks of loss. “It chose to 
employ the scheme in question here. It con­
sidered it advantageous to avoid the risks of 
production and now must bear the burdens of 
a determination that other entities than itself 
are the producers.” G ray v. Pow ell, 1941, 314 
U.S. 402, 414, 62 S. Ct, 326, 86 L. Ed —.

The growers in the present case have significant 
risks of loss related to market shifts and to factors 
influencing the number and size of the chickens at 
maturity. Since the contracts between growers and the 
Company remain in effect only for such successive 
flocks “as may be placed by mutual agreement” (Pet. 
App. A-23), the Company is free to negotiate new 
terms, including the amount of the fixed fee, before 
placing a new flock. Thus, the rates negotiated will 
normally reflect market shifts in poultry prices; 
while the effects on the growers of market shifts may 
be delayed, they are not eliminated. See B. W. Marion 
and H. B. Arthur, D ynam ic Factors in  V ertical Com­
m odity  System s: A  Case S tu d y  o f the B ro iler  S ystem , 
(Ohio Agricultural Research and Development Center, 
1973), p. 44.

Although there is no specific contract condition re­
quiring that the full-grown chickens be acceptable to 
the Company, that omission does not mean that the 
Company bears the full risk of loss from factors af-

99



24

fecting the survival and weight of the chickens. A 
grower’s compensation includes, in addition to the 
square footage guarantee, a bonus payment based in 
part on the weight of the poultry raised to maturity; 
the compensation can be calculated only after a given 
flock has been weighed and taken to the processing- 
plant. Thus, the grower is necessarily affected by any­
thing which reduces the weight or number of chickens 
still alive at the end of the grow-out period.15

In short, although some risks have been shifted 
from the grower to the Company under the contract 
governing their relationship, the grower still is sub­
ject to the turns of fortune which have always af­
fected those who invest their capital in farmland 
and their labor in farming. Accordingly, the grower, 
and not the Company, remains the farmer for pur­
poses of the agricultural exemption.

15 The contract does guarantee the grower a prorated payment 
in the event of certain calamities (Pet. App. A-27):

“* * * the payment will be prorated on the basis of average 
mortality within a settlement, original flock density, and actual 
percentage salvaged when excessive bird losses resulted from:

“a) An act of God (including, but not limited to, fire, 
winds, snow, or flooding).

“b) OR, over 4% in excess of the average die as a result of 
lack of oxygen and/or heat exhaustion.”

While the grower thus receives at least some payment in these 
circumstances, it is obviously less than he would receive had all 
the chickens lived to maturity. In other words, the loss in such 
circumstances is shared by grower and contractor. This provision 
does not cover mortality resulting from poultry diseases; the Com­
pany’s general manager explained (A. 30-31) that, although the 
Company volunteered to absorb losses resulting from an epidemic 
of laryngotraeheitis occuring shortly before the Board hearing, 
it was not obligated to do so under the contract.

100



25
b. The other factors in the relationship between the growers and

the Company indicate the growers are independent farmers

Even if this Court were to conclude, contrary to the 
foregoing, that the risk of loss in the poultry-raising 
venture had been shifted to the Company, it would 
not necessarily follow that the Company was raising 
the poultry on the contract farms. Another important 
factor to be considered is the nature of the relation­
ship between the growers and the Company—whether 
the growers are the agents or employees of the Com­
pany rather than independent contractors. M itchell v. 
H untsv ille  W holesale N urseries, Inc ., supra, 267 P. 
2d at 291.

The Company (Br. 10) does not appear to be claim­
ing that the growers and their hired hands are its 
employees;16 it contends only that “[w]hether you 
define the relationship as an agency, subcontractor, or 
in substance as a lease by the company of the farm, 
equipment, and labor (A. 12), the elements of entre­
preneurship have been shifted by contractual agree­
ment from the farmer to the contractor company”.

Although the Company provides some supervision 
of the growers,17 the record shows that it is not the

16 Indeed, the agreements explicitly state that they are not (Pet.
App. A-28).

17 The contract provides that the grower will “follow instruc­
tions of the Bayside Supervisor in the care and management of 
Broiler, Roaster or Capon flocks” and will permit the Company’s 
personnel to enter “any facility pertinent to this contract at 
reasonable times” (Pet..App. A-26 to A-27). The Company also 
determines the composition of the feed supplied to the farms and 
the. scheduling of deliveries and provides certain disease-preven­
tion and other services.

1 0 1



26

kind of supervision generally associated with an em­
ployer-employee relationship. Thus, the Company’s 
general manager testified (A. 13) that the four field 
supervisors, or poultry servicemen, “called periodi­
cally on these farms on a routine basis or on a basis 
as the grower feels that he has a problem and needs 
their attention” (emphasis added). This suggests that 
some of the growers may encourage regular visits 
while others are content to call in the servicemen 
only in emergencies, such as conditions indicating the 
possible presence of disease. The existence of such 
supervision and auxiliary services has generally been 
held inadequate to show that the contractor is in 
fact engaged in farming.”

The legislative history of Section 203(a)(6) of the 
Fair Labor Standards Amendments of 1966, 80 Stat. 
833, 29 U.S.C. 213(a)(6) establishes that Congress, 
viewed growers for integrated poultry producers such 
as petitioners as independent contractors, and thus 
that the growers, not the integrated producers, are the

18 Waldo Rohnert Go. v. National Labor Relations Board, supra,. 
322 F. 2d at 4f (contractor “given right to and does supervise the 
planting, inspects the growing crops * * * (removing undesirable 
plants) and decides when to irrigate * * *, when to weed, spray 
and finally when to harvest”) ; Mitchell v. Huntsville Wholesale 
Nurseries, Inc., supra, 267 F. 2d at 289 n. 2 (the crops were “under 
[the contractor’s] supervision as to the best methods of planting, 
production, digging, grading, packing, and shipping”) ; Mitchell 
v. Hertzke, 234 F. 2d 183, 190 (C.A. 10) (contractor determined 
“time and conditions of the planting [of bean crops], the condi­
tions under which the beans w'ere to be raised,” and the time for 
harvesting). See also Parks v. Federal Crop Insurance Gorp.,. 
supra, 416 F. 2d at 835 (contractor agreed to furnish to corn grow­
ers “a man to supervise the planting of the seed”).

102



27

farmers for purposes of that Section. It strongly sug­
gests the same conclusion under the related Section 
3(f), 29 U.S.C. 203(f), involved here.

Section 203(a) exempts “any employee employed in 
agriculture” from the minimum wage provisions of 
the FLSA under certain conditions. In explaining the 
effect of this exemption on farmers who contract with 
integrated poultry producers, Senator Yarborough, 
the floor manager of the bill, confirmed his question­
er’s belief in the continued applicability of “the tra­
ditional tests that have heretofore been applied under 
the Act in determining whether an independent con­
tractor or an employee relationship exists” between 
the grower and the company, under which the 
grower—and not the company—was the agricultural 
employer affected by the exemption. Senator Yar­
borough specifically identified the tests involved as 
those contained in the committee report. (112 Cong. 
Ree. 20819-20820 (1966).)

That report, S. Rep. No. 1487, 89th Cong., 2d Sess. 
(1966), relies on R u th er fo rd  Food Corp. v. McCornb, 
331 U.S. 722, noting that “the total situation controls” 
in determining whether individuals are employees or 
independent contractors (S. Rep. No. 1487, supra, at 
11).19 The report (ib id .) lists the following factors,

19 This is consistent with the Board’s test for determining in­
dependent contractor status. See National Labor Relations Board 
v. United Insurance Co., 390 U.S. 254, 258; National Labor Rela­
tions Board v. Deaton, Inc., 502 F. 2d 1221, 1223-1224 (C.A. 5), 
certiorari denied, 422 U.S. 1047.

103



28

derived from R u th er fo rd  (331 U.S. at 730), to be 
considered:

(1) The extent to which the services rendered 
are an integi*al part of the principal’s business;

(2) The permanency of the relationship;
(3) The opportunities for profit or loss;
(4) The initiative, judgment, or foresight ex­

ercised by the one who performs the services;
(4) The amount of investments; and
(6) The degree of control which the principal 

has in the situation.
The fact that the legislative history of Section 203(a) 
identifies these factors as the “traditional tests” for 
distinguishing between employees of farmers and in­
dependent contractors is strong evidence that they 
were also intended to apply in making the same dis­
tinction under Section 3(f) of the same statute.

The first factor is, in a broad sense, a statement of 
the ultimate issue; but in the context of R u th er fo rd , 
where the individuals found to be employees were meat 
boners who “did a specialty job on the production 
line” in the employer’s slaughtering plant (331 U.S. 
at 730) it could be viewed as a factor weighing against 
employee status for the growers and their helpers. Al­
though the raising of the poultry is essential to the 
Company’s business and the supplies and services fur­
nished by the Company are necessary to the growers, 
the growers’ work is scarcely an integral part of the 
Company’s operation comparable to a single operation 
on an assembly line.

With respect to “ the permanency of the relation­
ship,” the contracts are in effect only for a particular

104



29

grow-out period of seven to nine weeks and may be 
extended only “by mutual agreement.” As shown (pp. 
21-24, supra ), the growers do have “opportunities for 
profit or loss” ; and insofar as their total compensa­
tion depends on their bonus payments, which are in 
turn dependent on how many pounds of poultry they 
have produed by the end of the grow-out period, it is 
incumbent upon them to exercise “ initiative, judg­
ment, or foresight.” Indeed, the Company’s General 
Manager testified (A. 31) that the contract ŵ as de­
signed so that “in a normal operating situation with 
normal mortalities, [a grower’s] income would be in­
fluenced by his capabilities.”

As already discussed, the growers have considerable 
amounts invested in the poultry raising, since they 
must furnish the farms, facilities, and labor.20 Finally, 
although the contract enables the Company to exer­
cise some supervision of operations, it is not the kind 
of close daily supervision over details of work which 
would be typical of an employer-employee relation­
ship (see pp. 25-26 supra ), and there is no evidence to 
suggest the Company has a voice in hiring or firing a 
grower’s farmhands. Thus, the degree of control main­
tained by the principal is not such as to deprive the 
growers of independent contractor status.

In the light of all of the circumstances, the growers 
are independent contractors, as the legislative history 
referred to above indicates Congress understood to be

20 In contrast, in Rutherford, supra, 331 U.S. at 725, the meat 
boner’s investment was limited to the cost of a hook on which to 
hang the meat, a knife, a knife sharpener, and a leather apron.

105



30

the case for typical contract growers in the broiler 
industry.
£. The Company's feed delivery operation is not a subordinate 

part of its fanning operations

Although the Company is not engaged in the raising 
of poultry on the contract farms, it does, as the Board 
found, engage in some farming operations coming 
within the primary branch of Section 3(f) of the 
FLSA.21 However, under the tests of M aneja  v. W ai-  
alua A gricu ltura l Co., L td ., supra, 349 U.S. at 264-265, 
the feed delivery operation is not “part of [the Com-

21 In discussing the Company’s character as a vertically inte­
grated poultry enterprise (Br. 10-19), the Company misconceives 
the Board's position and the reasoning of the court of appeals. 
Although the Board (Pet. App. A-18) found that “Bayside and 
Poultry Processing constitute a multifaceted organization whose 
enterprises and jourposes go far beyond the bounds of traditional 
farming,” it was not concerned, as the Company asserts (Br. 13), 
with the Company’s “motivation,” nor was it seeking, as the Com­
pany suggests (Br. 18-19), to place the entire organization “in 
the commerce column” or hold it to be entirely “non-agricultural.” 
Kather the Board found, and the court agreed, that the Company 
consists of a number of different operations, some of which are 
agricultural and some of which are not—in other words, the orga­
nization as a whole was not placed in any “column” (Pet. App. 
A-4, A-18). The Board further found, and the court agreed, that 
the feed mill and feed delivery operations were not among the 
Company’s farming operations and that they were not incident 
to any of the operations which were. In reaching that conclusion, 
it was appropriate, contrary to the Company’s assertion (Br. 19), 
to look at each of the Company’s components in order to determine 
the size of the nonfarming operations relative to that of the farm­
ing operations and to determine the relationship between the work 
of the employees in question and the farming operations. Maneja 
v. Waialua Agricultural Co., supra, 349 U.S. at 264-265.

106



31

pany’s] agricultural venture” and the Board prop­
erly found that feed truck drivers do not perform 
duties incident to that venture.

In W aialua, this Court held that, in determining 
whether a particular operation is incident to or in 
conjunction with farming, it is necessary to consider 
all of the facts, including the seven criteria develop­
ed by the Wage-Hour Administrator (349 IT.S. at 
264-265):

(a) The size of the ordinary farming opera- 
tions. * * *

(b) The type of product resulting from the 
operation in question. * * *

(c) The investment in the processing opera­
tion as opposed to the ordinary farming activi­
ties. * * *

(d) The time spent in processing and in 
ordinary farming. * * *

(e) The extent to which ordinary farmwork­
ers do processing. * * *

(f) The degree of separation by the em­
ployer between the various operations. * * *

(g) The degree of industrialization.
These criteria indicate that the operation of the

feed mill is not incidental to the Company’s farming 
operations, and that the feed delivery is incidental 
to the feed mill, and not the farming operations.

The ordinary farming operations of the Company 
are only a small part of its total enterprise. The Com­
pany owns and operates approximately six breeder 
farms and two hatcheries, a commercial hatchery and

107



32

a pedigree hatchery.22 There are no more than 80 
employees of these breeder farms and hatcheries, 
whereas the feed mill and processing plant employ 
more than 400 persons (A. 17, 60-62).23 Since less 
than twenty per cent of the Company’s workforce is 
engaged in actual farming operations, the Board 
(Pet. App. A-17) properly rejected the Company’s 
claim that its operations, in the aggregate, constituted 
farming.

Nor do the other factors specified in W aialua, 
supra, indicate that the processing of the feed is in­
cidental to the company’s agricultural operations. The 
feed mill operation is separate from the ordinary 
farming operations; the mill itself is leased from 
the company that built it (A. 26-27), and is evidently 
operated by employees who have no ordinary agricul-

22 The six breeder farms are connected to the pedigree hatchery. 
The record indicates (A. 11) that there are eleven farms associated 
with the commercial hatchery, but the Company apparently does 
not own them. The Company did not specifically except to the 
Administrative Law Judge’s finding that it owned and operated 
“two hatcheries and six primary breeding farms,” and it asserted 
in its fact statement filed with the Board (A. 67) that “Bayside 
itself owns approximately seven farms ([Tr.] 130, 30) all of which 
at the present time are being used for the parent-grandparent 
operation ([Tr.] 133-34).” In its brief to the court of appeals 
(p. 2), the Company mentioned only the hatcheries, the 110 con­
tract farms, and “six or seven company-owned farms (used for 
breeding).”

The Company’s Exhibit 5, a list of employees carried on the 
payroll of Bayside, the parent corporation (A. 60-62), has 80 
names, but they include those of the Company’s General Manager 
and the feed truck drivers and their dispatcher who, as shown 
below, have very little to do with the Company’s own farms.

108



33

tural duties (A. 18, 45).84 Its function is to transform 
purchased ingredients—some of them, such as drugs 
and soybean meal, already in a manufactured state— 
into a manufactured agricultural product in a variety 
of forms (A. 14-15, 70). The mill produces about 
120,000 tons of feed a year, and sells about a third 
of that to an unrelated company (A. 26). The produc­
tion of feed is thus a typical industrial operation. 
M aneja  v. W aiahta  A gricu ltu ra l Co., L td ., supra, 349 
U.S. at 264-265; M itchell v. B udd , 350 U.S. 473; 
481-482; H oltv ille  A l f a l f a  M ills v. W y a tt , 230 P. 2d 
398, 403 (C.A. 9).

The feed delivery is the final step in the feed pro­
duction process, and is thus incidental to the feed mill 
operation, not to the Company’s farming operations. 
The feed mill drivers have very little contact with the 
Company’s hatcheries and breeder farms. Most of the

24 Poultry farmers apparently ordinarily have not operated their 
own feed mills. A publication describing the Maine poultry in­
dustry during the 1960’s notes that, before 1963, “three-fourths of 
the manufactured feed was shipped in from out-of-state plants.” 
F. D. Reed, The Maine Poultry Industry: Its Impact, Growth 
and Competitive Position (Univ. of Maine, Cooperative Extension 
Service, Circular 394, Rev. July 1970), p. 9. Because of a change 
in rail rates in 1964 and because of “certain developments in mill­
ing technology,” it became more advantageous to use feed mills 
within the state, so that, as of December 31, 1969, approximately 
“85 to 90 percent of the feed” consumed by Maine poultry was 
manufactured in the state (id., Foreword and pp. 9-10). At this 
same time there were “13 commercial feed mills manufacturing 
poultry feeds” and only “a half-dozen small farm mills manu­
facturing feed for home use” (id. at 10), while there were then 
737 broiler farms in the state (id. at 11; see also Tr. 75-76).

109



34

feed deliveries to the breeder farms are made by 
drivers working for the KLF feed mill rather than by 
the Company’s drivers (A. 25). There is no exchange 
of duties between the feed truck drivers and the 
Company’s farm employees. Instead, the drivers’ 
duties in addition to loading their trucks and deliver­
ing feed to the contract farms are related solely to 
the feed mill operation; as shown (pp. 8-9, supra ), 
the drivers sometimes transport feed ingredients to 
the mill from places as distant as Gloucester, 
Massachusetts.

The drivers report to the mill for work and return 
there when deliveries are completed to wash down 
their trucks. See V ives  v. Serralles, 145 F. 2d 552, 
555 (C.A. 1); Calaf v. Gonzales, 127 F. 2d 934, 937 
(C.A. 1). They are supervised by a dispatcher at the 
mill, and, although the dispatcher consults with the 
Company’s broiler department manager—whose re­
sponsibilities include the supervision of the growers 
(A. 40-41)—regarding feed composition and schedul­
ing, the dispatcher’s “day-to-day” supervisor is, as he 
testified (A. 47), Merle Weymouth, the assistant 
manager of the feed mill, who is in charge of mixing 
the feed (A. 45, 47). Moreover, the undisputed 
testimony of a former Company feed truck driver 
shows that Weymouth hired and fired the drivers (A. 
52-53, 58-59).25

In sum, the Company’s farming operations consti­
tute only a small proportion of its total enterprise,

25 Although the drivers and the dispatcher were carried on the 
payroll of Bayside, the parent corporation (A. 60-62), Weymouth 
was identified as an employee of the subsidiary, Poultry Proc­
essing, which operated the mill (A. 32).

110



35

and the feed truck drivers do not perform work “inci­
dent to or in conjunction with” those operations, hut 
instead work in conjunction with the independent feed 
production operation. The delivery of feed to the con­
tract farms is not part of the Company’s “agricultural 
venture.”

C. T H E  DRIVERS DO N O T  PER FO R M  W O R K  O N  A F A R M  AS A N  IN C ID E N T

TO OR I N  C O N JU N C T IO N  W IT H  F A R M IN G  O PE R A T IO N S W IT H IN  T H E

M E A N IN G  O F T H E  FLSA  A G R IC U LT U R A L E X E M P T IO N

Neither petitioners nor the cases upon which they 
rely have suggested that the truck drivers’ work might 
be within the secondary branch of the definition of 
agriculture in Section 3(f) on the theory that it in­
volves “ practices * * * on a farm as an incident to,, 
or in conjunction with, such farming operations.” 
Although the drivers’ work requires them to spend 
some time daily on the growers’ farms, that fact does 
not suffice to bring them within this part of the defini­
tion. This is so because first, the work the drivers per­
form on the farm is not of the type contemplated by 
this part of the definition, and second, in any event,, 
the drivers are not “on the farm” for most of their 
working hours.26

26 At least one court in addition to the court below has evidently 
concluded that the requirement that the agricultural work must 
be incidental to the employer's farming operations {supra, p. 16) 
applies to work claimed to be exempt because performed “on a 
farm” as well as to that performed “by a farmer.” See National 
Labor Relations Board v. Olaa Sugar Company, 242 F. 2d 714T 
718 (C.A. #9) ; Pet. App. A-3.

I l l



36
1. The delivery of supplies is not work “on a farm” within the 

agricultural exemption

As this Court observed in F arm ers R eservo ir dc 
Irriga tion  Co. v. M cComb, supra, 337 U.S. at 767, 
the secondary branch of the definition of agriculture 
in Section 3(f) as originally proposed would have 
included only “practices * * * performed by a farmer 
as an incident to, or in conjunction with, such farm­
ing operations * * On an amendment offered by 
Senator McGill, the phrase “or on a farm” was in­
serted immediately following “by a farmer.” 81 Cong. 
Rec. 7888 (1937). The concern prompting the amend­
ment, as this Court noted (337 U.S. at 767), was that 
the definition of agriculture would otherwise not cover 
“the threshing of wheat or other functions necessary 
to the farmer if those functions were not performed 
by the farmer and his hands, but by separate com­
panies organised fo r  and devoted solely to tha t par­
ticular job” (emphasis supplied).27

27 The following colloquy, quoted by the Court, 337 U.S. at 7G7 
n. 16, took place between Senators Tydings and Borah (Senator 
Borah was a member of the Senate Committee on Education and 
Labor which reported out S. 2475, eventually enacted into law as 
the FLSA) :

“Mr. T ydings. * * * In the case I visualize * * * the farmer is 
not performing the service. The man to whom I refer makes a 
business of doing nothing but threshing. He owns his own ma­
chine, and hauls it from farm to farm, and enters into contracts 
with farmers to thresh their crops; the point being that while he 
is dealing with an agricultural commodity, he is not necessarily a 
farmer, and he is not doing work ordinarily done by a farmer.

“Mr. B oraii. lie is doing the exact work which the farmer did 
before he took it up.

“Mr. T ydings. That is true, but I do not think the bill is drawn

112



37

Thus, the practices performed “on a farm” to which 
the exemption was intended to refer are activities, 
such as threshing, performed substantially, if not en­
tirely, on a farm by employees of a company provid­
ing specialized agricultural services, and carried out 
as part of a traditional farming activity, such as har­
vesting. Accordingly, the Wage and Hour Division of 
the Department of Labor has issued the following 
interpretation of “employment in practices on farm” 
(29 C.F.R. 780.136) :

§ 780.136 Employment in practices o:n a farm.
Employees engaged in building terraces or 

threshing wheat and other grain, employees en­
gaged in the erection of silos and granaries, 
employees engaged in digging wells or building 
dams for farm ponds, employees engaged in 
inspecting and culling flocks of poultry, and 
pilots and flagmen engaged in the aerial dust­
ing and spraying of crops are examples of the 
types of employees of independent contractors 
who may be considered employed in practices 
performed “on a farm”. Whether such em­
ployees are engaged in “ agriculture” depends, 
of course, on whether the practices are per­
formed as an incident to or in conjunction with 
the farming operations on the particular farm, 
as discussed in §§ 780.141-780.147; that is, 
whether they are carried on as a part of the 
agricultural function or as a separately orga-

in sufficient detail to bring the man to whom I refer under its pro­
visions of exemption.” (81 Cong. Rec. 7653 (1937).)

See also the comments of Senator Bone, id. at 7659, and the 
colloquy between Senators McGill, George and Black, id. at 7888.

113



38

nized productive activity (§§780.104-780.144). 
Even though an employee may work on several 
farms during a workweek, he is regarded as em­
ployed “ on a farm” for the entire workweek 
if his work on each farm pertains solely to 
farming operations on that farm. The fact that 
a minor and incidental part of the work of such 
an employee occurs off the farm will not affect 
this conclusion. Thus, an employee may spend 
a small amount of time within the workweek 
in transporting necessary equipment for work 
to be done on farms. Field employees of a can- 
ner or processor of farm products who work 
on farms during the planting and growing sea­
son where they supervise the planting opera­
tions and consult with the grower on problems 
of cultivation are employed in practices per­
formed “on a farm” so long as such work is 
done entirely on farms save for an incidental 
amount of reporting to their employer’s plant. 
Other employees of the above employers em­
ployed away from the farm would not come 
within Section 3(f) . For example, airport em­
ployees such as mechanics, loaders, and officer 
workers employed by a crop dusting firm would 
not be agriculture employees [citations 
omitted].

The decisions on the status of activities allegedly 
•exempt by reason of being “practices performed on a 
farm” as an incident to farming operations have been 
consistent with this interpretation. See, e.g., B oyls  v. 
W irtz , 352 F. 2d 63 (C.A. 5) (pilot and flagman en­
gaged in aerial crop dusting within the exemption, 
but not their off-farm support personnel) ; H oltv ille

114



39

Al f a l f a  M ills v. W y a tt , supra, 230 F. 2d at 402- 
403 (remanded on theory that transportation of 
chopped alfalfa from field to mill by drivers who did 
not handle product at mill but returned immediately 
to field with empty trucks would be exempt as on-the- 
farm activity only if factual findings showed that 
transportation was actually a continuous part of 
harvesting) ; T ip to n  v. Associated M ilk  Producers, 
Inc., 398 F. Supp. 743 (N.D. Tex.) (employees who 
installed and repaired milk cooling equipment on 
farms are within the exemption where off-farm work 
was only occasional, minor, and incidental). But see 
W ir t2 v. Osceola F arm s Co., 372 F. 2d 584, 589 (C.A. 
5) (exemption applied to drivers employed by sugar 
mill to transport farm laborers to farm of inde­
pendent growers and to bring meals to the laborers 
during harvesting).

By contrast to the types of activities exempt under 
the principles set forth above, the delivery of sup­
plies such as poultry feed to a farmer is essentially 
the final phase of the operation by which supplies are 
produced and distributed, rather than an incident 
of the poultry-feeding process.28 This distinction is

28 The situation might be different if, for example, the drivers 
had significant responsibilities for the care of the chickens or even 
for assuring the proper operation of the feeding equipment. In­
stead, although they take certain precautions on the farms to avoid 
spreading disease or spoiling the feed, they have no direct contact 
with the poultry and are no more involved in actual farm activities 
than truck drivers who took care to avoid causing fires when 
delivering crude oil to oil refineries would be involved in oil 
refining.

115



40

reflected in the language of Section 3(f) . In defining 
the practices included in the secondary branch of 
agriculture, Congress specifically identified “delivery 
to storage or to market or to carriers for transpor­
tation to market.” Such deliveries of farm products 
are the final phase of the agricultural venture. On 
the other hand, the delivery of supplies to the farm 
is the final phase of their production. And the 
off-farm production of such supplies is a separately 
organized nonagricultural function, even when the 
supplies are essential to farming.29 Their distribution 
to farms is hardly akin to wheat threshing, even if a 
portion of the activity takes place on the farm.

Thus, in Johnston  v. C otton P roducers A ssn ., 244 
F. 2d 553 (C.A. 5), in which the employee in ques­
tion worked for an organization which, like the Com­
pany, placed its chicks on contract growers’ farms to 
be raised into broilers, the court held (id . at 555) 
that the empolyee’s work in supervising the growing 
of the chicks and catching and cooping them for 
market was, to the extent done on the farms, within 
the agricultural exemption of the FLSA. However, 
the same employee’s work in “hauling a load of fer­
tilizer from the car in which it wTas shipped from 
outside the state to a farmer customer” was “in con­
nection with and incidental to a retail sale” (ib id .) and

28 See, e.ff., Wirtz v. Ti Ti Peat Ilumus Go., 373 F. 2d 209, 213 
(C.A. 4), certiorari denied, 389 U.S. 834 (production of peat moss 
used as a soil conditioner and fertilizer) ; McConnb v. Super-A 
Fertilizer Works, Inc., 165 F. 2d 824, 828 (C.A, 1) (production 
of fertilizer), cited with approval in Farmers Reservoir & Irriga­
tion Co. v. McCornb, supra, 337 U.S. at 761.

116



41

thus within the retail establishment exemption, not 
the agricultural exemption, of the FLSA. In the pres­
ent ease, there is no formal retail sale of poultry feed 
because the feed cost is simply figured into the form­
ula by which the grower’s total compensation is cal­
culated; nevertheless, the Board’s finding (Pet. App. 
A-19) that the delivery of the feed was incident to 
the feed milling operation is analogous to the finding 
in Johnston  that the delivery was incident to the sale.

Nor is F arm ers R eservo ir &, Irrig a tio n  Co. v. Mc- 
Comb, supra, authority for the view that a simple 
supply function, like the feed mill drivers’, is within 
the agricultural exemption. There this Court indicated 
(337 U.S. at 766) that the work of employees of a 
company that collects, stores and distributes irrigation 
water would be exempt as “a practice performed as an 
incident to or in conjunction with farming” if per­
formed by a farmer or on a farm. This is because 
irrigation of the farm itself, as opposed to simply 
delivering water to floodgates at the edges of the farm, 
would result in the actual watering of crops.80 The 
exemption of the irrigation workers would not follow 
because, like the truck drivers here, they simply de­
livered supplies to the farm. The fact that the truck 
drivers, unlike the irrigation workers, must enter the

3<> The Court emphasized this distinction in concluding that the. 
irrigation workers were not farmers: “the responsibility of the 
company’s employees ceases when they so release the water. The 
water is supplied to the farmer at the head gates and he takes it 
over there and uses it, in his own laterals as he sees fit, to irrigate 
his crops” (id. at 763).

117



42

farm in order to make their deliveries, does not suffice 
to bring the basic delivery function within the exemp­
tion.

2. The drivers work is not substantially 'performed “on a farm”

Even if the truck drivers’ deliveries to the growers 
are considered to be incidental to the growers’ farm­
ing operations, the drivers are not working “on the 
farm” in any substantial sense. Their on-farm work 
is instead simply incidental to their main job, both 
in terms of importance and of the time consumed. 
They are drivers, not feed bin loaders—their primary 
function is to transport the feed to the growers, and 
that function cannot be performed on a farm. See 
29 C.F.R. 780.134.31 Moreover, they are physically 
on a farm for only one-half to one hour at a time, 
or a total of one and a half to four hours out of the 
usual nine-hour work day (A. 21, 54, 57-58). Thus, 
most of their work time is not spent on a farm, and 
is not within the agricultural exemption.

Originally, the Board declined to assert jurisdiction 
over employees who regularly spend part of their 
time in agricultural work. See C linton Foods, Inc., 
108 NLRB 85; N ational Labor R ela tions B oard  v. 
Olaa Sugar Com pany, supra, 242 F. 2d at 71,9-721.

31 In contrast, in Wirtz v. Lyon Flying Service, 16 WH Cases 
414 (W.D. La.), the agricultural exemption applied to employees 
of a crop dusting company who drove with fertilizers and insecti­
cides from the company office to farms where they spent the day 
loading the crop dusting planes, returning to the office at the end 
of the day to wa-sh their trucks. In that case, the employees were 
loaders, not drivers; their on-farm work was more significant than 
their transportation responsibilities.

118



43

The Board has, however, formally abandoned the 
C linton Foods doctrine, and now follows the rule 
that the National Labor Relations Act covers em­
ployees who regularly perform non-agricultural work, 
in addition to some agricultural work. I I . A . R id er  &  
Sons, 117 NLRB 517; Olaa Sugar Com pany, 118 
NLRB 1442, 1443 (on remand from N ational Labor  
R ela tions B oard  v. Olaa Sugar, su p ra ).32 This rule 
was disapproved in N ational Labor R elations B oard  v. 
K e lly  B ro thers N urseries, Inc., 341 F. 2d 433 (C.A. 2) 
when applied to bring within the coverage of the Act 
employees spending more than eighty-five percent of 
their time in agricultural work. But the court empha­
sized the soundness of a rule which would cover 
employees whose work was substantially non-agricul­
tural.

In K elly  B ro thers, the objection was simply that 
the “small proportions (of non-agricultural work) 
are inadequate to tip the scales in favor of bringing 
these men, who would be regarded as farmers on any 
realistic view, within the National Labor Relations

32 It is settled that the exemptions to the Fair Labor Standards 
Act, including the agricultural exemption, are not applicable if 
the workweek includes any nonexempt work at all. Thus, Mitchell 
v. Hunt, 263 F. 2d 913 (C.A. 5) held that the FSLA applied to 
all work of empoyees who worked in admittedly exempt farming 
operations every day of the wreek, but worked at the farmer’s auc­
tion barn on Saturday, where he sold livestock of other farmers as 
well as his own. Accord, Hodgson v. Wittenburg, 464 F. 2d 1219, 
1220-21 (C.A. 5); HearnsVerger v. Gillespie, 435 F. 2d 926, 930 
(C.A. 8); Wirtz v. Von Carstedt, 362 F. 2d 67, 69-70 (C.A, 9); 
Tobin v. Blw Channel Corp., 198 F. 2d 245, 248 (C.A. 4) ; 1Vabash 
Radio Corp. v. Walling, 162 F. 2d 391, 394 (C.A. 6) ; 29 C.F.E. 
780.11.

119



44

Act'-’ {id. at 439) A Here the converse situation exists: 
the small proportions of their agricultural work are 
inadequate to bring the feed truck drivers, who would 
not be regarded as farmers on any realistic view, 
within the agricultural exemption to the Act.

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
R obert H . B okk,

Solic itor General.
J ohn S. I rving,

General Counsel,
J ohn E. H iggins, Jr.,

D epu ty  General Counsel,
Carl L. T aylor,

Associate General Counsel,
N orton J .  Come,

D ep u ty  Associate General Counsel,
E linor H adley Stillman,

A tto rney .
N ational Labor R elations Board.

September 1976.

33 Recent Board decisions involving the mixed work rule are 
essentially consistent with this reasoning. See, e.g., Aquaculture 
Research Coi'p., 215 NLRB No. 1, 87 LRRM 1496 (jurisdiction 
asserted where agricultural and nonagricultural work intermixed 
and nonagricultural work was substantial); Light's Tree Go., 194 
NLRB 229 (jurisdiction not asserted where ninety per cent of total 
worktime was spent in agricultural work).

120



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM , 1976

No. 75-1267

BAYSIDE ENTERPRISES, INC., et al„ 
Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD.

On Writ of Certiorari to the United States Court of Appeals 
for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE OF GEORGIA 

POULTRY FEDERATION, INC.

Of Counsel
ALSTON, M ILLER & GAINES

MICHAEL A. DOYLE 
FREDERICK H. VON UNWERTH 

1200 Citizens and Southern National 
Bank Building 

Atlanta, Georgia 30303 
Counsel for Georgia Poultry 

Federation, Inc.

November, 1976

121



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM , 1976

No. 75-1267

BAYSIDE ENTERPRISES, INC., et ai„ 
Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD.

On Writ of Certiorari to the United States Court of Appeals 
for the First Circuit

MOTION FOR LEAVE  TO FILE BRIEF AMICUS CURIAE 
OF GEORGIA POULTRY FEDERATION, INC.

Georgia Poultry Federation, Inc. hereby respectfully moves 
for leave to file the attached brief amicus curiae in this case. 
The consent of the attorney for the Petitioner has been obtained. 
Counsel has been advised that the Solicitor General, as attorney 
for the Respondent, will not oppose the filing of the brief if filed 
sufficiently prior to oral argument.

123



11

The interest of the Georgia Poultry Federation in this case 
arises from the fact that it is an association whose membership 
includes all integrated poultry producers in the State of Geor­
gia, each of whom will be substantially affected by the ruling 
in this case. Like the Petitioners herein, these members of the 
Georgia Poultry Federation are companies engaged in the pro­
duction of poultry who use contract growers during the growout 
phase of production, but who generally own the poultry through­
out all stages of production, supply the initiative for and major 
investment in the production, and make all the important de­
cisions with respect to both production and marketing of the 
agricultural product. These integrated producers thus perform 
the critical functions and face the traditional risks which are 
inherent in the role of the farmer producing an agricultural 
product.

The qualification of integrated poultry producers as agri­
cultural producers entitled to the special consideration afforded 
by Congress to such producers under a supportive national agri­
culture policy implemented by a comprehensive statutory 
scheme, including the labor exemption at issue here, is a matter 
of paramount importance to all poultry producers. It is likely 
that the decision in this case will control the application of 
agricultural exemptions to integrated poultry producers in a 
variety of contexts, including federal and state taxation and anti­
trust laws in addition to the Fair Labor Standards Act and the 
National Labor Relations Act.

The character of integrated poultry production operations as 
“agriculture” and “farming” has been recognized and affirmed 
repeatedly by the Fifth, Eighth, and Ninth Circuits. This case 
offers the Court an opportunity to make the practical reasoning 
of those circuits binding and conclusive in all areas where 
poultry is produced in the United States.

The Petitioners have relied upon a distinction between a “pri­
mary” and “secondary” meaning of agriculture drawn by the

124



iii

Court below from this Court’s decision in Farmers Reservoir 
& Irrigation Co. v. McComb, 337 U.S. 755 (1949), and have 
limited their argument before this Court to a contention that 
Bayside and its employees fall only within the “secondary 
branch of farming”. (Pet. Br. at 6). It is believed that Bayside 
and other integrated poultry producers fall within the “primary” 
meaning of agriculture as this Court intended the definition to 
be read, and the attached brief which amicus curiae is request­
ing permission to file develops this argument for the Court’s con­
sideration. The “primary” definition argument offered by ami­
cus curiae, which is not otherwise developed in briefs before 
the Court, would be dispositive of this case if accepted.

Respectfully submitted,

MICHAEL A. DOYLE 
FREDERICK H. VON UNWERTH 

1200 Citizens and Southern 
National Bank Building 

35 Broad Street
Atlanta, Georgia 30303 

Counsel for Georgia Poultry- 
Federation, Inc.

125



V

INDEX

Page

Interest of the Amicus Curiae........................................ 1

Argument .......................................................................  3
A. Poultry “farming” today is carried on almost ex­

clusively by integrated producers who own the birds, 
initiate and direct production, and bear the risks of 
production and marketing ..............   3

B. Integrated broiler producers such as Bayside are 
engaged in “agriculture” in its primary meaning—
“The raising of poultry” .....................................  5

Conclusion ....................................................................  11

CITATIONS

Cases

Abbott Farms, Inc. v. National Labor Relations Board, 487
1 .2d 904 ..................................................................  6, 9

Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S.
775 ............................................................................  5

Garth, 56 T.C. 6 1 0 ........................................................  9

Maple Leaf Farms, Inc., 64 T.C. 438 .............................  9
McElrath Poultry Co., Inc., 206 NLRB 354 enforcement 

denied, 494 F.2d 518 ................................................. 6, 9

National Labor Relations Board v. Ryckebosch, Inc., 471 
F.2d 20 ............................... ................................. .6, 8, 9

127



VI

National Labor Relations Board v. Strain Poultry Farms,
Inc., 405 F.2d 1025 .....................................6, 7, 8, 9, 10

Nix v. Farmers’ Mutual Exchange of Calhoun, Inc., 218 
F.2d 642 ....................................................................  6

United States v. Chemell, 243 F,2d 944 .........................  6, 9

Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 .................  6

Statutes and Regulations

Fair Labor Standards Act of 1938, Section 3(f), 52 Stat.
1060, as amended, 29 U.S.C. 203 (f) ......................... 3, 5, 7

National Labor Relations Act, Section 2(3), as amended 
(61 Stat. 136, 73 Stat. 519, 29 U.S.C. 152(3)).............  7

128



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM , 1976

No. 75-1267

BAYSIDE ENTERPRISES, INC., et al„ 
Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD.

On Writ of Certiorari to the United States Court of Appeals 
for the First Circuit

BRIEF AMICUS CURIAE OF 
GEORGIA POULTRY FEDERATION, INC.

INTEREST OF THE AMICUS CURIAE

The Georgia Poultry Federation includes in its membership 
all integrated producers of broilers, eggs and turkeys in Georgia. 
Georgia is the poultry capital of the world, leading all states in 
total income from poultry and poultry products.

129



2

The integrated poultry producers who are members of the 
Georgia Poultry Federation have a vital interest in the decision 
of this case for two reasons: (a) it will directly affect the right 
of all of them to claim the specific exemption at issue here, and 
(b) the decision in this case is likely to control indirectly the 
application of agricultural exemptions to integrated poultry 
producers in a variety of contexts, including federal and state 
taxation and antitrust, in addition to imposing upon them the 
broad requirements of the Fair Labor Standards Act and the 
National Labor Relations Act.

130



3

ARGUMENT

A. Poultry “Farming” Today Is Carried on Almost Exclu­
sively by Integrated Producers Who Own the Birds, Initiate 
and Direct Production, and Bear the Risks of Production and 
Marketing.

The question of overriding general importance presented by 
this case is whether or not integrated poultry production as it is 
carried on today is “farming” or “agriculture”. The techniques 
and organization of the poultry system are unique in agricultural 
production, and their uniqueness poses certain analytical prob­
lems in statutory application. Nevertheless, there can be no 
doubt that the result is an agricultural product, and the inte­
grated poultry producer faces the same agricultural risks and 
problems which gave rise to the congressional concern for farm­
ers underlying the creation of a comprehensive statutory scheme 
of protection for agricultural producers.

“Agriculture”, in the terms of Fair Labor Standards Act Sec­
tion 3(f), 29 U.S.C. 203(f), includes “farming in all its branches,” 
including “the raising of . . . poultry.” If what integrated 
poultry producers do is “farming”, then they are exempt from 
a variety of requirements imposed generally upon employers un­
der the Fair Labor Standards Act and the National Labor Rela­
tions Act.

Poultry “farming” today involves several stages and opera­
tions. For broiler chickens such as Bayside produces, it includes 
(a) the placement, raising and breeding of breeder flocks to pro­
duce eggs for hatching as broiler chicks, (b) the hatching of these 
eggs and the placement of the chicks for growout to maturity, 
(c) the growing of the broiler chicks to the age of maturity, (d) 
the catching, cooping and hauling of the grown-out birds to 
processing facilities, and (e) the operation of facilities to process 
and prepare the broilers for market.

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In the present day broiler system, all or most of these opera­
tions are carried on by integrated producers through various 
kinds of employees and, during the growout stage, contract 
growers. The integrated producer provides the initiative for 
production in the first instance, directs the production operations 
in all phases, supplies inputs accounting for more than 90% of 
the production costs, makes all important production and market­
ing decisions, and bears the risk of being unable to market the 
agricultural product at a price adequate to cover the production 
and marketing costs.

During the growout phase, where contract growers are em­
ployed to house and care for the birds until they reach maturity, 
ownership of the birds remains in the integrators. In addition 
to owning the birds, the integrated producers choose the breed 
or type of broiler to be produced and make all decisions with 
respect to the number and timing of chick placements; supply 
the feed and make all decisions with regard to diet and type of 
feed; supply the medicines, vaccines and other health supplies 
for the birds; supply all veterinary services during the growout 
period; transport the chickens and feed to the growers, and 
transport the grown-out chickens from the growers to the 
processing plants; provide the equipment and some or all of the 
labor for catching, cooping and loading the live birds; and make 
all decisions with regard to the age and size at which the birds 
shall be marketed. Fieldmen or supervisors employed by the 
integrators provide supervision of the growout operation to assure 
that the grower is properly feeding, watering and otherwise 
caring for the producer’s birds.

Having initiated, paid for and directed the production of 
broilers, the integrated producer must then market his product in 
a typical agricultural market. There is no live market for broilers 
today, and broilers are marketed in fresh, ready-to-cook form by 
the integrated producers. The product is highly perishable, and 
once production is committed, the integrator must either sell his

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5

product or destroy it. Pricing is characterized by volatility and 
instability, a characteristic which is harmful to producers and 
consumers alike, and the product is distributed through middle­
men intervening between the integrator and the consumer. In­
tegrated broiler producers are scattered and largely uninformed 
with respect to inventories and demand, and the market is con­
sequently highly susceptible to over-production. The demand 
for broilers is seasonal and cyclical, the market price fluctuates 
weekly and sometimes hourly, and the market is dominated by 
concentrated buyers. It is apparent from all of this that integrated 
broiler producers occupy the traditional role of “farmers” in 
producing and marketing an agricultural product.

B. Integrated Broiler Producers Such as Bayside Are En­
gaged in “Agriculture” in Its Primary Meaning—“The Raising 
of . . , Poultry.”

The decision of the First Circuit Court of Appeals below was 
based on a misreading of this Court’s decision in Farmers Reser­
voir & Irrigation Co. v. McComb, 337 U.S. 755 (1949). In 
Farmers Irrigation Co., this Court indeed observed that the sec­
tion 3(f) definition of “agriculture” has two branches. “Farm­
ing in all its branches” was said to be the “primary meaning”, 
and “practices performed either by a farmer or on a farm” fell 
within the “broader meaning” of agriculture. Id. at 762, 763. 
The Farmers Irrigation Company was organized solely to supply 
irrigation water to farmers, and it produced no product of its own 
at all, unless irrigation water is considered a product. Thus 
this Court observed that the Company for whose employees the 
exemption was claimed “owns no farms and raises no crops . 
Id. at 763. As the Court further noted: “The ditch company, 
then, is not engaged in cultivating or tilling the soil or in grow­
ing any agricultural commodity”. Id. at 764. It is obvious there­
fore that the employer in Farmers Irrigation Co. was not 
“farming” in any branch, and the Court relied on the character

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of the employer’s activity to determine that its employees were 
not employed in agriculture under the “primary meaning” of 
the word.

Just the opposite is true with the Petitioner here and with all 
integrated poultry producers. Bayside is engaged in “growing 
an agricultural commodity”—fresh dressed broilers—as its 
principal and overriding function. All of its activities, from 
breeder farm to processing and marketing, are a part of its main 
business activity of producing and marketing broilers. The 
entire investment and effort of the integrated broiler producer 
are devoted principally to “agriculture” in one of its important 
branches—“the raising of . . . poultry”. To hold otherwise is 
to ignore the purpose of the integrated operation entirely.

This practical reasoning underlies the view held by the Fifth,1 
Eighth2 and Ninth3 Circuits, which is directly contrary to the 
holding of the First Circuit in this case. In the Tyson’s Poultry 
case, the Eighth Circuit held that employees who worked in an 
egg assembly plant operated by an integrated egg producing firm 
were “employed in agriculture” and thus exempt from the Fair 
Labor Standards Act. The appellees in Tyson's Poultry, Inc. 
(whose assembly plant employees were the workers involved), 
Poultry Growers, Inc., an affiliated corporation which produced 
eggs through contract growers similar to Bayside's broiler grow­
ers, a parent corporation which owned all the stock of the first

1 McElrath Poultry Co., Inc. v. National Labor Relations Board, 
494 F.2d 518 (5th Cir. 1974); Abbott Farms, Inc. v. National Labor 
Relations Board, 487 F.2d 904 (5th Cir. 1973); National Labor 
Relations Board v. Strain Poultry Farms, Inc., 405 F.2d 1025 (5th 
Cir. 1969); United States v. Chemell, 243 F.2d 944 (5th Cir. 1957); 
Nix v. Farmers’ Mutual Exchange of Calhoun, Inc., 218 F.2d 642 
(5th Cir. 1955).

2 Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 (8th Cir. 1966).

3 National Labor Relations Board v. Victor Ryckebosch, Inc., 
471 F.2d 20 (9th Cir. 1972).

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two, and an individual who was president of all three corpora­
tions. The Eighth Circuit held as follows:

“We are here concerned with a single and completely 
integrated farming operation carried on and headed up by 
appellees through their affiliated corporation, Poultry Grow­
ers, Inc. As found by the District Court, the appellees are 
farmers and are the ones who initiated the farming opera­
tions here involved. Without appellees the independent 
growers arguably would never have undertaken the initial 
and continuing cost of acquiring the birds and producing 
the eggs. The contract growers merely aid the appellees, 
who the District Court found to be the ones qualified to 
claim the agricultural exemption under the Act as to their 
employees engaged in the ‘handling, cooling, grading, can­
dling and packing’ of eggs.” 355 F.2d at 258.

The Fifth Circuit’s decision in Strain Poultry Farms, Inc. is 
directly in point, and directly contrary to the decision of the 
Court of Appeals in this case. Strain was an integrated broiler 
producer, and the National Labor Relations Board found Strain 
guilty of unfair labor practices under the National Labor Rela­
tions Act. The NLRB petitioned for an enforcement order, and 
the Fifth Circuit denied enforcement on the ground that the 
employees involved—truck drivers employed by Strain to haul 
live chickens to processing plants—were “agricultural em­
ployees” within the meaning of 29 U.S.C. 152(3) (NLRA Sec­
tion 2(3)) and 29 U.S.C. 203(0 (FLSA Section 3(f)). In 
Strain, as in this case, the integrated producer employed inde­
pendent contract growers during the growout phase of broiler 
production.

The Board in Strain argued that the broilers were “the results 
of someone else’s farming efforts—the independent growers,” 
contending that the fact that Strain used independent growers 
destroyed its claim to having raised the birds. 405 F.2d at

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1030. After carefully analyzing the applicable law and the form 
and function of Strain's integrated operation, the Court con­
cluded as follows:

“In summary, the Board’s finding that the employees 
were not agricultural employees can only be sustained if re­
spondent’s arrangement with the independent growers is 
viewed as removing it from the primary definition of agri­
culture pertinent here, ‘the raising of poultry’. Since we have 
concluded that this is not the case, there was no warrant in 
the record or a reasonable basis in law for the Board’s con­
clusion that the employees were not ‘agricultural laborers 
within the meaning of Section 2(3) of the NLRA.’” Id. 
at 1033.

As was the case with the delivery truck drivers in Strain, the 
activities of the feedtruck drivers in this case are not only inci­
dental but are absolutely essential to the integrated poultry­
raising operation here. These drivers deliver the feed rations— 
specified and mixed by Bayside—to Bayside’s broiler chickens 
housed in the contract growers’ facilities. They are delivering 
Bayside’s feed to Bayside’s birds during the growout process. 
Delivering the feed to the birds is clearly an essential part of the 
integrated poultry-raising operation. This was the conclusion of 
the Fifth Circuit in Strain'.

“Furthermore, the trucking activities were part of Strain’s 
poultry-raising venture. They were performed incident to 
or in conjunction with Strain’s poultry-raising operations 
and Strain was not a poultry raiser conducting a trucking 
operation on the side. The trucking operation was a part 
of an integrated poultry-raising operation and, although 
unlike poultry farms of the past, it is today a typical broiler 
raising operation.” Id. at 1032.

The reasoning of Strain was adopted, on “substantially iden­
tical” facts, by the Ninth Circuit in NLRB v. Victor Rycke-



9 —

bosch, Inc., 471 F.2d 20 (9th Cir. 1972). In Ryckebosch, the 
integrator also owned and operated a processing plant. See 
Victor Ryckebosch, Inc., 189 NLRB 40, 41-42. The Strain 
reasoning has been reaffirmed twice more by the Fifth Circuit 
in recent years. Abbott Farms. Inc., and McElrath Poultry Co., 
supra, p. 5, n. 1.

The same recognition of the realities of modern broiler pro­
duction and its “farming” character underlies a number of deci­
sions allowing integrated poultry producers to take advantage 
of various provisions of the Internal Revenue Code available 
only to “farmers”. See United States v. Chemell, 243 F.2d 944 
(5th Cir. 1957); Maple Leaf Farms, Inc., 64 T.C. 438 (1975); 
Garth, 56 T.C. 610 (1971).

Respondent has made a point of arguing that contract growers 
bear some risks of loss in connection with the poultry raising 
operations at issue here. The Brief cites studies which indicate 
that growers make a sizable investment in land, poultry housing 
facilities, and related equipment. (Respondent’s Br. 22, n. 14). 
What the Respondent fails to mention is that the integrated 
broiler producers supply the birds themselves and inputs which 
together account for more than 90% of the cost per pound of 
producing broilers on an operating basis, including feed which 
accounts for more than half the total cost of producing broilers. 
Moreover, the growers are guaranteed a return for their labor 
and facilities, while the integrated producer must find a buyer 
for the agricultural product in the open market if he is to re­
cover for his efforts and investment.

It is true that growers bear some risks during the growout 
phase ot broiler production. Nevertheless, there is nothing in 
the law to suggest that a farmer must bear 100% of the risk 
of producing and marketing his product in order to engage in 
“agriculture” or “farming”. With the variety of crop mortgage 
financing available to farmers today, shared risk is more the

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rule than the exception in modem farming. Moreover, the Fifth 
Circuit in Strain was not at all bothered by the fact that the 
poultry raising was “shared” with independent growers:

“As in all the other cases cited by the Board on this 
point, the distinction between those situations and the 
present one is that these birds belonged to the respondent 
and, although the raising of them was shared with inde­
pendent growers, Strain’s activities were more nearly that 
of one engaged in the ‘raising of . . . poultry’ than that 
of a purchaser, jobber, etc.” 405 F.2d at 1033.

There is no reason to conclude that contract growers, just be­
cause they may share some of the functions and some of the 
risks of poultry raising, are the only persons engaged in “agri­
culture”.

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CONCLUSION

Integrated poultry operations are organized and operated for 
one purpose: the production and marketing of broilers. As 
the Strain court observed of the integrated broiler producing 
operations before it, “although unlike poultry farms of the past, 
it is today a typical broiler raising operation”. Integrated broiler 
production is within the “primary” definition of agriculture, 
and Bayside’s feed truck drivers, who deliver the rations mixed 
and supplied by Bayside to the location where Bayside’s broiler 
chickens are housed, are clearly essential to Bayside’s integrated 
poultry raising operation. For this reason, the drivers are “agri­
cultural laborers” within the meaning of the exemption, and the 
judgment of the Court of Appeals should be reversed.

Respectfully submitted,

MICHAEL A. DOYLE 
FREDERICK H. VON UNWERTH 

1200 Citizens and Southern 
National Bank Building 

35 Broad Street
Atlanta, Georgia 30303 

Counsel for Georgia Poultry Federation, Inc.

November, 1976

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